Newell v. Southern Jitney Jungle Co.

830 So. 2d 621, 2002 WL 31430356
CourtMississippi Supreme Court
DecidedOctober 31, 2002
Docket1999-CA-00024-SCT
StatusPublished
Cited by41 cases

This text of 830 So. 2d 621 (Newell v. Southern Jitney Jungle Co.) 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
Newell v. Southern Jitney Jungle Co., 830 So. 2d 621, 2002 WL 31430356 (Mich. 2002).

Opinion

830 So.2d 621 (2002)

Kay L. NEWELL (Roderick)
v.
SOUTHERN JITNEY JUNGLE COMPANY d/b/a Sack and Save.

No. 1999-CA-00024-SCT.

Supreme Court of Mississippi.

October 31, 2002.

*622 Samuel E. Farris, Jonathan Michael Farris, Hattiesburg, attorneys for appellant.

J. Robert Ramsay, Hattiesburg, attorney for appellee.

EN BANC.

SMITH, P.J., for the Court.

¶ 1. The issue in the present case is whether Kay L. Newell has stated sufficient grounds to sustain a negligence claim against Southern Jitney Jungle Stores of America d/b/a Sack and Save. We hold that the Workers' Compensation Law, Miss.Code Ann. §§ 71-3-1 to -129 (2000 & Supp.2002), provides no remedy for Newell's injuries, and thus, it is not her exclusive remedy. We also decline to impose upon a business strict liability for all injuries occurring on its premises as a result of criminal acts committed by a third party when the business's actions did not impel the act of that third party.

FACTS

¶ 2. On October 14, 1997, Kay L. Newell ("Newell") was at her place of employment, a grocery store, Sack and Save, which is owned and operated by Southern Jitney Jungle Stores of America. Newell's estranged husband, William Roderick ("Roderick"), entered Sack and Save and shot Newell four times with a .44 caliber handgun.

¶ 3. Several times before the shooting incident, Roderick appeared at the Sack and Save stalking, harassing, and threatening Newell in front of managers and other employees. The day before the shooting Roderick caused a disturbance at Sack and Save. Newell's supervisor helped her file charges against Roderick.

¶ 4. After the shooting, Newell filed this action claiming Sack and Save was negligent in failing to furnish her with a safe place to work and in failing to provide *623 security for her. No other counts were alleged. Newell argues in the alternative that she should have at least been allowed workers' compensation benefits. Sack and Save denied liability under the Workers' Compensation Act. On October 30, 1998, Sack and Save filed a M.R.C.P. 12(b)(6) motion to dismiss. On December 17, 1998, the motion to dismiss was granted. Aggrieved Newell filed this appeal.

STANDARD OF REVIEW

¶ 5. A motion to dismiss under M.R.C. P. 12(b)(6) raises an issue of law. T.M. v. Noblitt, 650 So.2d 1340, 1342 (Miss.1995)(collecting authorities). This Court conducts de novo review on questions of law. Id. When considering such a motion, the allegations in the complaint must be taken as true, and the motion should not be granted unless it appears beyond doubt on the face of the complaint that the plaintiff will be unable to prove any set of facts in support of his claim. Lang v. Bay St. Louis/Waveland Sch. Dist., 764 So.2d 1234, 1236 (Miss.1999).

DISCUSSION

¶ 6. Newell's complaint claims Sack and Save owed her a duty to provide a safe place to work and a duty to provide her security. Although not an insurer of an invitee's safety, a premises owner owes a duty to exercise reasonable care to protect the invitee from reasonably foreseeable injuries at the hands of another. See generally Lyle v. Mladinich, 584 So.2d 397, 399 (Miss.1991). See also McGovern v. Scarborough, 566 So.2d 1225 (Miss.1990). Newell's claim, as an invitee as this Court characterizes her, is brought under the theory of premises liability where Sack and Save's duty is properly stated as one of reasonable care.

¶ 7. We have stated two ways a plaintiff can prove proximate causation in premises liability cases: 1) that the defendant had actual or constructive knowledge of the assailant's violent nature, or 2) actual or constructive knowledge an atmosphere of violence existed on the premises. Grisham v. John Q. Long V.F.W. Post, No. 4057, Inc., 519 So.2d 413, 416 (Miss.1988). Newell's complaint alleges facts which indicate that it is under this first option she is attempting to proceed. However, the complaint also states that Newell's employer assisted her during this unfortunate ordeal to the point of helping her file charges against her husband the day before the shooting occurred. At the time of the attack, Newell was in a separately enclosed office behind a door that her husband had to "force" his way through. This indicates the door was either locked, or there was warning in advance of her husband's presence provided by co-workers such that countermeasures were taken.

