BEFORE ROY NOBLE LEE, SULLIVAN AND ANDERSON
ANDERSON, JUSTICE, FOR THE COURT:
This "slip and fall" case is appealed from the Circuit Court of Jackson County, wherein the appellant Romain Wilson sued National Food Stores for injuries sustained in a fall on appellee's parking lot. The jury returned a verdict for appellant and the trial judge granted a judgment notwithstanding the verdict for appellee.
The facts in this case are basically undisputed. The appellee National Tea Company was doing business in Ocean Springs, Mississippi, as National Food Store, by operating a grocery store in a shopping center there. James C. Allday was manager of that store.
National Food Store (lessee) leased the building from Chrisler Properties (lessor). The lease agreement itself contained the following provision regarding the parking lot.
The premises under this lease include the free use of properly paved, lighted, drained, striped parking lot of approximately 300,000 square feet allowing for the parking of approximately 450 automobiles by Lessee, its customers, agents and employees. See approved plot plan "A" showing building and parking lot areas which is attached hereto and made a part hereof. Said parking lot to be used in conjunction with other customers of Lessees in this development, if any, and Lessor agrees to maintain, light and remove snow from all parking area.
On August 18, 1980, the appellant, a business invitee, stopped at the National Food Store in Ocean Springs to shop. Her bagged purchases were placed in a shopping cart belonging to National Food Store. As appellant proceeded toward her car with the cart full of groceries, the front wheel of the cart hit a pothole in the parking lot causing it to overturn. When appellant held on to the cart in an attempt to keep it from falling, she injured her back as the cart pulled her to the ground. The appellant sustained bodily injuries resulting in back surgery, approximately 3 1/2 years later. She incurred medical bills totalling $13,596.73.
The appellant filed an accident report with the manager of the store the day following the accident.
Insurers for Chrisler Properties (lessor) paid $200 for appellant's medical bills.
Appellant later learned that in April 1980, another patron of the store had fallen in the parking lot under similar circumstances and Chrisler Properties had paid medical expenses to that party also. The store had reported the accident to Chrisler Properties, who then assumed responsibility for repairing the holes in the parking lot at that time.
Appellant subsequently filed an action against James C. Allday, individually, and as manager of the store, National Tea Company, d/b/a National Food Store of Ocean Springs, and Chrisler Properties, a Mississippi unincorporated partnership. The appellant sued on grounds of negligence and sought $175,000 damages for personal injuries. Appellant voluntarily dismissed Chrisler Properties as a defendant in the suit. Following the trial, the judge directed the verdict for James Allday individually and the case was submitted to the jury, which returned a verdict of $32,000. The circuit court judge thereafter entered an order for a judgment notwithstanding the verdict.
The appellant assigns the following errors:
I. THE TRIAL COURT WAS IN ERROR IN GRANTING THE APPELLANT'S MOTION FOR A JUDGMENT NOTWITHSTANDING THE VERDICT, WHICH JUDGMENT AS ENTERED BY THE COURT WAS CONTRARY TO THE LAW AND THE EVIDENCE.
The main issue in this case is whether a lessee would be liable to a third party for injuries received on property incidental to (but not on) demised property (common area - parking lot) which lessor had agreed to maintain in good repair. An examination of the relevant law would indicate that the liability of the lessee would depend on whether or not the lessee exercised control of the premises in question.
In this case, National Food Store leased a building in the shopping center owned by Chrisler Properties and two adjacent buildings in the center were leased to other businesses. The lease agreement with National Food Store included free use of the parking lot to be maintained ...