Simpson v. Boyd
| Decision Date | 26 August 2004 |
| Docket Number | No. 2003-CA-00425-SCT.,2003-CA-00425-SCT. |
| Citation | 880 So.2d 1047 |
| Parties | Carol Renee SIMPSON v. Michael W. BOYD. |
| Court | Mississippi Supreme Court |
Charles T. Yoste, Starkville, Stephanie L. Mallette, attorneys for appellant.
Gaines S. Dyer, Greenville, L. Carl Hagwood, Jackson, attorneys for appellee.
EN BANC.
¶ 1. Carol Renee Simpson appeals from a summary judgment which dismissed her complaint and civil action for damages against her former employer, attorney Michael W. Boyd, arising from injuries inflicted by an intruder while Simpson was at work. Simpson sued Boyd, claiming that (1) Boyd's failure to provide an safe work environment was the proximate cause of her injuries, (2) Boyd's failure to comply with city building codes constituted negligence per se, and (3) Boyd negligently advised Simpson to file for bankruptcy without informing her of the possibility of bringing a lawsuit against himself or the attacker.
¶ 2. In granting summary judgment, the Washington County Circuit Court discussed the first two of Simpson's claims, but failed to address her third claim for legal malpractice. We affirm the trial court's judgment with respect to Simpson's first claim, reverse and remand with respect to the second, and vacate and remand with respect to the undecided third issue in light of the fact that it is inappropriately before this Court.
¶ 3. The law office of bankruptcy attorney Michael W. Boyd, located in Greenville, Mississippi, has been the site of occasional moments of discord. At one point, one of Boyd's employees had to call the police after Boyd got into a fracas with one of his clients. One client called Boyd on the phone and made a number of threats. Renee Simpson testified that once every other month an agitated client would cause some type of disturbance in the office. One time, the irate acquaintance of a coworker came to the office and caused such a scene that the police had to be called. An office window was broken on two different occasions after office hours. Late one night, Boyd's car window was broken as well.
¶ 4. The incident at issue happened one morning in December of 1999, when a man who was not one of Boyd's clients walked into the office. Two of Boyd's employees, including Simpson, were in the back of the office. Simpson heard someone enter the office and went through a set of French doors into the waiting room area where she encountered Earl Washington. She then walked back through the doors and into the receptionist's area to see if Washington had an appointment.
¶ 5. Washington asked for information regarding an aggravated assault defense, but Simpson told him that their office did not handle that type of case. Washington demanded to see the attorney. After Simpson told him the attorney was not there, he pulled a gun on her. Washington then told Simpson that she was going to come with him.
¶ 6. Simpson alleged that her escape was prevented because Boyd had locked the rear exit door in the receptionist's area with a keyed deadbolt and had also blocked the door with a copy machine. Washington came through the French doors to his left, down the short length of the hallway, and into the reception area where Simpson stood. Simpson did not call out for help for fear of her co-worker's safety, nor did she have time to dial 911.
¶ 7. Washington forced Simpson out of the office and into his vehicle which he drove to a levee area close to the Mississippi River. He sexually assaulted Simpson while they were in the car. Simpson then ran from the car, but Washington shot her in the legs and buttocks, preventing her escape. Simpson's ordeal ended when the police arrived and arrested Washington.
¶ 8. Simpson sued Boyd for compensatory damages, punitive damages, attorney's fees, and court costs on the bases of premises liability, negligence per se, and legal malpractice.
¶ 9. In determining whether the trial court properly granted a motion for summary judgment we conduct a de novo review of the record. Palmer v. Anderson Infirmary Benevolent Ass'n, 656 So.2d 790, 794 (Miss.1995). A trial court may grant summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." M.R.C.P. 56(c). A fact is material if it "tends to resolve any of the issues properly raised by the parties." Palmer, 656 So.2d at 794.
¶ 10. Furthermore, "[a] motion for summary judgment should be overruled unless the trial court finds, beyond a reasonable doubt, that the plaintiff would be unable to prove any facts to support his claim." Id. at 796. The trial court is prohibited from trying the issues; it may only determine whether there are issues to be tried. Id.
