source: Caselaw Access Project

author: COLEMAN, Justice, KITCHENS, Justice,

license: Public Domain

text:
    Melissa HANDY, as Administratrix of the Estate of Ricco Handy and on Behalf of the Wrongful Death Beneficiaries of Ricco Handy v. A. Waddell NEJAM d/b/a Bellevue Place Apartments.
    No. 2010-CT-01513-SCT.
    Supreme Court of Mississippi.
    April 18, 2013.

      Joe N. Tatum, attorney for appellant.
    Jan F. Gadow, Jackson, Thomas Y. Paige, H. Gray Laird, III, attorneys for appellee.
   COLEMAN, Justice,

for the Court.

¶ 1. The instant case presents a question of premises liability in the context of a wrongful death action. The Court of Appeals affirmed the trial court’s holding that the deceased was an invitee at the time of his death and that the plaintiff breached no duty to the deceased under the standard applied to those classified as invitees while on the property of another. We agree the grant of summary judgment was appropriate but disagree with the trial court and the Court of Appeals as to the reason. We find the injured party was not an invitee at the time of the incident, but a trespasser. Because both the Court of Appeals and the trial court incorrectly classified the decedent as an invitee, we affirm only the result.

FACTS

¶ 2. On May 5, 2007, seventeen-year-old Riceo Handy and his cousin Courtney visited their uncle, Craig Handy, at Bellevue Place Apartments. Craig resided and leased an apartment at Bellevue Place, but Ricco and Courtney did not. After eating lunch, Ricco and Courtney notified Craig they were going to the apartment complex pool. Neither knew how to swim. Craig did not accompany Ricco and Courtney to the pool area. The pool consisted of three different depth levels: three, six, and nine feet. The two boys entered the three-feet-deep shallow end of the pool. Ricco then repeatedly walked into the six-feet-deep portion of the pool, returning to the shallow end each time. On his final venture into the deep end, Ricco purposefully put his head under water while touching the side of the pool. Eventually, he lost contact with the side of the pool and drowned.

¶ 3. Ricco’s mother, Melissa Handy, brought a wrongful death suit against the owner of the apartment complex, A. Wad-dell Nejam, claiming that he had breached a duty to keep the pool in a reasonably safe condition. The trial court deemed Ricco, given that he was a social guest of his uncle, an invitee at the time of the drowning. The Court of Appeals affirmed both the trial court’s finding that Ricco was an invitee and the order of summary judgment in favor of Nejam. Asserting that there was an issue of material fact regarding Nejam’s alleged breach of duty under the invitee “reasonable care” standard, Melissa Handy timely appealed.

STANDARD OF REVIEW

¶ 4. On appeal, we review an order of summary judgment de novo. Kilhullen v. Kan. City S. Ry., 8 So.3d 168, 174 (¶ 14) (Miss.2009). Upon reviewing a grant of summary judgment, this Court must view the evidence “in the light most favorable to the party against whom the motion has been made.” Id., at 174-75 (¶ 14) (quoting Daniels v. GNB, Inc., 629 So.2d 595, 599 (Miss.1993)).

DISCUSSION

¶ 5. The dissent suggests we should follow some other jurisdictions and eradicate the distinctions between invitees, licensees, and trespassers, but the Court has already rejected that suggestion and has continued to adhere to the traditional categories. See Little by Little v. Bell, 719 So.2d 757 (Miss.1998) (citing Skelton v. Twin County Rural Elec. Ass’n, 611 So.2d 931, 936 (Miss.1992)). Time and again the Court has recognized the need for landowners to restrict access to certain parts of their property by others so as not to expose the landowner to unwarranted liability; we have therefore deliberately refused to erase these ancient categories. Hudson v. Courtesy Motors, Inc., 794 So.2d 999 (¶ 12) (Miss.2001) (“In recent years, the invitee-licensee-trespasser trichotomy has come under attack ... we nevertheless hold that these distinctions are well grounded in Mississippi jurisprudence and public policy, and we decline to abandon them.”). See also Hall v. Cagle, 773 So.2d 928 (Miss.2000); Albert v. Scott’s Truck Plaza, Inc., 978 So.2d 1264 (Miss.2008). The question of whether to abandon the traditional distinctions has already been presented to us and rejected, and we turn to our analysis of the instant case.

¶ 6. Because the salient facts are not disputed, it is proper for the Court to determine Riceo Handy’s status at the time of his death as a matter of law. Howze v. Garner, 928 So.2d 900, 902 (¶ 9) (2005) (citing Adams v. Fred’s Dollar Store of Batesville, 497 So.2d 1097, 1100 (Miss.1986)). See also Buddy Jones Ford, Lincoln, Mercury Inc., 518 So.2d 646, 648 (Miss.1988).

¶ 7. In analyzing any premises liability action, we first must determine the injured, or in the instant case, deceased person’s status. Titus v. Williams, 844 So.2d 459, 467 (¶28) (Miss.2003). While he was an invitee when he first entered his uncle’s apartment, Leffler v. Sharp makes clear that Ricco Handy lost his status as an invitee when he entered the swimming pool without being accompanied by his uncle. Leffler v. Sharp, 891 So.2d 152, 154 (¶¶ 2-3) (Miss.2004). In Leffler, a guest of a hotel tenant climbed through an open window to access the rooftop where other guests had decided to gather. Id. at 154 (¶ 3). The Leffler Court took notice of two key facts which have particular relevance to the instant case. First, unbeknownst to the injured party, the hotel’s lease with the owner stated that guests of the hotel would not have access to the roof. Id. at 155 (¶ 6). Second, the lessor and the building owner had deliberately posted a “NOT AN EXIT” sign on the window only four feet away from the opening used by the plaintiff in accessing the roof. Id. at 159 (¶ 22). Because the preceding facts were undisputed, the Court upheld the trial court’s grant of summary judgment for the appellee. Id. at 159-160 (¶24).

