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Buffalo Services Inc. v. Smith

Supreme Court of Mississippi

March 29, 2017

BUFFALO SERVICES, INC. d/b/a B-KWIK FOOD MART, BUFFALO SERVICES, INC., CLIFTON VAN CLEAVE AND LANE McCARTY Petitioners
v.
BRANDER SMITH Respondent

          ORDER

          JAMES D. MAXWELL II, JUSTICE.

         This matter is before the Court, en banc, on the Petition for Interlocutory Appeal filed by Petitioners Buffalo Services, Inc. d/b/a B-Kwik Food Mart, Buffalo Services, Inc., Clifton Van Cleave, and Lane McCarty (Buffalo Services) and a response filed by Brander Smith. Buffalo Services seeks leave to appeal the November 28, 2016 Order of Wilkinson County Chancery Court, which denied its summary-judgment motion in Civil Action No. 2016-0003.

         After due consideration, the Court finds the Petition for Interlocutory Appeal is well-taken and should be granted. The Court further finds no additional briefing is necessary.

         Smith sued Buffalo Services for premises liability. Buffalo Services owns two buildings located at 1290 and 1294 Highway 24 in Centerville, Mississippi. Buffalo Services operates a convenience store and gas station out of one building. It leased the other building to a discount clothing store operator. According to Smith's complaint, Smith was in the clothing store on April 30, 2015, when Donald Galmon crashed his vehicle into that store, injuring Smith.

         Smith alleged Buffalo Services "failed to fulfill their duties to make their premises reasonably safe for pedestrians shopping in the subject store from the risk of being struck by a moving vehicle." In particular, she claimed Buffalo Services failed in its duty to erect vertical bollards, "parking stops, "[1] "and/or other physical barriers in order to prevent the encroachment or obstruction of pedestrian ways by cars." But as a matter of law, Buffalo Services owed Smith no such duty.

         Instead, "Mississippi unequivocally holds that 'no duty is 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.'" Cheeks v. AutoZone, Inc., 154 So.3d 817, 823 (Miss. 2014) (quoting Carpenter v. Stop-N-Go Markets of Georgia, Inc., 512 So.2d 708, 709 (Miss. 1987)) (emphasis added). Indeed, as this Court has found, "[i]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." Id. "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." Id.

         There were two exceptional circumstances in Cheeks, giving rise to a duty. Not only did the auto business create a situation that made a vehicle crashing into a pedestrian entering or exiting the building reasonably forseeable, but also the auto business assumed a duty to protect patrons walking in and out of the store from incoming vehicles by erecting concrete bollards for the specific purpose of preventing vehicles from crashing into the front of the store. Id. at 823-24.

         Here, we have neither circumstance. Smith has not alleged-let alone presented evidence-that Buffalo Services created a situation that made injury to a patron inside the clothing store by a vehicle reasonably foreseeable. Nor did Buffalo Services undertake extra measures to protect patrons entering or exiting the clothing store. While there are bollards on the property, in contrast to Cheeks, none were placed to prevent vehicles from crashing into the front of the store.[2] See id. So there is no evidence Buffalo Services voluntarily assumed the duty to protect clothing-store patrons from vehicles driving into the front of the store. Cf. id. at 823-24.

         Instead, the general rule, which we affirmed in Cheeks, applies-as a matter of unequivocal Mississippi law, Buffalo Services owed Smith no duty to protect her from a third-party's negligently driving a vehicle into the clothing store leased by a third party. Id. at 824. Thus, Smith cannot rely on the lack of bollards, parking stops, or other physical barriers in front of the clothing store as evidence of negligence, because Buffalo Services was under no "duty to erect protective barriers to insure the safety [of] patrons inside the store" from wayward vehicles driven by third parties. Id.

         Because Smith failed to establish a premises-liability claim, the trial court erred when it denied Buffalo Services' motion for summary judgment.

         IT IS THEREFORE ORDERED the Petition for Interlocutory Appeal filed by Buffalo Services, Inc. d/b/a B-Kwik Food Mart; Buffalo Services, Inc., Clifton Van Cleave and Lane McCarty is hereby granted.

         IT IS FURTHER ORDERED the Order of the Wilkinson County Circuit Court, Civil Action No. 2016-0003, dated November 28, 2016, which denied the Petitioners summary judgment, is reversed and a judgment is rendered in favor of the Petitioners, dismissing all claims against them. The notice of appeal having been deemed filed, the filing fee is due and payable to the Clerk of this Court.

         IT IS FURTHER ORDERED Respondent, Brander Smith, is taxed with ...


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