                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2018-CA-01491-SCT

MARIO HOLLAND

v.

MURPHY OIL USA, INC., ADEN, LLC d/b/a
BLACK’S FOOD MARKET, RAMAN AMAN, LLC,
MISS U HOLDINGS, JOHN LEE, LEE JOHNSON
AND EDWARD WEST d/b/a WEST RESTAURANT
AND LOUNGE


DATE OF JUDGMENT:                         09/21/2018
TRIAL JUDGE:                              HON. JOSEPH ANTHONY SCLAFANI
TRIAL COURT ATTORNEYS:                    TERRIS CATON HARRIS
                                          DAVID C. DUNBAR
                                          EDWARD WEST (PRO SE)
                                          ERIC REYNOLDS PRICE
                                          CHRISTOPHER GERRARD DUNNELLS
COURT FROM WHICH APPEALED:                HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   TERRIS CATON HARRIS
ATTORNEYS FOR APPELLEES:                  DAVID C. DUNBAR
                                          ERIC REYNOLDS PRICE
                                          CHRISTOPHER GERRARD DUNNELLS
NATURE OF THE CASE:                       CIVIL - PERSONAL INJURY
DISPOSITION:                              AFFIRMED - 02/20/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       BEFORE KING, P.J., CHAMBERLIN AND ISHEE, JJ.

       KING, PRESIDING JUSTICE, FOR THE COURT:

¶1.    In this negligence case, the trial court granted summary judgment in favor of

defendant Murphy Oil, finding that, as a landowner that owned land near the scene of an

assault, it did not owe any legal duty to the injured party, Mario Holland. Holland appeals,
arguing that this Court should adopt Section 54 of the Restatement (Third) of Torts, which

provides for instances when landowners may owe a duty to persons or property located off

the landowner’s property. We need not address the Restatement because it is inapplicable

to the facts of this case. Further, we affirm the trial court’s grant of summary judgment

because the landowner did not owe any legal duty to Holland.

                       FACTS AND PROCEDURAL HISTORY

¶2.    On November 14, 2016, Mario Holland parked his vehicle at Black’s Food Market

and walked to West Lounge. Upon returning to his vehicle after patronizing West Lounge,

Holland was shot and robbed in the Black’s Food parking lot. He alleges that the assailant

came from a vacant lot across the street from Black’s Food. Murphy Oil owns the vacant lot.

Holland suffered serious injuries from the assault.

¶3.    Holland sued various entities associated with West Lounge and Black’s Food and also

Murphy Oil as the owner of the vacant lot from which the assailant allegedly originated.

Murphy Oil filed a motion for summary judgment, arguing that it owed no legal duty to

Holland. Holland responded, arguing that Section 54 of the Restatement (Third) of Torts

provides that landowners owe certain duties to persons off their premises. He also filed a

request for time to conduct discovery under Mississippi Rule of Civil Procedure 56(f). The

trial court granted Murphy Oil’s motion for summary judgment, finding that Murphy Oil did

not owe any legal duty to Holland. The trial court found that Murphy Oil did not control the

assailant and noted that this Court has not adopted Section 54 of the Restatement (Third) of


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Torts; it then found Section 54 inconsistent with Mississippi law. Holland appeals to this

Court, arguing that Section 54 should be adopted and applied to this case and that the trial

court erred by failing to grant his request for discovery.

                                          ANALYSIS

¶4.      This Court reviews the trial court’s grant of summary judgment de novo. Crosthwait

v. Southern Health Corp. of Houston, Inc., 94 So. 3d 1070, 1073 (Miss. 2012). Summary

judgment is appropriate when “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[.]” Miss. R. Civ. P. 56(c). This Court reviews the evidence in the light

most favorable to the opposing party. Duckworth v. Warren, 10 So. 3d 433, 436-37 (Miss.

2009).

¶5.      Holland urges this Court to adopt Section 54 of the Restatement (Third) of Torts.

However, Section 54 is not applicable to the facts of this case, and it is thus inappropriate for

this Court to address adopting it; we consequently decline to address the trial court’s finding

that Section 54 is inconsistent with Mississippi law. Section 54 provides in pertinent part

that

         (a) The possessor of land has a duty of reasonable care for artificial conditions
         or conduct on the land that poses a risk of physical harm to persons or property
         not on the land.

