SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO CA-00196

Transcription

1 E-Filed Document Jul :41: CA Pages: 21 SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI GLORIA THOMPSON VERSUS MILDRED LUCAS APPELLANT NO CA APPELLEE ON APPEAL FROM THE CIRCUIT COURT OF BOLIVAR COUNTY, MISSISSIPPI SECOND JUDICIAL DISTRICT BRIEF OF APPELLEE Oral Argument Requested Respectfully submitted, MILDRED LUCAS, APPELLEE BY: GAMMILL MONTGOMERY, PLLC BY: /s/andrew Rueff ANDREW RUEFF (MSB #103582) GAMMILL MONTGOMERY, PLLC 221 Sunnybrook Road, Suite B Ridgeland, Mississippi Phone: (601) Fax: (601) andrew@gammillmontgomery.com i

2 SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI GLORIA THOMPSON VERSUS MILDRED LUCAS APPELLANT NO CA APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of the Supreme Court may evaluate possible disqualification or recusal: 1. Ellis Turnage, Esq. TURNAGE LAW OFFICE 108 North Pearman Avenue P. O. Box 216 Cleveland, Mississippi Attorneys for Plaintiff/Appellant Gloria Thompson 2. Andrew Rueff, Esq. Toby J. Gammill, Esq. Claire Kenda, Esq. (no long with firm) Gammill Montgomery, PLLC 221 Sunnybrook Road, Suite B Ridgeland, Mississippi andrew@gammillmontgomery.com Attorneys for Defendant/Appellee Mildred Lucas 3. Gloria Thompson, Plaintiff/Appellant 4. Mildred Lucas, Defendant/Appellee 5. Hon. Linda F. Coleman (current Bolivar County Circuit Court Judge) Hon. Johnnie E. Walls, Jr. (judge at time of appealed Order) Circuit Court of Bolivar County 2 nd Judicial District P. O. Box 548 Cleveland, Mississippi Trial Court Judge ii

3 Respectfully submitted, MILDRED LUCAS, APPELLEE BY: GAMMILL MONTGOMERY, PLLC BY: /s/andrew Rueff ANDREW RUEFF (MSB #103582) GAMMILL MONTGOMERY, PLLC 221 Sunnybrook Road, Suite B Ridgeland, Mississippi Phone: (601) Fax: (601) andrew@gammillmontgomery.com iii

4 SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI GLORIA THOMPSON VERSUS MILDRED LUCAS APPELLANT NO CA APPELLEE TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS...ii TABLE OF CONTENTS...iv TABLE OF AUTHORITIES...v STATEMENT OF ISSUES...1 STATEMENT OF THE CASE...1 STATEMENT OF RELEVANT FACTS...2 SUMMARY OF THE ARGUMENT...3 ARGUMENT...4 A. The trial court properly granted summary judgment based on Thompson s status as a licensee at the time of her injury. B. There are no genuine issues of material fact as to Thompson s status at the time of her injury. CONCLUSION...13 CERTIFICATE OF SERVICE...15 iv

5 SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI GLORIA THOMPSON VERSUS MILDRED LUCAS APPELLANT NO CA APPELLEE TABLE OF AUTHORITIES CASES: Adams v. Fred s Dollar Store of Batesville, 497 So. 2d 1097 (Miss. 1986)...4 Albert v. Scott's Truck Plaza Inc., 978 So. 2d 1264, 1267 (Miss. 2008)...5 Clark v. Moore Mem'l United Methodist Church, 538 So. 2d 760 (Miss. 1989)...6 Corley v. Evans, 835 So. 2d 30 (Miss. 2003)...6 Daulton v. Miller, 815 So. 2d 1237 (Miss. Ct. App. 2001)...9 Davis v. Hoss, 869 So. 2d 397, (Miss. 2004)...4 Gibson v. Wright, 870 So. 2d 1250 (Miss. Ct. App. 2004)...5 Hall v. Cagle, 773 So. 2d 928 (Miss. 2000)...6,10,11 Handy v. Nejam, 111 So. 3d 610 (Miss. 2013)...12 Kendrick v. Quin, 49 So. 3d 645 (Miss. Ct. App. 2010)...5 Lott v. Purvis, 2 So.3d 789 (Miss. Ct. App. 2009)...12 Massey v. Tingle, 867 So. 2d 235 (Miss. 2004)...4 Minor v. Eng'g Serv. Co., Inc., 304 So. 2d 45 (Miss. 1974)...10 Olier v. Bailey. 164 So. 3d 982 (Miss. 2015)...9,10 Pigg v. Express Hotel Partners, LLC, 991 So. 2d 1197 (Miss. 2008)...4,12 Pinnell v. Bates, 838 So. 2d 198 (Miss. 2002)...10,11 v