¶ 8. Here, the leasing provision and the posted regulations requiring social guests to be accompanied by the tenant lead to the conclusion that the boys lost their status as invitees and became trespassers when they entered the pool area. Craig Handy’s lease, which he signed as part of his tenant agreement for at Bellevue Place Apartments, states, “The swimming pool, and all other recreational spaces shall be used only in compliance with the rules and regulations for the protection and convenience of the residents of the apartment community. A copy of the rules ... are displayed at various locations within the apartment community.” (Emphasis added.) It is also undisputed that a sign clearly prohibiting guests from entering the pool area without being accompanied by a resident of the apartment complex was posted by the entrance of the pool the day of the incident. “[Although the injured party may have entered the premises as an invitee, he may lose this status and acquire that of a licensee, if not a trespasser, if he exceeds the scope or purpose of the invitation by proceeding into an area not included in the invitation.” Hoffman v. Planters Gin Co., Inc., 358 So.2d 1008 (1978) (citing Braswell v. Econ. Supply Co., 281 So.2d 669 (Miss.1973)); Kelley v. Sportsmen’s Speedway, Inc., 224 Miss. 632, 80 So.2d 785 (1955). In the instant case, the pool was within Nejam’s invitation to Ricco Handy only if Craig Handy accompanied him.

¶ 9. Handy cites two cases, Lucas v. Mississippi Housing Authority, 441 So.2d 101 (Miss.1983), and John Doe v. Mississippi State Federation of Colored Women’s Club Housing for the Elderly in Clinton, Inc., 941 So.2d 820 (Miss.Ct.App.2006), for the blanket proposition that the guest of an apartment complex tenant is an invitee. However, there is no such blanket rule, and the question of status turns on the scope of the invitation, if any, to the tenant’s guests. Nothing in Lucas, where the decedent swam in the pool in the presence and with the permission of the tenants, see Lucas, 441 So.2d at 102, indicates that the lease contained restrictions on the use of the pool similar to the ones in the case sub judice. The Lucas Court based its conclusion on the proposition that allowing guests of tenants to use a pool is part of the rent or consideration for leasing the apartments, and therefore allowing guests to use the pool is to the benefit of the landlord, as it makes the property more desirable to prospective tenants. Id. at 103. Such a proposition is reasonable, but in the case sub judice, Nejam limited the attractiveness of the property and therefore the benefit to himself by placing restrictions on the use of the pool by guests of tenants. John Doe does not involve a pool accident at all, but a rape of a guest that occurred in an apartment stairwell. John Doe, 941 So.2d at 824 (¶ 9). Once again, there exists no indication that guests were prohibited from the area of the apartment building where the allegedly tortuous activity occurred.

¶ 10. Other cases which have held guests of tenants to be invitees are likewise easily distinguished. For example, in Thomas v. Columbia Group, LLC, 969 So.2d 849 (Miss.2007), the Court held the guest living in an apartment with the tenant, even though not on the lease, was an invitee. However, in Thomas, the injured party occupied the premises in a manner just as the tenant would without any restrictions; there were no restrictions about a guest’s use of a corridor, stairwell, or parking lot. In this instance, the lease contained restrictions, and the posted regulations limited use of the common pool area. Because Ricco exceeded the scope of his invitation as permitted by Nejam, he lost his status as invitee.

¶ 11. Given the facts surrounding Ric-co’s entrance into the pool, the only issue to be resolved is whether he was a licensee or a trespasser. Although the duty owed to a licensee is the same as that of a trespasser, Massey v. Tingle, 867 So.2d 235, 239 (¶ 14) (Miss.2004) (citing Titus, 844 So.2d at 467 (¶ 32)), we nevertheless endeavor to determine which classification is the more appropriate.

¶ 12. At common law, a licensee is one who enters upon the property of another with the owner’s implied permission and for the convenience and benefit of the licensee. Hoffman, 358 So.2d at 1011. Conversely, a trespasser is one who enters another’s property for his own “purposes, pleasure or convenience” without permission or inducement. Titus, 844 So.2d at 467 (¶ 31) (citing White v. Miss. Power & Light Co., 196 So.2d 343 (Miss.1967)). Ricco entered the property with permission, but neither he nor Craig Handy had the authority or the right to exceed the restrictions placed on the pool by Nejam. These restrictions were made plain both in the lease under which Craig occupied his apartment as well as the posted regulations on the pool facility itself. A guest could use the pool, only if accompanied by a tenant.

¶ 13. The crucial element is permission. See Clark v. Moore Mem’l United Methodist Church, 538 So.2d 760 (Miss.1989); Holley v. Int’l Paper Co., 497 So.2d 819 (1986). Here, not only was Ricco not granted permission, but he was explicitly prohibited from using the pool without his uncle. We therefore hold that Ricco was a trespasser when he entered the pool area.