¶ 11. The evidence must be viewed in the light most favorable to the non-moving party, in this case, Simpson. Id. at 794. If, in this view, the moving party, Boyd, is entitled to a judgment as a matter of law, then summary judgment should be granted in his favor. Otherwise, the motion should be denied. Id.
¶ 12. In this negligence action, Simpson bears the burden of producing evidence sufficient to establish the existence of the conventional tort elements of duty, breach, proximate causation, and damages. Id. Duty and breach of duty, which both involve forseeability, are essential to finding negligence and must be demonstrated first. Donald v. Amoco Prod. Co. 735 So.2d 161, 174 (Miss.1999).
¶ 13. Therefore, Simpson must rebut Boyd's showing that no genuine issue of material fact exists by producing supportive evidence of significant and probative value. Palmer, 656 So.2d at 794. This supportive evidence must show that the Boyd breached the established standard of care and that such breach was the proximate cause of Simpson's injury. Id. Finally, summary judgment should be granted with great caution. Id.
¶ 14. Simpson claims Boyd owed her a duty to provide a safe place to work and a duty to provide for her security. Although not an insurer of an invitee's safety, a premises owner owes a duty to exercise reasonable care to protect the invitee from reasonably foreseeable injuries at the hands of another. Newell v. S. Jitney Jungle Co., 830 So.2d 621, 623 (Miss.2002). We have stated two ways a plaintiff can prove forseeability for the purposes of establishing a duty in premises liability cases: (1) that the defendant had actual or constructive knowledge of the assailant's violent nature, or (2) actual or constructive knowledge an atmosphere of violence existed on the premises. Gatewood v. Sampson, 812 So.2d 212, 220 (Miss.2002). Simpson's complaint attempts to prove foreseeability by establishing that an atmosphere of violence existed.
¶ 15. We have previously decided two cases which involved the "atmosphere of violence" question. See id.; Crain v. Cleveland Lodge 1532, 641 So.2d 1186 (Miss.1994)
.
¶ 16. In Crain, we affirmed summary judgment in favor of a business owner when a patron suffered injury from attack in the owner's parking lot. Gatewood, 812 So.2d at 220. We opined that it would be "difficult to say the assault on [the plaintiff in that case] was foreseeable" despite the fact that there was evidence of violent acts within two blocks of the business which included: 110 commercial burglaries, three residential burglaries, eleven assaults, 152 larcenies, one bomb threat, and one indecent exposure. Id. at 221. However, we opted not to decide the issue of foreseeability and instead affirmed summary judgment on the basis of a total lack of evidence regarding proximate causation. Id. Consequently, our language regarding the atmosphere of violence in Crain was dicta and is not controlling in the area of law pertaining to the "atmosphere of violence" theory.
¶ 17. Our holding in Gatewood is controlling in this case. In Gatewood, we affirmed the trial court's decision to deny a business owner's motions for judgment notwithstanding the verdict and directed verdict. Id. at 219. The defendant in that case argued that there was not enough evidence for the jury to find that an atmosphere of violence existed at the gas station where the plaintiff was injured. Id. at 220. The evidence showed that sixty violent crimes were reported to the police in the surrounding neighborhood within the three years prior to the attack. Id. Thirty-two of the reported crimes occurred in a nearby shopping center; two incidents occurring in close proximity to the gas station; and at one point, a fight broke out on the premises of the gas station. Id.
¶ 18. We held that evidence of the existence of an atmosphere of violence may include "the overall pattern of criminal activity prior to the event in question that occurred in the general vicinity of the defendant's business premises, as well as the frequency of criminal activity on the premises." Id. at 220. Based on the evidence before the trial court, we held that the activity which occurred on and around the premises was enough to create a factual question of whether an atmosphere of violence existed. Id.
¶ 19. Unlike the plaintiff in Gatewood, Simpson has not presented facts sufficient to create a jury issue on the duty prong of a prima facie case of negligence. In order to surmount a motion for summary judgment, Simpson must offer evidence which indicates that incidents in and around the office provided notice to Boyd that precautionary measures were necessary to prevent the occurrence of a crime like the one perpetrated by Washington against Simpson. ¶ 20. As proof of Boyd's constructive knowledge of the alleged violent atmosphere, Simpson offers the following: (1) An irate client and an acquaintance of a co-worker separately caused such a stir that the police had to be called; (2) a handful of verbal exchanges between...
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