                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2006-CA-01945-SCT

ROSIE THOMAS, INDIVIDUALLY AND ON
BEHALF OF THE WRONGFUL DEATH
BENEFICIARIES OF WILSON THOMAS, JR.,
DECEASED

v.

THE COLUMBIA GROUP, LLC; THE COLUMBIA
GROUP, LLC d/b/a SHADY LANE APARTMENTS


DATE OF JUDGMENT:                          08/23/2006
TRIAL JUDGE:                               HON. MIKE SMITH
COURT FROM WHICH APPEALED:                 YAZOO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    JAMES ASHLEY OGDEN
ATTORNEYS FOR APPELLEE:                    WALKER REECE GIBSON
                                           MICHAEL WAYNE BAXTER
NATURE OF THE CASE:                        CIVIL - WRONGFUL DEATH
DISPOSITION:                               REVERSED AND REMANDED - 11/29/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE SMITH, C.J., GRAVES AND RANDOLPH, JJ.

       SMITH, CHIEF JUSTICE, FOR THE COURT:

¶1.    This appeal arises from a wrongful-death action in which the Plaintifft, Rosie Thomas,

individually and on behalf of the wrongful-death beneficiaries of Wilson Thomas, Jr.,

deceased (“Thomas”), alleges negligence against Defendants, The Columbia Group, LLC,

The Columbia Group, LLC d/b/a Shady Lane Apartments (“Shady Lane”).

¶2.    On July 27, 2004, in the Circuit Court of Yazoo County, Thomas filed a complaint

alleging negligent security, failure to warn, and failure to maintain the apartment complex
in a reasonably safe condition. The complaint further alleged that Shady Lane’s negligence

caused the shooting and death of Wilson Thomas, Jr., on August 1, 2003. The complaint was

amended March 21, 2005, and the amended complaint was answered May 5, 2005.

¶3.    On February 16, 2006, Shady Lane filed a motion for summary judgment. Arguments

on the motion for summary judgment were heard on April 24, 2006, before Judge Jannie

Lewis. Four days later, Judge Lewis entered an order denying Shady Lane’s motion for

summary judgment. On August 3, 2006, citing a newly published case, Shady Lane renewed

its motion for summary judgment. The renewed motion was argued before a special judge,

Judge Mike Smith,1 who granted the motion for summary judgment.

¶4.    Thomas then filed a motion for new trial, amendment of judgment, judgment

notwithstanding the verdict, relief from judgment, and a separate motion to reconsider.

Judge Smith entered an order denying Thomas’s motions on October 16, 2006, and Thomas

filed a notice of appeal on November 7, 2006.

¶5.    On appeal is the issue of whether the trial court improperly granted Shady Lane’s

motion for summary judgment. We hold that these are issues of material fact, thus the trial

court erred in granting summary judgment. We reverse and remand.

                                 STATEMENT OF FACTS

¶6.    Shady Lane is an apartment complex in Yazoo City controlled by The Columbia

Group and subsidized by the United States Department of Housing and Urban Development

(HUD). Wilson Thomas, Jr., lived at Shady Lane Apartments with his girlfriend, Teresa




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           Judge Lewis was out on medical leave at this time.

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Mitchell, for approximately two years. Thomas was not listed on the lease, but the manager,

Catherine Washington, knew or had reason to know that he was living there, and did not

seem to have any problem with it.

¶7.    Shady Lane is located in a high-crime area. Sometime in the late 1980s Shady Lane

hired armed security guards to patrol the property. In the late 1990s Shady Lane installed

an iron fence around the entire property. There was only one entrance to the property, and

it was controlled by a guard stationed in a booth to monitor who entered and exited the

property. Around 2000, the guards were removed and within a few months replaced by

security cameras located around the entire property.

¶8.    On Thursday, July 24, 2003, Wilson Thomas was shot by Cornelius Young after

trying to calm an argument between Young and his girlfriend. The shot merely grazed

Thomas, but he required medical treatment and later that day filed a police report. The

apartment manager was informed of the shooting, and held a meeting to discuss what to do

about it. The apartment manager said that she was going to get security and keep Young off

the property. This was not enforced.

¶9.    On August 1, 2003, Young entered the Shady Lane property through the front gate,

parked his car, got out and shot and killed Thomas.

                               STANDARD OF REVIEW

¶10.   This Court employs a de novo standard of review when reviewing orders granting or

denying summary judgment. Mantachie Natural Gas v. Miss. Valley Gas Co., 594 So. 2d

1170 (Miss. 1992). The moving party must 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.


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R. Civ. P. 56(c). “Issues of fact sufficient to require denial of a motion for summary

judgment obviously are present where one party swears to one version of the matter in issue

and another says the opposite.” Titus v. Williams, 844 So. 2d 459, 464 (Miss. 2003). All

evidence, including admissions in pleadings, answers to interrogatories, depositions and

affidavits must be viewed in the light most favorable to the party against whom the motion

has been made, as “he is given the benefit of every reasonable doubt.” Spartan Food Sys.,

Inc. v. American Nat’l Ins. Co., 582 So. 2d 399, 402 (Miss. 1991).