6 Pre-Paid Legal Serv., Inc. v. Battle, 873 So.2d 79 (Miss. 2004)...4 Sharlow v. Raybourn, 135 So. 3d 238 (Miss. Ct. App. 2014)...9 Steele v. Inn of Vicksburg Inc., 697 So. 2d 373(Miss. 1997)...5 Summers ex rel. Dawson v. St. Andrew's, 759 So. 2d 1203 (Miss. 2000) Wright v. Caffey, 239 Miss. 470 (Miss. 1960)...8 RULES OF PROCEDURE MISSISSIPPI RULE OF CIVIL PROCEDURE 56(C)...4 vi

7 SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI GLORIA THOMPSON VERSUS MILDRED LUCAS APPELLANT NO CA APPELLEE BRIEF OF THE APPELLANT COMES NOW Appellant, by and through counsel of record, Andrew Rueff of Gammill Montgomery, PLLC, and files the Appellee s Brief, pursuant to the Mississippi Rules of Civil Procedure and the Mississippi Rules of Appellate Procedure, and respectfully requests that this Court affirm the summary judgment entered against Plaintiff/Appellant Gloria Thompson, in the Circuit Court of Bolivar County, Second Judicial District, dismissing this lawsuit in its entirety, with prejudice. I. STATEMENT OF THE ISSUES A. THE TRIAL COURT PROPERLY GRANTED SUMMARY JUDGMENT BASED ON THOMPSON S STATUS AS A LICENSEE AT THE TIME OF HER INJURY. B. THERE ARE NO GENUINE ISSUES OF MATERIAL FACT AS TO THOMPSON S STATUS AT THE TIME OF HER INJURY. II. STATEMENT OF THE CASE This lawsuit arose from a trip and fall incident that occurred on May 13 th, 2013 at the residential home of the Defendant/Appellee, Mildred Lucas (hereinafter Lucas ). (Plaintiff s Complaint, at R. 3) On that date, the Plaintiff/Appellant, Gloria Thompson (hereinafter Thompson ), a social acquaintance of Lucas s, visited Lucas s home, and accidentally tripped in the driveway while leaving the premises, allegedly suffering injury. (Id.) 1

8 As a result of that accident, on June 23 rd, 2014 Thompson filed suit against Lucas in the Circuit Court of the Second Judicial District of Bolivar County, Mississippi. Thompson s Complaint alleged that her injuries were proximately caused by the negligence of Lucas under a theory of premises liability. Thompson specifically alleged that at the time of the accident, she was an invitee. (Id.) Lucas timely filed an Answer to Thompson s lawsuit, denying liability outright. (Answer, at R. 9). During the course of litigation, written discovery was exchanged between the parties, and both Lucas and Thompson sat for deposition. After sufficient discovery, Lucas filed a Motion for Summary Judgment on liability on July 23 rd, 2015, arguing that Thompson was a licensee, not an invitee, at the time of injury, and was therefore only owed a duty to avoid willful and wanton injury under the applicable legal standard. (See Lucas s Motion for Summary Judgment, at R. 19, and Memorandum at R. 88). Lucas s Motion was set for hearing before the trial court on December 2 nd, After hearing oral argument from the parties, the Court took the Motion under advisement, ultimately ruling in favor of Lucas on January 6 th, 2016, dismissing Thompson s lawsuit with prejudice. (Order, at R. 65). On February 5 th, 2016, Thompson filed her Notice of Appeal from the Order granting summary judgment. (Notice of Appeal, at R. 67). III. STATEMENT OF RELEVANT FACTS The relevant facts of this appeal take place over a two-day time period, and are not in dispute. On May 12 th, 2013, the day before the Thompson was actually injured, both Thompson and Lucas were at a casino for entertainment purposes. (Lucas deposition, at R. 24). Thompson and Lucas did not go to the casino together, but were both with groups of various friends and family members who all knew one another. (Id.) Lucas ran out of cash at the casino, and asked 2

