                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2007-CA-00008-SCT

MARK ALBERT, INDIVIDUALLY AND AS
REPRESENTATIVE OF THE WRONGFUL
DEATH BENEFICIARIES OF KYLA ALBERT,
DECEASED

v.

SCOTT’S TRUCK PLAZA, INC., INCORRECTLY
NAMED AS RONNY HUDDNAL AND DOROTHY
HUDDNAL, A PARTNERSHIP, DOING BUSINESS
AS SCOTT’S AMOCO, LONGSPUR, L.P., AND
BURNS AND BURNS, INC.


DATE OF JUDGMENT:                         11/27/2006
TRIAL JUDGE:                              HON. LESTER F. WILLIAMSON, JR.
COURT FROM WHICH APPEALED:                LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   JEFFREY DEAN LEATHERS
ATTORNEYS FOR APPELLEES:                  JAMES RYAN PERKINS
                                          J. WYATT HAZARD
                                          CAROLYN CURRY SATCHER
NATURE OF THE CASE:                       CIVIL - WRONGFUL DEATH
DISPOSITION:                              AFFIRMED - 02/28/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       EN BANC.

       LAMAR, JUSTICE, FOR THE COURT:

¶1.    In this wrongful-death case, Kyla Albert, Mark Albert’s wife, was struck and killed

while crossing a public roadway en route from Scott’s Truck Plaza to the gravel parking area

across the road where her truck was parked. Mark Albert (“Plaintiff”) filed suit against
Scott’s Truck Plaza; Longspur, L.P., the owner of the property upon which Scott’s Plaza was

situated; and Burns and Burns, Inc., the provider of the gas and gas equipment, (collectively,

“Defendants”) for failure to keep the premises in a reasonably safe condition and failure to

warn of the unsafe condition concerning the public roadway.           The Circuit Court of

Lauderdale County granted summary judgment in favor of the defendants. The dispositive

premises-liability question is whether Defendants owed a duty to Kyla Albert at the time she

was fatally injured while crossing a public highway abutting the truck stop. We affirm the

trial court’s grant of summary judgment.

                       FACTS AND PROCEDURAL HISTORY

¶2.    Appellant Mark Albert was a truck driver. His wife, Kyla Albert, accompanied him

on trips. On December 9, 2002, during a working trip, the Alberts stopped at Scott’s Truck

Plaza in Meridian, Mississippi, for breakfast. They parked the truck in a gravel lot on the

west side of Russell Mt. Gilead Road. Scott’s was across the road on the east side. The

Alberts ate inside the truck stop. While crossing Russell Mt. Gilead Road to return to the

truck, Kyla Albert was struck and killed by a vehicle driven by Terra Lanterman McDonald.

The accident occurred about 5:08 a.m., while it was still dark outside.

¶3.    Mark Albert filed a wrongful-death suit against McDonald; Longspur, L.P., the

landowner and lessor of the truck stop;1 and Ronny and Dorothy Huddnal, the operating




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      The Huddnals rented the premises on which the truck stop was located from
Longspur; however, there was no written lease agreement.

                                              2
partners and lessees of the truck stop.2 Mark Albert alleged that Scott’s acted negligently in

that it: (1) failed to provide adequate lighting; (2) placed a propane tank and advertising in

its parking lot, which obstructed the view of pedestrians and drivers of oncoming traffic; and

(3) failed to warn of hidden dangers. He alleged that these failures amounted to a breach of

the business’s duty to provide reasonably safe premises.

¶4.    Defendants filed for summary judgment. The trial court granted summary judgment

as to all defendants on November 27, 2006, finding that Albert failed to produce evidence

which would establish a genuine issue of material fact concerning (1) whether the propane

tank, advertising or alleged inadequate lighting was a proximate cause of the accident; or (2)

whether the Defendants had a duty to provide adequate lighting or warn the decedent of the

dangers associated with crossing Russell Mt. Gilead Road. From this judgment, Albert filed

a notice of appeal.

                                       DISCUSSION

¶5.    This Court employs a de novo standard in reviewing a trial court's ruling on a motion

for summary judgment. Green v. Allendale Planting Co., 954 So. 2d 1032, 1037 (Miss.

2007). Such review entails examination of all the evidentiary matters before us, including

admissions in pleadings, answers to interrogatories, depositions, and affidavits. Id. The

evidence must be viewed in the light most favorable to the non-movant. Id. The movant


       2
        Mark Albert reached a settlement agreement with McDonald which resulted in
McDonald’s release. Additionally, Burns and Burns, Inc., though not named in the style or
the substance of either complaint, subsequently was added as a defendant. Burns sold
gasoline to the truck stop and provided the gasoline-dispensing equipment.