¶ 14. After determining the classification of the injured party, we determine what duty, if any, the landlord owed. Titus, 844 So.2d at 467 (¶ 28). As stated above, a landowner owes a trespasser or a licensee only the duty to refrain from willfully or wantonly injuring the licensee, unless the landowner engages in active conduct and knows of his or her presence. Skelton By & Through Roden v. Twin County Rural Elec. Ass’n, 611 So.2d 931, 936 (Miss.1992). Willful and wanton conduct means that the possessor consciously disregards a known and serious hidden danger. Id. See also Marlon Inv. Co. v. Conner, 246 Miss. 343, 353, 149 So.2d 312, 315 (Miss.1963).

¶ 15. The final step is to determine if Nejam breached the duty. Titus, 844 So.2d at 467 (¶ 28). Again, the undisputed facts of the case eliminate any ambiguity as to whether a breach of duty occurred. First, the record reflects that Ricco was aware of the depth of the pool before ever entering the pool area. Second, as this Court has previously stated, the dangers of a swimming pool are obvious. Howze v. Garner, 928 So.2d 900, 904 (¶ 17) (Miss.Ct.App.2005). Given that both our precedent and the facts preclude the assumption of ignorance on the part of Ricco, we can safely conclude that Nejam did not engage in willful and wanton conduct and thus breached no duty.

CONCLUSION

¶ 16. While we agree that Ricco enjoyed the status of invitee when he first entered Nejam’s property, we respect that a property owner has the authority to restrict where his guests, whether they be business or social in nature, are permitted to be. Although the Court of Appeals and the trial court concluded correctly that summary judgment was proper, we can agree with their decision without adopting their reasoning. “[Tjhis Court may affirm the lower court’s grant of summary judgment on grounds other than that which the trial court used.” Kirksey v. Dye, 564 So.2d 1383 (Miss.1990) (citing Brocato v. Mississippi Publishers Corp., 503 So.2d 241, 244 (Miss.1987); Hickox By and Through Hickox v. Holleman, 502 So.2d 626 (Miss.1987)). Because we find that both the trial court and the Court of Appeals erred in their respective designations of Ricco as an invitee, we hereby reject the reasoning which led them to their correct result and affirm the order of summary judgment in accordance with this opinion.

¶ 17. AFFIRMED.

DICKINSON AND RANDOLPH, P.JJ., LAMAR, CHANDLER AND PIERCE, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, J. WALLER, C.J., NOT PARTICIPATING.

KITCHENS, Justice,

dissenting.

¶ 18. Hypothetically, two young men drown in an apartment pool lacking standard, nationally recognized safety equipment and practices. Their drowning reasonably could have been foreseen by a pool owner lacking such equipment and not adhering to such practices. One of the young men lived in the apartment complex in which the pool was located. The other was visiting a relative who was a resident of the complex, but who did not accompany him to the pool. Both suffer the same foreseeable injury, and. both suffer such injury due to the same lack of reasonable care on the part of the owner. However, due to a strict legal classification of entrants onto a landowner’s property, the estate and wrongful death beneficiaries of the youth who lived in the complex are permitted to sue the owner of the property, while those of the visiting youth are not, regardless of whether the pool was negligently maintained. This is the nonsensical effect of a strict devotion to a system of tort liability based on the classifications of invitees, licensees, and trespassers. I respectfully dissent because I believe that defining liability based on these classifications produces unjust results, and that this Court should adopt a unitary duty of reasonable care for land possessors regardless of an entrant’s classification.

¶ 19. Historically, the duty of care that a landowner owed was different depending on the status of various categories of entrants onto the land. Restatement (Third) of Torts: Physical and Emotional Harm § 51 (2012). The United States Supreme Court noted this when it held that there were no licensee-invitee distinctions in maritime cases. Kermarec v. Compagnie Generate Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959) (“The distinctions which the common law draws between licensee and invitee were inherited from a culture deeply rooted to the land, a culture which traced many of its standards to a heritage of feudalism.”). When these different duties were being developed, “no general duty of care existed, and duties were based on relationships or specific activities.” Restatement (Third) of Torts: Physical and Emotional Harm at § 51. These distinctions were relevant when they were developed because basic negligence law at the time imposed duties based only upon relationships, and not upon any general standard of care. Id. However, as the law of negligence evolved, jurisdictions began to acknowledge that such distinctions were “not in harmony with modern tort law.” Id. Fifty-four years ago, the United States Supreme Court recognized that “the common law has moved, unevenly and with hesitation, towards imposing on owners and occupiers a single duty of reasonable care in all the circumstances.” Kermarec, 358 U.S. at 631, 79 S.Ct. 406 (citation omitted).

¶ 20. The distinction between invitees, licensees, and trespassers is a product of the common law adopted by this Court. See Payne v. Rain Forest Nurseries Inc., 540 So.2d 35, 37 (Miss.1989) (“Mississippi continues to adhere to the common law distinctions between the status of parties coming upon the property of another[.]”) (emphasis added) (citing Lucas v. B. Jones Ford Lincoln Mercury, 518 So.2d 646, 648 (Miss.1988); Adams v. Fred’s Dollar Store, 497 So.2d 1097, 1102 (Miss.1986)). However, this Court has considered the wisdom of adopting a single duty of reasonable care. In 1970, Justice Inzer, writing for a majority of the Court, thought it was a matter that at least should be considered.

It is the thinking of this writer, but not necessarily that of the Court, that this area of law merits further study in the light of present day conditions and it may well be that this Court will in the future abandon the traditional distinctions between trespassers, licensees and invitees, or at least draw a distinction between active and passive negligence insofar as a licensee is concerned.

