May v. v. F.W. Post No. 2539

Decision Date06 March 1991
Docket NumberNo. 89-CA-0895,89-CA-0895
Citation577 So.2d 372
PartiesDavid MAY and Donna L. May v. V.F.W. POST # 2539.
CourtMississippi Supreme Court

Rufus H. Alldredge, Jr., Franke Rainey & Salloum Firm, Gulfport, for appellant.

L. Christopher Breard, Bryant Colingo Williams & Clark, Gulfport, for appellee.

Before HAWKINS, P.J., and ROBERTSON and BANKS, JJ.

BANKS, Justice, for the Court:

INTRODUCTION

David and Donna May appeal to this Court from an adverse summary judgment on their claim against one of two defendants. The court below properly granted summary judgment. We affirm on the merits without hesitation.

On November 2, 1984, David May and his wife Donna filed a complaint in the Harrison County Circuit Court against Ricky Triplett (Triplett) and VFW Post # 2539 (VFW). They alleged that they were business invitees attending a VFW-sponsored dance on September 1, 1984, when without warning or provocation, Triplett attacked David resulting in severe injuries to David. They further alleged that at the time of this incident, Triplett was an employee of the VFW, acting within the course and scope of his employment. Therefore, according to the Mays, VFW was negligent in the following respects:

A. failing to exercise reasonable care for the safety of patrons on its premises B. failing to provide adequate security for the protection of its patrons;

C. failing to prevent ... Triplett from attacking [May] when ... VFW knew, or in exercise of reasonable care, should have known, of the violent propensities of Triplett; and

D. failing to provide adequate supervision of its security personnel.

In their separate answers, VFW denied all allegations while Triplett denied some and admitted others. Affirmatively Triplett asserted that David was the culprit who attacked him without provocation or warning. In the following weeks the VFW propounded a set of interrogatories. After David May submitted his answers, VFW filed, on April 24, 1985, a Motion to Dismiss or Alternatively for Summary Judgment. Attached to this Motion was the affidavit of Clifford Horn, the Post Commander for the VFW. Horn asserted that Triplett was employed as a janitor during this time period. On the night in question, however, he was "not on duty and had no responsibility whatsoever to the VFW ... other than that expected of the general public." Moreover, the dance held on that night was not "organized, promoted, or encouraged in any way by the VFW ... but rather, the main hall area was donated to the organizers of the 'benefit' for the stated purpose of underwriting certain medical expenses of a family member of the host and member of the community." The VFW received no revenue from the event other than incidental sales for drinks and ice to those attending the benefit according to Horn. Horn also denied that Triplett was a security guard.

The trial court denied VFW's motion for Summary Judgment on July 10, 1985, and discovery continued.

After completion of discovery, VFW filed its renewed motion for summary judgment on March 28, 1988; a hearing was held on this motion on April 4, 1989; and on June 7, 1989, the trial judge submitted his findings of fact and granted the summary judgment motion. An amended final order was entered on June 26, 1989, and, thereupon, the Mays filed their notice of appeal to this Court.

Facts

The facts revealed through discovery dictated the trial court's conclusion. On Labor Day, September 1, 1984, David and Donna May attended a "charitable benefit dance" at the VFW. The VFW had donated the hall to the organizers of the event for the purpose of raising money for a member of the community. The VFW neither sponsored nor organized the charitable event in any manner. Moreover, it did not have any control over the function except that a $50 deposit would not be returned to the organizers if they failed to clean-up the hall after the event. The sponsor, Dorothy Alexander, was responsible for the advertisement of the event, the entertainment and the security. During the event the VFW sold alcoholic and non-alcoholic beverages and ice to those attending.

Near the end of the dance an altercation occurred between David May and Triplett. At the time of this altercation, Triplett was not on duty and had no responsibilities that night. He was not scheduled to clean up after this function because the sponsors were to clean up. According to Triplett, even when he was scheduled to clean up after a function, he would clean up early the following morning but never immediately following the function. In another portion of his deposition, however, Triplett did state that: "I'd clean up [the VFW] at night, like when the bar closed at ten, I clean up, and then I'd go home...." Aside from any inference to be drawn from this statement, there was no dispute that on the night in question, he was present only as a customer.