¶ 8. In the case sub judice, the Sack and Save did nothing wrong; to the contrary, it attempted to help and had placed Newell in a secure location under lock and key. Kay Newell did nothing wrong, either. However, Sack and Save is not and should not become the guarantor of its employees' safety at all times.

¶ 9. The better method of examining this issue is under the traditional concepts of intervening and superceding causes. For such intervening and superceding cause to extinguish the liability of the original actor, the cause must be unforeseeable. Wal-Mart Stores, Inc. v. Johnson, 807 So.2d 382, 390 (Miss.2001). Furthermore, "negligence which merely furnishes the condition or occasion upon which injuries are received, but does not put in motion the agency by or through which the injuries are inflicted, is not the proximate cause thereof." Miss. City Lines v. Bullock, 194 Miss. 630, 13 So.2d 34, 36 (1943).

*624 ¶ 10. We hold that Sack and Save's actions did not impel the assault by Newell's husband. Clearly the intentional acts of Newell's estranged husband in entering the Sack and Save armed with a gun, forcing entry into Newell's office, and shooting her are acts by a third party which are sufficient to terminate any liability Sack and Save might otherwise have. If not, this Court would impose a duty approaching strict liability on landowners of the type we specifically denounced in Crain v. Cleveland Lodge 1532, Order of Moose, Inc., 641 So.2d 1186, 1191 (Miss. 1994): "We refuse to place upon a business a burden approaching strict liability for all injuries occurring on its premises as a result of criminal acts by third parties."

¶ 11. There is no allegation of any intentional act or acts by Sack and Save. The complaint alleges that Sack and Save, knowing of Newell's estranged husband's potential dangerousness, failed to take sufficient precautions to protect her. There are no allegations that Sack and Save willfully caused Newell's injury. The question arises as to whether this is a claim not covered by the exclusivity of the Workers' Compensation Law because it is non-compensable.

¶ 12. This Court thus writes further today to clarify a misinterpretation of the exclusivity test by prior opinions of this Court. Here, the injury is not covered by the act because the incident had nothing whatsoever to do with Newell's employment. That is indeed why Sack and Save denied liability under the act. An injury intentionally caused by a thirdparty acquaintance of the employee for reasons not arising out of the employee's job or because of the job is not compensable under the act. Big "2" Engine Rebuilders v. Freeman, 379 So.2d 888, 891 (Miss.1980). This Court, subsequent to Miller v. McRae's, Inc., 444 So.2d 368 (Miss.1984), stated the two prongs of the exclusivity test as joined by the word "and." See, e.g., Peaster v. David New Drilling Co., 642 So.2d 344 (Miss.1994); Griffin v. Futorian Corp., 533 So.2d 461, 463 (Miss.1988).

¶ 13.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Brown v. The ESAB Group, Inc.
S.D. Mississippi, 2023
Ruff v. Waffle House, Inc.
N.D. Mississippi, 2021
Derrick Evans v. Shucker's Piano & Oyster Bar, Inc.
Court of Appeals of Mississippi, 2019
Tamara Rausch v. Best Western Seaway Inn/ Michael's
204 So. 3d 796 (Court of Appeals of Mississippi, 2016)
Lee v. MGM Resorts Mississippi, Inc.
200 So. 3d 1129 (Court of Appeals of Mississippi, 2016)
Katerina Galanis v. CMA Management Company
175 So. 3d 1213 (Mississippi Supreme Court, 2015)
Wright ex rel. Wright v. United States
69 F. Supp. 3d 606 (S.D. Mississippi, 2014)
Katerina Galanis v. CMA Management Company
176 So. 3d 85 (Court of Appeals of Mississippi, 2014)
Doe v. Hunter Oaks Apartments, L.P.
105 So. 3d 422 (Court of Appeals of Mississippi, 2013)
Stribling v. Rushing's, Inc.
115 So. 3d 103 (Court of Appeals of Mississippi, 2013)
Roberson v. LFI Fort Pierce, Inc.
105 So. 3d 404 (Court of Appeals of Mississippi, 2012)
Faul ex rel. A.F. v. Perlman
104 So. 3d 148 (Court of Appeals of Mississippi, 2012)
Double Quick, Inc. v. Lymas
50 So. 3d 292 (Mississippi Supreme Court, 2010)
Holmes v. Campbell Properties, Inc.
47 So. 3d 721 (Court of Appeals of Mississippi, 2010)
Lascola v. Barden Mississippi Gaming LLC
349 F. App'x 878 (Fifth Circuit, 2009)
Causey v. Sanders
998 So. 2d 393 (Mississippi Supreme Court, 2008)
Double Quick, Inc. v. Ronnie Lee Lymas
Mississippi Supreme Court, 2008
Williams v. Jackson
989 So. 2d 991 (Court of Appeals of Mississippi, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
830 So. 2d 621, 2002 WL 31430356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/newell-v-southern-jitney-jungle-co-miss-2002.