January 13, 2015
KHAMBRAYA STANLEY, AND GENEVA WINCHESTER, MOTHER AND NEXT FRIEND OF JEANETTE WINCHESTER, A MINOR, APPELLANTS
SCOTT PETROLEUM CORPORATION, APPELLEE
FROM WHICH APPEALED: LEFLORE COUNTY CIRCUIT COURT. DATE OF
JUDGMENT: 06/25/2013. TRIAL JUDGE: HON.W. ASHLEY HINES. TRIAL
COURT DISPOSITION: GRANTED SUMMARY JUDGMENT FOR APPELLEE.
APPELLANTS: WILLIAM DRIBBEN MONTGOMERY, JACOB DANE KING.
APPELLEE: SAM STARNES THOMAS.
LEE, C.J., ROBERTS AND CARLTON, JJ. IRVING AND GRIFFIS,
P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR,
JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT SEPARATE
In this premises-liability case, we must determine whether
summary judgment was appropriately granted in favor of Scott
Petroleum Corporation. We find summary judgment was proper;
thus, we affirm.
AND PROCEDURAL HISTORY
Khambraya Stanley and Jeanette Winchester
(collectively Stanley) were patronizing a gas station owned
and operated by Scott Petroleum when they were struck from
behind by an out-of-control car. The gas station was located
at the corner of Highway 7 and Highway 82 in Greenwood,
Mississippi. Both women were standing between the walk-up
window and a set of vending shelves containing drinks for
purchase. The car collided with the vending shelves, all of
which collided with Stanley, causing injuries. According to
the police report, the car's brakes purportedly
malfunctioned as the car was attempting to slow down at the
intersection of Highway 7 and Highway 82. The car then
entered the gas-station parking lot traveling at
approximately forty-five miles per hour.
Stanley filed suit against Scott Petroleum in the Leflore
County Circuit Court, alleging negligence, gross negligence,
and respondeat superior. Scott Petroleum filed a motion for
summary judgment. After a hearing on the motion, the trial
court granted Scott Petroleum's motion for summary
judgment, finding that Scott Petroleum did not have a duty to
erect barriers to protect Stanley from the type of accident
involved in this case.
Stanley now appeals, asserting the trial court erred by (1)
granting summary judgment and (2) failing to grant a
In considering a trial court's grant of a motion for
summary judgment, this Court conducts a de novo review and
" examines all the evidentiary matters before it --
admissions in pleadings, answers to interrogatories,
depositions, affidavits, etc." City of Jackson v.
Sutton, 797 So.2d 977, 979 (¶ 7) (Miss. 2001)
(citation omitted). The Mississippi Supreme Court recently
clarified the summary-judgment standard, explaining that
" [t]he movant bears the burden of persuading the trial
judge that: (1) no genuine issue of material fact exists, and
(2) on the basis of the facts established, he is entitled to
[a] judgment as a matter of law." Karpinsky v. Am.
Nat'l Ins. Co., 109 So.3d 84, 88 (¶ 11) (Miss.
2013) (citation omitted). The supreme court further stated
that " [t]he movant bears the burden of production if,
at trial, [she] would bear the burden of proof on the issue
raised. In other words, the movant only bears the burden of
production where [she] would bear the burden of proof at
trial." Id. at 88-89 (¶ 11) (citations
omitted). The supreme court again clarified that " while
[d]efendants carry the initial burden of persuading the trial
judge that no issue of material fact exists and that they are
entitled to summary judgment based upon the established
facts, [the plaintiff] carries the burden of producing
sufficient evidence of the essential elements
of her claim at the summary-judgment stage, as she would
carry the burden of production at trial." Id.
at (¶ 13).
Stanley contends the trial court erred in granting Scott
Petroleum's motion for summary judgment. Mississippi uses
a three-step process in analyzing premises liability: "
First, we must determine whether the injured party was an
invitee, licensee, or a trespasser at the time of the injury.
