                  IN THE SUPREME COURT OF MISSISSIPPI

                              NO. 2003-CA-00425-SCT

CAROL RENEE SIMPSON

v.

MICHAEL W. BOYD


DATE OF JUDGMENT:                       1/28/2003
TRIAL JUDGE:                            HON. RICHARD A. SMITH
COURT FROM WHICH APPEALED:              WASHINGTON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                CHARLES T. YOSTE
                                        STEPHANIE L. MALLETTE
ATTORNEYS FOR APPELLEE:                 GAINES S. DYER
                                        L. CARL HAGWOOD
NATURE OF THE CASE:                     CIVIL - TORTS-OTHER THAN PERSONAL
                                        INJURY & PROPERTY DAMAGE
DISPOSITION:                            AFFIRMED IN PART; REVERSED AND
                                        REMANDED IN PART; AND VACATED
                                        AND REMANDED IN PART - 08/26/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



      EN BANC.

      WALLER, PRESIDING JUSTICE, FOR THE COURT:


¶1.   Carol Renee Simpson appeals from a summary judgment which dismissed her

complaint and civil action for damages against her former employer, attorney Michael W.

Boyd, arising from injuries inflicted by an intruder while Simpson was at work. Simpson

sued Boyd, claiming that (1) Boyd's failure to provide a safe work environment was the

proximate cause of her injuries, (2) Boyd's failure to comply with city building codes
constituted negligence per se, and (3) Boyd negligently advised Simpson to file for

bankruptcy without informing her of the possibility of bringing a lawsuit against himself or

the attacker.

¶2.    In granting summary judgment, the Washington County Circuit Court discussed the

first two of Simpson's claims, but failed to address her third claim for legal malpractice. We

affirm the trial court's judgment with respect to Simpson's first claim, reverse and remand

with respect to the second, and vacate and remand with respect to the undecided third issue

in light of the fact that it is inappropriately before this Court.

                                            FACTS

¶3.    The law office of bankruptcy attorney Michael W. Boyd, located in Greenville,

Mississippi, has been the site of occasional moments of discord. At one point, one of Boyd's

employees had to call the police after Boyd got into a fracas with one of his clients. One

client called Boyd on the phone and made a number of threats. Renee Simpson testified that

once every other month an agitated client would cause some type of disturbance in the

office. One time, the irate acquaintance of a co-worker came to the office and caused such

a scene that the police had to be called. An office window was broken on two different

occasions after office hours. Late one night, Boyd's car window was broken as well.

¶4.    The incident at issue happened one morning in December of 1999, when a man who

was not one of Boyd's clients walked into the office. Two of Boyd's employees, including

Simpson, were in the back of the office. Simpson heard someone enter the office and went

through a set of French doors into the waiting room area where she encountered Earl



                                                2
Washington. She then walked back through the doors and into the receptionist's area to see

if Washington had an appointment.

¶5.    Washington asked for information regarding an aggravated assault defense, but

Simpson told him that their office did not handle that type of case. Washington demanded

to see the attorney. After Simpson told him the attorney was not there, he pulled a gun on

her. Washington then told Simpson that she was going to come with him.

¶6.    Simpson alleged that her escape was prevented because Boyd had locked the rear exit

door in the receptionist's area with a keyed deadbolt and had also blocked the door with a

copy machine. Washington came through the French doors to his left, down the short length

of the hallway, and into the reception area where Simpson stood. Simpson did not call out

for help for fear of her co-worker's safety, nor did she have time to dial 911.

¶7.    Washington forced Simpson out of the office and into his vehicle which he drove to

a levee area close to the Mississippi River. He sexually assaulted Simpson while they were

in the car. Simpson then ran from the car, but Washington shot her in the legs and buttocks,

preventing her escape. Simpson's ordeal ended when the police arrived and arrested

Washington.

¶8.    Simpson sued Boyd for compensatory damages, punitive damages, attorney's fees,

and court costs on the bases of premises liability, negligence per se, and legal malpractice.

