O'Cain v. Harvey Freeman and Sons, Inc. of Mississippi

• Decision Date: 18 December 1991
• Docket Number: No. 07-CA-59446,07-CA-59446
• Citation: 603 So.2d 824
• Parties: Elizabeth O'CAIN v. HARVEY FREEMAN AND SONS, INC. of Mississippi.
• Court: Mississippi Supreme Court

Page 824

603 So.2d 824

Elizabeth O'CAIN v. HARVEY FREEMAN AND SONS, INC. of Mississippi.

No. 07-CA-59446.

Supreme Court of Mississippi.

Decided Dec. 18, 1991.

Rehearing Denied July 29, 1992.

Jack C. Pickett, Margaret P. Ellis, Kitchens & Ellis, Pascagoula, for appellant.

James H. Heidelberg, Bryant Colingo Williams & Clark, Pascagoula, for appellee.

En Banc.

DAN M. LEE, Presiding Justice, for the Court:

This is a suit by a tenant against her landlord wherein the tenant, Elizabeth O'Cain, seeks damages for emotional distress stemming from the burglary of her apartment and the rape of her roommate. This appeal is from a grant of summary judgment in favor of the defendant-lessor, Harvey Freeman & Sons, by the Jackson County Circuit Court. This case contains very distinct procedural and substantive issues, both of equal importance in our treatment of the case. Therefore, for ease of organization, this opinion examines the substantive facts and law and the procedural issues of fact and law as four separate categories for review.

Finding cumulative error in the trial court's application of procedural and substantive law, we reverse the grant of summary judgment in favor of the defendant, Harvey Freeman & Sons, and remand the same to the trial court for further proceedings.

SUBSTANTIVE FACTS OF THE CASE

In October of 1981, the plaintiff, O'Cain, and her roommate, G.S., ¹ were sharing a two bedroom townhouse apartment in Pascagoula. The two bedrooms and a bathroom were located upstairs while the downstairs area consisted of the kitchen and living room. On the night of October 15, 1981, O'Cain was awakened by a foul, malodorous scent. Both bedroom doors were open, and she heard voices coming from her roommate's bedroom. O'Cain walked to the vicinity of the bathroom and peered into G.S.'s bedroom. By now she had ascertained that her roommate was being assaulted in some way. When she peered into her roommate's bedroom, she only got a glimpse of G.S.'s leg which was hanging off the side of the bed, but she could hear a male's voice. O'Cain panicked and entered the bathroom. She flushed the toilet and turned on the water hoping that if the intruder heard other noises in the apartment, he would leave. O'Cain then opened the bathroom door. When O'Cain opened the door, G.S. grabbed her and jerked her into the bedroom. As this happened, O'Cain stated that she only got a glimpse of the assailant's back as he was descending the stairs. Both women barricaded themselves in the bedroom, and they were able to awaken the residents next door by beating on the common wall. O'Cain and G.S. stated that the intruder came back up the stairs after they had locked themselves in the bedroom. He attempted to open the bedroom door but was unsuccessful since both women had secured the door. The next door neighbors called the police, and apparently the police arrived very quickly. G.S. and O'Cain got the officer's attention from the bedroom window.

There were only two ways to enter the apartment, the front door and a sliding glass patio door. The officer stated that the front door was secured, but there was a 15 to 18 inch opening at the sliding glass door. The officer entered through the opening in the glass door and found O'Cain and G.S. in an upstairs bedroom. The assailant, Larry Williams, was apprehended in a ditch about three quarters ( 3/4) of a mile from the apartment. Larry Williams was charged, tried, and convicted of the rape of G.S. He either served or is still serving time in the penitentiary for this crime.

O'Cain alleged that the lock on the sliding glass door to her apartment was insufficient. A sliding glass door typically contains a latch-type lock which locks when the latch is in the "up" position. O'Cain's sliding glass door locked when the latch was in the "down" position. Therefore, in order to enter O'Cain's apartment with the O'Cain is certain that she locked both doors on the night in question. She was unaware, however, that the lock on the sliding glass door was inadequate protection. Hence, she had never complained about the lock to the landlord, Harvey Freeman & Sons. On the day following the rape, O'Cain contacted a locksmith who came out to the apartment and installed an additional lock on the patio door.

door locked in the down position, one need only to slightly lift up on the door and slide the door on its tracks. By lifting the door, the latch would dislodge from the lock. The investigating officer readily ascertained that the rapist gained entry by lifting the glass door, dislodging the lock, and then sliding the door on its tracks.