Next, we must determine what duty was owed to the injured
party by the business owner/operator. Finally, we must
determine whether that duty was breached." Rod v.
Home Depot USA Inc., 931 So.2d 692, 694 (¶ 9)
(Miss. Ct.App. 2006) (internal citations omitted).
It is undisputed that Stanley was a business invitee because
she came to the gas station " in answer to the express
or implied invitation of the owner or occupant for their
mutual advantage." Id. at (¶ 10) (citation
omitted). " A business owner/operator owes to invitees
the duty to keep the premises reasonably safe, and when not
reasonably safe, to warn only where there is hidden danger or
peril that is not in plain and open view." Id.
(citation and internal quotation marks omitted).
To succeed in her premises-liability action, Stanley must
prove one of the following: " (1) a negligent act by
[Scott Petroleum] caused [her] injury; or, (2) that [Scott
Petroleum] had actual knowledge of a dangerous condition, but
failed to warn [her] of the danger; or, (3) the dangerous
condition remained long enough to impute constructive
knowledge to [Scott Petroleum]." Byrne v. Wal-Mart
Stores Inc., 877 So.2d 462, 465 (¶ 5) (Miss.
Ct.App. 2003) (citation omitted). A business owner, however,
is not an insurer of an invitee's injuries. Id.
at (¶ 6).
Stanley contends Scott Petroleum should have known that a
dangerous condition existed. Stanley argues that patrons
standing at the walk-up window were not protected from
vehicles in or around the gas-station parking lot. Stanley
states Scott Petroleum acknowledged the potentially dangerous
condition by erecting concrete bollards around the store, gas
pumps, and power pole, as well as including a warning sign
stating: " Caution! Be safe and alert. Watch out for
moving vehicles." Stanley further argues that concrete
bollards should have been placed around the walk-up window
for the protection of Scott Petroleum's customers.
Scott Petroleum cites to Carpenter v. Stop-N-Go Markets
of Georgia Inc., 512 So.2d 708 (Miss. 1987), Heard
v. Intervest Corp., 856 So.2d 359, 360 (Miss. Ct.App.
2003), and Blount v. The Pantry Inc., 936 So.2d 967
(Miss. Ct.App. 2006), for support. In Carpenter, a
thirteen-year-old boy was attempting to steal a car when he
drove it through the front window of the store.
Carpenter, 512 So.2d at 709. The car pushed over a
display counter, which knocked Carpenter to the floor,
injuring him. Id. The Mississippi Supreme Court held
that " there is, as a matter of law, no duty owed by a
convenience store owner, to persons inside the store, to
erect barriers in order to prevent vehicles from driving
through the store's plate glass window."
Id. The supreme court quoted Schatz v. 7-Eleven,
Inc., 128 So.2d 901, 904 (Fla. Dist. Ct.App. 1961), as
It 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.
In Heard, a woman was killed at an apartment complex
when an out-of-control car jumped the curb and struck her.
Heard, 856 So.2d at 360-61 (¶ 2). Noting that
the Carpenter decision only applied to cases where
the injury occurred indoors, this Court held " that it
must apply outside a building as well." Id. at
362 (¶ 10). We further stated, " 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."
In Blount, a car drove up to the front of a store
and hit the ice machine located on the sidewalk.
Blount, 936 So.2d at 967-68 (¶ 1). The ice
machine was pushed through the glass storefront and struck
Blount. Id. at 968 (¶ 1). This Court, relying
upon Carpenter and Heard, agreed with the
trial court that " business owners do not have a duty to
protect invitees from the type of harm that caused
Blount's injuries." Id. at (¶ 5).
Based upon the authority of Carpenter, Heard, and
Blount, we find the trial court was correct to grant
summary judgment in favor of Scott Petroleum.
