Monthly Archives: September 2014

Independent Contractor Status In Mississippi

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Mississippi law is well settled that “when a contract is made between two parties that as between themselves creates an independent contractor relationship and involves employment generally performed under a simple master/servant or employer/employee relationship, it will be upheld as between the parties”.  Richardson v. APAC-Mississippi, Inc.,631 So.2d 143 (Miss. 1994).

The court in Richardson went on to acknowledge that the right of parties to contract as they please is a constitutionally-protected right. U.S. Const. art. I, Sec.10; Miss. Const. art. 3, Sec. 16. Id. 143.

The Richardson court further held that affidavits from the contractor and employer are  determinative in deciding whether an independent contractor relationship existed.   Id.143.  After reviewing the contract and the affidavits, the Court found that there existed an independent contractor relationship and not that of master-servant.  Richardson v. APAC-Mississippi, Inc., 631 So.2d 151. McCary v. Wade, 861 So.2d 358 (Miss.App. 2003)

Some of the factors considered to determine independent contractor status include: 1.Does the principal master have the power to terminate the contract at will;

2. Does he have the power to fix the price in payment for the work, or vitally control the manner and time of payment;

3. Does he furnishes the means and appliances for the work;

4. The level of control of the premises;

5.  Does the principal master furnishes the materials upon which the work is done;

6. Does the principal he have the right to prescribe and furnish the details of the kind and character of work to be done;

7.  Does the principal have the right to supervise and inspect the work during the course of the employment;

8.  Does the principal have the right to direct the details of the manner in which the work is to be done;

9.  Does the principal have the right to employ and discharge the sub employees and to fix their compensation;

Premises Liability of Motel Owners in Mississippi

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Motel and hotel owners in Mississippi can be held liable for the violent actions of third parties against guests in their establishment.  Whether a motel owner is liable depends on a premises liability analysis.

The first step in a premises-liability action is to determine the status of the injured party.  A person who enters the premises of another to the express or implied invitation of the occupant for their mutual advantage is an “invitee”.  In Mississippi, business owners possess a duty to invitees to exercise reasonable care to keep the business premises in a ” reasonably safe condition.” Jacox v. Circus Circus Miss., Inc., 908 So.2d 181, 184 (¶ 7) (Miss.Ct.App.2005) (citing Jerry Lee’s Grocery, Inc. v. Thompson, 528 So.2d 293, 295 (Miss.1988)). In addition, a premises owner must employ reasonable care to protect an invitee from ” reasonably foreseeable injuries at the hands of another.” Stribling v. Rushing’s, Inc., 115 So.3d 103 (Miss.App. 2013) citing Newell v. S. Jitney Jungle Co., 830 So.2d 621, 623 (Miss.2002).

Mississippi law holds that an assault on the premises is reasonably foreseeable if the defendant had either: (1) ” actual or constructive knowledge of the assailant’s violent nature,” or (2) ” actual or constructive knowledge an atmosphere of violence existed on the premises.” Corley v. Evans, 835 So.2d 30, 38-39 (Miss.2003) (quoting Gatewood v. Sampson, 812 So.2d 212, 220 (Miss.2002)).

In assessing whether an ” atmosphere of violence” existed, the supreme court has stated that relevant factors include ” the overall pattern of criminal activity prior to the event in question that occurred in the general vicinity of the defendant’s business premises,” and ” the frequency of criminal activity on the premises.” Id. 835 So.2d 30, 38-39.

If a motel or hotel owner has notice of crimes being committed on the premises, they must employ reasonable measures to ensure the safety of their guests.  Such measures should include the employment of security guards and security cameras.  Failure to do so increases the likelihood of injury to guest and liability.

In the case of InTown Lessee Associates, LLC v. Howard, a jury found that the InTown Motel had notice that an “atmosphere of violence” existed on the premises.  InTown, 67 So.3d 711 (Miss. 2011).  The Plaintiffs in that case were victims of armed robbery and aggravated assault while staying at the motel.  In their joint complaint, the Plaintiffs claimed, among other things, “that InTown had failed to remedy or repair the unsafe conditions and inadequacies of the property; and that InTown had a duty to the plaintiffs to make sure that the facilities, including all common areas, as well as guest rooms, were secure, safe, and fit for their particular purposes, that reasonable security measures were provided and maintained, that the property, including the fences surrounding part of the property and the locks on all guest room doors, were properly maintained, and that general upkeep of the property was performed”. Id. 67 So.3d 711 (Miss. 2011).  The jury agreed, awarding substantial damages to the Plaintiffs.

