IN THE SUPREME COURT OF MISSISSIPPI

NO. 1999-CA-00024-SCT

KAY L. NEWELL (RODERICK)

v.

SOUTHERN JITNEY JUNGLE COMPANY d/b/a SACK AND SAVE

DATE OF JUDGMENT: 12/17/1998

TRIAL JUDGE: HON. R. I. PRICHARD, III

COURT FROM WHICH APPEALED: LAMAR COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: SAMUEL E. FARRIS

JONATHAN MICHAEL FARRIS

ATTORNEY FOR APPELLEE: J. ROBERT RAMSAY

NATURE OF THE CASE: CIVIL - PERSONAL INJURY

DISPOSITION: AFFIRMED-10/31/2002

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

SMITH, PRESIDING JUSTICE, FOR THE COURT:

¶1. The issue in the present case is whether Kay L. Newell has stated sufficient grounds to sustain a

negligence claim against Southern Jitney Jungle Stores of America d/b/a Sack and Save. We hold that the

Workers' Compensation Law, Miss. Code Ann. §§ 71-3-1 to -129 (2000 & Supp. 2002), provides no

remedy for Newell's injuries, and thus, it is not her exclusive remedy. We also decline to impose upon a

business strict liability for all injuries occurring on its premises as a result of criminal acts committed by a

third party when the business's actions did not impel the act of that third party.

FACTS

¶2. On October 14, 1997, Kay L. Newell ("Newell") was at her place of employment, a grocery store,

Sack and Save, which is owned and operated by Southern Jitney Jungle Stores of America . Newell's

estranged husband, William Roderick ("Roderick"), entered Sack and Save and shot Newell four times

with a .44 caliber handgun.

¶3. Several times before the shooting incident, Roderick appeared at the Sack and Save stalking, harassing,

and threatening Newell in front of managers and other employees. The day before the shooting Roderick

caused a disturbance at Sack and Save. Newell's supervisor helped her file charges against Roderick.
¶4. After the shooting, Newell filed this action claiming Sack and Save was negligent in failing to furnish her

with a safe place to work and in failing to provide security for her. No other counts were alleged. Newell

argues in the alternative that she should have at least been allowed workers' compensation benefits. Sack

and Save denied liability under the Workers' Compensation Act. On October 30, 1998, Sack and Save

filed a M.R.C.P. 12(b)(6) motion to dismiss. On December 17, 1998, the motion to dismiss was granted.

Aggrieved Newell filed this appeal.

STANDARD OF REVIEW

¶5. A motion to dismiss under M.R.C. P. 12(b)(6) raises an issue of law. T.M. v. Noblitt, 650 So. 2d

1340, 1342 (Miss. 1995)(collecting authorities). This Court conducts de novo review on questions of law.

Id. When considering such a motion, the allegations in the complaint must be taken as true, and the motion

should not be granted unless it appears beyond doubt on the face of the complaint that the plaintiff will be

unable to prove any set of facts in support of his claim. Lang v. Bay St. Louis/Waveland Sch. Dist.,

764 So. 2d 1234, 1236 (Miss. 1999).

DISCUSSION

¶6. Newell's complaint claims Sack and Save owed her a duty to provide a safe place to work and a duty

to provide her security. Although not an insurer of an invitee's safety, a premises owner owes a duty to

exercise reasonable care to protect the invitee from reasonably foreseeable injuries at the hands of another.

See generally Lyle v. Mladinich, 584 So. 2d 397, 399 (Miss. 1991). See also McGovern v.

Scarborough, 566 So. 2d 1225 (Miss. 1990). Newell's claim, as an invitee as this Court characterizes

her, is brought under the theory of premises liability where Sack and Save's duty is properly stated as one

of reasonable care.

¶7. We have stated two ways a plaintiff can prove proximate causation in premises liability cases: 1) that the

defendant had actual or constructive knowledge of the assailant's violent nature, or 2) actual or constructive

knowledge an atmosphere of violence existed on the premises. Grisham v. John Q. Long V.F.W. Post,

No. 4057, Inc., 519 So. 2d 413, 416 (Miss. 1988). Newell's complaint alleges facts which indicate that it

is under this first option she is attempting to proceed. However, the complaint also states that Newell's

employer assisted her during this unfortunate ordeal to the point of helping her file charges against her

husband the day before the shooting occurred. At the time of the attack, Newell was in a separately

enclosed office behind a door that her husband had to "force" his way through. This indicates the door was

either locked, or there was warning in advance of her husband's presence provided by co-workers such

that countermeasures were taken.