                                      DISCUSSION

       Standard for Summary Judgment

¶9.    In determining whether the trial court properly granted a motion for summary

judgment we conduct a de novo review of the record. Palmer v. Anderson Infirmary

                                              3
Benevolent Ass'n, 656 So. 2d 790, 794 (Miss. 1995). A trial court may grant summary

judgment "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." M.R.C.P. 56 (c). A

fact is material if it "tends to resolve any of the issues properly raised by the parties."

Palmer, 656 So. 2d at 794.

¶10.   Furthermore, "[a] motion for summary judgment should be overruled unless the trial

court finds, beyond a reasonable doubt, that the plaintiff would be unable to prove any facts

to support his claim." Id. at 796. The trial court is prohibited from trying the issues; it may

only determine whether there are issues to be tried. Id.

¶11.   The evidence must be viewed in the light most favorable to the non-moving party, in

this case, Simpson. Id. at 794. If, in this view, the moving party, Boyd, is entitled to a

judgment as a matter of law, then summary judgment should be granted in his favor.

Otherwise, the motion should be denied. Id.

¶12.   In this negligence action, Simpson bears the burden of producing evidence sufficient

to establish the existence of the conventional tort elements of duty, breach, proximate

causation, and damages. Id. Duty and breach of duty, which both involve forseeability, are

essential to finding negligence and must be demonstrated first. Donald v. Amoco Prod. Co.

735 So. 2d 161, 174 (Miss. 1999).

¶13.   Therefore, Simpson must rebut Boyd's showing that no genuine issue of material fact

exists by producing supportive evidence of significant and probative value. Palmer, 656 So.

2d at 794. This supportive evidence must show that the Boyd breached the established

                                               4
standard of care and that such breach was the proximate cause of Simpson's injury. Id.

Finally, summary judgment should be granted with great caution. Id.

       Premises Liability

¶14.   Simpson claims Boyd owed her a duty to provide a safe place to work and a duty to

provide for her security. Although not an insurer of an invitee's safety, a premises owner

owes a duty to exercise reasonable care to protect the invitee from reasonably foreseeable

injuries at the hands of another. Newell v. S. Jitney Jungle Co., 830 So. 2d 621, 623 (Miss.

2002). We have stated two ways a plaintiff can prove forseeability for the purposes of

establishing a duty in premises liability cases: (1) that the defendant had actual or

constructive knowledge of the assailant's violent nature, or (2) actual or constructive

knowledge an atmosphere of violence existed on the premises. Gatewood v. Sampson, 812

So. 2d 212, 220 (Miss. 2002). Simpson's complaint attempts to prove foreseeability by

establishing that an atmosphere of violence existed.

¶15.   We have previously decided two cases which involved the "atmosphere of violence"

question. See id.; Crain v. Cleveland Lodge 1532, 641 So. 2d 1186 (Miss. 1994).

¶16.   In Crain, we affirmed summary judgment in favor of a business owner when a patron

suffered injury from attack in the owner's parking lot. Gatewood, 812 So. 2d at 220. We

opined that it would be "difficult to say the assault on [the plaintiff in that case] was

foreseeable" despite the fact that there was evidence of violent acts within two blocks of the

business which included: 110 commercial burglaries, three residential burglaries, eleven

assaults, 152 larcenies, one bomb threat, and one indecent exposure. Id. at 221. However,

we opted not decide the issue of foreseeability and instead affirmed summary judgment on

                                              5
the basis of a total lack of evidence regarding proximate causation. Id. Consequently, our

language regarding the atmosphere of violence in Crain was dicta and is not controlling in

the area of law pertaining to the "atmosphere of violence" theory.