Astleford v. Milner Enters., Inc., 233 So.2d 524, 526 (Miss.1970). In 1998, this Court came within a single vote of eradicating the distinction between invitees and licensees. See Little by Little v. Bell, 719 So.2d 757 (Miss.1998). The dissent noted that several U.S. jurisdictions had established a unitary duty of reasonable care by landowners and had totally abolished the distinction between invitees, licensees, and trespassers. Id. at 766 (McRae, J., dissenting). Today these include Alaska, California, the District of Columbia, Hawaii, Louisiana, Montana, Nevada, New Hampshire, and New York. Several jurisdictions similarly have abolished the distinction between invitees and licensees, including Florida, Illinois, Iowa, Kansas, Maine, Massachusetts, Minnesota, Nebraska, New Mexico, North Carolina, North Dakota, Oregon, Rhode Island, Tennessee, West Virginia, Wisconsin, and Wyoming.

¶ 21. What is most convincing, in my mind, is not the growing number of states that are adopting a unitary standard of care, but the inescapable logic that the adoption of such a standard is efficient and beneficial to the administration of justice. Rather than maintaining rigidly segmented duties owed by a landowner based upon the classification of the entrant onto the premises, Mississippi should impose a general duty of reasonable care to protect persons from foreseeable injuries on a landowner’s property. This would place us firmly in line with modern tort law that generally requires persons to exercise reasonable care to prevent or avoid reasonably foreseeable harm. It also simplifies the “semantic morass” that has developed as the distinctions between invitee, licensee, and trespasser have evolved. See Kermarec, 358 U.S. at 631, 79 S.Ct. 406. This confusion is apparent in the case before us. Both the trial court and the Court of Appeals found, as a matter of law, that Ricco Handy was an invitee. The majority finds that both are incorrect, and that Ricco was not an invitee or a licensee, but a trespasser. Apt and able legal minds have considered Ricco’s status, and have arrived at conclusions that are on opposite ends of the spectrum.

¶ 22. Rather than analyzing the category to which a particular person belongs, courts and juries, simply and directly, should analyze whether the landowner’s conduct was reasonable, and whether the plaintiffs injuries were reasonably foreseeable. As the dissent noted in Little, 719 So.2d at 767, the traditional classifications “undermine the jury function ... because liability is mostly dependent on the entrant’s status rather than the jury’s evaluation of the landowner’s conduct.” Instead, “recovery by an entrant has become largely a matter of chance, dependent upon the pigeonhole in which the law has put him.” Heins, 552 N.W.2d at 56. This “pigeonholing” inevitably leads to illogical results. Ricco Handy and a resident of the Bellevue Place Apartments could have drowned right next to each other. Both could have drowned due to the landlord’s negligence. Our law permits only the estate and/or statutory beneficiaries of the resident to recover damages for that negligence. Such a result is neither rational nor just.

¶ 23. Imposing upon landowners and possessors a reasonable duty of care to persons on their property is not a novel concept. Jurors have long weighed defendants’ reasonableness in light of the surrounding circumstances in negligence cases, and this Court has defined reasonable care in numerous opinions.

Requisite care remains always that degree of care commensurate with appreciable danger appraised in terms of ordinary prudence and interpreted in the light of the attendant circumstances.... Although the expression and the basis of the rule remain fixed, its flexibility permits accommodation to each particular case. The area of factual doubt with which juries should be allowed to function is circumscribed within a circle of which care is the axis and reasonableness is the radius.

Supreme Instruments Corp. v. Lehr, 190 Miss. 600, 1 So.2d 242, 245 (Miss.1941); see generally Jackson & Miller, 6 Mississippi Practice Series § 52:16 (2001). Foreseeability always has been the cornerstone of negligence jurisprudence in this state. “The reasonable man, then, to whose ideal behavior we are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on events that are barely possible.” Mauney v. Gulf Refining Co., 193 Miss. 421, 9 So.2d 780, 781 (Miss.1942). Asking a fact-finder to determine whether a defendant’s conduct was reasonable in light of the circumstances is a fundamental part of the law of negligence in Mississippi. I can imagine no reason why it would be problematic or unfair to have jurors determine whether a landowner’s conduct was reasonable under the relevant facts and circumstances before them.

¶ 24. Requiring a general standard of reasonable care, regardless of an entrant’s status, imposes no extra duty on landowners. Regardless of what a plaintiffs classification is, a defendant landowner still is required to exercise reasonable care to protect against reasonably foreseeable perils to persons. Whether the classification is in place or not, a landowner still must conform to the same level of care. Additionally, since foreseeability is an integral component in the determination of whether a landowner exercised reasonable care, unforeseeable injuries would impose no liability upon the landowner. If a defendant’s “conduct was reasonable in the light of what he could anticipate, there is no negligence and no liability.” Reaves v. Wiggs, 192 So.2d 401, 403 (Miss.1966). “[T]he failure of a land possessor to act to protect a trespasser when there is no foreseeable risk is not negligence.” Restatement (Third) of Torts: Physical and Emotional Harm at § 51 cmt.j. Accordingly, a landowner could never be liable for injuries to an unforeseeable plaintiff who suffered an unforeseeable injury. It is important to note that Mississippi is a comparative negligence state. Miss.Code Ann. § 11— 7-15 (Rev.2004). Juries are instructed, when applicable, to weigh and assess a plaintiffs own negligence in causing his own injuries, and reduce his damages award accordingly. This is a safeguard against landowner liability for unpredictable and risky behavior on the part of the plaintiff.