¶8. In the case sub judice, the Sack and Save did nothing wrong; to the contrary, it attempted to help and

had placed Newell in a secure location under lock and key. Kay Newell did nothing wrong, either.

However, Sack and Save is not and should not become the guarantor of its employees' safety at all times.

¶9. The better method of examining this issue is under the traditional concepts of intervening and

superceding causes. For such intervening and superceding cause to extinguish the liability of the original

actor, the cause must be unforeseeable. Wal-Mart Stores, Inc. v. Johnson, 807 So. 2d 382, 390 (Miss.

2001). Furthermore, "negligence which merely furnishes the condition or occasion upon which injuries are

received, but does not put in motion the agency by or through which the injuries are inflicted, is not the

proximate cause thereof." Miss. City Lines v. Bullock, 194 Miss. 630, 13 So. 2d 34, 36 (1943).
¶10. We hold that Sack and Save's actions did not impel the assault by Newell's husband. Clearly the

intentional acts of Newell's estranged husband in entering the Sack and Save armed with a gun, forcing

entry into Newell's office, and shooting her are acts by a third party which are sufficient to terminate any

liability Sack and Save might otherwise have. If not, this Court would impose a duty approaching strict

liability on landowners of the type we specifically denounced in Crain v. Cleveland Lodge 1532, Order

of Moose, Inc., 641 So. 2d 1186, 1191 (Miss. 1994): "We refuse to place upon a business a burden

approaching strict liability for all injuries occurring on its premises as a result of criminal acts by third

parties."

¶11. There is no allegation of any intentional act or acts by Sack and Save. The complaint alleges that Sack

and Save, knowing of Newell's estranged husband's potential dangerousness, failed to take sufficient

precautions to protect her. There are no allegations that Sack and Save willfully caused Newell's injury. The

question arises as to whether this is a claim not covered by the exclusivity of the Workers' Compensation

Law because it is non-compensable.

¶12. This Court thus writes further today to clarify a misinterpretation of the exclusivity test by prior

opinions of this Court. Here, the injury is not covered by the act because the incident had nothing

whatsoever to do with Newell's employment. That is indeed why Sack and Save denied liability under the

act. An injury intentionally caused by a third-party acquaintance of the employee for reasons not arising out

of the employee's job or because of the job is not compensable under the act. Big "2" Engine

Rebuilders v. Freeman, 379 So. 2d 888, 891 (Miss. 1980). This Court, subsequent to Miller v.

McRae's, Inc., 444 So. 2d 368 (Miss. 1984), stated the two prongs of the exclusivity test as joined by the

word "and." See, e.g., Peaster v. David New Drilling Co., 642 So. 2d 344 (Miss. 1994); Griffin v.

Futorian Corp., 533 So. 2d 461, 463 (Miss. 1988).

¶13. The two prongs as stated in cases after Miller are as follows: (1) the injury must have been caused by

the willful act of another employee acting in the course of employment and in the furtherance of the

employee's business; [and/or] (2) the injury must be one that is not compensable under the act. Miller, in

fact, does not state a two-part test, whether it be joined by the word "and" or "or."

¶14. Rather, the only test articulated in Miller is whether the injury is compensable under the act. The

Court's entire discussion in that case, from which we later articulated a two-part test, was an effort to

answer that sole question - compensability of the injury. A close reading of Miller reveals that the first

prong of the test is not a separate requirement as we later interpreted it to be. Rather, the first prong is

merely part of the inquiry into whether the injury is, in fact, compensable.

¶15. Miss. Code Ann. § 71-3-3(b)(2000) defines "injury" as "accidental injury or accidental death arising

out of and in the course of employment ... , and also includes an injury caused by the willful act of a

third person directed against an employee because of his employment....." (emphasis added). In Miller

this Court examined this definition, and then went on to define the term "third person" as including a fellow

employee acting outside the scope and course of his employment. Hence the exception to the exclusivity

provision - an injury caused by a willful act of another employee acting in the course of employment. On

close examination, however, that "exception" is not an exception at all. It is a determination that the injury

does not fall under the act's definition of "injury" and is therefore not compensable.

