Ellis v. Gresham Service Stations, Inc.


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Docket Number: 2009-CA-01750-COA

Court of Appeals: Opinion Link
Opinion Date: 02-01-2011
Opinion Author: Myers, P.J.
Holding: Affirmed.

Additional Case Information: Topic: Personal injury - Premises liability - Business invitee - Reasonably foreseeable injury - Atmosphere of violence - Actual or constructive notice
Judge(s) Concurring: King, C.J., Lee, P.J., Irving, Griffis, Barnes, Ishee, Roberts, Carlton and Maxwell, JJ.
Procedural History: Summary Judgment
Nature of the Case: CIVIL - PERSONAL INJURY

Trial Court: Date of Trial Judgment: 10-07-2009
Appealed from: SUNFLOWER COUNTY CIRCUIT COURT
Judge: HON. RICHARD A. SMITH
Disposition: SUMMARY JUDGMENT TO APPELLEE/PROPERTY OWNER
Case Number: 2007-0430

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Jessie Dean Ellis




OMAR LAMONT NELSON



 
  • Appellant #1 Brief
  • Appellant #1 Reply Brief

  • Appellee: Gresham Service Stations, Inc., d/b/a Double Quick, Inc., and Bradley MacNealy LEANN W. NEALEY, MALISSA WINFIELD, WILLIE T. ABSTON  

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    Topic: Personal injury - Premises liability - Business invitee - Reasonably foreseeable injury - Atmosphere of violence - Actual or constructive notice

    Summary of the Facts: Jessie Ellis brought a premises-liability lawsuit against Gresham Service Stations, Inc., d/b/a Double Quick, Inc., and Bradley MacNealey, claiming that he was brutally beaten behind the Double Quick store by a group of unknown assailants. The trial court granted summary judgment in favor of Double Quick. Ellis appeals.

    Summary of Opinion Analysis: A business owner owes an invitee a duty to exercise reasonable care to protect the invitee from reasonably foreseeable injury at the hands of another. Acts of third parties are reasonably foreseeable if the owner had cause to anticipate such acts by either actual or constructive knowledge of the assailant’s violent nature, or actual or constructive knowledge that an atmosphere of violence exists on the premises. As the alleged assailants are unknown in this instance, Ellis was required to produce evidence that an atmosphere of violence existed on Double Quick’s premises, such that Double Quick would have had actual or constructive notice of that atmosphere. Relevant factors for consideration of whether a defendant had such notice have been held to 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. Ellis presented no genuine issue of material fact as to whether Double Quick had actual or constructive notice that an atmosphere of violence existed on its property. Of the twelve reported “criminal” acts at the Double Quick store in question during the ten year period preceding the alleged assault, only five of those, for all intents and purposes, were crimes against the person. And none of these incidents involved unprovoked assaults upon one of Double Quick’s unsuspecting patrons by unknown assailants. Rather, each offense was precipitated by some sort of pre-existing dispute between individuals who knew each other and who brought their conflicts on to Double Quick’s grounds with no forewarning to Double Quick. According to the record, Double Quick’s employees responded to each situation as reasonably as could be expected. The other reported incidents were crimes against the store. And of these, the only ones of any significance were the three burglaries, each of which occurred in the middle of the night while the store was closed for business. Contrary to the conclusory statements expressed by Ellis’s expert, such incidents, particularly in these numbers, do not rise to the level of violence sufficient to create a factual question as to whether Double Quick was on actual or constructive notice that an act of violence like the one claimed in this instance would occur on its premises.


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