¶ 25. The Restatement offers another safeguard for liability by classifying one group of entrants as “flagrant trespassers.” Restatement (Third) of Torts: Physical and Emotional Harm at § 52. This covers trespassers whose “presence on another’s land is so antithetical to the rights of the land possessor ... that the land possessor should not be subject to liability for failing to exercise the ordinary duty of reasonable care otherwise owed to them as entrants on the land.” Id. To these egregious trespassers, a landowner would owe only the duty to refrain from willfully and wantonly causing them injury. This extreme classification of trespassers effectively would safeguard against liability to criminal interlopers injured on the premises. Such a classification should continue to be available should the facts of a case warrant it.

¶ 26. I note that the traditional procedural safeguards of summary judgment would continue to serve an important role in the suppression of frivolous claims. If a plaintiff is unable to make a prima facie case for each essential element of a negligence claim, then summary judgment for the defendant would be appropriate. A plaintiff in a negligence action would still have to prove, by a preponderance of the evidence, the indispensable elements of duty, breach, causation, and damages. The jury would weigh the facts and evidence and reach a verdict. This is neither rocket science, nor is it revolutionary.

¶ 27. Turning to the instant facts, under our current law, Ricco Handy is labeled a trespasser on the occasion of his untimely death in the pool of the Bellevue Place Apartments. Thus, his estate and wrongful death beneficiaries are barred from bringing an action for damages. Had he resided in the complex and drowned in precisely the same way for the same reason and in the same pool, his estate and beneficiaries would be permitted to bring and maintain a civil action on account of his status as an invitee to whom Nejam owed a duty of reasonable care. Under a unitary duty-of-reasonable-care standard, assuming that the plaintiff could make a prima facie showing of every material element of the negligence claim, the case would be permitted to proceed to trial, regardless of Ricco’s status in relation to the property. Then, a jury would determine whether Nejam had exercised reasonable care in ameliorating the foreseeable risk of someone’s accidentally drowning in the pool at his Bellevue Place Apartments. It also would consider Ricco Handy’s comparative negligence for entering the pool and his being unable to swim. I offer no opinion on the likelihood of success of such a claim at trial; but I believe the facts are such that a trial is warranted. The duty of reasonable care should not be avoided simply because of the antiquated legal classification of someone’s deceased child.

¶ 28. In sum, the classifications of invitee, licensee, and trespasser are outdated and out of sync with our current negligence jurisprudence. Landowners and others in control of real estate should exercise reasonable care to assess and attend to unreasonably dangerous conditions on their property. In determining a landowner’s reasonableness, or the lack thereof, the fact finder must consider the foreseeability of the harm created by the condition of the property, the magnitude of any foreseeable harm, the benefit of the condition, the burden of protecting against any foreseeable harm, and the comparative negligence, if any, of the plaintiff in bringing about the injury. This imposes no new burden on landowners and brings the law of premises liability squarely in line with our current negligence law. Mississippi should join the expanding number of jurisdictions that have adopted a unitary duty of care for land possessors. Under this regime, the estate and statutory beneficiaries of Ricco Handy likely would be permitted to bring their case before a jury. Because I find that, under the facts presented, they should be permitted to do so, and that a unitary standard of reasonable care upon all landowners advances the cause of justice and judicial efficiency, I respectfully dissent.

KING, J., JOINS THIS OPINION.

      . Newton v. Magill, 872 P.2d 1213, 1217 (Alaska 1994).

      . Alcaraz v. Vece, 14 Cal.4th 1149, 60 Cal.Rptr.2d 448, 929 P.2d 1239, 1249 (1997).

      . Smith v. Arbaugh’s Rest., Inc., 469 F.2d 97, 105 (D.C.Cir.1972).

      . Doe v. Grosvenor Props. (Hawaii) Ltd., 73 Haw. 158, 829 P.2d 512, 515 (1992).

      . Cates v. Beauregard Elec. Co-op., Inc., 328 So.2d 367, 371 (La.1976).

      . Limberhand v. Big Ditch Co., 218 Mont. 132, 706 P.2d 491, 496 (1985).

      . Wiley v. Redd, 110 Nev. 1310, 885 P.2d 592, 596 (1994).

      . Ouellette v. Blanchard, 116 N.H. 552, 364 A.2d 631, 634 (1976).

      . Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868, 872 (1976).

      . Wood v. Camp, 284 So.2d 691, 695 (Fla.1973).

      . Premises Liability Act, 740 Ill. Comp. Stat. 130/2 (West 2010).

      . Koenig v. Koenig, 766 N.W.2d 635, 643 (Iowa 2009).

      . Jones v. Hansen, 254 Kan. 499, 867 P.2d 303, 310 (1994).

      . Poulin v. Colby College, 402 A.2d 846, 850-51 (Me.1979).

      . Mounsey v. Ellard, 363 Mass. 693, 297 N.E.2d 43, 51-52 (1973).

      . Peterson v. Balach, 294 Minn. 161, 199 N.W.2d 639, 642 (1972).

      . Heins v. Webster County, 250 Neb. 750, 552 N.W.2d 51, 56-57 (1996).

      . Ford v. Board of County Comm'rs of County of Dona Ana, 118 N.M. 134, 879 P.2d 766, 769 (1994).

      . Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d 882, 892-93 (1998).