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bears the burden of showing that no genuine issue of material fact exists. Id. The existence

of a genuine issue of material fact will preclude summary judgment. Massey v. Tingle, 867

So. 2d 235, 238 (Miss. 2004). “The non-moving party may not rest upon mere allegations or

denials in the pleadings but must set forth specific facts showing that there are genuine issues

for trial.” Id. (citing Richmond v. Benchmark Constr. Corp., 692 So. 2d 60, 61 (Miss.

1997)). See also Mayfield v. The Hairbender, 903 So. 2d 733, 735 (Miss. 2005) (same);

KBL Props., LLC v. Bellin, 900 So. 2d 1160, 1163 (Miss. 2005) (same).

¶6.    Summary judgment is mandated where the non-movant fails to establish the existence

of an essential element of that party’s claim. Smith v. Gilmore Mem’l Hosp., Inc., 952 So.

2d 177, at *6 (Miss. 2007) (citing Galloway Travelers Ins. Co., 515 So. 2d 678, 683 (Miss.

198)(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L.Ed. 2d

265(1986))). Mark Albert claims the defendants were negligent. Thus, for Mark Albert’s

claim to survive summary judgment, he must have set forth specific facts sufficient to

establish the existence of each element of negligence – duty, breach, causation and damages.

Simpson v. Boyd, 880 So. 2d 1047, 1050 (Miss. 2004).

¶7.    For a premises-liability claim, as in this case, duty is contingent on the status of the

injured person. Thus, the first step in determining duty is to identify the status of the injured

at the time of the injury.      Massey, 867 So. 2d at 239. Mississippi adheres to the

invitee/licensee/trespasser trichotomy when analyzing the property owner's duty of care.

Corley v. Evans, 835 So. 2d 30, 37 (Miss. 2003) (citing Hudson v. Courtesy Motors, Inc.

794 So. 2d 999 (Miss. 2001)). This Court has described the distinction, stating:

                                               4
       As to status, an invitee is a person who goes upon the premises of another in
       answer to the express or implied invitation of the owner or occupant for their
       mutual advantage. A licensee is one who enters upon the property of another
       for his own convenience, pleasure or benefit pursuant to the license or implied
       permission of the owner whereas a trespasser is one who enters upon another's
       premises without license, invitation or other right.

Holley v. Int’l Paper Co., 497 So. 2d 819, 820 (Miss. 1986) (internal citations omitted).

“The determination of which status a particular plaintiff holds can be a jury question, but

where the facts are not in dispute the classification becomes a question of law.” Clark v.

Moore Mem’l United Methodist Church, 538 So. 2d 760, 763 (Miss. 1989) (citing Lucas

v. Buddy Jones Ford Lincoln Mercury, Inc., 518 So. 2d 646, 648 (Miss. 1988); Adams v.

Fred's Dollar Store, 497 So. 2d 1097, 1100 (Miss. 1986)).

¶8.    It is undisputed that Kyla Albert was an invitee when she was upon the premises of

the truck stop. The issue this Court must resolve is whether Kyla Albert retained that invitee

status upon entering the public roadway.

¶9.    Scott’s argued in its motion for summary judgment that “[Kyla] Albert’s status as an

invitee was lost as she entered Russell Mt. Gilead Road . . . .” Mark Albert claimed he would

show that “the parking lot across the road from the restaurant was an integral part of

Defendant’s business and therefore, the decedent, in the moments immediately prior to

crossing the road and [while] crossing the road itself, was a business invitee of [Scott’s].”

¶10.   Mark Albert asserts that Kyla Albert retained her status as an invitee of Scott’s while

walking across the street, since the gravel area was an integral part of Scott’s business.

Indeed, a “tenant/lessee/occupier of premises owes a duty of reasonable care to its invitees


                                              5
for the demised property and such necessary incidental areas substantially under its control

. . . .and which he invites the public to use.” Wilson v. Allday, 487 So. 2d 793, 798 (Miss.

1986) (emphasis added). However, this Court finds that Mark Albert failed to set forth

specific facts sufficient to establish that the gravel area across Russell Mt. Gilead Road was

an integral part of Scott’s business. Mark Albert merely directs the Court to deposition

testimony in which Dorothy Huddnal of Scott’s and Dale Burns of Longspur and Burns and

Burns admited to knowing that patrons sometimes park across the road. Knowledge of

patrons’ occasional use of the gravel area was insufficient to show that the area was a

“necessary incidental area substantially under [the defendants’] control.” Albert likewise

failed to show that the defendant invited the public to use the gravel area across the road.

Therefore, Plaintiff was unable to establish a question of fact as to whether Defendants owed

any duty to Kyla Albert after she left their premises and entered the public roadway, where

she was fatally injured.

