This is Part II of our 2016 Mississippi Premises Liability publication. We hope this information is helpful. But keep in mind that the application and impact of laws can vary widely based on the specific facts involved. This information it should not be used as a substitute for consultation with legal or other competent advisers.
WHAT IS THE STANDARD OF CARE ONCE STATUS IS DETERMINED?
TRESPASSER – STANDARD OF CARE
The duty owed to trespassers is merely to refrain from willfully or wantonly injuring them. Little v. Bell, 719 So.2d 757 (Miss. 1998) (citing Adams v. Fred’s Dollar Store of Batesville, 497 So.2d 1097 (Miss. 1986)). An owner or occupier has no duty to protect a trespasser from conditions on the premises.
Traditionally, a homeowner may not be held liable for injuries which result from passive negligence, which is defined as “the failure to do something that should have been done.” Titus v. Williams, 844 So.2d 459 (Miss. 2003).
However, Governor Bryant signed into House Bill 767 in 2016 which codifies the duties owed to a trespasser. It maintains the common law duty to avoid willful and wanton injury, but also establishes several situations with respect to children or an adult who is in a “position of peril”:
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(2) A possessor of real property owes no duty of care to a trespasser, except a duty to refrain from willfully or wantonly injuring such a person.
(3) Notwithstanding subsection (2) of this section, a possessor of real property may be subject to liability for injury to a trespasser if:
(a) The possessor discovers the trespasser in a position of peril on the property and fails to exercise reasonable care to prevent injury to that trespasser; or
(b) The trespasser is a child injured by an artificial condition on the possessor’s property and all of the following apply:
(i) The place where the condition existed was one upon which the possessor knew or had reason to know that a child would be likely to trespass;
(ii) The condition is one of which the possessor knew or had reason to know and which the possessor realized or should have realized would involve an unreasonable risk of death or serious bodily harm to a child;
(iii) The injured child because of his or her youth did not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it;
(iv) The utility to the possessor of maintaining the condition and the burden of eliminating the danger was slight as compared with the risk to the child; and
(v) The possessor failed to exercise reasonable care to eliminate the danger or otherwise to protect the child.
Codified at Miss. Code Ann. § 95-5-31.
The law also contains a final paragraph which appears to maintain the common law defenses and immunities. It is unclear exactly how this statute will be applied and what, if any effect it will have on the ultimate outcome of a case other than perhaps broadening the “attractive nuisance” doctrine and extending a duty to a trespasser in peril. Nevertheless, subsection (4) specifically reserves the common law immunities and defenses:
(4) This section does not create or increase the liability of any possessor of real property and does not affect any immunities from or defenses to civil liability established by another section of the Mississippi Code of 1972 or available at common law to which a possessor of real property may be entitled.
EXAMPLES
Injured party, Bracknell, failed to present any evidence that the private property owner’s association wantonly or willfully injured him. Bracknell was the guest of a resident, however, his guest pass expired. The association did not enforce its rules and regulations to remove guests whose guest pass had expired and it did not enforce its restriction prohibiting guest boats on the private lake. Subsequently, another guest of one of the property owners whose pass had also expired was driving his personal boat, which was prohibited, and crashed into Bracknell causing injury. The Court found that the owner’s association’s lack of attention did not differ from ordinary negligence and did not rise to wanton or willful. Green v. Dalewood, 919 So.2d 1000 (Miss.Ct.App. 2005).
A septic tank had just been installed on a lot when a young child who lived adjacent to the lot climbed into the tank. As the child climbed from tank the a 100-pound concrete cover fell on his head, killing him. The boy was found to be a trespasser and the development company was found not to have violated the standard of care owed to him, since it did not wantonly or willfully injure him. Hughes v. Star Homes, Inc., 379 So.2d 301 (Miss. 1980). The Court then turned to the attractive nuisance doctrine and held that the defendants were entitled to a peremptory instruction because there was nothing inherently dangerous about the septic tank and thus the attractive nuisance doctrine did not apply. Id. at 305.
LICENSEE – STANDARD OF CARE
As with a trespasser, a landowner or occupier owes a licensee a duty to refrain from willfully or wantonly injuring him. Adams, 497 So.2d at 1100.