9 Thompson s daughter (Geisha) if she could borrow some money until Lucas s own daughter-inlaw returned to the casino. (Id.) Geisha apparently did not have any money to lend, but Thompson herself offered to let Lucas borrow twenty dollars. Lucas then used the twenty dollars to gamble at the casino. (Id.) The next day, on May 13 th, 2013, Thompson drove to Lucas s house to pick up the twenty dollars which Lucas had borrowed the day before. (Lucas deposition at R. 24, and Thompson deposition at R. 42). Thompson testified that she called to inform Lucas she would be coming by to pick up the money. (Thompson deposition at R. 42). Thompson visited briefly at Lucas s home, then as she walked back down the driveway to her vehicle, she tripped and allegedly suffered injury. (Id.) IV. SUMMARY OF THE ARGUMENT Thompson s lawsuit was appropriately dismissed on summary judgment because Thompson was a licensee at the time she entered Lucas s property and became injured. Thompson loaned Lucas twenty dollars the day before this accident at a casino, not as some sort of business deal, but as a friendly favor between social acquaintances. Nothing in the trial record suggests that as a condition or term of borrowing money Thompson was invited, or even permitted, to come to Lucas s home to collect her money on the date of the accident. Thompson was not invited to come to Lucas s home on the date of the accident, and instead came to Lucas s home on her own initiative where she was merely permitted entrance to the home to collect her money. At the time that she entered the premises, Thompson s sole purpose for being on the property was to collect the money for her own individual benefit. Thompson conferred no benefit or advantage upon Lucas at the time she entered Lucas s property, and as such Thompson was not an invitee at the time she was injured. The question of status is entirely a legal question, 3

10 as there are no genuine issues of material fact for a jury to decide. Thompson was a licensee as a matter of law, and having not alleged, much less provided evidence of, willful or wanton injury, her case was appropriately dismissed on summary judgment. V. ARGUMENT Standard of Review Mississippi appellate Courts review a trial court s grant of summary judgment using a de novo standard of review. Pre-Paid Legal Serv., Inc. v. Battle, 873 So.2d 79, 82 (Miss. 2004). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Miss. R. Civ. P. 56(c). The evidence is viewed in the light most favorable to the party opposing the motion. Davis v. Hoss, 869 So. 2d 397, 401 (Miss. 2004). However, [t]he non-moving party may not rest upon mere allegations or denials in the pleadings but must set forth specific facts showing that there are genuine issues for trial. Pigg v. Express Hotel Partners, LLC, 991 So. 2d 1197 (Miss. 2008) (quoting Massey v. Tingle, 867 So. 2d 235, 238 (Miss. 2004)). In premises liability cases, the determination of which status a particular Plaintiff holds (i.e., invitee, licensee, or trespasser) can be a jury question, but where the material facts are not in dispute, the classification becomes a question of law which can, and should, be decided by the trial court. Adams v. Fred s Dollar Store of Batesville, 497 So. 2d 1097 (Miss. 1986). A. THE TRIAL COURT PROPERLY GRANTED SUMMARY JUDGMENT BASED ON THOMPSON S STATUS AS A LICENSEE AT THE TIME OF HER INJURY. Based on the above undisputed facts, and based on Mississippi's premises liability law, Thompson does not have a basis for recovering against Lucas in this case, and her lawsuit was appropriately dismissed on summary judgment. Thompson cannot recover against the Lucas in 4