                                       DISCUSSION

¶11.   At issue is whether the trial court properly granted Shady Lane’s motion for summary

judgment. The traditional elements of negligence are duty or standard of care, breach of that

duty, proximate causation, and damages or injury. Lyle v. Mladinich, 584 So. 2d 397, 398

(Miss. 1991). The analysis of premises liability involves three steps: first, the court must

determine the status of the injured party as invitee, licensee, or trespasser; second, based on

the injured’s status, the court must determine what duty the landowner/business operator

owed the injured party; and third, the court must determine whether the landowner/business

operator breached the duty owed the injured party. Little ex rel. Little v. Bell, 719 So. 2d

757, 760 (Miss. 1998). In this case, damages clearly consist of the death of Wilson Thomas,

but we will discuss each of the other elements in turn.

       I.     Status.

¶12.   A person is considered an invitee if he enters the premises of another in answer to the

express or implied invitation of the owner or occupant for their mutual advantage. Holliday

v. Pizza Inn, Inc., 659 So. 2d 860, 865 (Miss. 1995). A person is considered a licensee if he


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enters the property of another for his own convenience, pleasure or benefit pursuant to the

license or implied permission of the owner, and a person is considered a trespasser if he

enters the property of another without license, invitation or other right. Id.

¶13.   The Plaintiff contends that Thomas was an invitee at the time of the shooting. In

Joiner v. Haley, 777 So. 2d 50, 52 (Miss. 2000), this Court stated that “it would appear that

an invited guest on the premises of rental property would be afforded the same protections

extended to the tenant.” This Court also has noted that in multi-unit apartment buildings,

where the owner expressly or impliedly reserves parts for common use, “[i]t is the landlord’s

duty to keep safe such parts over which he reserves control, and, if he is negligent in this

respect, and personal injury results to a tenant or to a person there in the right of the tenant,

he is liable in tort.” Lucas v. Miss. Hous. Auth. No. 8, 441 So. 2d 101, 103 (Miss. 1983)

(quoting Turnipseed v. McGee, 236 Miss. 159, 109 So. 2d 551 (1959)). It is undisputed that,

at the very least, Thomas was an invited guest of tenant Theresa Mitchell and therefore was

afforded the same protections extended to the tenant.

¶14.   Plaintiff contends that Thomas was living at the apartments and that the manager

knew he was living there. Shady Lane argues that the manager had no knowledge that

Thomas was living there, and that he was not listed on the lease and therefore not a legal

tenant. Plaintiff also notes that Shady Lane derived a benefit from Thomas living on the

property, and as such meets the “for-their-mutual-advantage” portion of the definition of

invitee. Thomas made monetary contributions in the form of paying for laundry at the

apartment laundromat and paying Mitchell’s maintenance bill. There is suitable evidence

that Thomas was at Shady Lane under the implied invitation of the owner, and for their


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mutual benefit. Giving Thomas the benefit of every reasonable doubt for the purposes of

summary judgment, it should be concluded that he was an invitee.

       II.    Duty.

¶15.   Having characterized Thomas as an invitee, the duty owed is simply an issue of law

already established by this Court. A landowner owes an invitee the duty to keep the premises

reasonably safe, and when not reasonably safe, to warn only where there is hidden danger

or peril that is not in plain and open view. Titus, 844 So. 2d at 467. In Gatewood v.

Sampson, 812 So. 2d 212, 219-220 (Miss. 2002) (quoting Lyle v. Mladinich, 584 So. 2d 397

(Miss. 1991)), the Court stated that “[t]he duty imposed upon a business proprietor to protect

a patron from assaults by other patrons is that the business owner, though not an insurer of

the invitee’s safety, has a duty to exercise reasonable care to protect the invitee from

reasonably foreseeable injury at the hands of the other patrons.” The Court went on to clarify

that the area where the duty is owed extends to the parking area around the building. Id.

This means that in the current situation for the purposes of summary judgment, Shady Lane

owed Thomas a duty to exercise reasonable care to protect him from reasonably foreseeable

injury at the hands of Young.

¶16.   Shady Lane argues that Thomas was owed no duty because he was in a position to

observe and fully appreciate the peril he was in. In Titus the Court upheld a summary

judgment, stating that “it is a general rule of law that the duty to warn disappears entirely

when it is shown that the injured person did, in fact, observe and fully appreciate the peril.”

Titus, 844 So. 2d at 467. Whereas the statement in Titus certainly is true, the facts of this

case are significantly different than those of Titus. In Titus, the victim intervened in an


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argument between the shooter and a third party at approximately 9:00 p.m. in a convenience

store parking lot. Id at 462. The crowd was peacefully dispersed. Id. Some forty minutes

later, the victim returned to the parking lot and was spotted by the shooter. Id at 463. At this

point the shooter fired two shots at the victim, missed, and the victim fled. Id. Twenty

minutes later the victim again returned to the parking lot, but this time the victim approached

the shooter and attacked him. Id. The shooter then retrieved his gun and killed the victim.

