Adams By and Through Adams v. Fred's Dollar Store of Batesville

• Decision Date: 15 October 1986
• Docket Number: No. 55837,55837
• Citation: 497 So.2d 1097
• Parties: Melinda Sue ADAMS, A Minor By and Through Her Mother and Next Friend, Betty Sue ADAMS v. FRED'S DOLLAR STORE OF BATESVILLE, F.W. Loden and James P. Loden, Individually and d/b/a Loden Partnership.
• Court: Mississippi Supreme Court

Page 1097

497 So.2d 1097

Melinda Sue ADAMS, A Minor By and Through Her Mother and Next Friend, Betty Sue ADAMS v. FRED'S DOLLAR STORE OF BATESVILLE, F.W. Loden and James P Loden, Individually and d/b/a Loden Partnership.

No. 55837.

Supreme Court of Mississippi.

Oct. 15, 1986.

Rehearing Denied Dec. 10, 1986.

Larry O. Lewis, Jimmy Miller, Marks, William O. Luckett, Jr., Clarksdale, for appellant.

L.F. Sams, Jr., Michael D. Greer, Mitchell, McNutt, Bush, Lagrone & Sams, Tupelo, Jack F. Dunbar, Michael N. Watts, Holcomb, Dunbar, Connell, Chaffin & Willard, Oxford, P.K. Bramlett, Buck, Baker & Bramlett, Nashville, Tenn., for appellee.

Before ROY NOBLE LEE, P.J., and DAN M. LEE and PRATHER, JJ.

DAN M. LEE, Justice, for the Court:

Plaintiff appeals from an order of the Circuit Court of Panola County granting summary judgment in favor of defendants Fred's Dollar Store of Batesville and the Lodens individually and doing business as Melinda Sue Adams, by and through her next friend, brought suit September 13, 1983, seeking $2,576,546.14 in actual and $1,000,000.00 in punitive damages as a result of injuries she received when the car she was driving struck a concrete block located in the East Gate Shopping Center in Batesville, Mississippi. She alleged that as a result of the collision she received permanent damage to her larynx and resulting harm, and she alleged special damages in the form of medical bills.

Loden Partnership. For reasons hereinafter discussed, we affirm.

The trial court found there was no material issue of fact concerning Melinda Sue Adams' status as that of a trespasser and that the corresponding duty owed Adams was not breached. The trial court entered summary judgment in favor of the defendants July 18, 1984.

Melinda Sue Adams appeals assigning five errors. However, here she only argues three points:

I.

THE COURT ERRED IN ITS FINDING THAT THERE WAS NO MATERIAL ISSUE OF FACT AS TO THE STATUS OF PLAINTIFF AS TRESPASSER UPON DEFENDANTS PROPERTY AT THE TIME OF THE ACCIDENT.

II.

UNDER THE CIRCUMSTANCES, THE CONCRETE PIER UPON THE DEFENDANTS' UNLIT PARKING LOT CONSTITUTED A "TRAP" OR "HIDDEN PERIL" AND WAS NOT AN OPEN OR OBVIOUS DANGER.

III.

THE COURT SHOULD ABANDON THE RIGID COMMON LAW DISTINCTIONS MADE BETWEEN "INVITEES" AND "LICENSEES" AND RECOGNIZE A DUTY OF REASONABLE CARE WHICH THE POSSESSOR OF LAND OWES TO ALL LAWFUL VISITORS.

Appellee Fred's Dollar Store cross-assigns as error:

IN THE ALTERNATIVE, THE CIRCUIT JUDGE SHOULD HAVE SUSTAINED APPELLEE FRED'S MOTION FOR SUMMARY JUDGMENT ON THE BASIS THAT FRED'S HAD NO OWNERSHIP OR LEASEHOLD INTEREST IN THE PARKING AREA WHERE THE ACCIDENT OCCURRED.

STATEMENT OF THE FACTS

Summary judgment was granted based largely on facts developed in depositions given by Melinda Sue Adams, defendant F. W. Loden, III and Melinda's friend Brenda Williams.

Melinda Sue Adams stated in her deposition that she left home about 8:30 p.m. on May 29, 1982, and drove to the First United Pentecostal Church in Batesville to pick up her friend, Brenda Williams. They were going to drive around town. They made a couple of stops and spoke with Melinda's boyfriend, now husband, and his friend before she decided to take one more loop around town and then take Brenda home. Melinda was headed east on Mississippi Highway 6 when she came to the East Gate Shopping Center. Melinda testified it was about 10:30 p.m. when she turned her car into the shopping center parking lot in order to turn around and head west on Mississippi Highway 6 by exiting the other side of the lot. Though she had never done this before, she stated "everybody else goes up through there." The stores were all closed, and all the lights in the stores and the parking lot were turned off. There was a sign at the entrance that stated "Private Parking Lot--Closed 8 P.M. to 7 A.M.--By Order of Police Dept." Melinda stated she did not intend to buy anything; she only intended to use the parking lot to turn around. Melinda drove slowly in first gear and noticed another car approaching from the opposite direction. She was not wearing a seatbelt. She struck a concrete slab and the impact threw her against the steering wheel. Her throat struck the top of the steering wheel. This cut part of Melinda's vocal cords and necessitated surgical implantation of teflon and surgical removal of scar tissue. Melinda and Brenda, her passenger, stated they did not see the concrete block before the accident.

