                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2015-IA-00167-SCT

CYNTHIA B. ADAMS

v.

ANTHONY S. HUGHES, JR.


DATE OF JUDGMENT:                          01/12/2015
TRIAL JUDGE:                               HON. TOMIE T. GREEN
COURT FROM WHICH APPEALED:                 HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   JAMES DENNIS BOONE
                                           EDWARD J. CURRIE, JR.
ATTORNEYS FOR APPELLEE:                    MARK ANTHONY LAMBERT
                                           JOHN CURTIS HALL, II
NATURE OF THE CASE:                        CIVIL - PERSONAL INJURY
DISPOSITION:                               REVERSED AND RENDERED - 05/19/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE DICKINSON, P.J., COLEMAN AND BEAM, JJ.

       BEAM, JUSTICE, FOR THE COURT:

¶1.    This is an interlocutory appeal from the Hinds County Circuit Court involving a

premises-liability case. Cynthia Adams, one of the defendants in the case, filed a motion for

summary judgment, which the trial court denied. Adams thereafter petitioned this Court for

interlocutory appeal. A panel of this Court issued an order granting the petition and staying

the trial court proceedings. See Adams v. Hughes, No. 2015-M-00167-SCT (Miss. March

5, 2015). Finding that Adams was entitled to summary judgment as a matter of law, we

reverse the trial court’s denial of summary judgment and render judgment in favor of Adams.

                                    BACKGROUND
¶2.    Plaintiff Anthony Hughes brought a negligence claim against multiple parties: BKB,

LLC d/b/a the Electric Cowboy;1 Jonathan Self, manager of the Electric Cowboy (hereinafter

Electric Cowboy); and Adams, the owner of the property on which Electric Cowboy operates.

Hughes alleges in his complaint that he was “attacked and assaulted by a third party

assailant” at the Electric Cowboy on July 15, 2011.2 Hughes claims that all the defendants

“had either actual or constructive knowledge of the third party’s violent nature or actual or

constructive knowledge that an atmosphere of violence existed on the premises of the

Electric Cowboy.”

¶3.    At the time in question, Adams leased the premises to the Electric Cowboy pursuant

to a written lease agreement. Following Adams’s deposition during discovery, Adams filed

a motion for summary judgment, arguing the following: Adams was an absentee landlord,

who did not physically occupy, possess, or exercise control over the Electric Cowboy and/or

the leased premises prior to or at the time of the incident in question; Adams did not frequent

or visit the Electric Cowboy; Adams had no control or involvement in the operations or

management of the Electric Cowboy; she was never employed by the Electric Cowboy; she

did not supervise the Electric Cowboy, and she did not have the right to supervise the Electric

Cowboy.


       1
           A night-club establishment located in Jackson, Mississippi.
       2
         According to an incident/investigation report attached as an exhibit in Adams’s
motion for summary judgment, the incident occurred in the Electric Cowboy’s parking lot,
when Hughes and a friend were walking to their car. Hughes saw an individual whom he
knew, and Hughes told the individual, “there would not be a fight tonight.” When Hughes
turned to walk away, the individual pushed Hughes, then picked up Hughes and “slammed”
him onto the ground, dislocating Hughes’s elbow.

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¶4.    Hughes responded to Adams’s summary judgment motion, arguing that Adams’s

contractual involvement with the Electric Cowboy, under the terms of the lease agreement,

far exceeded the scope of an absentee landlord and essentially made her a joint venturer with

the Electric Cowboy. Hughes based his argument primarily on a clause contained in

paragraph 38 of the written lease agreement. This clause gives Adams the right to receive

additional rent (above the base rent) based on six percent of the Electric Cowboy’s gross

sales and the right to inspect Electric Cowboy’s books and records in order to determine

whether additional rent might be applicable. Hughes argued that, based on the percentage

rent clause, Adams is more like a joint venturer than an absentee landlord, and she thereby

contractually possessed an element of control over the premises of the Electric Cowboy.

¶5.    The trial court denied Adams’s summary judgment motion, summarily finding that

genuine issues of material fact remained. Adams petitioned for interlocutory appeal, which

this Court granted.

                                        ANALYSIS

       Whether the trial court erred in denying Adams’s motion for summary
       judgment.

¶6.    A trial court’s grant or denial of summary judgment is reviewed de novo. Monsanto

Co. v. Hall, 912 So. 2d 134, 136 (Miss. 2005). Summary judgment is proper if “the

pleadings, depositions, answers to interrogatories and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c). “If any

triable facts exist, the lower court’s grant of a summary judgment will be reversed; otherwise


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the decision will be affirmed.” Miller v. Meeks, 762 So. 2d 302, 304 (Miss. 2000). The

evidence must be viewed in the light most favorable to the party opposing the motion. Davis

v. Hoss, 869 So. 2d 397, 401 (Miss. 2004). Only when the moving party has met its burden

by demonstrating that no genuine issues of material fact exist should summary judgment be

granted. Tucker v. Hinds County, 558 So. 2d 869, 872 (Miss. 1990). “[W]here the party

opposing the motion for summary judgment on a claim or defense upon which it bears the

burden of proof at trial, and the moving party can show a complete failure of proof on an

essential element of the claim or defense, other issues become immaterial and the moving

party is entitled to summary judgment as a matter of law.” Crain v. Cleveland Lodge 1532,

Order of Moose, Inc., 641 So. 2d 1186, 1188 (Miss. 1994).