11 this case because she was not an invitee on the Lucas s property at the time of injury. Since Thompson was not an invitee, the only duty which Lucas owed to her was to avoid causing willful or wanton injury. Gibson v. Wright, 870 So. 2d 1250, 1255 (Miss. Ct. App. 2004). Thompson never pled or argued that her injuries were caused by willful or wanton conduct. (See Complaint, at R. 3). As such, the issue of Thompson s status is dispositive of the case, and the trial court correctly granted summary judgment on Thompson s claims. As with any negligence claim, Thompson has the burden of proving that (1) Lucas owed her a duty, (2) that Lucas breached that duty, (3) that the breach caused Thompson injury, and (4) that Thompson incurred damages. Kendrick v. Quin, 49 So. 3d 645, 648 (Miss. Ct. App. 2010) (citing Steele v. Inn of Vicksburg Inc., 697 So. 2d 373, (Miss. 1997)). To survive a motion for summary judgment, Thompson must show there is a genuine issue of material fact as to each of these four elements for a jury to decide. In this present appeal, as with the in motion before the trial court, the inquiry begins and ends with the element of duty. In a premises liability case, the nature of the duty owed by a property owner is contingent on the status of the injured person, i.e., whether the injured party was an invitee, licensee, or trespasser on the property at the time of the injury. Albert v. Scott's Truck Plaza Inc., 978 So. 2d 1264, 1267 ( 7) (Miss. 2008). A premises owner owes an invitee the duty to keep the subject premises in a reasonably safe condition, and when not reasonably safe, to warn of any hidden danger or perils on the premises that are not in open view; however the only duty a premises owner owes a licensee is to refrain from willfully and wantonly causing injury to the licensee. Gibson v. Wright, 870 So. 2d 1250, 1255 (Miss. Ct. App. 2004). The determination of which status a particular plaintiff holds can be a jury question, but where the 5

12 facts are not in dispute the classification becomes a question of law. Id. (quoting Clark v. Moore Mem'l United Methodist Church, 538 So. 2d 760, 763 (Miss. 1989)). Under Mississippi law, an invitee is a person who goes upon the premises of another in answer to the express or implied invitation of the owner for their mutual advantage. A licensee is one who enters upon the property of another for her own convenience, pleasure, or benefit pursuant to the license or implied permission of the owner. A trespasser is one who enters upon another's premises without license, invitation, or other right. Corley v. Evans, 835 So. 2d 30, 37 (Miss. 2003). In this case, the trial court correctly found that Thompson was a licensee, and not an invitee, at the time of her injury. A review of the applicable law and the findings of the trial court confirm the appropriateness of summary judgment in this case. To begin, in the case Clark v. Moore Memorial Methodist Church, the Mississippi Supreme Court considered the difference between "invitation" and "permission," by referring to 332 of the 2 nd Restatement of Torts, as follows: A social guest may be cordially invited and strongly urged to come, but he is not an invitee although invitation does not in itself establish the status of an invitee, it is essential to it. An invitation differs from mere permission in this: an invitation is conduct which justifies others in believing that the possessor desires them to enter the land; permission is conduct justifying others in believing that the possessor is willing that they shall enter, if they desire to do so mere permission, as distinguished from invitation, is sufficient to make the visitor a licensee ; but it does not make him an invitee, Clark v. Moore Memorial United Methodist Church, 538 So. 2d 760, 764 (Miss. 1989). While invitation does not in itself establish the status of an invitee, it is clear in the case at bar that Thompson entered Lucas s home not under express or implied invitation, but instead by Lucas s mere permission. Appellant s brief makes much of an alleged no-interest loan agreement between Thompson and Lucas. However, it is clear from the facts before the trial court that any agreement between Thompson and Lucas concerning Lucas borrowing twenty- 6

13 dollars was extremely informal. Despite Appellant s desire to use the language of finance in her brief to suggest that borrowing twenty-dollars was a formal loan transaction, nothing in the trial court record suggests that there were terms, express or implied, concerning how, where, and when the twenty-dollars was to be repaid, other than Lucas stating that she would repay the money tomorrow in the event that she lost the money while at the casino. (Lucas deposition, at R. 24). What is clear, from the trial court record, is that on the date of the accident, Thompson came to Lucas s home on Thompson s own initiative, for the express and sole purpose of collecting her twenty-dollars. Nothing in the record suggest that Lucas invited Thompson to her property to collect the money; instead, Thompson herself, by either calling ahead or simply driving to Lucas s home, 1 desired to enter the property for her own exclusive benefit, and was merely permitted by Lucas to enter the home and collect the twenty dollars. (See, generally, Lucas deposition at R. 24, and Thompson deposition at R. 42) This distinction between invitation and mere permission is important because it shows a distinct separation between the transaction made by the parties at the casino the day before the accident (i.e. borrowing twenty dollars), and the events on the day of the accident itself. Appellant s brief hinges her invitee-argument on the premise that the benefit received by Lucas (the twenty dollars at the casino) is sufficient to create invitee status for Thompson on the date of the accident. This argument relies on the mistaken assumption that simply because Lucas borrowed money from Thompson, this served as a legal invitation (from a premises-liability standpoint) for Thompson to come into her home the following day. However, nothing in the 1 The record is not crystal clear as to whether Thompson called Lucas to inform her she was coming by to pick up the money, or simply showed up at her home. However, this uncertainty does not create a material factual dispute. What is clear from the record is that there was no evidence before the trial court that Lucas had expressly or implicitly invited Thompson to her home on the date of the accident, or that an agreement was made at the casino that Thompson would come by the next day to collect the money. 7