      . O’Leary v. Coenen, 251 N.W.2d 746, 751 (1977).

      . Ragnone v. Portland Sch. Dist. No. 1J, 291 Or. 617, 633 P.2d 1287, 1291 (1981) (imposing duty of care on all those lawfully on the land).

      . Tantimonico v. Allendale Mut. Ins. Co., 637 A.2d 1056, 1061-62 (R.I.1994).

      . Hudson v. Gaitan, 675 S.W.2d 699, 703 (Tenn.1984), abrogated on other grounds by McIntyre v. Balentine, 833 S.W.2d 52 (Tenn.1992).

      . Mallet v. Pickens, 206 W.Va. 145, 522 S.E.2d 436, 446 (1999).

      . Antoniewicz v. Reszcynski, 70 Wis.2d 836, 236 N.W.2d 1, 11 (1975).

      . Clarke v. Beckwith, 858 P.2d 293, 294 (Wyo.1993).


author: RANDOLPH, Presiding Justice,

text:
    Twonia Renee WILLIAMS a/k/a Twonia Williams a/k/a Twonia R. Williams v. STATE of Mississippi.
    No. 2012-KA-00405-SCT.
    Supreme Court of Mississippi.
    April 18, 2013.

      Office of State Public Defender by Hunter Nolan Aikens, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before RANDOLPH, P.J., PIERCE and KING, JJ.
   RANDOLPH, Presiding Justice,

for the Court:

¶ 1. Twonia Renee Williams was convicted in the Circuit Court of Harrison County, Mississippi, for the murder of Katrina Sergeant. She was sentenced to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC). On appeal, Williams contends that jury instructions S-2A, S-4, and/or S-6 were given in error.

FACTS

¶ 2. In late November, 2009, Twonia Williams ended her three-and-a-half year relationship with Sean Lindsay. According to Williams, she “put [Lindsay] out” of her home due to his continued infidelity. Almost immediately, Lindsay moved in with his new girlfriend, Katrina Sergeant, her three children, and her niece, Stacey McCall.

¶ 3. McCall testified that, around midnight on December 5, 2010, she and Sergeant drove to the gas station in “[Lindsay’s] truck” to purchase “black and mild ... cigars].” Williams’s cousin recognized McCall and Sergeant in Lindsay’s truck and called Williams to inform her of what she had seen. Williams admitted being upset by this information because she had “just struggled to get the $2000 to get [the truck] paid off so [Lindsay] could get his title.”

¶ 4. Shortly after McCall and Sergeant returned home from the gas station, Williams began calling Lindsay’s phone repeatedly. Lindsay placed the calls on speaker phone, and McCall overheard Williams say she was “about to come blow up the house, blow up everybody in there.” Williams continued calling until Lindsay turned his phone off, at which point, she got in her car and drove to Sergeant’s house. According to Williams, she initially was not going to stop, but, as she drove by, she saw the front “door ... fly open” and believed that “[Lindsay] was coming out to talk to her.” However, Sergeant, and not Lindsay, emerged from the front door. Williams testified that she parked and exited her car with “the gun in [her] hand,” and that an argument ensued between her and Sergeant. Williams claimed that she told Sergeant she just “wanted to see [Lindsay],” but that Sergeant told her, “you need to leave, you’re not going to talk to [Lindsay], you need to leave.” Williams admitted that, at some point in the argument, she shot Sergeant, causing her death.

¶ 5. On July, 26, 2010, Williams was indicted for “willfully, feloniously and without the authority of law killing] and murdering] Katrina Sergeant, a human being, with deliberate design....” See Miss.Code Ann. § 97-3-19(l)(a) (Rev.2006). On February 14, 2012, the jury trial commenced. Williams testified on her own behalf, “... sometime or another I did pull the trigger ... I was arguing with [Sergeant] and I was talking with her with my hand. The gun went off, and I heard it pop and saw [Sergeant] go to the ground.” Despite acknowledging on direct examination that she “did pull the trigger,” Williams claimed that she shot Sergeant by accident. However, two eyewitnesses contradicted Williams’s claim. McCall testified that she was outside with Sergeant when the confrontation took place, and that Williams raised the gun up to Sergeant’s face and pulled the trigger. McCall also testified that, around the time she pulled the trigger, Williams stated, “I don’t give a f* * Furthermore, Sergeant’s neighbor, Carsie Durr, testified that he witnessed part of the confrontation from his front yard and that the shot “wasn’t like an accident ... [Williams] deliberately pulled that gun up and shot one time.... ” In addition to the two eyewitnesses, the State offered two experts whose testimony contradicted Williams’s. The State’s forensic expert, Dr. Paul McGarry, testified that Sergeant suffered a “close range wound within 12, 18, 20 inches.... ” Lori Beall, a firearms expert, testified that the type of gun used has certain safety mechanisms that require the trigger be pulled in order to prevent accidental firing.

¶ 6. Williams was found guilty of murder and sentenced to “life imprisonment in the custody of the Mississippi Department of Corrections.” After hearing, the circuit court denied Williams’s “Motion for New Trial or Judgment Notwithstanding the Verdict (NOV).” Thereafter, Williams filed this “Notice of Appeal.”

ISSUE

¶ 7. On appeal, this Court will consider: Whether the circuit court erred in granting instructions S-2A, S^4 and/or S-6.

