Kelly v. Retzer & Retzer, Inc., 53106
| Decision Date | 21 July 1982 |
| Docket Number | No. 53106,53106 |
| Court | Mississippi Supreme Court |
| Parties | Toy KELLY, Janet Kelly, Denise Kelly Boswell, and Mark Kelly, by His Attorney and Next Friend, William Willard v. RETZER & RETZER, INC., d/b/a McDonald's Restaurant. |
John H. Cocke, William G. Willard, Jr., Holcomb, Dunbar, Connell, Merkel, Tollison & Khayat, Clarksdale, for appellants.
W. O. Luckett, Jr., Luckett, Luckett, Luckett & Thompson, Clarksdale, for appellee.
Toy Kelly, father, Janet Kelly, mother, Denise Kelly Boswell, sister, and Mark Kelly, brother, brought suit in the Circuit Court of Coahoma County against Retzer & Retzer, Inc., d/b/a McDonald's Restaurant, for the fatal shooting of Rodney Kelly on McDonald's parking lot. The Kellys sought damages for the loss of their son and brother because of McDonald's alleged negligence in not providing adequate security and safe premises for its patrons. The trial court granted Retzer & Retzer, Inc., (hereinafter McDonald's) a peremptory instruction from which the Kellys appeal to this court.
At approximately 8:30 p. m. on Tuesday, September 25, 1979, a group of teenagers, including Rodney Kelly, gathered on McDonald's parking lot in the City of Clarksdale in Coahoma County. They were asked to leave the premises by the assistant manager because of loitering. One of the group, Lanny Byrd, left McDonald's with a friend and returned for his car at about 9:45 p. m. As he walked to it, a group of black youths approached and one asked for a cigarette. Byrd refused the request and hostile words were exchanged. At this time Kelly pulled into McDonald's parking lot where he was stopped by Byrd who asked if he had a tire tool because the blacks were acting as though they wanted to start trouble. Kelly at first responded negatively but then asked Byrd to wait a minute and pulled into a parking space. As Kelly and his companion, Laura, got out of the car, Kelly asked Laura for the keys to her car which was parked nearby and inquired which key was the one for its trunk. An argument ensued and one of the youths pushed Kelly away from the trunk and threatened to shoot him. Laura testified that Kelly pushed him away and then showed him a scar on his stomach stating that he was not afraid because he had been shot before. Grandberry, the black youth, momentarily waved a pistol and then shot Kelly. Perhaps the scene can best be portrayed by Grandberry's testimony, introduced by the defendant through stipulation as being previously given by him, though its truthfulness was not conceded by the plaintiffs. It was read from the witness stand and follows in pertinent part:
My name is Roosevelt Grandberry, I live at 306 Carolina Street in Clarksdale, Mississippi. I was born on December 31, 1961. On September 25, 1979, I was seventeen years of age....
On Monday, September 24, 1979, I purchased a .22 caliber pistol for $10.00. On Tuesday, September 25, 1979, my friends, Calvin Harris, James Murphy, Jimmy Jackson, Elbert Clinton and I were walking around town for three hours together. During this time, we visited my girl friend, Linda Smith, who lives over on Paul Edwards. I had the gun with me and showed it to my friends during this time.
After visiting my girl friend, we walked back down Sixth Street to DeSoto where we turned right and walked up to the intersection of Highway 61 and DeSoto, walked over to Mississippi Street and out back through McDonald's back parking lot to reach the alley.
We then walked down the alley behind McDonald's Restaurant going to Seventh Street.
We had no intention of stopping at McDonald's restaurant for any purpose. In fact, my friends and I hardly ever go to McDonald's at all. We were just using the alley as a short cut.
As we were walking down the alley-way behind McDonald's I saw a car in the parking space right next to the alley near the back side of North Mississippi Savings and Loan with two white boys standing beside it.
