IN THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI. v. NO CA COA R.M. SMITH INVESTMENTS, L.P.

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1 E-Filed Document Jan :53: CA COA Pages: 9 IN THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI PEARLIE WRIGHT APPELLANT v. NO CA COA R.M. SMITH INVESTMENTS, L.P. APPELLEE REPLY BRIEF OF APPELLANT ORAL ARGUMENT REQUESTED On Appeal from the Circuit Court of the First Judicial District of Hinds County, Mississippi No CIV CRYSTAL WISE MARTIN Miss. Bar No SUZANNE KEYS Miss. Bar. No PRECIOUS MARTIN & ASSOCIATES Post Office Box 373 Jackson, Miss T: E: cmartin@ptmandassoc.com E: skeys@ptmandassoc.com JAMES A. BOBO Miss. Bar No LAW OFFICE OF JAMES A. BOBO Post Office Box Pearl, Mississippi T: (601) F: (601) E: jbobo@jbobolaw.com Attorneys for Appellant

2 TABLE OF CONTENTS Table of Contents... i Table of Authorities... ii Statement Regarding Oral Argument... 1 Reply Argument... 1 Conclusion... 5 Certificate of Service... 6 i

3 TABLE OF AUTHORITIES Cases Galanis v. CMA Mgmt. Co., 175 So.3d 1213 (Miss. 2015)) Gatewood v. Sampson, 812 So.2d 212 (Miss. 2002)... 3 Court Rules MRAP ii

4 STATEMENT REGARDING ORAL ARGUMENT Pursuant to MRAP 34(b), the Appellant requests oral argument. The existence of a multitude of disputed, material facts make this a case in which oral argument will assist the Court. In addition, the Appellee has also requested oral argument. See Brief of Appellee (the request for oral argument is found on the brief s cover page). The fact that the parties agree that oral argument would assist the Court further shows that oral argument should be granted in this case. REPLY ARGUMENT In its brief, the Appellee argues that Wright has not demonstrated a factual basis for the elements of her premises liability claim and that Wright s expert witness on liability was properly excluded because his opinions are speculative. However, a fair reading of Wright s Principal Brief shows that this is not the case. To the contrary, Wright s Principal Brief demonstrates in great detail and with numerous supporting, admissible facts the evidentiary and legal bases for her claim. Wright similarly demonstrated that her expert s opinions are relevant, based upon reliable facts and data, would assist the trier of fact, and are not speculative. Wright will not unnecessarily repeat those arguments here. Instead, Wright will respond to several major themes running throughout Appellee s Brief, and demonstrate how those themes are yet further indications that this case was not a proper one for summary judgment. Instead, this is a case with multiple factual disputes about material issues. These are disputes that can only be resolved by a jury. Because summary judgment was improperly granted, the case should be remanded to the Circuit Court for trial. To begin, Appellee continues to assert as it did at the trial court level that Wright s liability expert, Gerald Jones, did not identify the minimum security standards or efforts that Appellee should have taken to prevent this foreseeable harm. According to Appellee, Jones 1

5 simply states on multiple occasions that the Appellee should have employed such minimum standards but then never offers any specifics on this point. This is not correct. Gerald Jones offered several specific, concrete minimal steps that he opined should have been employed by the Appellee to prevent the violent assault on Wright. Jones identifies those minimum steps or standards as having monitored security cameras, signage concerning the presence of those cameras, and an armed security guard patrolling the premises. R.E. at 16, 20. Far from being speculative, Jones opinions regarding these minimal efforts that Appellee should have undertaken to protect customers like Wright are based upon his knowledge, training, and years of experience in the field of law enforcement and premises security. For Jones to opine that a business property such as this should have such minimal protective measures in place is not a flight of fancy or a matter of guesswork. These are common sense measures that any seasoned law enforcement and security officer would recognize as being effective in protecting customers at such a business that has experienced, both on and around its property, the level and type of violent criminal activity as demonstrated in this case. Instead, Appellee did nothing. It is not speculation for Jones to opine that the Appellee doing something anything to protect its customers would have prevented this harm. His training and experience have shown that doing nothing invites attacks such as that perpetrated on Wright. On the other hand, as this case demonstrates, the old saying is true: an ounce of prevention is worth a pound of cure. The Appellee similarly glosses over the significant violent criminal activity in the vicinity of its premises, and indeed acts as if that activity is not relevant to this inquiry. However, as demonstrated in Wright s Principal Brief, decades of case law vitiates this argument. The violent criminal activity in the vicinity of the subject property is highly relevant, since it has been found that violence in the vicinity can prove the existence of an atmosphere of violence even in the 2

