May v. VFW POST NO. 2539

577 So. 2d 372, 1991 WL 41926
CourtMississippi Supreme Court
DecidedMarch 6, 1991
Docket89-CA-0895
StatusPublished
Cited by45 cases

This text of 577 So. 2d 372 (May v. VFW POST NO. 2539) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
May v. VFW POST NO. 2539, 577 So. 2d 372, 1991 WL 41926 (Mich. 1991).

Opinion

577 So.2d 372 (1991)

David MAY and Donna L. May
v.
V.F.W. POST # 2539.

No. 89-CA-0895.

Supreme Court of Mississippi.

March 6, 1991.

Rufus H. Alldredge, Jr., Franke Rainey & Salloum Firm, Gulfport, for appellant.

L. Christopher Breard, Bryant Colingo Williams & Clark, Gulfport, for appellee.

Before HAWKINS, P.J., and ROBERTSON and BANKS, JJ.

BANKS, Justice, for the Court:

INTRODUCTION

David and Donna May appeal to this Court from an adverse summary judgment on their claim against one of two defendants. The court below properly granted summary judgment. We affirm on the merits without hesitation.

On November 2, 1984, David May and his wife Donna filed a complaint in the Harrison County Circuit Court against Ricky Triplett (Triplett) and VFW Post # 2539 (VFW). They alleged that they were business invitees attending a VFW-sponsored dance on September 1, 1984, when without warning or provocation, Triplett attacked David resulting in severe injuries to David. They further alleged that at the time of this incident, Triplett was an employee of the VFW, acting within the course and scope of his employment. Therefore, according to the Mays, VFW was negligent in the following respects:

A. failing to exercise reasonable care for the safety of patrons on its premises;
*373 B. failing to provide adequate security for the protection of its patrons;
C. failing to prevent ... Triplett from attacking [May] when ... VFW knew, or in exercise of reasonable care, should have known, of the violent propensities of Triplett; and
D. failing to provide adequate supervision of its security personnel.

In their separate answers, VFW denied all allegations while Triplett denied some and admitted others. Affirmatively Triplett asserted that David was the culprit who attacked him without provocation or warning. In the following weeks the VFW propounded a set of interrogatories. After David May submitted his answers, VFW filed, on April 24, 1985, a Motion to Dismiss or Alternatively for Summary Judgment. Attached to this Motion was the affidavit of Clifford Horn, the Post Commander for the VFW. Horn asserted that Triplett was employed as a janitor during this time period. On the night in question, however, he was "not on duty and had no responsibility whatsoever to the VFW ... other than that expected of the general public." Moreover, the dance held on that night was not "organized, promoted, or encouraged in any way by the VFW ... but rather, the main hall area was donated to the organizers of the `benefit' for the stated purpose of underwriting certain medical expenses of a family member of the host and member of the community." The VFW received no revenue from the event other than incidental sales for drinks and ice to those attending the benefit according to Horn. Horn also denied that Triplett was a security guard.

The trial court denied VFW's motion for Summary Judgment on July 10, 1985, and discovery continued.

After completion of discovery, VFW filed its renewed motion for summary judgment on March 28, 1988; a hearing was held on this motion on April 4, 1989; and on June 7, 1989, the trial judge submitted his findings of fact and granted the summary judgment motion. An amended final order was entered on June 26, 1989, and, thereupon, the Mays filed their notice of appeal to this Court.

Facts

The facts revealed through discovery dictated the trial court's conclusion. On Labor Day, September 1, 1984, David and Donna May attended a "charitable benefit dance" at the VFW. The VFW had donated the hall to the organizers of the event for the purpose of raising money for a member of the community. The VFW neither sponsored nor organized the charitable event in any manner. Moreover, it did not have any control over the function except that a $50 deposit would not be returned to the organizers if they failed to clean-up the hall after the event. The sponsor, Dorothy Alexander, was responsible for the advertisement of the event, the entertainment and the security. During the event the VFW sold alcoholic and non-alcoholic beverages and ice to those attending.

Near the end of the dance an altercation occurred between David May and Triplett. At the time of this altercation, Triplett was not on duty and had no responsibilities that night. He was not scheduled to clean up after this function because the sponsors were to clean up. According to Triplett, even when he was scheduled to clean up after a function, he would clean up early the following morning but never immediately following the function. In another portion of his deposition, however, Triplett did state that: "I'd clean up [the VFW] at night, like when the bar closed at ten, I clean up, and then I'd go home... ." Aside from any inference to be drawn from this statement, there was no dispute that on the night in question, he was present only as a customer.

Triplett testified that he went to the VFW sometime after 11:30 p.m. He did not pay the admission fee to the dance, but he went into the bar, which is open to the public. "You don't have to pay to go into the bar." While in the bar, Triplett shot a game of pool and he "may have drank [sic] two beers or three beers." Jerry Weaver was the bartender/manager that night. According to Weaver, while Triplett was at the bar, he did not appear to be intoxicated. In the time that Weaver worked there, the *374 fight between Triplett and May was the first that occurred at the VFW. Moreover, according to Horn, no one at VFW had any difficulty with Triplett following instructions or was aware of Triplett having been in previous fights at the VFW or elsewhere.

Prior to the altercation at the VFW, May and Triplett had been in a fracas some seven years previously. The parties' versions of that incident, like the one in the case sub judice, differed. Since that first encounter, Triplett and May had seen each other and even waved to each other and said "hello." According to Triplett, he had never really been in a fight before. He argued with another student in high school. Between the time he quit high school around 1975, and the time of this incident, he had one fight with his brother at home. He has never been involved in another fight or in any problems at a VFW. This testimony was undisputed.

On the night of the incident, May and Triplett were in their mid-twenties. The hostility between the two resurfaced at the affair at the VFW. Who assaulted whom first is in dispute. What is not in dispute is that their differences had nothing to do with any of Triplett's duties with the VFW.

May, when asked in his deposition what the VFW could have done to protect him that night, said, "I don't know." He continued, "You might've [sic] had more security guards there because it was a pretty big crowd for one man." According to Weaver, however, there were two security persons, who were also deputy sheriffs. One was in uniform and the other was in plain clothes. At least one of these guards was involved in breaking up the fight.

Upon this evidence and after the hearing on the summary judgment motion, the trial court made the following findings:

The moving force which caused the injury to Plaintiff was not a defect in the premises as such but was the independent act of another patron (Triplett). This is not to imply that a dangerous condition cannot consist of the unruly acts of an individual under specific circumstances, but there must be more to establish the knowledge of the owner than pure surmise speculation and conjecture.

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Cite This Page — Counsel Stack

Bluebook (online)
577 So. 2d 372, 1991 WL 41926, Counsel Stack Legal Research, https://law.counselstack.com/opinion/may-v-vfw-post-no-2539-miss-1991.