¶7.    Generally, Mississippi law requires three determinations in premises-liability cases:

(1) legal status of the injured person, (2) relevant duty of care, and (3) defendant’s

compliance with that duty. Massey v. Tingle, 867 So. 2d 235, 239 (Miss. 2004). There is

no dispute that Hughes was an invitee. On the relevant duty of care, Mississippi’s premises-

liability caselaw dealing with third-party assault allegations applies. Kroger Co. v. Knox, 98

So. 3d 441, 443 (Miss. 2012), provides the following:

               The law of torts is well understood. To recover on a negligence claim,
       a plaintiff must show that the defendant breached a particular duty owed to the
       plaintiff, and that the breach of duty proximately caused damages. And while
       it is true that those in control of real property have a duty, if reasonably
       possible, to remedy most dangerous conditions on their property and to warn
       of those they cannot eliminate, that duty presupposes the defendant knows, or
       should know, of the dangerous condition.

              Where the alleged dangerous condition is the threat of an assault, the
       requisite cause to anticipate the assault may arise from (1) actual or

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       constructive knowledge of the assailant’s violent nature, or (2) actual or
       constructive knowledge that an atmosphere of violence exists on the premises.

¶8.    Here, there is nothing in the record from which to analyze whether Adams had actual

or constructive knowledge of (1) the assailant’s violent nature; or (2) whether an atmosphere

of violence exists on the premises of the Electric Cowboy. Nevertheless, the issue presented

to the trial court in Adams’s summary judgment motion is based solely on the question of

whether Adams constitutes an absentee landlord, who did not exercise sufficient control of

the premises so as to owe a duty to exercise reasonable care to protect Hughes from

reasonable foreseeable injury at the hands of another.

¶9.    As reiterated in Titus v. Williams, 844 So. 2d 459, 466 (Miss. 2003), under

Mississippi law, a landlord/lessor has no responsibility in keeping leased premises in safe

condition in the absence of a contract to do so. Id. (citing Wilson v. Allday, 487 So. 2d 793,

796 (Miss. 1986), overruled on other grounds). “Mississippi common law places that duty

squarely on the party who possesses or controls the property.” Titus, 844 So. 2d at 466.

¶10.   In Titus, the family of a shooting victim brought a wrongful-death action against a

convenience store, the store’s landlord/property owner, and the city of Sardis, Mississippi,

after Milton Titus was shot by a third party on the store’s property. Id. at 462. Each

defendant filed a motion for summary judgment. The landlord/property owner filed on the

basis that he was an absentee landlord and owed no duty to the victim, and he had committed

no form of negligence. The store filed on the basis that the victim was a trespasser, or at best

a licensee on its premises, and the store therefore owed only a duty to refrain from willfully

or wantonly injuring the victim. And the city filed on the basis that it was exempt from

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liability for the performance of police duties unless its employees acted recklessly. Id. at

462. The trial court granted summary judgment in favor of all defendants. Id.

¶11.   On appeal, this Court affirmed the trial court’s decision in toto. The Titus Court

found that the victim’s status as an invitee, a licensee, or a trespasser was irrelevant based

on the facts of the case. Id. at 467. This is because the victim knew the third party was

armed based on a prior incident between the two earlier that evening on the store’s premises,

and thus the victim knew the possible danger of confronting the third party. Id. On these

facts, the Titus Court held that “the highest standard of care that would be owed to anyone

who comes onto someone else’s land in Mississippi is to keep the premises reasonably safe

and when not reasonably safe to warn only where there is hidden danger or peril that is not

plain and in open view.” Id. In Mississippi, the general rule of law is “that the duty to warn

disappears entirely when it is shown that the injured person did, in fact, observe and fully

appreciate the peril.” Id. (citing Ill. Cent. R.R. v. Crawford, 244 Miss. 300, 315, 143 So. 2d

427, 431 (1962)). Accordingly, the store owed no duty to the victim to warn him of a

situation which the victim “created himself and the danger of which he was well aware.” Id.

at 467-68.