¶17.   Our holding in Gatewood is controlling in this case. In Gatewood, we affirmed the

trial court's decision to deny a business owner's motions for judgment notwithstanding the

verdict and directed verdict. Id. at 219. The defendant in that case argued that there was not

enough evidence for the jury to find that an atmosphere of violence existed at the gas station

where the plaintiff was injured. Id. at 220. The evidence showed that sixty violent crimes

were reported to the police in the surrounding neighborhood within the three years prior to

the attack. Id. Thirty-two of the reported crimes occurred in a nearby shopping center; two

incidents occurring in close proximity to the gas station; and at one point, a fight broke out

on the premises of the gas station. Id.

¶18.   We held that evidence of the existence of an 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." Id. at 220. Based on the evidence before the trial court, we held that the

activity which occurred on and around the premises was enough to create a factual question

of whether an atmosphere of violence existed. Id.

¶19.   Unlike the plaintiff in Gatewood, Simpson has not presented facts sufficient to create

a jury issue on the duty prong of a prima facie case of negligence. In order to surmount a

motion for summary judgment, Simpson must offer evidence which indicates that incidents

in and around the office provided notice to Boyd that precautionary measures were necessary

                                               6
to prevent the occurrence of a crime like the one perpetrated by Washington against

Simpson.

¶20.   As proof of Boyd's constructive knowledge of the alleged violent atmosphere,

Simpson offers the following: (1) An irate client and an acquaintance of a co-worker

separately caused such a stir that the police had to be called; (2) a handful of verbal

exchanges between clients and Boyd; and (3) a couple of minor criminal instances over a

three-year period.

¶21.   Finally, Simpson's expert testified by way of affidavit that it was his opinion that

Boyd's office is located in a high crime area based on: (1) Boyd's off-the-cuff remark in a

deposition that "the entire city of Greenville is described as a high-crime area"; (2) Simpson's

general remarks that the area was a dangerous, high crime area; (3) the in-office incidents

referred to above; and (4) Boyd's decision to install a panic button and security system in the

building.

¶22.   These incidents do establish that employees at Boyd's office could expect to deal with

irate clients, that minor acts of vandalism might happen after hours, that both Simpson and

Boyd have made sweeping generalizations about the safety of the surrounding area, and that

Boyd was willing to take precautionary measures for any number of security reasons.

However, such incidents do not rise to the level of violence sufficient to create a factual

question as to whether Boyd was on constructive notice that an act of violence like that

committed by Washington would happen in his office.

¶23.   Simpson has not demonstrated an "overall pattern of criminal activity prior to the

event in question that occurred in the general vicinity of the defendant's business premises"

                                               7
nor has she demonstrated any "frequency of criminal activity on the premises" sufficient to

establish at atmosphere of violence. To lower the bar to this level would open the door to

nearly per se liability for premises owners.

¶24.   Therefore, since Simpson cannot meet the duty prong in her negligence claim, she has

not made out a prima facie case for premises liability, and the trial court appropriately

granted summary judgment with respect to this claim.

       Negligence Per Se

¶25.   Simpson next alleges that Boyd can be held liable for negligence per se under the City

of Greenville's Life Safety Code, adopted as part of its Fire Prevention Code. The Code

provides:

       Every building . . . designed for human occupancy shall be provided with exits
       sufficient to permit the prompt escape of occupants in case of fire or other
       emergency. The design of exits and other safeguards shall be such that
       reliance for safety to life in case of fire or other emergency will not depend
       solely on any single safeguard . . . In every building or structure, exits shall be
       so arranged and maintained so as to provide free and unobstructed egress from
       all parts of the building or structure at all times when it is occupied.

       No lock or fastening shall be installed to prevent free escape from the inside
       of any building. Two means of egress, as a minimum, shall be provided in
       every building or structure . . . The two means of egress shall be arranged to
       minimize the possibility that both may be impassable by the same fire or
       emergency situation.

(emphasis added).