EXAMPLES
In Doe v. Jameson Inn, Inc., a minor female who was the guest of a guest of a registered guest entered the hotel for the express purpose of the illegal activity of smoking marijuana. 56 So.3d 549 (Miss. 2011). She was subsequently raped in the hotel room. In finding that the minor child was not an invitee, the Court noted that the element of mutual benefit was lacking because the hotel received no benefit by virtue of the minor child’s presence on the premises. Id. at 555.
In Turnipseed v. McGee, the Court held that it is the landlord’s duty to exercise reasonable care to keep safe the areas of the premises over which he retains control. 236 Miss. 159, 109 So.2d 551, 554 (Miss. 1959).
In relying on the holding in Turnipseed, the Court in Lucas v. Miss Housing Authority No. 8 held that an invited guest of an apartment tenant was an invitee to the apartment complex when he was on the premises to use the swimming pool in the common area. 441 So.2d 101 (Miss. 1983). The Court stated that “[i]t would be unconscionable to establish a principle of law that [the apartment complex] owed to the six-year-old child of a tenant the duty to use reasonable care not to injure him and, yet, owed to his six-year-old invited guest, swimming in the same pool, only the duty not to willfully or wantonly injure him.” Id. at 103. See also Doe v. Mississippi State Fed’n of Colored Women’s Club Housing for the Elderly in Clinton, Inc. 941 So.2d 820 (Miss.Ct.App. 2006). Again, in relying on the language expressed in Turnipseed and restated in Lucas, a minor was held to be an invitee by virtue of her occasional weekend visits with her father, who was a tenant of the subject apartment complex.
However, compare the above cases with Price v. Park Management, Inc., where the tenant of an apartment complex and his guest were attacked in the tenant’s apartment. 831 So.2d 550 (Miss.Ct.App. 2002). The Court held that the duty owed to the tenant was to keep the premises in a reasonably safe condition, but the duty owed to the guest of the tenant was that of a trespasser, to refrain from wantonly or willfully injuring him. Id. at 551. The Court noted that it is “well settled that social guests of the tenant are owed no special duty by the landlord, but merely the duty owed by the landlord to trespassers that the landlord not wantonly or willfully injure the guest.” Id. (citing Lucas v. Buddy Jones Ford Lincoln Mercury, 518 So.2d 646, 647 (Miss. 1988)).
HOFFMAN EXCEPTION – DUTY TO A LICENSEE WHEN INCREASED HAZARD PRESENT
The Hoffman exception applies the standard of ordinary and reasonable care to licensees when the owner operates an activity which causes an unusual danger or increases the hazards to known licensees. Hoffman v. Planters Gin Co., Inc., 358 So.2d 1008 (Miss. 1978). In Hoffman, the Court changed the standard of care owed to a licensee, but it limited the new standard of care to cases involving injury resulting from active conduct as opposed to conditions of the premises, or passive negligence. In Hoffman, it was held that the owner or occupier is liable for injury proximately caused by the owner or occupier’s “affirmative or active negligence in the operating or control of activities which subjects a licensee to unusual danger or increases the hazard to the licensee when the presence of the licensee is known.” Little by Little v. Bell, 719 So.2d 757, 761 (Miss. 1998). However, the Hoffman exception only applies to cases involving the operation or control of a business. Hughes v. Star Homes, Inc., 379 So.2d 301 (Miss. 1980). “In order to fall within the Hoffman exception, the landowner must be aware of the licensee’s presence upon the premises, the landowner must engage in affirmative or active negligence in the operation or control of a business, the landowners’ conduct in regards thereto must subject the licensee or invitee to unusual danger, or increase the hazard to him, and the landowner’s active or affirmative negligence must have proximately caused the plaintiff’s injury.” Little by Little, 719 So.2d at 762.
The Mississippi Supreme Court, in Little by Little, declined to extend the Hoffman exception to situations where there is no operation or control of a business. Id. Andrea was a guest at the Bells’ home and was allowed to play on their trampoline. While either mounting or dismounting the trampoline, Andrea stepped on a milk crate below the trampoline, fell and suffered an injury. The Court found her to be a licensee since there was no mutual benefit, that is, there was no benefit flowing to the landowners by Andrea’s presence on the premises. The Court noted there was no evidence that the Bells knowingly or intentionally placed the milk crate in such a manner as to constitute a hazard. Further, the Court expressly declined to abolish the traditional classifications of injured parties and it rejected the plaintiffs’ invitation to extend the Hoffman exception outside of businesses. Id.