Loden testified that the block was intended to be a base for a light pole but he had not gotten around to putting it up. Loden further stated that subsequent to erecting this base other lighting was added and he thought when the lights were turned on the parking lot had adequate lighting without a light pole at that spot.

Appellant Melinda points to several things which she argues shows at least negligence on the part of the Lodens. The lights were turned out on the parking lot at 8:00 p.m. as a matter of policy, after all the stores closed. The concrete block was not illuminated or marked. The defendants knew that the parking lot was frequented by teenagers who parked there or used the lot to turn around. Defendants probably knew or should have known, that at least one other person had also hit the same concrete block before Melinda's injury. A story and accompanying photograph in a local paper which Melinda attached to her pleadings detailed a similar incident involving the concrete block. The story relates that the incident occurred in 1980, roughly three years before Melinda's injury.

The Lodens in turn note that the deposition of defendant F. W. Loden was uncontradicted that defendants turned the lights off and posted a sign prohibiting anyone from using the lot after the stores closed at 8:00 p.m. by police order in an attempt to stop persons and vandals from coming onto the lot. F. W. Loden asked Batesville City Police to patrol the area to enforce this closing. Prior to the accident Melinda had not seen the sign, but she saw the sign after the accident when she returned to the lot. She could not say the sign was not there the night of the accident. Loden stated that the sign was put up some time before the accident and was in place that day.

In support of its cross-assignment of error, appellee Fred's Dollar Store, points to testimony by Loden that Fred's was the owner of the parking lot directly in front of its store and the Lodens had maintenance responsibility for the remainder of the lot, though the Lodens could charge the tenants for the cost of maintenance. Loden stated that the concrete block in question was not on Fred's property. Neither Melinda nor F. W. Loden testified that they knew of anything Fred's did or failed to do which caused the accident.

LAW

I.

Did The Court Err In Finding That There Existed No Issue Of Material Fact As To Plaintiff's Status At The Time Of The Accident?

Rule 56 of the Mississippi Rules of Civil Procedure

[A]llows for summary judgment where there is no genuine issue of material fact, and where the moving party is entitled to judgment as a matter of law.

Modling v. Bailey Homes and Ins., 490 So.2d 887, 891 (Miss. 1986); Cole v. Wiggins, 487 So.2d 203, 207 (Miss. 1986). The party seeking summary judgment "must affirmatively establish the absence of a genuine issue of material fact. ..." Gray v. Baker, 485 So.2d 306, 308 (Miss. 1986). The evidence "must be viewed in the light most favorable to the party against whom the motion has been made." Brown v. Credit Center, Inc., 444 So.2d 358, 362 (Miss. 1983). In deciding a Rule 56 motion, the trial court does not try the issue, but only determines whether there are issues to be tried. Shaw v. Burchfield, 481 So.2d 247, 252 (Miss. 1985); Bush v. Mullen, 478 So.2d 313, 315 (Miss. 1985).

In Hughes v. Star Homes, Inc., 379 So.2d 301, 303-04 (Miss.1980), this Court outlined the three recognized categories into which fall plaintiffs injured on the property of another, and outlined the pertinent corresponding duties.

The status of a person on the property of another was stated succinctly in Hoffman v. Planters Gin Co., Inc., 358 So.2d 1008, 1011 (Miss. 1978), in the following language:

As to status, an invitee is a person who goes upon the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual advantage. Langford v. Mercurio, 254 Miss. 788, 183 So.2d 150 (1966); Wright v. Caffey, 239 Miss. 470, 123 So.2d 841 (1960). A licensee is one who enters upon the property of another for his own convenience, pleasure or benefit pursuant to the license or implied permission of the owner whereas a trespasser is one who enters upon another's premises without license, invitation or other right. Kelly v. Sportsmen's Speedway, Inc., 224 Miss. 632, 80 So.2d 785 (1955).

A landowner owes a licensee the duty to refrain from willfully or wantonly injuring him. Astleford v. Milner Enterprises, 233 So.2d 524 (Miss.1970); Marlon Investment Co. v. Conner, 246 Miss. 343, 149 So.2d 312 (1963); Dry v. Ford, 238 Miss. 98, 117 So.2d 456 (1960). A landowner owes a trespasser the duty to refrain from willfully or wantonly injuring him. McGee v. Charles F. Smith & Sons, Inc., 357 So.2d 930 (Miss. 1978); Ausmer v. Sliman, 336 So.2d 730 (Miss. 1976); Langford v. Mercurio, 254 Miss. 788, 183 So.2d 150 (1966); Kelly v. Sportsmen's Speedway, Inc., 224 Miss. 632, 80 So.2d 785 (1955). Larry Hughes, Jr. was a trespasser, or at most a licensee. In either status, the duty owed him by the defendants was to refrain from willfully or wantonly injuring him.

Here the trial court held that there was no genuine issue of fact concerning Melinda's status.

The determination of which status a particular plaintiff holds can be a jury question, but where the facts are not in dispute the classification becomes a question of law for the trial judge. Graves v. Massey, 227 Miss. 848, 853, 87 So.2d 270, 271 (1956). See also Hoffman, ...