Triplett testified that he went to the VFW sometime after 11:30 p.m. He did not pay the admission fee to the dance, but he went into the bar, which is open to the public. "You don't have to pay to go into the bar." While in the bar, Triplett shot a game of pool and he "may have drank [sic] two beers or three beers." Jerry Weaver was the bartender/manager that night. According to Weaver, while Triplett was at the bar, he did not appear to be intoxicated. In the time that Weaver worked there, the fight between Triplett and May was the first that occurred at the VFW. Moreover, according to Horn, no one at VFW had any difficulty with Triplett following instructions or was aware of Triplett having been in previous fights at the VFW or elsewhere.

Prior to the altercation at the VFW, May and Triplett had been in a fracas some seven years previously. The parties' versions of that incident, like the one in the case sub judice, differed. Since that first encounter, Triplett and May had seen each other and even waved to each other and said "hello." According to Triplett, he had never really been in a fight before. He argued with another student in high school. Between the time he quit high school around 1975, and the time of this incident, he had one fight with his brother at home. He has never been involved in another fight or in any problems at a VFW. This testimony was undisputed.

On the night of the incident, May and Triplett were in their mid-twenties. The hostility between the two resurfaced at the affair at the VFW. Who assaulted whom first is in dispute. What is not in dispute is that their differences had nothing to do with any of Triplett's duties with the VFW.

May, when asked in his deposition what the VFW could have done to protect him that night, said, "I don't know." He continued, "You might've [sic] had more security guards there because it was a pretty big crowd for one man." According to Weaver, however, there were two security persons, who were also deputy sheriffs. One was in uniform and the other was in plain clothes. At least one of these guards was involved in breaking up the fight.

Upon this evidence and after the hearing on the summary judgment motion, the trial court made the following findings:

The moving force which caused the injury to Plaintiff was not a defect in the premises as such but was the independent act of another patron (Triplett). This is not to imply that a dangerous condition cannot consist of the unruly acts of an individual under specific circumstances, but there must be more to establish the knowledge of the owner than pure surmise speculation and conjecture. In this case, there is no evidence to support the argument that Triplett had known propensities to act in such a manner, as he apparently acted unprovoked. To hold a premises owner liable under these circumstances would be unconscionable and would establish the owner an insurer of the safety of all invitees, which is not the law of this State.

It was argued that Triplett's status as a part-time employee created liability, yet there is no support that he was within the scope of this employment or acting as an agent or representative of the VFW.

Therefore, based upon the spontaneous act of Triplett, the status enjoyed by David and Donna May in relationship to the VFW, and the VFW's lack of knowledge of any erratic propensities of Triplett, the inevitable conclusion is that there is no basis for establishing a causal relationship between the injury to the Plaintiff and the VFW....

ISSUES

1. Jurisdiction

This Court is duty bound to take cognizance of its own jurisdiction or lack thereof. Although David and Donna May filed a claim against both VFW and Triplett, this appeal arose subsequent to the trial court's entry of summary judgment in favor of only one of the defendants, VFW. Accordingly, this appeal is governed by Miss.R.Civ.P. 54(b) which states:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment.

Miss.R.Civ.P. 54(b) (emphasis added).

The purpose of Rule 54(b) is to "prevent piecemeal appeals in cases which should be reviewed only as single units." Id. at 10. Additionally, the rule "allows judges to efficiently and fairly resolve separable claims before protracted litigation is finally resolved." Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 512 So.2d 897, 900 (Miss.1987).

Here, following entry of an order granting summary judgment, plaintiffs made an attempt at compliance with the Rule. They filed a motion for entry of an amended order to include the sentence: "This order is a final judgment as provided by Miss.R.Civ.P. 54." After entry of the amended order, plaintiffs moved for a continuance. As grounds for the relief sought, plaintiffs stated that...

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