Mississippi Senate Bill 2901, incorporating the “Landowners Protection Act” was signed into law by Governor Phil Bryant on March 29, 2019, and will be effective July 1, 2019. The Landowners Protection Act addresses the liability of landowners in Mississippi for the intentional torts of third parties on the landowners’ premises.
Prior to the change in law, in Mississippi, the duty a landowner owed to an individual on his or her property depended on the individual’s status on the property – either as a trespasser, an invitee, or a licensee. An invitee is a person who is present on the premises for a legitimate business purpose to benefit the premises owner (a business customer, for instance), and is therefore entitled to the highest duty of care in Mississippi. As set forth in Kroger Co. v. Knox, 98 So.3d 441, 444 (Miss. 2012), a landowner owes a “duty to exercise reasonable care to protect the invitee from reasonably foreseeable injuries at the hands of another,” which includes a duty to remedy dangerous conditions on the property and to warn of dangerous conditions that cannot be eliminated. Id. This duty “presupposes what the defendant knows, or should know, of the dangerous condition.” Id. A reason a landowner should know of a dangerous condition – i.e. a threat of assault, robbery, homicide, etc. – “may arise from (1) actual or constructive knowledge of the assailant’s violent nature, or (2) actual or constructive knowledge that an atmosphere of violence exists on the premises.” Id. at 433.
Under the old law in Mississippi, a person injured by a third-party assailant or shooter, could properly sue the landowner. The plaintiff was only required to show that he/she was a business invitee of the landowner and could prevail against the landowner for the conduct of an intentional actor. The interesting part of the old law is that the landowner was not allowed to apportion fault to the shooter or assailant.
The Landowner Protection Act now provides protection to any person (which also, by operation of law, includes corporations, LLC’s and other business entities) who “owns, leases, operates, maintains, or manages commercial or other real property in the state of Mississippi” as well as their “director[s], officer[s], employee[s], agent[s] or independent contractor[s]” (hereinafter “landowner”) from civil liability of any invitee who is injured on the property as a result of willful, wanton or intentional tortious conduct of a third party. The only exception to this protection is where the landowner “actively and affirmatively, with a degree of conscious decision-making, impelled (encouraged) the conduct of said third party.”
Using the analogy from above, the new law allows a landowner, sued by a plaintiff for injuries suffered by a shooter or assailant, can now apportion fault to the intentional actor. This greatly reduces the exposure of the landowner as compared to the old law.
Section 1 (3) of the Landowners Protection Act provides a specific and concrete definition of what constitutes an “atmosphere of violence.” Before the enactment of the Act, it was a question for the jury to determine whether an “atmosphere of violence” existed in the area in question. Such a determination could be based upon “the overall pattern of criminal activity prior to the event in question that occurred in the general vicinity of the defendant’s business premises, as well as the frequency of criminal activity on the premises.” Kroger, 98 So.3d at 444. In the Kroger case, the Mississippi Supreme Court found, as a matter of law – “in the context of Kroger’s more than three million customer visits over the course of three years – four incidences of criminal activity (here, purse snatching) are wholly insufficient to establish an atmosphere of violence on Kroger’s parking lot.” Id. Interestingly, Section 1 (3) of the Landowners Protection Act provides a specific and concrete definition of what constitutes an “atmosphere of violence,” which is defined as similar violent conduct that occurred three (3) or more times within three (3) years before the incident on the subject property. The three (3) separate events or incidents must result in three (3) or more arraignments of an individual for a felony involving an act of violence. Where four acts of criminal activity on the Kroger premises was not enough to find an atmosphere of violence in 2012, if the incident underpinning the Kroger case occurred post-July 1, 2019, it is likely the Court would reach a different conclusion under the Landowner Protection Act.
This is not to say the new Act is more liberal, but to finally define the number of incidences that equate to an atmosphere of violence. In the past, the jury was not instructed on any parameters that might create an atmosphere of violence so the courts were seeing different interpretations of “an atmosphere of violence.” The new Act gives us more precise parameters eliminating any guess work by a judge on summary judgment or jury in the jury room following a lengthy trial. The new Law also requires any previous acts of violence to (1) have occurred on the premise as opposed to neighboring businesses and (2) have resulted in an actual arraignment of the shooter or assailant as opposed to a frivolous accusation mostly commonly contained in Calls for Service. The new Act appears to have eliminated the need for plaintiff’s experts to testify regarding calls for service now requiring testimony of actual arraignments of the shooter or assailant.
Under the new Act, civil liability cannot be based upon the prior violent nature of the third party himself, unless the landowner has “actual, not constructive, knowledge of the prior violent nature of said third party.”
Finally, Senate Bill 2901 also amends Mississippi Code Annotated §85-5-7 to revise the definition of “fault” in the context of joint & several liability. Miss. Code Annotated §85-5-7(2) provides that any civil action based upon “fault” for damages caused by two or more people shall be several only, with each tortfeasor liable for his or her portion of fault only. Subsection (1) of the statute specifically stated that “Fault” “shall not include any tort which results from an act or omission committed with a specific wrongful intent.” Therefore, under the prior version of the statute, a jury was not allowed to apportion fault to a third party tortfeasor in a premises liability case.
Senate Bill 2901 tacks the following at the end of subsection (1):
For any premises-liability action . . . alleging injury as a result of the willful, wanton or intentional tortious conduct of a third party on commercial or other real property in the State of Mississippi, ‘fault’ shall include any tort which results from an act or omission committed with a specific wrongful intent.
Now, juries will be allowed to apportion fault to the landowner AND/OR the third party tortfeasor, unless the landowner “actively and affirmatively, with a degree of conscious decision-making, impelled (encouraged) the conduct of said third party.” The previous version of the Act allowed Plaintiffs to infer constructive knowledge on the part of a landowner to someone who may have had a criminal past. The new Act requires more proof for the plaintiff to establish making it more difficult to prevail in these types of cases.
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