Keeping your premises case in state court

There are two kinds of premises liability cases: those involving criminal acts by third parties and those we think of as slip and falls.  While the premises owner may be an out-of-state corporation, the manager of the premises is probably a Mississippi resident.  Suing the manager can insulate your case from being stuck in federal court (it won’t prevent removal but it will get your case back into state court). 

The primary case on this point is Smith v. Petsmart Inc., 278 Fed. Appx. 377 (5th Cir. 2008), an unpublished opinion from the Fifth Circuit Court of Appeals.   In Petsmart, the Court  observed that Mississippi law is unclear as to whether a premises manager, in addition to a premises owner, can face personally liability in a premises liability case but since uncertainty in the law is held against the movant, the Court had no choice but to remand.  Petsmart,, 278 Fed. Appx. at 380.  In Petsmart, the plaintiff tripped over the prongs of a forklift and fractured her ankle. The forklift was parked and unattended in the middle of an aisle of the store.  Petsmart, 278 Fed. Appx. at 378.  In remanding the case, the Fifth Circuit wrote as follows:

Mississippi law is unclear on the issue of whether a store manager, in addition to a store owner, can be personally liable in premises liability cases. The Mississippi Supreme Court has stated that   “the owner, occupant, or person in charge of premises owes to an invitee or business visitor a duty of exercising reasonable or ordinary care to keep the premises in reasonably safe and suitable condition or of warning [the] invitee of dangerous conditions not readily apparent which [the] owner knows or should know of in the exercise of reasonable care.”  Mayfield v. The Hairbender, 903 So. 2d 733, 735-36 (Miss. 2005) (en banc) (quoting Wilson v. Allday, 487 So. 2d 793, 795-96 (Miss. 1986)) (quotations omitted) (emphasis added) (alterations in original). The Smiths contend that a store manager is a “person in charge” and therefore owes premises-liability duties to invitees. Two district courts that have considered this question have come to differing conclusions. However, because we must “resolve all uncertainties [in the relevant state law] in favor of the non-moving party,” Cavallini v. State Farm Mut. Auto Ins., 44 F.3d 256, 259 (5th Cir. 1995), we assume that under Mississippi law a store manager may qualify as a “person in charge of premises.” Assuming that a store manager may qualify as a person in charge, the question before us is whether the Smiths established a reasonable   possibility of recovery against Murry based on the fact that she was a person in charge of Petsmart’s  premises. We believe that the Smiths’ claim establishes a reasonable possibility of recovery. 

Smith v. Petsmart, Inc., 278 Fed. Appx. at 380 (emphasis added). 

If the manager is responsible for customer/tenant safety, it is not necessarily relevant that the manager is not on the premises at the time the injury occurred.  

2 thoughts on “Keeping your premises case in state court

  1. Interesting post, and thanks – but why on earth would the CA5 issue this as an unpublished opinion?

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