        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2013-CA-00671-COA

MARILYN DEDEAUX AND RUSSELL GUYMON                                      APPELLANTS

v.

LAKE CAROLINE OWNERS ASSOCIATION,                                           APPELLEE
INC.

DATE OF JUDGMENT:                        04/15/2013
TRIAL JUDGE:                             HON. JOHN HUEY EMFINGER
COURT FROM WHICH APPEALED:               MADISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                J. PEYTON RANDOLPH II
                                         SHERRIE LYNN DEWOLF
ATTORNEYS FOR APPELLEE:                  JAMES SCOTT ROGERS
                                         JAMES LEROY BANKS IV
NATURE OF THE CASE:                      CIVIL - PERSONAL INJURY
TRIAL COURT DISPOSITION:                 GRANTED SUMMARY JUDGMENT TO
                                         APPELLEE
DISPOSITION:                             AFFIRMED - 09/09/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE CARLTON, P.J., MAXWELL AND FAIR, JJ.

      MAXWELL, J., FOR THE COURT:

¶1.   Eugune Owen crashed his speed boat into Russell Guymon’s pontoon boat, injuring

Guymon as well as fellow passenger Marilyn Dedeaux. Dedeaux and Guymon blame their

injuries not just on Owen, but also their neighborhood association, which owns the private

lake where the boat wreck occurred. But the neighborhood association was not the insurer

of Dedeaux and Guymon’s safety and cannot be held strictly liable simply because an injury

occurred on the lake. Instead, the association only had a duty to protect Dedeaux and

Guymon from reasonably foreseeable injuries at the hand of a third party.
¶2.    To be reasonably foreseeable, the association must have had “cause to anticipate”

Owen’s actions because Owen had a specific history of careless boating or because the lake

had a general history of negligence among its boaters. Here, Dedeaux and Guymon failed

to present any evidence of either. While they point to another boat wreck that occurred on

the lake six years before theirs, considering the lake had more than 700 registered boats, we

find this single incident, removed in time, was not enough to establish the incident with

Owen was reasonably foreseeable.

¶3.    Thus, Dedeaux and Guymon failed to establish their neighborhood association had a

duty to protect them from Owen’s negligent act. We therefore affirm the grant of summary

judgment in favor of the association.

                                        Background

¶4.    Dedeaux, Guymon, and Owen were all residents of Lake Caroline neighborhood in

Madison County, Mississippi. In the middle of Lake Caroline sits an 800-acre lake, owned

and operated by the Lake Caroline Owners Association (LCOA).

¶5.    On a summer night in 2011, after sunset, Dedeaux and Guymon, along with their

respective spouses, were sitting in Guymon’s pontoon boat, anchored in the middle of the

lake. Owen was speeding across the water when he took a hard turn and crashed into

Guymon’s boat. Dedeaux and Guymon were tossed into the water, sustaining injuries for

which they claim that LCOA is at least partially liable.

¶6.    They sued LCOA for negligent failure to maintain a safe premises.1 LCOA responded



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         In addition to LCOA, they also sued Owen and the man with whom he co-owned
the boat, John Kaiser. By agreed order, Owen and Kaiser were dismissed with prejudice.

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with a motion for summary judgment, arguing it had no reason to anticipate the boating

accident and, thus, no duty to protect Dedeaux and Guymon from the boating accident. Lake

Caroline did not have a history of boating accidents, especially accidents at night involving

a high rate of speed. And Owen did not have a history of operating his boat recklessly.

Further, LCOA has never guaranteed the safety of the residents using the lake. Instead, the

LCOA’s lake rules and regulations make clear that lake activities are inherently dangerous

and that residents swim, fish, ski, and boat at their own risk.

¶7.    Dedeaux and Guymon countered that the boating accident had been reasonably

foreseeable. As support, they referenced one accident that had occurred six years before

theirs. And they cited deposition testimony by LCOA’s vice president that, before the 2005

accident, the association had considered implementing a “lake marshal” program to regulate

fishing. But after the 2005 accident, LCOA was concerned that the program would give the

false impression that fishing marshals were there to ensure the safety of swimmers and

boaters. So it scrapped the idea.

¶8.    Dedeaux and Guymon also submitted an affidavit by a boating-safety expert.

According to the expert, the 2011 accident was reasonably foreseeable based on the 2005

accident and the fact LCOA did not implement any new policies following the 2005 accident.

Guymon too submitted an affidavit—along with an affidavit by his neighbor that matched

his verbatim. Guymon attested that before his accident he had observed an unspecified

number of boats traveling at some rate of high speed.