¶11.   Establishing the status of the injured party is the first step in determining the property

owner’s or lessee’s duty. Unable to accomplish this first step, Albert failed to establish the

existence of a duty under the premises liability theory. Therefore, the inquiry of this Court

is complete. The trial court properly granted summary judgment for the defendants.3

       3
         This Court notes that the trial court also addressed the issue of proximate cause
raised by the parties during summary judgment proceedings. The trial court found that Mark
Albert failed to prove either that the alleged obstructions were a proximate cause or that the
lighting was insufficient on the premises. The court further found that the danger of crossing
a public roadway was not hidden but open and obvious, thus requiring no warning. Since
this Court finds no genuine issue of material fact as to whether Defendants owed a duty, it
is unnecessary to address the trial court’s findings concerning causation.

                                               6
                                     CONCLUSION

¶12.   Mark Albert failed to set forth specific facts sufficient to establish by affidavit,

deposition, interrogatories, or other means acceptable for summary judgment purposes that

there is a genuine issue of material fact as to whether the defendants owed a duty to Kyla

Albert when she was fatally injured. Duty is an essential element of a negligence claim.

Since summary judgment is mandated where the non-movant fails to establish the existence

of an essential element of that party’s claim, summary judgment was appropriate in this case.

The judgment of the Circuit Court of Lauderdale County is affirmed.

¶13.   AFFIRMED.

     SMITH, C.J., WALLER, P.J., CARLSON AND DICKINSON, JJ., CONCUR.
EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN
OPINION. RANDOLPH, J., DISSENTS WITH SEPARATE OPINION JOINED BY
DIAZ, P.J.; EASLEY, J., JOINS IN PART.

       RANDOLPH, JUSTICE, DISSENTING:

¶14.   The majority acknowledges that “Kyla Albert was an invitee when she was upon the

premises of the truck stop.” (majority opinion at paragraph 8). The majority then frames the

issue as “whether Kyla Albert retained that invitee status upon entering the public

roadway[,]” (majority opinion at paragraph 8) and ultimately affirms the lower court’s grant

of summary judgment for the defendants, finding that she did not. No disagreement lies

regarding duty preceding Kyla Albert’s entry onto the public roadway. However, by

narrowly framing the issue, the majority fails to consider whether the duty was breached

preceding Kyla Albert’s entry onto the road, which proximately caused or contributed to the



                                             7
accident and her death. The trial court also failed to consider the aforementioned, but its

error is compounded by concluding that neither the propane tanks nor inadequate lighting

were the proximate cause of her death. In so doing, the lower court contravened the stated

policy of this Court that:

         [a]ll motions for summary judgment should be viewed with great skepticism
         and if the trial court is to err, it is better to err on the side of denying the
         motion. When doubt exists whether there is a fact issue, the non-moving party
         gets its benefit. Indeed, the party against whom the summary judgment is
         sought should be given the benefit of every reasonable doubt.

Mink v. Andrew Jackson Cas. Ins. Co., 537 So. 2d 431, 433 (Miss. 1988) (citing Ratliff v.

Ratliff, 500 So. 2d 981, 981 (Miss. 1986)) (emphasis added). While summary judgment is

a necessary and useful tool in an increasingly litigious society, that instrument must be

exercised cautiously. See Mink, 537 So. 2d at 433 (citation omitted) (“[s]ince a summary

judgment serves to effectively terminate a lawsuit, they should only be ‘granted with great

caution.’”). Moreover, “[t]he party moving for summary judgment bears the burden of

persuading the trial court that no genuine issue of material fact exists, and that they are,

based on the existing facts, entitled to judgment as a matter of law.” Daniels v. GNB, Inc.,

629 So. 2d 595, 600 (Miss. 1993) (citing Skelton v. Twin County Rural Elec., 611 So. 2d

931, 935 (Miss. 1992)) (emphasis added). Erring on the side of caution, it is my opinion that

sufficient proof was offered, when viewed in the light most favorable to Albert, evidencing

genuine issues of material fact to be decided by a jury regarding whether inadequate lighting

and/or visual obstructions located on the premises were contributing factors to Kyla Albert’s

death.


                                                8
¶15.   In his deposition, Mark Albert, the decedent’s husband, stated the parking lot on the

Scott’s side of Russell Mt. Gilead Road was full when he arrived. Therefore, he parked

across the road, alongside three other trucks, as he had done on previous occasions. The

deposition testimony of Henry Dale Burns, Jr., the general partner of Longspur, was that the

area across the street from Scott’s, owned by Burns Family Properties, “occasionally” had

trucks parked there. Likewise, Terra Lanterman McDonald, the driver in the accident,

testified that:

       [t]here was trucks that parked across the road from the truck stop, and
       probably in all the years I’ve been driving I just never happened to come
       through there when there was somebody crossing across, maybe a few times.
       But I did know that there was trucks parked across the road from the truck
       stop.

