 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Heard v. Invervest Corporation3/11/2003
ting outside her building; that Collins was intoxicated and had his daughter drive his car; that the car jumped the curb and injured Strong, resulting in her death; and that there was no security guard on duty. Next, we must turn to the question of whether the trial court decided the motion correctly.
. While any first-year law student could recite the four elements of negligence, only one element - duty - is in question here since the trial judge found Intervest had no duty to prevent the fatal accident to Strong. Whether any duty existed is a question of law. Belmont Homes, Inc. v. Stewart, 792 So. 2d 229, 232 ( ) (Miss. 2001); W. Page Keeton et al., Prosser and Keeton on Torts § 37 (5th ed. 1984).
. In Mississippi, "the lessor, with respect to common areas, has the duty to use reasonable care to keep the common areas reasonably safe and is liable for damages for failure to perform the duty." Fipps v. Glenn Miller Const. Co., 662 So. 2d 594, 596 (Miss. 1995) (quoting Cappaert v. Junker, 413 So. 2d 378, 380 (Miss.1982)). It is not clear if the duty extends to only conditions of natural origin, as in the majority of jurisdictions, Keeton, supra, at § 63, or to all hazardous conditions, regardless of their origin. See Restatement (Second) of Torts § 360 (1965).
. Even if the Fipps duty only extends to conditions of natural origin, this Court does not find that the duty extends to the facts of this case. We agree with Intervest that the facts of the instant case are similar to those found in Carpenter. There, an underage driver crashed through the plate glass window that served as the front wall to a convenience store, injuring a customer. Carpenter, 512 So. 2d at 709. Our supreme court quoted the case of Schatz v. 7-Eleven, Inc., 128 So. 2d 901 (Fla. Dist. Ct. App. 1961):
t cannot be contended with any degree of reason or logic that the owner of a store . . . by failing to erect an impregnable barrier between the entrance of his store and an adjacent area where motor vehicles are driven and parked, should have anticipated that automobiles will be negligently propelled over the curb and across the sidewalk into the entrance of his store. . . . If as a matter of law such occurrences are . . . to be guarded against, there would be no limitation on the duty owed by the owners of establishments into which people are invited to enter. Carpenter, 512 So. 2d at 709 (alteration and omissions in original).
. Although Heard argues the Carpenter decision only applies to cases where the injury occurs indoors, we hold that it must apply outside a building as well. There was no reason for Intervest to foresee an automobile would be negligently propelled over the curb. There was no history of any such incident occurring before. The construction of a curb was an entirely reasonable and adequate measure to help prevent any foreseeable forays of automobiles from the street onto the premises. Indeed, if a barrier was built as Heard suggests, it could even impede the movement of residents in case of fire or other emergency where residents must quickly move away from the apartments. Were we to hold otherwise, this decision, carried to its logical extension, would mean that property owners throughout the state of Mississippi would need to build barriers between their premises and streets and parking lots. This Court simply cannot make that the public policy of this State.
. THE JUDGMENT OF THE CIRCUIT COURT OF CLAY COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION.
<
Page 1 2 3 Mississippi Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|