Titus v. Williams
| Decision Date | 01 May 2003 |
| Docket Number | No. 2001-CA-00921-SCT, No. 2001-CA-01653-SCT. |
| Citation | 844 So.2d 459 |
| Parties | Milton TITUS, Jr., Lucy Titus, Lucy Patricia Titus, Christopher Titus, Stephanie Titus and Renee Titus, The Wrongful Death Heirs and Beneficiaries of Milton Titus, III, Deceased v. Richard Don WILLIAMS, and The Flash Store, Inc. Milton Titus, Jr., Lucy Titus, Lucy Patricia Titus, Christopher Titus, Stephanie Titus and Renee Titus, The Wrongful Death Heirs and Beneficiaries of Milton Titus, III, Deceased v. The Town of Sardis, Mississippi. |
| Court | Mississippi Supreme Court |
Carroll Rhodes, Hazlehurst, Nathaniel Alandas Armistad, attorneys for appellants.
Holly Stubblefield Mathews, Oxford, John S. Hill, Tupelo, Steffanie Anne Graves, James P. Streetman, III, Jackson, Wilton V. Byars, Jr., Oxford, Mitchell Orvis Driskell, Jackson, attorneys for appellees.
Before SMITH, P.J., DIAZ and COBB, JJ.
DIAZ, J., for the Court.
¶ 1. Plaintiffs Milton Titus, Jr., Lucy Titus, Lucy Patricia Titus, Christopher Titus, Stephanie Titus, and Renee Titus filed suit in the Circuit Court of the First Judicial District of Panola County against Richard Don Williams (Williams), The Flash Store, Inc. (Flash Store)1, and the Town of Sardis, Mississippi, seeking damages for the wrongful death of Milton Titus, III (Titus), who was killed by a third party on the Flash Store's property. Plaintiffs alleged that negligence and gross negligence committed by the defendants were a proximate cause of Titus's death.
¶ 2. Williams filed a motion for summary judgment on the basis that, as an absentee landlord, he owed no duty to Titus and had committed no form of negligence. The Flash Store filed a motion for summary judgment on the basis that Titus was a trespasser or at best a licensee on its premises and it did not violate its duty to refrain from willfully or wantonly injuring him. The Town of Sardis filed a motion for summary judgment on the basis that, as a governmental entity, Sardis is exempt from liability for the performance of police duties unless its employee(s) acted in reckless disregard of the safety and well-being of any person not engaged in a criminal activity at the time the injury occurred. The circuit court granted summary judgment in favor of all defendants.
¶ 3. The circuit court denied an interlocutory appeal, and final judgment was entered. Plaintiffs filed a timely appeal.
FACTS
¶ 4. The Flash Store is a convenience store located at the corner of U.S. Highway 51 and Mississippi Highway 315 in Sardis, Mississippi. The property and store have been owned by Williams since October 19, 1994. Williams, who lives in Hinds County, has only visited the property twice since purchasing it. Thus, he is considered an absentee landlord. Williams has leased the store to different corporations or persons in the past, but the store became the Flash Store on April 28, 1995, through an assignment of a previous lease held by Jr. Food Mart. (The Flash Store, Inc., was the owner of the Flash Store at the time the incident in question occurred.)
¶ 5. The area in which the Flash Store is located is considered undesirable. The parking lot had become an area where local crowds of young people gathered during the weekends and holidays. Jr. Food Mart employed a security officer when it occupied the building. The Flash Store had no security personnel. According to the plaintiffs, scuffles, fights, drug-deals and other inappropriate and illegal activity often occurred there.
¶ 6. On January 10, 1998, around 9:00 p.m., a crowd of twenty-five or more people had gathered in and around the Flash Store parking lot. Two people from the crowd, Eric Kelson (Eric) and Montriel Butcher (Butcher), began to argue over the fact that Eric's girlfriend was looking at Butcher. Tywon "Spanky" Kelson (Tywon), Eric's nephew, and Titus, drove up and saw this argument. Tywon and Titus attempted to break up the argument. Butcher informed Titus that the argument was none of his concern and to stay out of it. Titus responded that Eric was one of his friends and that he did consider it his business.
¶ 7. Meanwhile, Fred, instructed his employee, Angela Roberson (Angela), to tell everyone to clear the parking lot because he had just called the police. The time was 9:16 p.m. The majority of the people left the premises. Eric left with parties unknown, and Butcher left with his brother, Kirby "Boogie" Butcher, in Kirby's2 car.