¶16. The correct restatement of the inquiry set forth in Miller asks whether the injury is compensable under
the act. Newell's injury was not accidental, nor was it inflicted by a third person because of her

employment. It is therefore not compensable. Because the Workers' Compensation Law provides no

remedy for Newell's injury, it is not her exclusive remedy. See Miller, 444 So. 2d at 372 ("Obviously if the

injury is not compensable under the Act, the Act does not provide the exclusive remedy.").

CONCLUSION

¶17. The liability of landowners must end somewhere. We find the complaint, without reference to the

findings the trial court issued, insufficient in its averments of duty, breach of duty, and foreseeability to

withstand a M.R.C.P. 12(b)(6) motion to dismiss for failure to state a claim. The trial judge was correct in

his determination that Newell's claim, if not barred by our Workers' Compensation Law, was deficient in

claiming negligence grounds for relief. The judgment of the circuit court is affirmed.

¶18. AFFIRMED.

PITTMAN, C.J., WALLER, COBB, EASLEY AND CARLSON, JJ., CONCUR. McRAE,

P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ AND

GRAVES, JJ.

McRAE, PRESIDING JUSTICE, DISSENTING:

¶19. It is disingenuous for the majority to decide that Newell's complaint cannot survive a M.R.C.P. 12(b)

(6) motion on the one hand, and on the other determine the law appropriate for a negligence action it says

does not exist.

¶20. The majority affirms a Rule 12(b)(6) dismissal in this matter, but nevertheless proceeds to try the case

here on appeal. Indeed, it looks at the record in this case, discusses the negligence claims that it finds there

that, by virtue of its holding, are insufficient to state a claim, decides the appropriate law to apply, and

ultimately decides the matter pursuant thereto. Without hesitation, therefore, I respectfully dissent.

I.

¶21. When considering a Rule 12(b)(6) motion to dismiss, the allegations of the complaint must be taken as

true and the motion should not be granted unless it appears beyond reasonable doubt that the plaintiff will

be unable to prove any set of facts in support of her claim. Liggans v. Coahoma County Sheriff's Dep't,

823 So.2d 1152, 1154 (Miss. 2002) (citing Overstreet v. Merlos, 570 So.2d 1196, 1197 (Miss.1990);

DeFoe v. Great S. Nat'l Bank, N.A., 547 So.2d 786, 787 (Miss.1989)). Further, this Court has stated

that "in order to survive a Rule 12(b)(6) motion, the complaint need only state a set of facts that will allow

the plaintiff 'some relief in court.' " Board of Trustees v. Ray, 809 So.2d 627, 631 (Miss. 2002) (citing

State v. Dampeer, 744 So.2d 754, 756 (Miss.1999) (quoting Weeks v. Thomas, 662 So.2d 581, 583

(Miss.1995)). Finally, "[t]he purpose of the rule is to give notice, not to state facts and narrow the issues as

was the purpose in prior Mississippi practice." See Arnona v. Smith, 749 So.2d 63, 68 (Miss.1999)

(McRae, J., dissenting) (citing Independent Life & Acc. Ins. Co. v. Peavy, 528 So.2d 1112, 1116

(Miss.1988); Miss. R. Civ. P. 8 cmt.).

¶22. Therefore, as this Court recently stated, "the sole question before us is whether [Newell] can prove no

set of facts which would entitle [her] to the relief requested." State v. Quitman County, 807 So.2d 401,

406 (Miss. 2001). Paragraphs VII, VIII, & IX of the complaint answer this question:
Paragraph VII.

That the Defendant knew that William Roderick had been harassing the Plaintiff for several months

before Roderick shot the Plaintiff. That Roderick had been coming into Sack and Save grocery store

making threats and it was generally known to the employees and the management that he was doing

these things. That the day before Roderick shot the Plaintiff he was in the Sack and Save grocery

store harassing the Plaintiff to such an extent that the management finally assisted the Plaintiff in filing

charges against Roderick.

Paragraph VIII.

That the Defendant owed to the Plaintiff a duty to furnish her with a safe place to work and to provide

security for her, all of which the Defendant failed to do.

Paragraph IX.

That the Defendant knew or in the exercise of reasonable care should have known that Roderick was

a threat to the Plaintiff and should have taken action to protect the Plaintiff, all of which the Defendant

failed to do.