Stanley further argues that Scott Petroleum assumed a duty to
protect its patrons by erecting the vending shelves between
the walk-up window and vehicular traffic. Stanley cites
Palmer v. Volkswagen of America Inc., 905 So.2d 564,
602 (¶ 137) (Miss. Ct.App. 2003) (overruled on other
grounds), for the proposition that a " party may
voluntarily assume a duty of care by undertaking to provide a
benefit to another party, upon which undertaking the other
party detrimentally relies." Stanley contends these
vending shelves created a false sense of security. However,
the record does not contain any evidence to support this
We note the Mississippi Supreme Court's recent decision
in a similar premises-liability case in which it reversed and
remanded to reinstate the jury verdict for the plaintiff.
Cheeks v. AutoZone Inc., 2013-CA-00401-SCT, 154
So.3d 817, 2014 WL 4748099 (Miss. 2014). The plaintiff,
Kenyatta Cheeks, was entering an AutoZone store when he was
struck by another vehicle. Id.
at*3, Id. at *1 (¶ 4). The driver of
this vehicle purportedly suffered a seizure after entering
the AutoZone parking lot. Id. at*6,
Id. at *2 (¶ 8). The store had erected orange
bollards along the storefront wall, but none on another wall
containing an additional entrance into the store.
Id. at*2, Id. at *1
(¶ 3). A canopy extended over this entrance, and the
store allowed customers to drive up the adjacent handicap
ramp to park under this canopy. Id.
at*5, Id. at *2 (¶ 7). As Cheeks was
entering this particular entrance, he saw a car driving
directly toward him and attempted to run to the front of the
store to seek protection behind a bollard.
Id. at*4, Id. at *1
(¶ 6). AutoZone admitted that the bollards had been
installed as a safety measure to protect pedestrians.
Id. at*17, Id. at *6
(¶ 25). There was also testimony that vehicles routinely
bumped into AutoZone's unprotected storefronts.
Id. at*17, at (¶ 24). The
court reaffirmed Carpenter, stating " that a
premises owner has no duty to protect against runaway
vehicles where such incidents would be unforseeable."
Id. at*18, at (¶ 26). But the
court noted that " certain factual circumstances give
rise to the possibility for a
duty to arise," which included the factual situation in
Cheeks. Id. Given the evidence produced at trial,
including the testimony of Cheeks's expert witnesses, the
court determined there was " sufficient evidence to find
that is was reasonably forseeable for an injury to occur and
that AutoZone had breached the duty it assumed."
Id. at*17 at (¶ 24).
[¶16] This case is distinguishable in that
Stanley did not produce evidence to create a genuine issue of
fact as was produced in Cheeks. Stanley did not
produce evidence of similar accidents. Nor did she offer any
expert testimony, conduct depositions, or obtain any
affidavits in support of her position.
Stanley also argues the trial court should have granted her a
continuance in order to obtain affidavits, conduct
depositions, and complete discovery. Stanley relies upon
Mississippi Rule of Civil Procedure 56(f):
When Affidavits Are Unavailable. Should it appear from the
affidavits of a party opposing the motion that he cannot for
reasons stated present by affidavit facts essential to
justify his opposition, the court may refuse the application
for judgment or may order a continuance to permit affidavits
to be obtained or depositions to be taken or discovery to be
had or may make such order as is just.
party opposing a motion for summary judgment makes a Rule
56(f) motion, she " must present specific facts why
[s]he cannot oppose the motion and must specifically
demonstrate 'how postponement of a ruling on the motion
will enable [her], by discovery or other means, [to] rebut
the movant's showing of the absence of a genuine issue of
fact.'" Owens v. Thomae, 759 So.2d 1117,
1120 (¶ 12) (Miss. 1999) (citation omitted).
Stanley's request for a continuance was simply a general
request. Her request did not contain specific facts or
information on any additional discovery that would create a
genuine issue of fact. This issue is without merit.
THE JUDGMENT OF THE LEFLORE COUNTY CIRCUIT COURT IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.
AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL
AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT
SEPARATE WRITTEN OPINION.
Khambraya's name is also spelled "
Khambrya" throughout the record.