Rоsie 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.
Supreme Court of Mississippi.
*851 James Ashley Ogden, Jackson, Attorney for Appellant.
Walker Reece Gibson, Michael Wayne Baxter, Ridgeland, Attorneys for Appellee.
Before SMITH, C.J., GRAVES and RANDOLPH, JJ.
SMITH, Chief Justice, for the Court.
¶ 1. This appeal arises from a wrоngful-death action in which the Plaintiffs, 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 Cirсuit 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 shoоting 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 notwithstаnding 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 improрerly 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 Dеpartment of Housing and Urban Development (HUD). Wilson Thomas, Jr., lived at Shady Lane Apartments with his girlfriend, Teresa 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, аnd did not seem to have any problem with it.
*852 ¶ 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 thе 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 оf 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.,
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,
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.,
¶ 13. The Plaintiff contends that Thomas was an invitee at the time of the shooting. In Joiner v. Haley,
¶ 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 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 оwed 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,
¶ 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,
¶ 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 аttacked him, at which time the shooter retrieved his gun and killed the victim. Titus,
¶ 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 аnd 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 thе 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.,
¶ 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 оf violence exists on the premises. Gatewood,
¶ 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 *855 something about it. As to the existing atmosphere of violence, there is evidence in the record of several previous 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 thе 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.,
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.
NOTES
Notes
[1] Judge Lewis was out on medical leave at this time.