Id. at 464.

¶17.   In Titus, the entire affair from first confrontation to shooting took just over an hour.

Id. at 463-64. In this case, Young first fired at Thomas on July 25, 2003, and the next

interaction, the second shooting, did not occur until a week later on August 1, 2003. In Titus,

the victim approached the shooter and attacked him, at which time the shooter retrieved his

gun and killed the victim. Titus, 844 So. 2d at 463-64. In this case, Thomas was simply

sitting in the Shady Lane parking lot when Young pulled up, parked his car, got out and shot

Thomas. Thomas did not say anything to Young. Thomas did not have a weapon. Thomas

did nothing to instigate the shooting.

¶18.   The distinction is clear. In one situation, a victim willfully placed himself in peril.

He attacked the shooter even though he knew that the shooter was currently armed and

willing to use the weapon. He assumed the risk. In this case, Thomas tried to break up a

fight between Young and Young’s girlfriend and was shot at by Young. A full week later,

Thomas had not gone after Young, but instead was sitting with two friends in the parking lot

when he was approached by Young. It was an unprovoked attack. Shady Lane repeatedly

refers to an ongoing feud between Thomas and Young. However, there is no evidence in the


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record to support this. Giving Thomas the benefit of every reasonable doubt for the purposes

of summary judgment, it should be concluded that Shady Lane did in fact owe him a duty to

exercise reasonable care to protect him from reasonably foreseeable injury.

       III.   Breach of Duty/Proximate Cause.

¶19.   Shady Lane argues that the shooting was an intervening and superceding cause of

Thomas’s death. However, this Court has found that for an “intervening and superceding

cause to extinguish liability of the original actor, the cause must be unforeseeable.” Newell

v. S. Jitney Jungle Co., 830 So. 2d 621, 623 (Miss. 2002) (emphasis added). In this case the

cause was not unforeseeable.

¶20.   In order to establish legal causation, or foreseeability, in cases of assault by a third

person, one must show actual or constructive knowledge of the assailant’s violent nature, or

actual or constructive knowledge that an atmosphere of violence exists on the premises.

Gatewood, 812 So. 2d at 220. Evidence of an existing atmosphere of violence may 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.” Lyle v. Mladinich, 584 So. 2d at 399.

¶21.   This case presents both. The apartment manager at Shady Lane knew about the first

shooting at least two days after it happened. Even if she did not hear about the shooting until

two days after it happened, it was still several days before the second shooting, resulting in

Thomas’s death, occurred. There is even testimony that the apartment manager “knew

something like this was going to happen,” and that she was going to do something about it.

As to the existing atmosphere of violence, there is evidence in the record of several previous


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shootings on the premises and lots of fighting. Specifically, there were more than five

shootings at Shady Lane prior to the incident between Thomas and Young, each of which

resulted in death: Matthew Wright in 1993; Harry Smith in 1995; James Clark in 1996; and

two unidentified Mexican men in 2002. Again, testimony shows that the apartment manager

was aware of these occurrences. In this situation, there is at least enough evidence of

foreseeability to establish a question of material fact for the jury to determine.

¶22.    Shady Lane also argues, and the trial court relied on, the notion that Thomas “can’t

put together a set of facts to prove that the defendants did anything to cause Young to kill

Thomas.” Plaintiff argues that if Shady Lane had maintained security guards at the gate, and

maintained the banned list, Young would not have gotten on the property to shoot Thomas.

This Court has held that “[p]roximate cause arises when the omission of a duty contributes

to cause an injury.” Crain v. Cleveland Lodge 1532, Order of Moose, Inc., 641 So. 2d 1186,

1192 (Miss. 1994) (quoting Drummond v. Buckley, 627 So. 2d 264, 270 (Miss. 1993)). The

apartment manager stated that she was going to evict Young, and that she was going to get

security and ban Young from the premises. This was not done. In Crain, the Court found

that no evidence was presented in the record showing a causal link between a lack of security

measures and the injury sustained. Id. In this case, however, there is direct evidence from

experts Tyrone Lewis and John Tisdale that Shady Lane’s failure to follow through with

security proximately caused the second shooting of Wilson Thomas. This testimony from

experts, coupled with the manager’s statement that she was going to ban and evict Young as

well as improve security, is clearly an issue of material fact that should be determined by a

jury.


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                                      CONCLUSION

¶23.   Based on the foregoing analysis, we conclude that there are issues of material fact, and

that the trial court erred in granting summary judgment as a matter of law. As such, the trial

court’s decision is reversed and remanded for trial.

¶24.   REVERSED AND REMANDED.

     WALLER AND DIAZ, P.JJ., EASLEY, CARLSON, DICKINSON, RANDOLPH
AND LAMAR, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY.




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