My friends and I stopped in the alley beside the boy, and I asked one of the white boys for a cigarette. Since he was standing in the parking space right next to the alley, we were not easily visible to anyone inside of McDonald's. He said, ... And, I said, "Hey man, I just asked you for a cigarette, don't come on me like that." I said, "Just give me a cigarette." He said, "You work and I work, you buy your own damn cigarette." I said, He said, I said, I asked the other boy, "Ain't this right, man?" The other boy said, "I ain't got nothing to do with it." So, I just went and stood at the end of the dude's car. While we were still talking to the white boy about the cigarette, another white boy and a white girl in a car entered McDonald's parking lot on the other side of the building and drove around onto the alley and around to our side of McDonald's and on past us. The white boy we were talking to flagged the car down and it stopped about twenty feet past us.
The white boy that we were talking to went over to the car and said, The dude in the car just nodded his head and said, "Yeah." I had followed close enough behind so I could hear what was going on. So, the dude in the car pulled into a parking space, parked, got out of his car meaning to go to the back of the car.
I said, At that time I had my hand on his car leaning on it and he said, "Get away from my car, nigger." So, I said, But he had his keys in his hand going to put them in his trunk so I pushed him back. Then he pushed me back. Then he told his girl to get a pistol out of the glove compartment. So, I said, So he raised his shirt and showed me where he had been shot before, and said, Up to this time, I had been alone with him at the back of his car. All the others were still at the other end of the parking lot. But, then, Elbert came over and said, "What's up?" I said, Then Elbert and I started backing off. But the white boy kept going closer to the trunk so I pulled out my gun and I shot in the air first. But he kept going closer to the trunk and got ready to put his key in the back of the trunk so I shot him. Then I got scared and ran. I had never seen or heard of the white boys or the white girl before....
Byrd testified that just prior to the shooting he tried to get the attention of McDonald's manager and assistant who were in the restaurant. The assistant testified that he came to the door where Byrd asked him to call the police because one of the blacks had a gun, and, that he turned to go inside but the shots were fired before he could reach the telephone. The police were called and arrived on the scene within one or two minutes as did an ambulance, but Kelly died soon after the shooting. Byrd stated that twelve to thirteen minutes elapsed from the time he returned to McDonald's to the time of the fatal shooting, and, further testimony estimated Kelly was on McDonald's premises two to four minutes before he was shot.
The plaintiffs introduced into evidence the top portion of 28 police offense reports made between January 1, 1976, and September 24, 1979, when officers received calls concerning various activities at McDonald's and were dispatched to investigate. Nine of these reports dealt with theft or burglary from automobiles in the parking lot. Seven concerned reports of other theft on the premises such as purses, a wallet, a bicycle and a bicycle tire. The other reports included three incidents of vandalism, two assaults, one attempted auto theft, one auto theft, one attempted fraud, an armed robbery in a restroom, one strong armed robbery of a child by a 15 year old boy, one simple assault and one unknown complaint. During the same time interval, January 1, 1976, and September 24, 1979, there were 5,435 offense reports recorded by the Clarksdale Police Department for the entirety of the city.
In addition to the reports, several witnesses gave testimony concerning various incidents in which they were involved on McDonald's premises. Six of these incidents were included in the offense reports. In the other occurrences, the police were not involved or did not make an offense report or McDonald's personnel were not involved.
The plaintiffs also proposed to call an alleged expert criminologist of whom they intended to ask a hypothetical question concerning security measures which should have been undertaken by McDonald's in view of offenses or incidents that had previously transpired at McDonald's. The court was of the opinion the jury could make that determination as well as the proposed witness whereupon a proffer of his testimony was made as follows:
He would say that in his opinion that business needs to undertake security precautions which would include the use of an armed security guard, and that such a device is quite common in this industry, including numerous other McDonald's stores, which use full-time armed security guards for the protection of patrons.
Michael Retzer, President of Retzer & Retzer, Inc.,...
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