¶12.   In speaking to the landlord/property owner’s duty, the Titus Court found as follows:

       First, the record is devoid of any evidence that Williams[, the
       landlord/property owner,] engaged in affirmative or active negligence in the
       operation or control of the business. There is no proof that Williams, the
       absentee landlord, was aware of Titus’s presence upon the premises. Williams
       had no contractual duty to make repairs to the property. He did not occupy,
       exercise control over, or frequent the premises in question. When parties fail
       to allocate responsibility for keeping a leased premises in a safe condition
       through contract, Mississippi common law places that duty squarely on the

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       party who possesses or controls the property. Wilson v. Allday, 487 So. 2d
       793, 796 (Miss. 1986). The Flash Store, not Williams, operated and controlled
       the convenience store. Therefore, liability, if any, attaches to the Flash Store
       rather than Williams. See Wilson, 487 So. 2d at 796 (“[L]iability runs with
       possession and control of the property.”).

Id. at 466.

¶13.   Hughes argues that Titus is distinguishable both factually and legally because the

plaintiff in Titus created the danger himself, and there was no question in Titus that the

lessor was an absentee landlord who had no right of control of the premises and “no

contractual duties to make repairs to the property.” Id. at 465. Hughes argues that the lease

agreement here, unlike in Titus, reserves for Adams–apart from the rental-percentage

provision–the right for her and “h[er] authorized agents” not only to show the property to

potential buyers, but also a general “right of entry for repairs and maintenance,” among other

things. Hughes contends that the operative fact in this case is Adams’s right to control, not

Adams’s choice of whether or not actually to exercise that right. And Hughes maintains that,

based on the percentage rent clause contained in the lease agreement, Adams and Electric

Cowboy are essentially joint venturers. We disagree.

¶14.   First, the right of entry that the lease agreement reserved in Adams does not ascribe

the possession and control necessary to impute to Adams the duty to protect Electric

Cowboy’s invitees from injury at the hands of others. Had Hughes been injured due to some

structural defect on the premises that Adams had covenanted with the lessee to keep in repair,

the case might be different. That, though, is not the case here.




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¶15.   Second, the fact that the lease agreement contains a percentage-rent clause is of no

moment in this instance. In Lawler v. Skelton, 241 Miss. 274, 289-90, 130 So. 2d 565, 570

(1961), this Court addressed a personal-injury action in which the plaintiff contended that a

lessor and lessee were joint venturers because the lease agreement between them provided

the lessor a twenty-five percent interest in the lessee’s cotton crop. The Lawler Court found

that, regardless of the percentage-rent clause, the lessor and lessee were not joint venturers

or partners, but rather were landlord and tenant. Id. at 289-90. Thus, no liability could be

placed upon the lessor for injuries allegedly sustained by the plaintiff resulting from aerial

crop spraying of insecticides on the lessee’s cotton fields. Id. at 290. The Lawler Court

found that although the lessor retained certain residual rights of control over the farming

operation, loaned the lessee money when the lessee needed it for the farming operation, and

paid one-fourth the cost of insecticides to be applied on the cotton crop, the lessee was the

one responsible for running and managing the farming operation. Id. at 289-90. The lessee

hired the farmhands, selected the crop poisons, and employed the pilot. The lease expressly

provided that the parties were landlord and tenant, not partners, and the tenant had no

authority to bind the landlord. Id. The Lawler Court concluded that the lessor simply leased

the farm to the lessee under traditional methods for such operations. Id. at 290.

¶16.   Similarly, we find no joint venture or partnership between Adams and Electric

Cowboy. A joint venture is “an association of persons to carry out a single business

enterprise for profit, for which purpose they combine their property, money, effects, skill and

knowledge.” Freeland v. Henderson, 252 So. 2d 899, 906 (Miss. 1971). To form a joint



                                              8
venture, “there must be a joint proprietary interest and right of mutual control.” Id. at 907.

No evidence was presented showing that Adams and Electric Cowboy entered into such an

agreement. Adams did not contribute her property or money to promote Electric Cowboy.

Adams simply leased the property to Electric Cowboy under traditional commercial realty

methods, which often entail percentage rent covenants. Fletcher v. U.S. Rest. Props., Inc.,

881 So. 2d 333 (Miss. Ct. App. 2004); Facilities, Inc. v. Rogers-Usry Chevrolet, Inc., 908

So. 2d 107 (Miss. 2005); Polk v. Gibson Prods. Co. of Hattiesburg, 257 So. 2d 225 (Miss.

1972). Adams does not frequent or visit the Electric Cowboy; she has no control or

involvement in the operations or management of the Electric Cowboy; and she does not

supervise the Electric Cowboy.

¶17.   Accordingly, we find that Adams owed no duty to protect Hughes from reasonable

foreseeable injury at the hands of another. And the trial court erred in denying Adams’s

motion for summary judgment.

                                      CONCLUSION

¶18.   We reverse the trial court’s denial of Adams’s motion for summary judgment, and

render judgment in favor of Adams. The stay entered by this Court as to this case on March

5, 2015, is hereby vacated.

¶19.   REVERSED AND RENDERED.

    WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS,
KING, COLEMAN AND MAXWELL, JJ., CONCUR.




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