A substantial amount of discovery transpired between the parties. Several depositions were taken in the discovery phase of this case.

Billy Hancock, a locksmith who owned B & W Security in Pascagoula, stated that as a rule of thumb, patio doors are not very secure and can be easily compromised. Hancock stated that since the early 1970s, he had mentioned to at least two apartment managers at Chateau Tourraine that "Charlie bars" should be installed on the patio doors, but he did not remember if he actually told anyone associated with the apartments that security on the patio doors was inadequate. Hancock explained that a "Charlie bar" is a device which augments the security on a patio door. It is a self-storing bar which drops behind the movable door, and if there is no additional security on a patio door, Hancock always recommends "Charlie bars" or some other additional lock.

Upon O'Cain's request, Hancock inspected the patio door of the apartment in question. This inspection was several years after the fact of the break-in and rape. First of all, Hancock stated that it was the outside door in this unit which moved, an out-sliding door. This was not unusual at all as some patio doors are in-sliding, some out-sliding and some are double-sliding. Second, Hancock stated that the door was "installed normally." Hancock also stated that he believed that these apartments were built sometime between 1968 and 1973, and based on his examination of the doors, he was of the opinion that the doors had not been replaced since the original construction.

From a locked position, Hancock was able to violate the door using only his hands. He only had to lift slightly on the door, and the door rolled open in the tracks. "The difference between opening the door with it locked or unlocked is less than five seconds." Hancock explained the weak security on the patio door:

I don't know what the manufacturer had in mind or what his intent was, but the reason you were able to open this door is because the door could be lifted three-eighths of an inch, and when you lifted it from that position you didn't lift the entire door. You lifted one edge which is called the tilt, and because the hook was shaped like this [indicating] and it wasn't fully down because the strike was holding it up.

At the time of Hancock's inspection there were new occupants of the apartment. The additional lock O'Cain had installed on the patio door was still there. Finally, Hancock stated that the ease in which the door could be opened might have existed since the time that the doors were installed.

The responding officer, Wayne McCarty, gave deposition testimony. He stated that the area where the rape occurred was a low crime area. McCarty testified that he entered the apartment through the patio door which was open about 15 to 18 inches. The front door was secured when the officer arrived on the scene. Five to six weeks prior to the deposition, McCarty visited the apartment and stated that he was able to open the locked door by simply giving the outside door a slight lift before sliding.

O'Cain alleged mental and emotional distress injury stemming from the burglary of her apartment and the rape of her roommate. As support for her injury, O'Cain relied upon the deposition testimony of her former counselor, Ms. Polly Bridges.

Polly Bridges has a master's degree in psychology from the University of South Alabama. On March 9, 1983, O'Cain saw Bridges for the first time. Bridges counseled with O'Cain 24-25 times over a three year period. O'Cain, who worked with her mother and step-father in the restaurant business on the Gulf Coast, was having trouble getting along with her mother and step father. At her mother's suggestion, she sought counselling in an effort to improve her relationship with her parents. O'Cain's mother participated in some of the counselling sessions. Prior to the rape incident in October of 1981, O'Cain had divorced, and her divorce was still weighing on her mind.

In February of 1985, Bridges noticed O'Cain's problem with weight control and began tracking her weight at the bi-monthly counselling sessions. O'Cain's weight was more than desired. But at some point in 1981, and it is not known when, O'Cain lost 68 pounds on an Optifast diet. "In 1981 weight was 225 pounds. On Optifast diet dropped 68 pounds and kept it off until November-December of 1981 (after rape). Since then I have lost and gained, lost and gained, but I've never gotten past 195 until the last 3 to 4 months." O'Cain described periods of depression which would be followed by eating binges. According to Bridges, O'Cain suffers from a compulsive eating disorder which is stress induced.

As part of the counselling therapy, Bridges asked O'Cain to prepare a summary of major events in her life. On the summary O'Cain stated that her weight problem began when she was in third grade. O'Cain was born in 1955, and would now be 35-36 years old. Bridges stated that stresses in O'Cain's life which could be contributing to her weight problem included the strained relationships with her mother and step father, the divorce of her parents at an early age, O'Cain's own divorce, unsuccessful relationships with men, and chronic financial problems. "Anything that is stressful will do damage to a person who has a compulsive eating disorder."...