Dorothy Nell Huddnal, operating partner and lessee of Scott’s, acknowledged that some

tractor-trailers would park across the road.4 Nonetheless, Huddnal denied that Scott’s had

any obligations or duties pertaining to that area.5

       4
        Huddnal also testified that the majority of tractor-trailers which stayed in the lot across the
road would do business with Scott’s. However, she qualified her testimony, noting that “[i]t
probably happened within the last year or so[,]” as “they just started doing that on their own[,]” and
business did “not really” pick up as “[i]t was about the same still.”
       5
        According to the deposition testimony of Burns, Jr., the Huddnals were responsible
for “[w]hatever equipment they had in that building[,]” while Longspur was responsible for
the four outer walls and the roof. This largely comported with the deposition testimony of
Hudnall, who stated:

       [a]s far as all of the inside, we did all of the maintenance, changing lights out,
       and stuff like that. Or if we had a problem with the commodes, . . . if we could
       handle it, we did that. If not, we reported it to Longspur. And as far as . . . the
       canopy lights, we called Longspur and reported that and they would come and
       . . . change out the light. Or if we had any problem with the pumps and as far
       as like CAT scales, . . . we would call them . . . .


                                                  9
¶16.   According to the accident report, the area of impact occurred north of the propane

tanks. If the accident report was correct, Kyla Albert entered the road to access the unpaved

parking area from behind the propane tanks immediately before being struck. Although

Mark Albert conceded in his deposition that one step beyond the tanks would not put an

individual in the roadway, he noted that there are scenarios where the propane tanks “could

possibly block” one’s vision of the roadway. (Emphasis added). As Albert argued in his

Response to Scott’s Motion for Summary Judgment:

       the mere fact of a seventeen and a half (17 ½) foot space between the propane
       tank and the road does not imply a lack of obstruction to view in respect to
       motorists or pedestrians. This amount of space has a varying effect and
       therefore is not determinative of visual ability when considering the distance
       from the tank of a pedestrian and/or motorist, angles of sight, and speed of a
       vehicle.

McDonald recalled “a liquid petroleum gas thing there . . . by the road . . . .”

¶17.   Regarding the inadequate lighting issue, Huddnal testified that there were between ten

and twelve security lights on the lot, erected prior to 1984 by East Mississippi Power

Association (“EMPA”). According to her, Scott’s paid a monthly fee to EMPA for those

lights, and they were in good working order, along with the canopy lights under the gasoline

and diesel islands, at the time of the accident. McDonald testified that Scott’s itself is well-

lit, “but out by the road it’s not[,]” and the parking lot across the street “had either one or

two night-lights.” (Emphasis added). She testified that while looking directly down the

roadway, she “did not see [Kyla Albert] until she was on the hood of my truck[,]” and that




(Emphasis added).

                                              10
“if it had been more lighting, it would’ve been better, . . . if there was lighting compared to

like the TA truck stop across the road, I could’ve possibly seen her . . . .” (Emphasis added).

¶18.   Unfortunately, the circuit judge accepted Scott’s Plaza, Inc.’s assertion in its motion

for summary judgment that “the record is void of any scintilla of evidence that said lighting

was . . . inadequate[,]” and found, in part, that:

       the Plaintiffs have failed to come forward with evidence which creates a
       genuine issue of material fact that must be resolved by a jury. The Court finds
       that the Plaintiff has not proven that the alleged obstructions, namely the
       propane tank and the alleged advertising, were a proximate cause of the
       accident. The Court finds that the tank itself was 17 ½ feet from the roadway.
       The Court further finds that the Plaintiff has not shown that the lighting was
       insufficient on the premises and thereby was a proximate cause of the accident.

(Emphasis added). That finding plainly ignored McDonald’s sworn statement that the

property is well-lit, “but out by the road it’s not[.]” The circuit court improperly injected

itself as the sole finder of fact in finding the “alleged obstructions” and inadequate lighting

were not proximate causes. Proximate cause is a jury issue. Obviously, the circuit court

failed to view the evidence “in the light most favorable” to the non-movant. Green v.

Allendale Planting Co., 954 So. 2d 1032, 1037 (Miss. 2007) (quoting Price v. Purdue

Pharma Co., 920 So. 2d 479, 483 (Miss. 2006)). “Issues of fact sufficient to require a denial

of a motion for summary judgment are obviously present where one party swears to one

version of the matter in issue and another party takes the opposite position.” Green, 954 So.

2d at 1037 (quoting Price, 920 So. 2d at 483). The accident report and sworn testimony,

discussed supra, viewed “in the light most favorable” to Albert, establish genuine issues of

material fact for a jury to determine if inadequate lighting or visual obstructions, or the



                                               11
combination thereof, were proximate or contributory causes of Kyla Albert’s death. I would

reverse the lower court’s decision to grant summary judgment.

      DIAZ, P.J., JOINS THIS OPINION. EASLEY, J., JOINS THIS OPINION IN

PART.




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