TRAPS AND HIDDEN OBJECTS
A premises owner or occupier may be liable when he sets traps or exposes licensees to hidden perils. Marlon Inv. Co. v. Conner, 246 Miss. 343, 149 So.2d 312 (1963). In Marlon Inv. Co., the jury found that the landowner had placed the injured party in a trap when she fell in an unlit abandoned stairwell that was not marked or sealed off and that the landowner knew of the danger and could reasonably foresee an injury to someone else. The owner had a lighted sign with an arrow that pointed downward towards the stairwell indicating his business. The Court affirmed the jury verdict for the injured party and held that the premises owner must disclose to the licensee any concealed, dangerous condition on the premises for which the owner had knowledge in order that the licensee could exercise reasonable care. Id.
It was a fact question for the jury to determine whether a homeowner had a duty to warn a roofing contractor of a rotten spot in the roof which was concealed by pine needles. Hearn v. Brown, 876 So.2d 380 (Miss.Ct.App. 2003) (overruled on other grounds by White v. Stewman, 932 So.2d 27 (Miss. 2006)). See, Liability of Independent Contractors.
A landowner did not owe her eight-year-old great grandson, a licensee, a duty to specifically warn him of potential danger posed by a debris pile, as the debris pile in her yard was not a trap or hidden peril. Vaughn ex rel. Vaughn v. Estate of Worrell, 828 So.2d 780 (Miss. 2002). The Court noted that the child frequently rode his bicycle in the landowner’s yard, that he was aware of the debris pile and was able to describe it. Id.
INVITEE – STANDARD OF CARE
An invitee is owed the highest duty of care. A landowner or occupier must provide property that is reasonably safe and when not reasonably safe to warn only where there is hidden danger or peril that is not plain and open view. A premises owner is not absolved from his duty to use reasonable care in keeping his premises in a reasonably safe condition just because he warns of a dangerous condition. See Mayfield v. Hairbender, 903 So.2d 733 (Miss. 2005). In Mayfield, the Court noted there is a two-part test requiring separate inquiries: (1) whether the owner kept the premises reasonably safe, and (2) whether the owner warned of hidden dangers of which the owner knew or, in the exercise of reasonable care, should have known. Id. at 738. Breaching either duty supports a claim of negligence. Id.
EXAMPLES
Injured party, an invitee, fell in Home Depot. However, she did not know what caused her to fall. She could only speculate that a pallet or wood piece may have caused her to slip and/or trip, and such speculation contradicted her deposition testimony that she did not know what caused her fall. The Court found that no proof was presented that the injury was the result of negligence by Home Depot and that Home Depot had no knowledge of a dangerous condition. Rod v. Home Depot USA, Inc., 931 So.2d 692 (Miss.Ct.App. 2006).
The Court held it was a question of fact for a jury whether or not Holiday Inn knew or should have known of a loose mirror in its bathroom that subsequently fell and injured the Pigg’s minor son, who was a hotel guest and thus an invitee, when he closed the bathroom door on which the mirror hung. Pigg v. Express Hotel Partners, LLC, 991 So.2d 1197 (Miss. 2008).
A hotel guest slipped on a rubber shower mat when exiting the shower. He claimed the mat twisted or slipped causing him to fall. The Court found there was no evidence of a dangerous condition or that the defendant had any knowledge of a dangerous condition. Stanley v. Boyd Tunica, Inc., 29 So.3d 95 (Miss.Ct.App. 2010). A “property owner cannot be found liable for the plaintiff’s injury where no dangerous condition exists.” Id. at 97-98 (citing Delmont v. Harrison County Sch. Dist., 944 So.2d 131, 133 (Miss.Ct.App. 2006)).
Skating rink did not breach a duty owed to its patron that allegedly tripped and fell over a toy while skating. She claimed the toy was thrown onto the floor from the adjacent arcade. However, no evidence was presented that the skating rink or its employees threw the toy or had any knowledge of the toy being on the skating rink floor. Sullivan v. Skate Zone, Inc., 946 So.2d 828, 832 (Miss.Ct.App. 2007). The Court rejected the argument for “mode of operation” theory of premises liability, which holds that “when an owner of a self-service establishment has actual notice that his mode of operation creates certain risks of harm to customers, and those risks are foreseeable, it is not necessary for the plaintiff to prove notice of the hazard that caused the injury.” Id. (quoting Byrne v. Wal-Mart Stores, Inc., 877 So.2d 462, 466-67 (Miss.Ct.App. 2003)).
