Ray v. Blockbuster, Inc.

9 So. 3d 422, 2008 Miss. App. LEXIS 670, 2008 WL 4782436
CourtCourt of Appeals of Mississippi
DecidedNovember 4, 2008
DocketNo. 2007-CA-00744-COA
StatusPublished
Cited by1 cases

This text of 9 So. 3d 422 (Ray v. Blockbuster, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ray v. Blockbuster, Inc., 9 So. 3d 422, 2008 Miss. App. LEXIS 670, 2008 WL 4782436 (Mich. Ct. App. 2008).

Opinions

ISHEE, J.,

for the Court.

¶ 1. The Circuit Court of Hinds County entered summary judgment in favor of Blockbuster, Inc., and Crystal Adams. The circuit eoui’t found that Kathy Virginia Ray had presented no material facts on the issue of duty regarding her claim of negligence against Blockbuster and Adams. Aggrieved, Ray appeals. She argues that the circuit court erred in relying on Brookhaven Funeral Home, Inc. v. Hill, 820 So.2d 3 (Miss.Ct.App.2002) as authority in issuing its ruling and, therefore, erred in granting summary judgment.

¶ 2. Finding that the circuit court was in error when it granted summary judgment to Blockbuster and Adams, we reverse the judgment of the circuit court and remand the case for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 3. In April 2002, Ray exited a Blockbuster video store franchise in Clinton, Mississippi. While she was stepping down from the curb that separated the walkway in front of the franchise from the parking lot, she fell into a pothole, injuring herself. Ray subsequently filed a negligence claim against the owner of the franchise — Crystal Adams; the parent company of the franchise where she was injured — Blockbuster, Inc.; and the company that managed the development where the franchise was located — Madison Development (Madison).

¶ 4. Madison settled with Ray during the early stages of litigation, leaving only Blockbuster and Adams as defendants. Before trial, Blockbuster filed a motion for summary judgment in the circuit court, arguing that it lacked any legal duty to warn Ray of the pothole because it lacked the necessary possession and control over the parking lot needed to give rise to liability.

¶ 5. Ray responded to the motion for summary judgment, claiming that she presented issues of material fact and citing the lease between Madison and Blockbuster in support of her position. Specifically, she refers to paragraph ten, which reads as follows:

Lessee agrees to and does hereby indemnify and save Lessor harmless against any and all claims, demands, damages, costs and expenses, including reasonable attorneys’ fees for the defense thereof, arising from the conduct or management of the business conducted by Lessee in the demised premises, or from any breach or default on the part of Lessee in the performance of any covenant or agreement on the part of Lessee to be performed, pursuant to the terms of this lease, or from any act or negligence of Lessee, its agents, contractors, servants and employees, in or about the demised premises, the sidewalks adjoining same and the other areas of the shopping center used by Les[424]*424see in common with others. In the event any action or proceeding is brought against Lessor by reason of any such claim, Lessee covenants to defend such action or proceeding.

The lease also required Blockbuster to maintain general liability insurance “for the benefit and protection of Lessor in an amount not less than $200,000.00 for injuries to any one person, and not less than $500,000.00 for injuries to more than one person ... arising out of any one accident or occurrence.” The insurance policy was to cover “the demised premises, the sidewalks adjoining the same[,] and other areas of the shopping center.” Ray pointed out that the lease contemplated that Blockbuster’s customers would use the parking lot. Also, she argued that according to an answer to her requests for admission, Blockbuster knew about the defect for over a month, and it admitted that there were no signs warning about the defect.

¶ 6. The circuit court found that there was no genuine issue of material fact on the issue of duty, but the court did not make any other findings. The circuit court granted Blockbuster’s motion for summary judgment, citing Brookhaveu in support of its judgment. It is from that judgment that Ray now appeals.

STANDARD OF REVIEW

¶ 7. We review a lower court’s grant of summary judgment de novo. McMillan v. Rodriguez, 823 So.2d 1173, 1176-77(¶9) (Miss.2002). In reviewing a grant of summary judgment, we view the evidence in the light most favorable to the nonmoving party, and examine all evidentiary matters before the lower court at the time the judgment was granted. Id. at 1177(¶ 9). If no genuine issue of material fact exists upon review, then a grant of summary judgment in favor of the moving party is appropriate. Id.

DISCUSSION

¶ 8. The only issue that Ray currently presents on appeal is whether the circuit court erred in granting summary judgment in favor of Blockbuster and Adams. She argues that the circuit court erred in relying on Brookhaven when instead the court should have looked to Wilson v. All-day, 487 So.2d 793 (Miss.1986) when ruling on the motion.

¶ 9. In this case, we are confronted with a question concerning under what circumstances, if any, a lessee may potentially be held liable to a third party for injuries sustained on property incidental to, but not on, the leased property. Here, the leased property consists of the building space leased by the Blockbuster franchise; the incidental property consists of the parking lot where Ray was injured. The third party in this case is Ray, a business invitee.

¶ 10. The prevailing law in this state is that liability can be imposed on a lessee for injuries sustained by invitees, regardless of the contractual relationship between the lessor and the lessee, so long as the lessee exercised some degree of possession and control over the property. Wilson, 487 So.2d at 797. In Wilson, a woman leaving a grocery store was injured when her shopping cart became caught in a pothole in the parking lot. Id. at 795. The grocery store shared the parking lot with other businesses, and the lease agreement between the grocery store (as lessee) and the owner of the development (as lessor) specified that the owner of the development would keep the parking lot in good repair. Id. at 794-95.

¶ 11. In holding that the grocery store could potentially be held liable for injuries sustained by its customers in the parking lot, the Wilson court stated that: “If the [425]*425lessee’s use of the premises was tantamount to possession and control, then the lessee owed a duty of ordinary and reasonable care to its invitees upon the premises. Whether there was a breach (notice, dangerous conditions, etc.) [then] becomes a question of fact.” Id. at 797. However, “if the lessee’s use of the lot did not constitute control, there would be no duty owed and[,] therefore[,] no cause of action.” Id. The Wilson court found that “a tenant may be responsible for the condition of approaches and stairways, or a parking area.” Id. (quoting 52 C.J.S. Landlord & Tenant, § 436 (1966)). In summarizing its holding, the Wilson court stated:

It would appear that a tenant/lessee/occupier of premises owes a duty of reasonable care to its invitees for the demised property and such necessary incidental areas substantially under its control (as the parking lot) and which he invites the public to use, notwithstanding a maintenance agreement with the landlord. While such agreement may serve as the basis for recovery against the lessor, it does not absolve the lessee of his duty to his invitees under the circumstances.

Id. at 798.

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9 So. 3d 422, 2008 Miss. App. LEXIS 670, 2008 WL 4782436, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ray-v-blockbuster-inc-missctapp-2008.