         (b) For natural conditions on land that pose a risk of physical harm to persons
         or property not on the land, the possessor of the land

                (1) has a duty of reasonable care if the land is commercial; otherwise

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              (2) has a duty of reasonable care only if the possessor knows of the risk
              or if the risk is obvious.

Restatement (Third) of Torts § 54 (Am. Law Inst. 2012), Westlaw (database updated Oct.

2019). Section 54(a) applies to conduct by the possessor of the land, such as mining coal,

that may cause injury to persons or property off the land. Restatement (Third) of Torts § 54

cmt. b (Am. Law Inst. 2012), Westlaw (database updated Oct. 2019). Section 54(a) applies

to artificial conditions such as a “deteriorated awning” that “overhang[s] a public walkway”

and may therefore have reach outside the property. Id. Section 54(b) applies to natural

conditions such as a dead tree that may fall and land partially off the property. Restatement

(Third) of Torts § 54 cmt. c (Am. Law Inst. 2012), Westlaw (database updated Oct. 2019).

The duty of reasonable care is an affirmative duty, in that “the land possessor has not acted

in any way to create the risks posed by natural conditions.” Id. None of these situations

apply to a third party who left a property and assaulted someone off that property. Section

54 is therefore inapplicable.1

¶6.    Turning to Murphy Oil’s duty to Holland, the central issue is whether Murphy Oil had

a duty to protect Holland from the third-party assailant who caused Holland’s injuries. The

duty to control the conduct of others is a narrow one. Doe v. Hunter Oaks Apartments, L.P.,


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        Holland appears to argue that the “overgrown” natural condition of the property
provides a place for criminals to “lay in wait.” But as far as any duty regarding natural
conditions, the landowner would only have the duty not to create the risks posed by those
natural conditions. Having bushes that people may be able to hide behind does not rise to
the level of creating the risk—if we were to so hold, anyone with a bush or a tree on their
property may be liable for the actions of a third party hiding behind it.

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105 So. 3d 422, 426 (Miss. Ct. App. 2013). Generally, no such duty exists absent a special

relationship between the actor and the third party that imposes a duty for the actor to control

the third party or absent a special relationship between the actor and the injured party that

gives the injured party a right to protection. Id. (quoting Restatement (Second) of Torts §

315 (Am. Law Inst. 1965)).

¶7.    No special relationship of control existed between Murphy Oil and the assailant. The

duty of control only exists for those who “take charge” of a third party. Hunter Oaks, 105

So. 3d at 426. To take charge of a third party, the actor must have the ability to control that

person’s conduct. Id. Murphy Oil did not in any manner take charge of the assailant.

¶8.    No special relationship spawning a right to protection existed between Murphy Oil

and Holland. The Court of Appeals has noted that, generally, four special relationships may

give a right to protection. Id. Those relationships are: “(1) a common carrier and its

passengers, (2) an innkeeper and his guests, (3) a landowner and his invitees, (4) a custodian

. . . and a person who is deprived ‘of his normal opportunities for protection . . . .’” Id.

(quoting Restatement (Second) of Torts § 314A (Am. Law Inst. 1965)). None of those

relationships exist between Murphy Oil and Holland.

¶9.    Consequently, no legal duty from Murphy Oil to Holland exists.2 Duty is essential to

a negligence claim. Strantz v. Pinion, 652 So. 2d 738, 742 (Miss. 1995). The trial court did



       2
         Nothing in Holland’s request for time to conduct discovery would change this; the
trial court therefore did not err by failing to grant the request.

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not err by finding that Holland failed to demonstrate a duty owed by Murphy Oil.

                                    CONCLUSION

¶10.   Because no legal duty exists on the part of Murphy Oil under the facts of this case,

this Court affirms the trial court’s grant of Murphy Oil’s motion for summary judgment.

¶11.   AFFIRMED.

    RANDOLPH, C.J., KITCHENS, P.J., COLEMAN, MAXWELL, BEAM,
CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.




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