Also, Dedeaux’s husband and Guymon’s wife were among the original plaintiffs. But their
claims were dismissed without prejudice.

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¶9.    The circuit court found Dedeaux and Guymon’s evidence insufficient to establish that

Lake Caroline had cause to anticipate the accident, which would have triggered a duty to take

safety measures to try to prevent the accident. And because Dedeaux and Guymon failed to

establish that LCOA owed them a duty, the circuit court dismissed their claim on summary

judgment.

¶10.   Dedeaux and Guymon immediately appealed.

                                         Discussion

¶11.   On appeal, Dedeaux and Guymon insist the injuries they sustained were partly caused

by LCOA’s negligence. The first element of any negligence claim is duty. See, e.g., Doe

v. Hunter Oaks Apartments, L.P., 105 So. 3d 422, 425 (¶10) & n.4 (Miss. Ct. App. 2013).

So for them to have a claim against LCOA for failing to protect them from Owen that night,

they must first establish that LCOA had a duty to protect them from Owen. See id. Because

Dedeaux and Guymon cannot do this, the trial court was right to dismiss their claim against

the LCOA on summary judgment.

       I.     Duty to Protect Invitees

¶12.   Duty is a question of law. Rein v. Benchmark Constr. Co., 865 So. 2d 1134, 1143

(¶29) (Miss. 2004). As the owner and operator of Lake Caroline, LCOA did owe those who

used the lake certain duties.    The extent of those duties depends on the lake user’s

status—trespasser, licensee, or business invitee. Corley v. Evans, 835 So. 2d 30, 37 (¶21)

(Miss. 2003). A business invitee is owed a greater duty than trespassers and licensees. Id.

at 37 (¶21), 39 (¶28). And for purposes of summary judgment only, LCOA has conceded

Dedeaux and Guymon’s status as business invitees. But even as business invitees, LCOA


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did not owe them the duty to protect them against Owen’s allegedly negligent boat operating.

¶13.   “The landowner is not an insurer of the invitee’s safety[.]” Id. at 37 (¶22). But the

landowner “does owe to 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.’” Id. (quoting Caruso v. Picayune Pizza Hut, Inc., 598 So. 2d 770, 773 (Miss.

1992)).

¶14.   Traditionally, keeping the premises reasonably safe has referred to the physical

condition of the property. A business owner has a duty “to maintain the premises in a

reasonably secure or safe condition” to prevent some type of “slip and fall.” Lyle v.

Mladinich, 584 So. 2d 397, 399 (Miss. 1991). But starting in the 1980s, the Mississippi

Supreme Court began expanding the duty to keep the premises reasonably safe to

“encompass negligent or wrongful attacks on the invitee by other patrons.” Id. (citing May

v. V.F.W. Post # 2539, 577 So. 2d 372 (Miss. 1991); Grisham v. John Q. Long V.F.W. Post,

519 So. 2d 413, 417 (Miss. 1988); Kelly v. Retzer & Retzer, Inc., 417 So. 2d 556 (Miss.

1982)); see also Kroger Co. v. Knox, 98 So. 3d 441, 443 (¶14) (Miss. 2012) (addressing

when “the alleged dangerous condition is the threat of an assault”). Now, to maintain a

reasonably safe premises, a business owner must also protect its invitees from injuries at the

hand of others that are reasonably foreseeable. Kroger Co., 98 So. 3d at 444 (¶16); Corley,

835 So. 2d at 38 (¶22); Lyle, 584 So. 2d at 399.

¶15.   But in this context, a third-party-inflicted injury is only deemed reasonably

foreseeable when there is “cause to anticipate the wrongful or negligent act” of that third

party. Corley, 835 So. 2d at 38 (¶23) (quoting Grisham, 519 So. 2d at 416). See also 65A


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C.J.S. § 519 (2010) (qualifying that the “duty of an owner of premises to interfere to prevent

probable injury to an invitee does not begin until the danger is apparent, or the circumstances

are such as would put an ordinarily prudent person on notice of [the] probability of danger”).

