Holmes v. Campbell Props., Inc.
| Docket Number: | 2008-CA-01528-COA Linked Case(s): 2008-CA-01528-COA ; 2008-CT-01528-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 05-18-2010 Opinion Author: Maxwell, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Wrongful death - Premises liability - Failure to train Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Griffis, Barnes, Ishee and Roberts, JJ. Non Participating Judge(s): Carlton, J. Procedural History: Summary Judgment Nature of the Case: CIVIL - WRONGFUL DEATH |
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| Trial Court: |
Date of Trial Judgment: 08-21-2008 Appealed from: WARREN COUNTY CIRCUIT COURT Judge: Frank G. Vollor Disposition: SUMMARY JUDGMENT GRANTED TO DEFENDANTS Case Number: 07,0112-CI |
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| Note: | Due to a military leave of absence, Hon. Virginia C. Carlton did not participate in this hand down. | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Corine Holmes, as Administratrix of the Estate of Derral Holmes |
PRECIOUS TYRONE MARTIN |
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| Appellee: | Campbell Properties, Inc. and T & S Tunnel Express | CLIFFORD C. WHITNEY III, R.E. PARKER, JR. | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Wrongful death - Premises liability - Failure to train |
| Summary of the Facts: | An employee of a car wash business struck Derral Holmes in the head with a baseball bat. Holmes died as a result of the assault. The administratrix of Holmes’s estate filed a wrongful death suit against Campbell Properties, Inc. and T&S Tunnel Express, alleging underlying tort claims, including a premises liability claim. Campbell Properties moved for summary judgment which the court granted. Holmes appeals. |
| Summary of Opinion Analysis: | Issue 1: Premises liability Under Mississippi law, a property owner is not the insurer of an invitee’s safety. Rather, he owes a duty to the invitee to keep the premises reasonably safe and, when not reasonably safe, to warn only of hidden dangers not in plain and open view. The duty owed to a licensee or trespasser is the same – not to willfully or wantonly injure such person. The parties disagree over whether Derral Holmes had lost his status as an invitee at the time of the attack. When the assault occurred, Holmes had already finished vacuuming and washing his car. He had also moved his car somewhere to the side of the car wash but remained on the premises to smoke a cigarette. Though it is not entirely clear that Holmes had concluded his business and remained around solely for his own benefit, it is unnecessary to decide his status. Holmes (the administratrix) failed to offer proof, by affidavit or otherwise, setting forth specific facts showing a genuine issue on the required causation element. Even if the decedent remained an invitee of the car wash, Holmes failed to show the injuries were a reasonably foreseeable consequence of the alleged negligence committed by Campbell Properties. An assault on the premises is reasonably foreseeable if the defendant had either actual or constructive knowledge of the assailant’s violent nature, or actual or constructive knowledge an atmosphere of violence existed on the premises. Campbell Properties claimed it neither knew nor had reason to believe Brooks was dangerous. Holmes failed to contradict Campbell Properties’ assertions about Brooks and offered no contrary evidence on the issue of proximate causation. Issue 2: Failure to train Holmes argues that Campbell Properties failed to adequately train Brooks. The attack took place suddenly, and there were no allegations of management turning a blind eye or facilitating Holmes’s attack. Furthermore, there is no contradictory evidence of the car wash’s prior actual or constructive notice that an assault might take place. And Holmes has presented no arguable reason why the car wash should have done more to regulate employee behavior in light of the size and complexity of the business. The violent act of an employee standing alone is simply insufficient to defeat summary judgment on an allegation of failure to train. Although there is no Mississippi case law directly on point, courts in other jurisdictions have generally recognized that specific evidence of an employer’s actual or constructive knowledge of its employee’s dangerous or violent tendencies is necessary in order to create a genuine issue of material fact on an improper training or supervision theory of liability. Here, there was no contradicting evidence of prior actual or constructive knowledge of Brooks’s violent nature. Nor is there any indication of any actual or constructive knowledge that an atmosphere of violence existed at the car wash. |
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