ANALYSIS

¶ 8. The jury instructions at issue read, in pertinent part:

[A] person is presumed to have intended the natural and probable consequences of his voluntary and deliberate acts. (Instruction S — 4.)
“[D]eliberate design” may be inferred through the intentional use of any instrument which based on its manner of use is calculated to produce death or serious bodily injury. (Instruction S-2A.)
[I]f wounds are inflicted upon a person with a deadly weapon in a manner calculated to destroy life then intent may be inferred from the use of the weapon. (Instruction S-6.)

(Emphasis added.)

¶ 9. “Jury instructions are generally within the discretion of the trial court and the settled standard of review is abuse of discretion.” Bailey v. State, 78 So.3d 308, 315 (Miss.2012) (citing Newell v. State, 49 So.3d 66, 73 (Miss.2010)). “The instructions are to be read together as a whole, with no one instruction to be read alone or taken out of context.” Id. (quoting Young v. State, 891 So.2d 813, 819 (Miss.2005)). “When read together, if the jury instructions fairly state the law of the case and create no injustice, then no reversible error will be found.” Id. (citing Newell, 49 So.3d at 73).

¶ 10. Williams was indicted for “deliberate design” murder pursuant to Mississippi Code Section 97-3-19(1)(a). “[Deliberate design connotes an intent to kill.... ” Brown v. State, 965 So.2d 1023, 1030 (Miss.2007). Thus, “intent” was an essential element of the crime upon which the State was required to prove Williams’s guilt beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (“[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”); Hodges v. State, 743 So.2d 319, 324 (Miss.1999) (“The State is required to prove every element of the offense charged beyond a reasonable doubt.”) (citing Heidel v. State, 587 So.2d 835, 843 (Miss.1991)). This burden of proof “never shifts from the State to the defendant.” Sloan v. State, 368 So.2d 228, 229 (Miss.1979).

¶ 11. Williams admits that she shot and killed Sergeant. Her defense at trial was that the shooting was an accident, and, therefore, she lacked the requisite intent to be found guilty of “deliberate design” murder. Consequently, Williams argues that S-4, along with S-2A and S-6, shifted the burden of proof on the only contested issue at trial, her intent, vel non.

¶ 12. Williams relies primarily on the United States Supreme Court’s holdings in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), and Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985). In Sandstrom, Sandstrom admitted to the killing, but defended on the grounds that it was not “deliberate.” Id. at 512. Therefore, “[intent] was the lone element of the offense at issue....” Id. at 520-21, 99 S.Ct. 2450. The jury was given the following instruction: “[T]he law presumes that a person intends the ordinary consequences of his voluntary acts.” Id. at 512, 99 S.Ct. 2450. In Francis, the Court again examined a case where “intent” to commit murder was “the only contested issue at trial.” Francis, 471 U.S. at 309, 105 S.Ct. 1965. The jury was instructed, “[a] person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts but the presumption may be rebutted.” Id. at 311, 105 S.Ct. 1965. These two instructions are indistinguishable from S-4. In both eases, the Court emphatically held that the instruction violated the Due Process Clause in that it shifted the burden of proof to the defendant on an essential element of the charged offense, i.e., intent. Sandstrom, 442 U.S. at 521, 99 S.Ct. 2450; Francis, 471 U.S. at 325, 105 S.Ct. 1965.

¶ 13. This Court has condemned similar presumptive instructions. In Tran v. State, 681 So.2d 514, 516 (Miss.1996), the jury was given the following instruction: “Deliberate design may be presumed from the unlawful and deliberate use of a deadly weapon.” (Emphasis added.) This Court held that the instruction was given in error because “it relieved the prosecution of its [burden of] persuasion.” Id. at 518.

¶ 14. The State counters that, when the instructions are read as a whole, S — 4 did not shift the burden of proof. Specifically, the State directs this Court to instructions C-3, C-6, S-8 and S-10. C-3 instructed the jury that Williams was “presume[d] ... innocent” and that the “State must prove beyond a reasonable doubt” that Williams was “guilty of every material element of the offense.” C-5 instructed the jury, in pertinent part, “not to single out any certain ... instruction and ignore others. The order in which these instructions are given has no significance.... ” S-8 allowed the jury to find Williams not guilty based on “accident or misfortune,” and S-10 encompassed the lesser-included offense of manslaughter.

¶ 15. But Sandstrom and Francis addressed and rejected the very arguments presented by the State. In addition to the erroneous instruction, the Sandstrom “jury was instructed generally that the accused was presumed innocent until proved guilty, and that the State had the burden of proving beyond a reasonable doubt, that the defendant caused the death of the deceased purposely or knowingly.” Sandstrom, 442 U.S. at 518 n. 7, 99 S.Ct. 2450; Francis, 471 U.S. at 311, 105 S.Ct. 1965. The general instructions given in Sandstrom and Francis are very similar to those relied on by the State. The Court found that “[t]hese general instructions as to the prosecutor’s burden and the defendant’s presumption of innocence do not dissipate the error in the challenged portion of the instructions.” Francis, 471 U.S. at 319-20, 105 S.Ct. 1965.