14 trial Court record shows that an invitation was made, or that Thompson s entry onto Lucas s premises was a condition or terms of her agreement to let Lucas borrow twenty dollars. Lucas could have mailed the money to Thompson, or could have driven to Thompson s home to pay back the money, or could have made some other arrangement to repay the money at a location besides Lucas s home. Instead, Thompson, on her initiative and for her exclusive benefit, decided that she would go to Lucas s home to collect the debt. In doing so, Thompson entered the property under mere permission, as opposed to express or implied invitation, from Lucas, which is essential to a determination of Thompson s status on the date of her injury. Had this case involved an agreement where one of the terms of the twenty dollar loan was that Thompson would come to Lucas s home on the following date, then the argument would perhaps be more persuasive. As the facts and evidence before the trial court stand, however, the benefit conferred on Lucas (the twenty-dollar loan) was simply too far removed, in time and location, to make Thompson an invitee when she called upon Lucas the following day. This discussion is related to, and leads logically into a discussion of the most important factor in determining invitee status: the issue of mutual benefit between the parties. As stated above, Mississippi law defines an invitee as a person who goes on the premises of another in answer to the express or implied invitation of the owner or occupant on the business of the owner or occupant or for their mutual advantage. Wright v. Caffey, 239 Miss. 470, 474 (Miss. 1960). Therefore Thompson must not only prove that she was expressly or implicitly invited to the Lucas s home, but also that she entered the premises for the mutual benefit of both herself and Lucas. Id. When determining a person's status as an invitee, licensee, or trespasser, the Court "must focus on the owner and whether that person is receiving an advantage, or just permits the 8

15 presence of the entrant " (emphasis added). Sharlow v. Raybourn, 135 So. 3d 238, (Miss. Ct. App. 2014)(quoting Daulton v. Miller, 815 So. 2d 1237 (Miss. Ct. App. 2001). For practical purposes, the benefit to Thompson (i.e. the person entering the premises) is irrelevant. As summarized by the Court of Appeals in Daulton v. Miller: [N]o matter the category, whether invitee, licensee, or trespasser, the entrant's advantage is not the issue. In all situations, the entrant has voluntarily appeared for some reason sufficient to that person. The law does not much concern itself with the nature of the reason. The differences among the categories focus on the owner and whether that person is receiving an advantage, or just permits the presence of the entrant, or actually opposes the entry. 815 So. 2d 1237, 1239 In the present case, Lucas received no benefit whatsoever from Thompson entering her property. It is undisputed that the sole purpose of Thompsons visit was to pick up the twentydollars from Lucas. Lucas permitted Thompson to enter her home with no advantage to be gained by Lucas as a result of Thompson s presence at the time of entry. If anything, Lucas received a detriment by returning the twenty dollars to Thompson during her visit. The record is clear, though, at the time that Thompson was at Lucas s home, Lucas did not experience an advantage or benefit of the type required to turn Thompson into an invitee. Invitee status, according to the scores of reported Mississippi cases, typically requires a tangible business advantage or material/financial benefit flowing to the premises owner. Sharlow v. Raybourn, 135 So. 3d 238. In the case at bar, there was no business advantage, compensation, or other financial advantage flowing to the Lucas as a result of Lucas s entry onto her premises on the date of the actual accident. The Supreme Court recently laid out a brief survey of invitee vs. licensee cases in the rather unique opinion from Olier v. Bailey. 164 So. 3d 982 (2015). While that case dealt with a 9