6 absence of any such activity occurring on the actual premises at issue. See Gatewood v. Sampson, 812 So.2d 212 (Miss. 2002). Just as in Gatewood, in this case there is proof of significant violent criminal activity in the vicinity of the subject premises. These violent incidents were detailed in a chart in Wright s Principal Brief. See Principal Brief at pp These reported violent incidents similar in nature to the assault and robbery perpetrated on Wright include 46 assaults, 22 robberies, 6 rapes/sexual batteries, and 2 carjackings, as well as one each of grand larceny, stolen vehicle, burglary, and shooting. At least 3 of these incidents occurred in the immediate vicinity of Appellee s property. Appellee would have this Court find that these incidents in the vicinity of its premises were not of a similar nature to the attack on Wright in this case. However, the attack on Wright can be best classified as a strong arm robbery or a robbery followed by a physical assault. The data shows 46 assaults in the vicinity of the subject property in the 3 years before Wrights was attacked and robbed. That data shows 22 robberies during that same time period. It cannot be argued with a straight face that the criminal activity in the vicinity of the subject premises was not of a similar character to the act perpetrated against Wright. The two most common crimes recorded (assault and robbery) are precisely those committed against Wright in this case. It bears repeating that, in the face of this atmosphere of violence on and in the vicinity of the Appellee s property, the Appellee here did nothing. It had no security measures in place at all. Appellee had non-functioning security cameras (which offer zero protection) and nothing else. Further, Appellee had not ever even conducted a security analysis of the property or requested the crime statistics for the property and its vicinity. Appellee did nothing in the face of its duty to provide reasonable protection to its invitee, and expects the law to protect it from its inaction. However, decades of Mississippi law required Appellee to take reasonable steps to 3

7 protect its invitee from harms that it had reason to foresee. Clearly, an assault and robbery on a person in this area which has seen a rash of those two crimes over a 3 year period was foreseeable. The Appellee s dismissive attitude toward its duty to its invitees is revealed in its Brief. In discussing the law of premises liability, Appellee asserts that it must merely use reasonable care to protects it invitees. Appellee s Brief at p. 18. Contrary to this argument, this is not a mere duty. It is a serious duty of protection that a business that operates in a dangerous area owes to its customers. The Appellee in this case has been dismissive of its duty not only before this incident but continues to be so before this Court. Well-settled law in this area, however, shows that the a jury must decide whether Appellee is to be held accountable for doing nothing in the face of the atmosphere of violence in and around its premises. When this case is condensed to its core, it is clear that it is not one that can be disposed of by summary judgment. At its core, this case is about a business that had zero security despite a long history of violent criminal activity on and near its premises. Wright has presented more than enough to get this case before a jury. Wright has demonstrated facts upon which a jury could find an atmosphere of violence on or near the premises, a complete lack of security measures by Appellee, identification of minimal steps that could have been taken to prevent the harm to Wright, and the resulting injury to Wright. Wright has presented sufficient facts on each of the elements of her claim to survive summary judgment. Only a jury can decide this case. As the Mississippi Supreme Court recently recognized in another premises liability case involving the criminal act of a third party, summary judgment is not proper when there exist factual disputes that can only be decided by a jury. See Galanis v. CMA Mgmt. Co., 175 So.3d 1213 (Miss. 2015). In Galanis, the Supreme Court reversed the trial court s grant of summary judgment when there were factual disputes as to key elements of the plaintiff s claim. The Court 4

8 recognized that in such cases it must draw all reasonable inferences in favor of the nonmovant and deny summary judgment when there exist genuine issues of material fact. Just as in Galanis, this Court reverse the trial court, which improperly granted summary judgment in this case. CONCLUSION For the reasons set forth in Appellant s Principal Brief and herein, Appellant, Pearlie Wright, respectfully requests that this Court reverse the Circuit Court of Hinds County s decisions excluding the opinions of Wright s expert witness and granting summary and final judgment to Appellee. The case should be remanded to the Circuit Court of Hinds County for trial. RESPECTFULLY SUBMITTED, this the 13 th day of January, PEARLIE WRIGHT, APPELLANT BY: /s/ Suzanne Keys SUZANNE KEYS OF COUNSEL: Crystal Wise Martin, MSB #10860 Suzanne Keys, MSB #5032 Precious Martin, Sr. & Associates, PLLC 821 North Congress Street Post Office Box 373 Jackson, Mississippi T: (601) E: cmartin@ptmandassoc.com E: skeys@ptmandassoc.com James Bobo, MSB # 3604 Law Office of James A. Bobo P.O. Box Pearl, Mississippi T: (601) F: (601) E: jbobo@jbobolaw.com 5

9 CERTIFICATE OF SERVICE I, Suzanne Keys, do hereby certify that I have this date served a copy of the above and foregoing document via the MECF System and/or United States Mail, postage prepaid to: Hon. Jeff Weill, Sr. Circuit Court Judge P.O. Box Jackson, MS John Brady MITCHELL, McNUTT & SAMS brady@mitchellmcnutt.com DATED this, the 13 th day of January, /s/ Suzanne Keys SUZANNE KEYS 6