¶ 8. At 9:18 p.m., two minutes after receiving the call from Safi, Sardis police officers arrived at the Flash Store. The officers investigated the incident and dispersed what remained of the crowd. Walter Wheatley (Wheatley), there to pick up his girlfriend, Angela, remained in the parking lot. The Butcher brothers were no longer at the scene when the officers arrived. Titus and Tywon told the officers that nothing was going on and that they had not been fighting. They did not ask for any special protection from the officers nor give the officers any reason to believe that they were in danger. Tywon and Titus left in Tywon's car. No formal complaints were filed, and no one was arrested.
¶ 9. According to Wheatley, about forty minutes after this first altercation, the Butcher brothers returned to the store to get gas for their car. Tywon testified that he and Titus spotted Kirby's car at the Flash Store gas pumps and decided they wanted to get the license plate number for the police because a man named Avery Dillard told Tywon and Titus that Butcher "had a gun and [they] better watch themselves." Tywon pulled onto the parking lot to get the tag number. Butcher saw them and retrieved a "long gun" from his brother's car. Tywon quickly made a U-turn. Butcher fired two shots at the car, striking the rim of the right front tire.
¶ 10. Meanwhile, Angela, Fred, and an employee known only by the name of "Al" were inside the Flash Store. Fred claims he neither saw nor heard any gunshots, while Angela claims she saw the flash from the gun, but did not hear anything. A couple of minutes later Wheatley came in and informed them that Butcher had just shot at Tywon and Titus. Angela stated that she knew that Butcher had a bad reputation and was "in and out of trouble" all the time. Angela and Walter told Fred that he needed to phone the police before someone got hurt. Plaintiffs allege that Wheatley also urged Fred to close the store, but Fred refused, telling them that "nothing is going to happen." Fred did not call the police to report the shooting.
¶ 11. At 9:57 p.m., Titus and Tywon arrived at the Sardis Police Department to report the shooting. Officers listened to their complaint, asked them questions and inspected their vehicle. A BOLO bulletin3 with a description of Kirby Butcher's car was put out on the state-wide radio. Titus and Tywon told the officers that the Butcher brothers had already left the Flash Store. The officers, fearing that Titus and Tywon would seek revenge, tried to calm the two men down. They explicitly and repeatedly told Tywon and Titus to stay away from the Flash Store and to let the police handle the situation. Tywon and Titus left the station and went riding again.
¶ 12. Minutes after leaving the Sardis Police Station, Tywon and Titus were at a four-way stop at the intersection of Highways 51 and 315, in front of the Flash Store. The Butcher brothers were inside the store paying for the gas they were getting and apologizing to Fred for "disrespecting his parking lot" by shooting a gun. Fred did not call the police to report that the Butcher brothers had returned.
¶ 13. Back at the four-way stop, Titus stated to Tywon something to the effect of "there they are, let's get them." Tywon allegedly suggested that Titus leave the matter to the police, but this did not discourage Titus, who exited the car and ran to the Flash Store. Tywon stayed in his parked car on the street. Titus entered the store where Angela stated he exclaimed, "You punk m[expletive]f[expletive]s shoot me now." Titus fought with both Butcher brothers. Titus supposedly got the best of the brothers, knocked them to the ground and left the store running. Butcher got up from the floor, ran to his brother's car, got the gun, and followed Titus, who had run behind the building. Butcher shot twice, hitting and fatally wounding Titus. The people in the store stated that they saw Butcher get his gun and run after Titus, but did not know about the shooting until a woman from next door came and informed them that someone had just been shot behind the store.
¶ 14. At 10:10 p.m., thirteen minutes after Tywon and Titus had arrived at the Sardis Police Station to report the first shooting, the Sardis Police Department received a call from the Flash Store reporting that Titus had been shot. Officers Pride, Chitwood, Pruitt and Davis, already en route to the store, responded to the call. As they neared the store, Officers Pride and Pruitt noticed a vehicle leaving the scene at a high rate of speed. They pursued and stopped this vehicle which was driven by Tywon. After explaining what happened, Tywon got in the back seat of the squad car, and Officers Davis and Chitwood proceeded to the store. Officers Pride and Pruitt arrived shortly thereafter. Officer Davis immediately located Titus behind the Flash Store. He performed CPR; however, Titus did not respond. The police radio log reflects an emergency response request from the officers on the scene at 10:15 p.m. Titus died at the scene.
¶ 15. The plaintiffs brought suit individually and as the wrongful death heirs and beneficiaries of Titus. They allege that the Town of Sardis acted in reckless disregard by failing to promptly investigate and respond to calls from the Flash Store and the complaint made by Titus and Tywon. They also made allegations against Williams, the owner of the property where the Flash Store is located, and the Flash Store itself. All three defendants were granted summary judgment in their favor.
DISCUSSION
¶ 16. The standard...
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