16 specific fact pattern involving the intersection of premise liability law and dangerous animal law, the follow description from the Court about mutual benefit is relevant to the current appeal: There is case law establishing that a social guest can become an invitee if sufficient benefit is bestowed upon the landowner by nature of the guest's visit. This Court has held that a visitor who went to the home of her mother to take the mother to a doctor was an invitee entitled to a higher degree of care. Minor v. Eng'g Serv. Co., Inc., 304 So. 2d 45, 48 (Miss. 1974). More recently, in Hall v. Cagle, 773 So. 2d 928 (Miss. 2000), this Court confronted the classification of a guest who was helping the homeowner unload boxes, arrange furniture, and move into the house. The Court, citing Minor, held that the plaintiff was at the home of the Cagles to perform a service for their benefit, i.e., to assist them in moving and unpacking. Id. at 930. The Court held that the plaintiff's service to the landowner was sufficient to render her an invitee, and that she had alleged and proved sufficient facts to make a prima facie showing that she was an invitee rather than a licensee such that her suit should have survived summary judgment. Id. See also Pinnell v. Bates, 838 So. 2d 198, 202 (Miss. 2002) (holding that there was a factual dispute regarding the status of a visitor who came to a friend's home and helped out with housework because the homeowner was having back trouble, and summary judgment therefore was inappropriate). We find the facts in this case distinguishable from those in which we found an issue of fact regarding the entrant's status. In Minor, Hall, and Pinnell, the plaintiff was performing a service for the landowner that conferred a genuine benefit on the landowner, whether that was helping take someone to a doctor, helping someone move in, or assisting with housework. Here, Olier came at Bailey's invitation to view Bailey's plants. She did not assist Bailey with housework, help her move, take her somewhere, or do anything to benefit Bailey. Instead, she came entirely for her own benefit to look at Bailey's plants and perhaps take a sample home with her. FOOTNOTE #2: The Court has deemed these types of visits mutually beneficial, although in fact the benefit to the landowner clearly is unilateral. No benefit, other than the pleasure of assisting a friend, inures to the visitor who assists the landowner without compensation. This confusion about mutual benefit probably is a result of the classical definition of an invitee as a customer of a business who receives the benefit of purchasing goods from the premises owner. In a social context, the benefit to the visitor disappears, except for a vague altruistic benefit which this Court never has recognized as one deserving of invitee status. Accordingly, our rule for classifying such social guests as invitees is more properly deemed one of unilateral benefit to the landowner. If a social visitor s purpose is to confer a benefit upon the landowner, then that visitor is classified as an invitee. Of course, if there is some mutual benefit, such as payment for the assistance, the visitor clearly is an invitee. 10

17 Id. It is clear from this opinion, and the cases cited and quoted within this opinion, that invitee status requires a benefit conferred on the property owner at the time that the injured party enters onto the subject premises itself. This can be inferred from the explicit language of the above-referenced opinions wherein the nature of the visit itself is determinative, the visit being the period of time in which the injured party is on the subject property. When the nature or purpose of the visit itself is to confer a benefit on the property owner, the entrant is an invitee on the subject property. When the nature or purpose of the visit is strictly for the benefit of the entrant herself, the entrant is a licensee. This is easy to see in cases, such as Hall and Pinnell where an individual who would normally be a licensee becomes an invitee at the moment that the individual, through his or her actions, confers a benefit on the property owner thereby transmuting the purpose of his or her presence on the subject property from something that does not advantage the property owner to something that does advantage the property owner. By performing actions beneficial to the property owner at the time that they were on the subject property, the entrants in Hall and Pinnell became invitees. As such, the timing of the advantage conferred upon the property owner is crucial important, if not the sole determinative factor. In the case at bar, Thompson did nothing during her visit on Lucas s property which conferred an advantage on Lucas during the period of time which Thompson was present. The fact that she had loaned Lucas twenty dollars the day before, at a different location is irrelevant. The purpose of Thompson s entrance onto Lucas s property at the time she was injured was solely to benefit Thompson herself, and therefore, according to Mississippi law, Thompson was not an invitee at the time she was injured. As such, she was not entitled to the duty of care owed to invitees under Mississippi law, and her lawsuit was appropriately dismissed on summary judgment. 11