The supreme court has dealt multiple times with when a property owner has “cause to

anticipate” one of its patrons will be criminally assaulted on the premises. If the property

owner had “(1) actual or constructive knowledge of the assailant’s violent nature, or (2)

actual or constructive knowledge that an atmosphere of violence exists,” the property owner

had “cause to anticipate the assault.” E.g., Kroger Co., 98 So. 3d at 443 (¶14); Double

Quick, Inc. v. Lymas, 50 So. 3d 292, 298 (¶30) (Miss. 2010); Corley, 835 So. 2d at 38-39;

Gatewood v. Sampson, 812 So. 2d 212, 220 (¶14) (Miss. 2002); Lyle, 584 So. 2d at 399; see

also Simpson v. Boyd, 880 So. 2d 1047, 1051 (¶14) (Miss. 2004).                 Adapting this

foreseeability test to the circumstances in this case, we find that for LCOA to have had a

“cause to anticipate” Owen’s negligent actions—and thus a duty to protect Dedeaux and

Guymon from injuries at Owen’s hand—LCOA had to have either (1) actual or constructive

knowledge that Owen had been negligently operating his boat on the lake or (2) actual or

constructive knowledge of a general history of negligent boating on the lake.

       II.    Lack of Evidence to Establish Duty

¶16.   Guymon and Dedeaux have neither claimed nor tried to prove that LCOA had actual

or constructive knowledge that Owen had a history of operating his boat negligently on Lake

Caroline. Instead, they have argued that LCOA knew the lake had a history of dangerous

boat drivers—a problem they claim should have been addressed through better rules and a

safety patrol. But the only evidence they cite of this supposed history is that there had been

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another boat wreck on Lake Caroline six years before their crash.

¶17.   In Corley, the supreme court found one “prior altercation three years before the

current situation was not adequate notice to [the property owner] that an intoxicated friend

would accidently shoot another friend at the [owner’s] crawfish boil.” Corley, 835 So. 2d

at 38 (¶24). Likewise, in Kroger Co., the supreme court found “as a matter of law that—in

the context of Kroger’s more than three million customer visits over the course of three

years—four incidences of criminal activity [were] wholly insufficient to establish an

atmosphere of violence on Kroger’s parking lot.” Kroger Co., 98 So. 3d at 444 (¶16). While

we are certainly not dealing with one incident per one million visits as in that case,

considering there are more than 700 boats registered to use the lake, we find one boat wreck

in six years is similarly insufficient as a matter of law to establish LCOA had cause to

anticipate the 2011 accident. Cf. Corley, 835 So. 2d at 38 (¶24).

¶18.   Guymon had also submitted his affidavit, as well as an affidavit by another Lake

Caroline resident, both of which attested the two residents had “observed boats traveling at

what appear[ed] to be excessive speeds during daylight hours and at night on and before June

4, 2011.” But neither affidavit gave details about the number of speeding boats, the time

frame, or, more important, whether other boats were in the vicinity. Thus, we find these

affidavits were insufficient to establish there had been a pattern of reckless boating, making

Owen’s accident reasonably foreseeable. Cf. Lyle, 584 So. 2d at 399 (“rel[ying] on such

factors as 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” to determine if an “atmosphere of violence” existed on the


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premises).

¶19.   We also reject Dedeaux and Guymon’s argument that LCOA’s mere consideration of

implementing a lake-marshal program before the 2005 boat accident somehow created a legal

duty to patrol the lake. Just as “merchants are not required to carry out the duties of the

police force,” neither are homeowners’ associations. Kroger Co., 98 So. 3d at 445 (¶22).

Also, the stated reason why LCOA ditched the idea—which had only been raised to address

the issue of fish poachers—was because it did not want to give lake users the impression the

patrol was there to ensure their safety. Since “a property owner is not an insurer of an

invitee’s safety,” we cannot fault LCOA for wanting to avoid the possible appearance it had

assumed a duty that Mississippi law has never imposed. Id. at 444 (¶16) (internal quotations

omitted).

¶20.   As the supreme court said in Kroger Co., “imposing liability without notice of an

atmosphere of violence would be nothing short of strict liability for injuries caused by the

criminal activity of third parties.” So too here, imposing liability on LCOA without any

notice of an unreasonably dangerous atmosphere on the lake would be to hold LCOA strictly

liable for Owen’s negligent act. See Randol v. Atkinson, 965 S.W.2d 338, 342 (Mo. Ct. App.

1998) (holding condominium-owners associations did not have the duty “to protect the

owners from all potential sources of harm, particularly those caused by the negligence of

third parties”). Dedeaux and Guymon have failed to establish as a matter of law that LCOA

owed a duty to protect them from Owen. And without a duty owed, there can be no

negligence. We thus affirm the judgment dismissing their negligence claim against LCOA.

¶21.   THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT IS


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AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANTS.

    GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON AND FAIR, JJ.,
CONCUR. IRVING, P.J., AND JAMES, J., CONCUR IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION.          LEE, C.J., NOT
PARTICIPATING.




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