Olier v. Bailey

• Decision Date: 09 April 2015
• Docket Number: No. 2013–CA–01411–SCT.,2013–CA–01411–SCT.
• Citation: 164 So.3d 982
• Parties: Janet OLIER v. Donna BAILEY.
• Court: Mississippi Supreme Court

164 So.3d 982

Janet OLIER

v.Donna BAILEY.

No. 2013–CA–01411–SCT.

Supreme Court of Mississippi.

April 9, 2015.

Brent M. Bickham, Ocean Springs, attorney for appellant.

C. Paige Herring, Jackson, attorney for appellee.

EN BANC.

ON MOTION FOR REHEARING

KITCHENS, Justice, for the Court:

¶ 1. The motion for rehearing is granted. The original opinions of this Court are withdrawn and these opinions are substituted therefor.

¶ 2. Janet Olier was attacked and chased by a domestic goose in Donna Bailey's yard. As she attempted to flee, she fell and broke her arm. Olier sued Bailey in the County Court of Jackson County under a theory of premises liability and, alternatively, under the dangerous-propensity rule. The trial court granted summary judgment because it found that Olier was a licensee on Bailey's property and that Bailey did not breach her duty of care toward Olier. It also denied relief under the dangerous-propensity rule because there was no evidence that the particular goose that bit Olier ever had exhibited dangerous propensities prior to the incident. Olier appealed to the Jackson County Circuit Court, which affirmed. Olier then filed the instant appeal. We hold that, while Olier cannot, as a matter of law, pursue her claim under her theory of general premises liability, she can proceed under the dangerous-propensity theory. Accordingly, we affirm the trial court judgment in part, reverse it in part, and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶ 3. Olier and Bailey became acquainted through a gardening website called “Dave's Garden,” a message board of sorts for gardening enthusiasts to share their hobby. On the day of Olier's injury, she visited Bailey at her home to view some of Bailey's plants. Bailey, who has a “Beware–Attack Geese” sign in her yard, also informed Olier verbally that she kept geese in her yard. Bailey kept several five-gallon buckets of water in the yard lined along the edge of the porch to provide the geese drinking water and to act as a barrier so the birds could not walk onto the porch.

¶ 4. Olier wanted to see Bailey's blooming banana plant in the yard, and she ventured beyond the buckets while Bailey remained on the front porch. As Olier stepped over the buckets, a goose squawked at her. Olier said the goose was large and that its neck reached out as if it meant to bite her chest. She stepped back onto the porch, within the safe confines of the bucket-fence, and told Bailey she could not go out into the yard because of the geese. Bailey assured Olier that the geese would not bite if Bailey was with her and offered Olier a bamboo pole with which to fend off the birds. When the two women entered the yard, Bailey attempted to lead the geese away from Olier. However, the geese noticed Olier and approached her, squawking and hissing. Frightened by the geese, and thinking that the bamboo pole was useless, Olier threw it to the ground. At this point, a goose reached out and nipped her in the “crotch area.” Olier turned to flee, tripped over one of the buckets lining the patio, and fell, breaking her arm.

¶ 5. Olier sued Bailey and her husband¹ in the County Court of Jackson County. For her injuries, Olier sought $200,000, the jurisdictional limit, plus court costs. Olier pursued her claim on two theories of liability: premises liability and liability under the dangerous-propensity rule. Bailey moved for summary judgment, arguing that Olier was a licensee at Bailey's home when she was injured and that Bailey did not breach her duty of care to Olier. Bailey also contended that the goose that attacked Olier had not exhibited dangerous tendencies previously, and thus the dangerous-propensity rule was inapplicable. Olier responded by arguing that Bailey had provided a bamboo pole to Olier for the explicit purpose of fending off the aggressive geese, which showed that Bailey knew about their aggressive and dangerous propensity.

¶ 6. The trial court granted summary judgment in favor of Bailey, finding that Olier was a licensee, that Bailey did not breach her duty of care to a licensee, and that the dangerous-propensity rule did not apply. The Jackson County Circuit Court affirmed, and this appeal soon followed. Bailey has filed an additional motion to strike portions of Olier's brief.

BAILEY'S MOTION TO STRIKE PORTIONS OF OLIER'S BRIEF

¶ 7. In her Motion to Strike Portions of Olier's Brief, Bailey argues that several of Olier's arguments on appeal should be struck because they were not raised before the trial court. We find that the motion is not well taken and should be denied. We are not inclined to parse through the different arguments that may or may not have been made at the trial level for the purpose of determining whether to strike them from a brief. If the record reveals that an argument was not made before the trial court, we will address it appropriately. Accordingly, Bailey's Motion to Strike Portions of Olier's Brief is denied.