18 B. THERE ARE NO GENUINE ISSUES OF MATERIAL FACT AS TO THOMPSON S STATUS AT THE TIME OF HER INJURY. At the summary judgment stage, the non-moving party must show on rebuttal that each element of his claim is supported by significant, probative evidence. A "mere scintilla of colorable evidence" is not enough to avoid summary judgment; rather, the non-moving party must support all of the elements of her causes of action with "evidence upon which a fair-minded jury could return a favorable verdict." Lott v. Purvis, 2 So.3d 789, 792 (Miss. Ct. App. 2009). Under this standard, "mere speculation" provided by the non-moving party does not create "a genuine issue of material fact in order to defeat a summary judgment motion." Handy v. Nejam, 111 So. 3d 610, 612 (Miss. 2013). Furthermore, [n]umerous, immaterial facts may be controverted, but only those that affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Summers ex rel. Dawson v. St. Andrew's Episcopal Sch., 759 So. 2d 1203, 1208 (Miss. 2000). As stated above, [t]he non-moving party may not rest upon mere allegations or denials in the pleadings but must set forth specific facts showing that there are genuine issues for trial. Pigg v. Express Hotel Partners, LLC, 991 So. 2d (Miss. 2008). In response to Lucas s Motion for Summary Judgment, Thompson did not put forth any additional facts or evidence beyond those which were in Thompson s Motion, Memorandum, and Exhibits. In the present case, there are no genuine issues of material fact concerning Thompson s status at the time of her injury. It is undisputed that Thompson loaned Lucas twenty dollars at a casino on May 12 th, Thompson has not put forth any facts or evidence suggesting that Thompson s entry onto Lucas s property on May 13 th, 2014 was a term or condition of the loan. Most importantly, Thompson has not put forth any facts or evidence suggesting that the purpose or nature of Thompson s visit to Lucas s home at the time Thompson was injured was to confer 12

19 any type of benefit on Lucas herself. As such, Thompson s status is a purely legal question which was appropriately, and necessarily, decided by the trial court judge. The trial court considered thoroughly written briefs from both parties, and oral arguments. Based on Mississippi premises liability law, the judge found that there was no mutual advantage between the parties at the time Thompson entered Lucas s property, and as such, Thompson was a licensee. VI. CONCLUSION This case serves as an example of how ordinary social occurrences can create complicated fact patterns when one person is injured at the home of another. Appellant s argument is essentially that since Lucas received money, even though it was at a different location the day before the accident, Thompson was an invitee when she came to Lucas s home to collect repayment. As discussed in this brief, however, a strict and clean application of Mississippi law shows that Thompson was a licensee at the time of injury, since she entered onto Lucas s property by permission instead of invitation, and since she did not confer a benefit upon Lucas at the time of her visit in which she was injured. The trial court reached this result appropriately, and correctly dismissed Thompson s lawsuit on summary judgment. However, it should also be pointed out, in a more general sense, that in order for Thompson to be an invitee at the home of her family friend, when she was collecting repayment on a friendly twenty-dollar loan, the court would have to bend our state s premises liability standards far beyond their intentions. Thompson came to Lucas s home, rightfully so, on her own initiative to collect money she had loaned to Lucas as a favor. However, when she entered Lucas s home, she did so as a licensee rather than an invitee. Simply because this case involves money does not mean that 13

20 Lucas should be deprived of her rights as a homeowner against liability claims. The trial court correctly and appropriately reached this conclusion, and the judgment must be upheld. RESPECTFULLY SUBMITTED, this the 19 th day of July, MILDRED LUCAS, Defendant/Appellee BY: GAMMILL MONTGOMERY, PLLC BY: /s/ Andrew Rueff ANDREW RUEFF (MSB #103582) OF COUNSEL: GAMMILL MONTGOMERY, PLLC 221 Sunnybrook Road, Suite B Ridgeland, Mississippi Tel: (601) Fax: (601) andrew@gammillmontgomery.com Attorneys for Defendant/Appellee Mildred Lucas 14

21 CERTIFICATE OF SERVICE I, Andrew Rueff, attorney for Appellee, Mildred Lucas, do hereby by certify that I have mailed, via U.S. mail postage prepaid, a true and correct copy of the foregoing Brief to the following: Ellis Turnage, Esq. TURNAGE LAW OFFICE 108 North Pearman Avenue P. O. Box 216 Cleveland, Mississippi eturnage@etlawms.com Attorneys for Plaintiff/Appellant Gloria Thompson Hon. Linda F. Coleman (current Bolivar County Circuit Court Judge) Hon. Johnnie E. Walls, Jr. (judge at time of appealed Order) Circuit Court of Bolivar County 2 nd Judicial District P. O. Box 548 Cleveland, Mississippi Trial Court Judge So certified, this the 19 th day of July, /s/ Andrew Rueff ANDREW RUEFF (MSB #103582) 15