A premises liability analysis should be carefully applied to the facts and case law. Additionally, a thorough investigation of the facts must be conducted prior to pursuing  any premises liability action.

Mississippi Tenant Eviction

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Mississippi law provides landlords with the right to terminate any tenancy by following the applicable statutes. The most common reasons for termination are failure to pay rent and other breaches of the lease provisions. It is important to remember that landlords may not remove their tenants without following the evictions process.

To evict tenants in Mississippi, landlords must initiate the process by providing the tenant with a “notice of termination”.  While not required by statute, manner of delivery should be by U.S. Mail certified and attaching notice to the door of the property.  This will protect the landlord from lack of notice defenses.

 For month-to-month tenancies, one week notice by the landlord is required informing the tenant that the tenancy is being terminated. For longer-term tenancies, such as one year or two year, the landlord must provide notice in accordance with the provisions of the lease agreement.  The notice should identify which lease provision(s) were breached and under what provision the tenant is being evicted.

Miss. Code Ann § 89-8-13(1)-(3)).allows for the following types of written termination notices:

Notice to quit: 30-day notice provided by the landlord for breach of any lease provision other than the failure to pay rent. If the tenant is able to remedy the breach within 30 days, the tenancy will not be terminated

(Miss. Code Ann § 89-7-27).

Notice to pay rent or quit: 3-day notice that requires the tenant to pay rent within 3 days or leave the property.  Upon tenants failure to pay amounts owed, the landlord may then initiate eviction proceedings in the appropriate court.  What court in which to file your petition depends on the amounts owed.  If the tenant owes $4,000.00 or less the landlord will file an action in Justice Court..  If more than $4,000.00, the landlord will need to file a petition in county court or circuit court.  If filing in Circuit court and county court, the landlord should retain counsel.  The process is much more complicated and time consuming than most landlords care to manage themselves.

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Accessory after the fact in Mississippi

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Mississippi law provides that a person can be charged with “accessory after the fact” if he helps a person avoid arrest, trial or conviction for committing a felony.  According to Mississippi Code Section 97-1-5,.

(1) Every person who shall be convicted of having concealed, received, or relieved any felon, or having aided or assisted any felon, knowing that the person had committed a felony, with intent to enable the felon to escape or to avoid arrest, trial, conviction or punishment after the commission of the felony, on conviction thereof shall be imprisoned in the custody of the Department of Corrections as follows:

(a) If the felony was a violent crime:
(i) If the maximum punishment was life, death or twenty (20) years or more, for a period not to exceed twenty (20) years; or
(ii) If the maximum punishment for the violent felony was less than twenty (20) years, for a period not to exceed the maximum punishment.
(b) If the felony was a nonviolent crime:
(i) If the maximum punishment for the nonviolent felony was ten (10) years or more, for a period not to exceed ten (10) years; or
(ii) If the maximum punishment for the nonviolent felony was less than ten (10) years, for a period not to exceed the maximum punishment.

In the Mississippi case of White v. State, the Court held that to be found guilty of accessory after the fact, the State must prove that the defendant knew that the person committed a felony, and that the defendant intended to help the person escape or avoid capture and prosecution.  id. 851 So.2d 400 (2003).

Further, if the defendant intended to assist the felon in avoiding arrest, the State must prove that the efforts made to help the felon actually assisted him. id. 851 So.2d 400 (2003).  Put differently, if the defendant provided assistance or aid to the felon, but the aid did not actually help him, then the defendant is not guilty of accessory after the fact in Mississippi.  Under Mississippi criminal law, a person can not be convicted of both committing the underlying crime, and as an accessory after the fact.

Additionally, the help given to the felon must have been given after the crime was committed, not before.  If the assistance was given prior to the crime being completed, then the person giving the assistance is guilty of accessory before the fact and is a principal to the crime.  Of course, the guilt or innocence of a defendant charged with accessory after the fact will depend on the specific facts of each case.  Accessory after the fact is often difficult for the State to prove, and can be defended with relative ease.