Category Archives: Premises Liability

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An Indemnity Agreement is a contract provision wherein one party to the contract agrees to pay costs incurred by the other party to the contract as a result of the other party being held liable to a third party or having to defend against a claim filed by a third party.  Mississippi Code § 31-5-41 (1972) provides:

“With respect to all public or private contracts or agreements, for the construction, alteration, repair or maintenance of buildings, [or] structures…every covenant, promise and/or agreement contained therein to indemnify or hold harmless another person from that person’s own negligence is void as against public policy and wholly unenforceable.”

In the the case of Illinois Cent. Gulf R. Co. v. International Paper Co. the Mississippi Supreme Court held that this statute deals expressly with “work dealing with construction” and does not extend beyond the construction context. Id. 824 F.2d 403 (5th Cir. 1987). However, a “hold harmless”  provision will be enforced as long as a party is not seeking to recover for the party’s own negligence. American Cyanamid Co. v. Campbell Const. Co., 864 F. Supp. 580 (S.D. Miss. 1994).

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One ground upon which a lawsuit may be dimissed is that of forum non conveniens.  A defendant may present arguments that the venue in which the lawsuit was filed is improper due to lack of access to witnesses and evidence.  In determining whether to grant a motion to dismiss an action or to transfer venue under the doctrine of forum non conveniens, the court shall give consideration to the following factors:

(i) Relative ease of access to sources of proof;

(ii) Availability and cost of compulsory process for attendance of unwilling witnesses;

(iii) Possibility of viewing of the premises, if viewing would be appropriate to the action;

(iv) Unnecessary expense or trouble to the defendant not necessary to the plaintiff’s own right to pursue his remedy;

(v) Administrative difficulties for the forum courts;

(vi) Existence of local interests in deciding the case at home; and

(vii) The traditional deference given to a plaintiff’s choice of forum. Alston v. Pope, 112 So.3d 422 (Miss. 2013)    Miss.Code Ann. § 11-11-3(4)(a) (Rev.2004).

 

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When bringing an action against a party, an important consideration is where to file the lawsuit.  A lawsuit will only be heard if it has been filed in the proper venue, or county.

Mississippi statute regarding proper venue provides that “Civil actions of which the circuit court has original jurisdiction shall be commenced in the county where the defendant [1] resides, or, if a corporation, in the county of its principal place of business, or in the county where a substantial alleged act or omission occurred or where a substantial event that caused the injury occurred.”  Miss.Code Ann. § 11-11-3(1)(a)(i) (Rev.2004).  In interpreting the venue statute, Mississippi Courts “specifically requires a substantial alleged act, omission, or injury-causing event to have happened in a particular jurisdiction in order for venue to be proper there.” Hedgepeth v. Johnson, 975 So.2d 235 (Miss. 2008) citing Medical Assurance Co. of Mississippi v. Myers, 956 So.2d 213 (Miss. 2007).

 

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 Before the elimination of joint and several liability, joint tortfeasors or wrongdoers were afforded a right of contribution, with the amount of each tortfeasor’s liability in contribution determined by the tortfeasors’ relative degrees of fault. A right of contribution still exists for those whose liability is joint and several because they took part in a common plan to commit a tortious act. Miss. Code Ann. § 85-5-7(4) 

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In a joint and several liability Mississippi civil action action based on fault, including a medical malpractice action, each tortfeasor or wrongdoer is liable only for damages allocated to them in direct proportion to their percentage of fault. Miss. Code Ann. § 85-5-7 (Westlaw 2007). Fault must be assigned to absent tortfeasors who contributed to the injury (such as persons who have settled or were not sued) and those with immunity. Id.; Blailock v. Hubbs, 919 So. 2d 126 (Miss. 2005).  This rule does not apply to acts committed with specific wrongful intent or as part of a common plan to commit a tortious act. § 85-5-7(1) and (4).

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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;

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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.