¶26.   Mississippi recognizes the doctrine of negligence per se, which essentially provides

that breach of a statute or ordinance may render the offender liable in tort without proof of

lack of due care. Palmer, 656 So. 2d at 796. Violation of a statute or ordinance constitutes

negligence per se and will support a cause of action in tort where (1) the plaintiff is within

                                               8
the class protected by the statute, and (2) the harm sustained is the type sought to be

prevented by the statute. Id. Even if a defendant breaches a statutory duty and is within the

class protected by the violation, the plaintiff must still show that the violation proximately

caused the injury. Id. The presence of "intentional criminal acts of third parties do not, by

definition, relieve [Boyd] of liability," eliminating the need to consider the issue of

proximate causation. Whitehead v. Food Max of Miss. Inc., 163 F.3d 265, 272 (5th Cir.

1998) (interpreting Mississippi law)(citing O'Cain v. Harvey Freeman & Sons, Inc., 603

So. 2d 824, 830 (Miss. 1991)). Moreover, "the question of superceding intervening cause

is so inextricably tied to causation, it is difficult to imagine a circumstance where such an

issue would not be one for the trier of fact." O'Cain, 603 So. 2d at 830.

¶27.   The Code was written with the intention of protecting parties from the resulting harm

of fires and other emergencies. When confronted by Washington Simpson was faced with

an emergency situation, and Simpson alleges that the locked door with a copy machine in

front of it blocked her only possible means of escape in violation of the Code. She meets the

requirements for the duty and breach prongs based on negligence per se case because: (1)

the ordinance applies to buildings "designed for human occupancy" and therefore was meant

to protect people in general; and (2) the harm of emergency without means of escape which

Simpson allegedly experienced was the type sought to be prevented by the Code.

¶28.   However, Boyd mainly argues that there was no possibility that the blocked door

could have been the proximate cause of Simpson's injuries. He contends that her claim for

proximate causation fails because (1) there are no facts alleged which, if proven, would show



                                              9
that Simpson even had time to get to the door, and (2) it was unforeseeable to Boyd that

Washington would engage in such an extraordinary criminal act.

¶29.   Under the standard for summary judgment, his first argument is without merit. Boyd

argues that it is "wild conjecture to suggest that Plaintiff could have obtained access to the

rear exit without being injured or killed." However, Simpson claims that at one point she

was actually backed up to the copier and prevented from escaping during the brief period

when Washington walked down the hall. Far from being "wild conjecture," under the

summary judgment standard, such proof indicates that it may have been possible for

Simpson to escape at one point and make it clear that there are material facts in issue,

defeating Boyd's first argument.

¶30.   In regard to Boyd's second argument that Washington's criminal act was

unforeseeable so as to warrant summary judgment, this argument is without merit as well.

One could conceive arguments for both Boyd and Simpson regarding whether or not, as a

result of violating the city's safety code, Boyd foresaw that he was creating the opportunity

for a volatile emergency situation that would one day endanger one of his employees. For

precisely this reason, the issue of proximate causation in this case is not appropriate for

summary judgment, but must be brought before the trier of fact.

¶31.   Because Simpson has brought a claim for negligence per se which has outstanding

questions of proximate causation, we reverse the trial court's decision to grant Boyd's motion

for summary judgment.

       Legal Malpractice



                                             10
¶32.   The trial court granted summary judgment dismissing Simpson's case but failed to

specifically address her legal malpractice claim. Because the trial court neglected to address

this issue, we vacate the trial court's decision and remand in regard to this claim.

                                      CONCLUSION

¶33.   We affirm the trial court's judgment to the extent that it dismissed the premises

liability claim. We reverse the judgment to the extent that it dismissed the negligence per

se claim, and we remand this case for trial on that issue. We vacate the judgment to the

extent that it dismissed the legal malpractice claim, and we remand this case for further

proceedings on that claim.

¶34. AFFIRMED IN PART; REVERSED AND REMANDED IN PART; AND
VACATED AND REMANDED IN PART.

    SMITH, C.J., COBB, P.J., CARLSON, DICKINSON AND RANDOLPH, JJ.,
CONCUR. EASLEY, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT
SEPARATE WRITTEN OPINION.           DIAZ AND GRAVES, JJ., NOT
PARTICIPATING.




                                             11