ANALYSIS

¶ 8. Olier's issues on appeal are as follows:

I. Do genuine issues of material fact exist regarding whether Olier was an invitee or licensee, and, if Olier was a licensee, did Bailey nevertheless breach her duty of care to Olier?

II. Should the Hoffman affirmative negligence doctrine, which applies to business premises, be expanded to cover domiciles?

III. Do domestic fowl fall under the dangerous propensity rule, and did Bailey have knowledge of her geese's dangerous propensity?

¶ 9. Our well-known standard of review from a trial court's grant of summary judgment is de novo. Double Quick, Inc. v. Moore, 73 So.3d 1162, 1165 (¶ 7) (Miss.2011). We view the evidence “in the light most favorable to the party against whom the motion has been made.” Id. If the movant can “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law[,]” then summary judgment is appropriate. M.R.C.P. 56(c).

I. Janet Olier was a licensee as a matter of law.

¶ 10. In determining whether liability attaches to a landowner, this Court must determine (1) the status of the visitor, whether trespasser, licensee, or invitee; (2) the duty that the landowner owed to the visitor based on that status; and (3) whether the landowner breached his or her duty of care to the visitor. Hoffman v. Planters Gin Co., 358 So.2d 1008, 1011 (Miss.1978).

A. Olier's Status

¶ 11. Olier argues that genuine issues of material fact exist regarding whether she was an invitee on the day that she visited Bailey's home. Bailey argues that Olier was a licensee as a matter of law, and the trial court agreed.

¶ 12. A person is classified as a licensee if he or she enters the property for “his or her own convenience, pleasure or benefit pursuant to the license or implied permission of the owner....” Massey v. Tingle, 867 So.2d 235, 239 (¶ 14) (Miss.2004). We classify an invitee as a visitor “who goes upon the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual advantage.” Hoffman, 358 So.2d at 1011. The difference in classification is important; a landowner owes a much higher duty of care to invitees than he or she does to licensees. The landowner owes an invitee the duty “to keep the premises reasonably safe and when not reasonably safe to warn only where there is hidden danger or peril that is not [in] plain and open view.” Little by Little v. Bell, 719 So.2d 757, 760 (Miss.1998) (citation omitted). On the other hand, the landowner owes a licensee the duty only “to refrain from willfully or wantonly injuring him.” Id. (citation omitted).

¶ 13. The trial court found that Olier was a licensee. Olier argues that the parties were friends, that they shared an interest in gardening, that they had visited each other's yards and had gone to trade shows, and that they traded plants and flowers with each other. In other words, she argues that her visit with Bailey to discuss their shared hobby of gardening and to take a sample of Bailey's plant was mutually beneficial, such that her status was that of an invitee. Bailey argues that she received no benefit from Olier that would confer upon Olier the status of invitee. Instead, Bailey argues the entire purpose of the visit was for Olier to see Bailey's plants, and perhaps take a sample home, which would have benefitted only Olier.

¶ 14. There is case law establishing that a social guest can become an invitee if sufficient benefit is bestowed upon the landowner by nature of the guest's visit. This Court has held that a visitor who went to the home of her mother to take the mother to a doctor was an invitee entitled to a higher degree of care. Minor v. Eng'g Serv. Co., Inc., 304 So.2d 45, 48 (Miss.1974). More recently, in Hall v. Cagle, 773 So.2d 928 (Miss.2000), this Court confronted the classification of a guest who was helping the homeowner unload boxes, arrange furniture, and move into the house. The Court, citing Minor, held that the plaintiff “was at the home of the Cagles to perform a service for their benefit, i.e., to assist them in moving and unpacking.” Id. at 930 (¶ 7). The Court held that the plaintiff's service to the landowner was sufficient to render her an invitee, and that she had “alleged and proved sufficient facts to make a prima facie showing that she was an invitee rather than a licensee such that” her suit should have survived summary judgment. Id. (¶ 8). See also Pinnell v. Bates, 838 So.2d 198, 202 (¶ 14) (Miss.2002) (holding that there was a factual dispute regarding the status of a visitor who came to a friend's home and helped out with housework because the homeowner was having back trouble, and summary judgment therefore was inappropriate).

¶ 15. We find the facts in this case distinguishable from those in which we found an issue of fact regarding the entrant's status. In Minor, Hall, and Pinnell, the plaintiff was performing a service for the landowner that conferred a genuine benefit on the landowner, whether that was...