¶23. These paragraphs clearly make allegations sufficient to overcome a Rule 12(b)(6) motion. And as

mentioned, the purpose of a complaint is to give notice to the defendant. For example, in Universal

Computer Services, Inc. v. Lyall, 464 So.2d 69 (Miss. 1985) we found that:

In reviewing the pleading, Lyall's complaint prayed that the court attach "the effects of or indebtedness

to said non-resident . . . in the hands of the plaintiff, one 1981 Chevrolet Chevette automobile . . . "

Having determined the applicability of Miss. Rules of Civil Procedure, we note Rule 8 sets forth the

general rules of pleading to "set forth a claim for relief . . . [which] shall contain (1) a short and plain

statement . . . showing that the pleader is entitled to relief, and (2) a demand for judgment for the

relief to which he deems himself entitled." The comment thereunder states "the purpose of Rule 8 is

to give notice, not to state facts and narrow the issues as was the purpose of pleading in

prior Mississippi practice." . . . Clearly, the allegation of ownership here is sufficient to put

the defendant on notice.

Id. at 74 (emphasis added). Paragraphs VII, VIII, & IX of the complaint in the present case give Jitney

more than ample notice. They also sufficiently state the appropriate standard of care applicable to an

invitee. "An invitee is a person who goes upon the premises of another in answer to the express or implied

invitation of the owner or occupant for their mutual advantage." Hoffman v. Planters Gin Co., 358 So.2d

1008, 1011 (Miss.1978). The standard of care owed invitees is the duty to furnish a reasonably safe

environment and to exercise reasonable care to protect them from reasonably foreseeable injury at the

hands of another. The pleadings sufficiently allege that this duty was breached.

¶24. Thus, the circuit court erred in granting Jitney's Rule 12(b)(6) motion to dismiss.

II.

¶25. While the majority finds that Newell's pleadings cannot overcome a Rule 12(b)(6) motion, it

nonetheless finds, from the same pleadings, that a premises liability cause of action is pleaded therein. In so
finding, it even concludes that "the better method of examining this issue is under the traditional concepts of

intervening and superceding causes." First, it finds that Roderick's behavior on the day of the shooting was

unforeseeable. Next, it trumpets an application of law that aids Jitney in escaping any responsibility, if any,

in this matter. The trial judge also found that "one must conclude as a matter of law that Mr. Roderick's act

of shooting Ms. Newell constituted a new and independent cause when intervened between any negligence

by Jitney and the injury to Ms. Newell."

¶26. This reasoning blatantly weighs and dismisses the facts, which demonstrate that Newell's injuries may

have indeed been foreseeable. We deal with not one, not two, not three, but several threatening

appearances at the Sack and Save, which ultimately culminated in Jitney aiding in the filing charges the day

before the shooting, not to mention the shooting the next day. Whether the shooting was foreseeable,

therefore, and as a result, involves Jitney as the proximate cause of Newell's injury, is an issue of fact.

¶27. The majority does not stop here, however. It reasons that without applying the "better method," "the

Court imposes a duty approaching strict liability." Never mind that we are dealing with a very particular set

of circumstances. And never mind the reality that it is hard to argue that Jitney was not on notice here. As

mentioned, the undisputable well-pled facts are that, not once, but on a multitude of separate occasions,

Roderick appeared at the Sack and Save threatening, harassing, and stalking Newell. Jitney even helped

Newell to file charges the day before she was shot. Nevertheless, the majority finds that Roderick's

behavior on the day of the shooting was a superceding, intervening, unforeseeable event.

¶28. One may wonder how the majority would view this case had Newell been a customer, a business

invitee, or, had a customer been injured alongside Newell in the shooting. It is doubtful that we would

addressing the merit of a Rule 12(b)(6) dismissal under such circumstances.

¶29. It is also interesting that the majority concludes that "Sack and Save is not and should not become the

guarantor of its employees' safety at all times," when this case is not about duties owed to employees. This

is a case about a standard of care owed an invitee. Additionally, the majority grossly overstates that

imposing liability in this case would impose liability "on businesses for all injuries occurring on its premises at

all times." Newell is not asking for such an imposition. Rather, she seeks a finding pertinent only to the facts

of this particular case. She is alleging that in this particular case, on these particular facts, something more

needed to be done. The majority's slippery-slope argument is therefore not persuasive.

¶30. In conclusion, this case clearly survives a Rule 12(b)(6) motion, and should have been allowed to

proceed through discovery. It simply cannot be said, at this stage, that Newell would be unable to prove

any set of facts to support her claim. I, therefore, dissent.

¶31. This matter should be reversed and remanded with instructions to reinstate the complaint and allow

Newell to proceed with discovery.

DIAZ AND GRAVES, JJ., JOIN THIS OPINION.