Otts v. Lynn
| Docket Number: | 2005-CA-01876-COA | |
| Oral Argument: | 11-30-2006 | |
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| Court of Appeals: |
Opinion Link Opinion Date: 05-01-2007 Opinion Author: CHANDLER, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Premises liability - Vicarious liability - Negligent maintenance of firearm - Summary judgment standard - M.R.C.P. 56 - Itemization of facts Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Concurs in Result Only: IRVING, J. Procedural History: Summary Judgment Nature of the Case: CIVIL - TORTS-OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE |
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| Trial Court: |
Date of Trial Judgment: 09-02-2005 Appealed from: LOWNDES COUNTY CIRCUIT COURT Judge: Lee J. Howard Disposition: GRANTED SUMMARY JUDGMENT IN FAVOR OF DONNA LYNN AND SOUTHERN FOUNDATIONS, INC. Case Number: 98-050-CV1 |
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| Party Name: | Attorney Name: | |||
| Appellant: | JODY OTTS AND AMANDA OTTS |
JOHN C. JOPLING
DAVID C. OWEN
WILLIAM CHARLES CUNNINGHAM |
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| Appellee: | DONNA LYNN, INDIVIDUALLY AND D/B/A SOUTHERN FOUNDATIONS | JOHN R. WHITE |
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| Topic: | Premises liability - Vicarious liability - Negligent maintenance of firearm - Summary judgment standard - M.R.C.P. 56 - Itemization of facts |
| Summary of the Facts: | Jody and Amanda Otts sued Donna Lynn personally and d/b/a Southern Foundations for the paralysis Jody sustained when he was shot on Lynn’s premises. The court granted summary judgment in favor of Donna Lynn, and the Otts appeal. |
| Summary of Opinion Analysis: | Issue 1: Premises liability The Otts argue that a genuine issue of material fact surrounds the question of Jody’s status when he was entangled in the altercation with his sister. Jody argues that he was a business invitee because he went to Lynn’s house that night to receive payment for work he had completed for Lynn. A business invitee is invited to enter or remain on the land for a purpose directly or indirectly connected with business dealings with the possessor of the land. In order to create the status of an invitee, there must be a mutual advantage between the landowner and the invitee. There is nothing in the record to indicate that Lynn received a mutual benefit from Jody. When Jody was initially invited into Lynn’s home, he was a licensee. Yet once he was told to leave the premises, he could have been considered a trespasser. Regardless of Jody’s status, Lynn did not breach any duty owed to him. In Mississippi, the highest standard of care owed to anyone who enters another’s land is to keep the premises reasonably safe and when not reasonably safe, to warn only when there is hidden danger or peril that is not plain and in open view. Once the injured person observes and fully appreciates that peril, the duty to warn disappears. Jody went to Lynn’s home in the middle of the night after he had been drinking. When he entered the home, Lynn testified that Jody exclaimed “it would take the law to get him out,” and she should go ahead and call the police. There is no evidence in the record to support an allegation that Lynn either failed to keep the premises reasonably safe, failed to warn Jody of a hidden danger or failed to refrain from willfully and wantonly injuring Jody. Issue 2: Vicarious liability The Otts argue that because Lisa (Jody’s sister who had the gun which injured him) was an employee of Southern Foundations, Lynn should be held vicariously liable for Lisa’s actions. Under the doctrine of respondeat superior, an employer may be liable for the acts of his employee if the acts are done in the course of employment and in furtherance of the employer's business. Southern Foundations was in the business of remodeling homes. Lisa occasionally helped with bookkeeping and visiting work sites to ensure the work was being performed. The altercation between Lisa and Jody occurred after midnight, well after any arguable normal working hours could be maintained. The argument escalated, in part, because Lisa was upset that her brother had been drinking and smoking marijuana on a job site. There is no evidence in the record to prove that Lisa was acting in the course of her arguable “employment” during the altercation with Jody. Issue 3: Negligent maintenance of firearm The Otts argue that Lynn should be held liable for the negligent maintenance of a loaded firearm, which was used to injure Jody. The Otts claim that Lynn breached her duty to warn Jody about the loaded firearm. However, any duty to warn disappears once the peril is in plain view and the plaintiff fully appreciates that peril. Jody witnessed Lisa retreat from the room and return holding the pistol by her side. The evidence from the record does not support a negligence claim against Lynn. Lynn was not present in the room when Jody was shot. She was in another room calling the police. Issue 4: Standard The circuit court granted Lynn’s motion for summary judgment stating that material issues of fact do not exist in this case. The Otts argue that some minimal analysis of the issues raised is necessary to support the order for summary judgment. In its order denying summary judgment, the circuit court illustrated the appropriate standard for summary judgment under M.R.C.P. 56. When reading the order as a whole, it is apparent that the court did fully consider the evidence in the light most favorable to the Otts, and that it appropriately considered whether genuine issues of material fact existed, as well as whether Lynn was entitled to a judgment as a matter of law. Issue 5: Itemization of facts The Otts argue that Lynn failed to comply with the mandatory requirement of the Uniform Rules of Circuit and County Court Rule 4.03 which requires the movant for a summary judgment to itemize the facts alleged to be undisputed. The record shows that the movant did attach relevant excerpts from the pleadings, discovery and depositions, which described undisputed facts. In addition, Lynn filed a memorandum brief to support her motion for summary judgment on the same day as the motion for summary judgment was filed in which she describes several facts which she claims are not in dispute. Thus, this argument is without merit. |
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