¶ 16. Comparing the instructions reveals an additional conflict. S-4 conflicts with instruction S-9. S-9 stated, “[t]he Court instructs the jury that an intentional act cannot be excused under the doctrine of accident or misfortune.” When S-4 and S-9 are read together, a reasonable juror may have determined that the shooting could not have been an accident because “[Williams was] presumed to have intended the natural and probable consequences of [her] ... acts” and “an intentional act cannot be ... [an] accident_”

¶ 17. Additionally, the State argues that instruction S-4 did not employ the mandatory terms “shall” or “will,” and, therefore, merely created a permissive inference for the jury. Yet, the absence of “shall” or “will” does not automatically render S-4 permissive. Rather, we consider the distinctive differences between “infer” and “presume.” “Infer” is defined as “to conclude from certain premises or evidence.” Webster’s II New College Dictionary 567 (2001). By this definition, a jury may not make an inference without evidence adduced at trial to support that inference. However, S-4 did not employ “infer,” but instead used “presume,” which is defined as “to assume to be true without proof to the contrary.” Webster’s II New College Dictionary 875 (2001). “Assume” is analogous to “presume” and “stress[es] the arbitrary acceptance as true of something which has not yet been proved.” Webster’s Dictionary of Synonyms 646 (1942). As a presumption is accepted as true -without proof to the contrary, it follows that the burden was shifted to the defendant to provide proof.

¶ 18. The Sandstrom Court addressed the contention that the instruction merely created a permissible inference and stated, “[this] argument[ ] need not detain us long ... [,]” for “Sandstrom’s jurors ... were not told that they had a choice, or that they might infer that conclusion; they were told only that the law presumed it.” Sandstrom, 442 U.S. at 514-15, 99 S.Ct. 2450; see Francis, 471 U.S. at 316, 105 S.Ct. 1965 (“The challenged [instruction is] cast in the language of command.”) “It is clear that a reasonable juror could easily have viewed such an instruction as mandatory.” Sandstrom, 442 U.S. at 515, 99 S.Ct. 2450. S-4 created a mandatory presumption, not a permissible inference, and, therefore, the State’s argument must fail.

¶ 19. S-2A and S-6 clearly illustrate the distinction in which the jury is given guidance on what it may infer from the evidence adduced at trial. In contrast to S-4, S-2A and S-6 explicitly used the phrase “may be inferred.” In addition to including the permissive “may,” the instructions allow the jury the discretion to reach a conclusion only if evidence has been presented to support that conclusion, thus creating a true permissive inference. Francis, 471 U.S. at 314, 105 S.Ct. 1965 (“A permissive inference suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion.”) Therefore, S-2A and S-6 “told [the jurors] that they had a choice, or that they might infer that conclusion.” Sandstrom, 442 U.S. at 515, 99 S.Ct. 2450 (emphasis added). They did not tell the jurors “that the law presumed it.” Id. S-2A and S-6 do not create a mandatory presumption, and, therefore, do not impermis-sibly shift the burden of proof. See Rose v. Clark, 478 U.S. 570, 581, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986) (“No one doubts that the trial court properly could have instructed the jury that it could infer malice from respondent’s conduct.”) (emphasis in original).

¶ 20. S^l is practically indistinguishable from the burden-shifting instructions condemned in Sandstrom and Francis and the instruction which relieved the prosecution of its burden of persuasion condemned in Tran. In contrast to the permissive inference established by S-2A and S-6, S-4 created a mandatory presumption which could allow a conviction based upon a presumption as opposed to evidence beyond a reasonable doubt. Therefore, S-4 was given in error.

¶ 21. Having found error, this Court may consider whether such error was harmless. “Error is harmless if it is clear beyond a reasonable doubt that it did not contribute to the verdict.” Conley v. State, 790 So.2d 773, 793 (Miss.2001) (citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). Undoubtedly, the State presented substantial evidence of Williams’s guilt. See supra ¶ 5. However, Williams testified that the shooting was an accident. Her testimony was sufficient to warrant an instruction on accident or mistake, which was granted. Once her defense was placed in issue and the instruction given, it was the duty of the jury to consider Williams’s testimony and defense among all the other evidence presented. It was S — 4 which created this dilemma, for it is impossible to determine beyond a reasonable doubt whether the jury engaged in this consideration or merely relied on S^’s presumption as to intent. We cannot conclude that is it is “clear beyond a reasonable doubt that [S-4] did not contribute to the verdict.” Conley, 790 So.2d at 793.

CONCLUSION

¶ 22. The circuit court erred in granting instruction S-4, and such error cannot be considered harmless in this case. Therefore, we reverse Williams’s conviction and sentence and remand the case to the Circuit Court of Harrison County for a new trial consistent with this opinion.

¶ 23. REVERSED AND REMANDED.

WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

      . The gun used was a Rossi .357 magnum revolver. Beall testified that the gun requires fifteen-seventeen pounds of trigger pressure to fire when the hammer is unbooked. If the hammer is cocked, the gun requires two to two and a half pounds of trigger pressure to fire.

      . Consistent with this defense, Williams received two separate manslaughter instructions and an instruction on accident or mistake.

      . Along with the two instructions noted in Sandstrom, jurors in Francis also were instructed on ‘'misfortune or accident.”


author: LEE, C.J.,

text:
    Melissa HANDY, as Administratrix of the Estate of Ricco Handy and on behalf of the Wrongful Death Beneficiaries of Ricco Handy, Appellant. v. A. Waddell NEJAM d/b/a Bellevue Place Apartments, Appellee.
    No. 2010-CA-01513-COA.
    Court of Appeals of Mississippi.
    Feb. 28, 2012.
    Rehearing Denied July, 31, 2012.

      Joe N. Tatum, Latrice Westbrook, Jackson, attorneys for appellant.
    Thomas Y. Page, H. Gray Laird III, Jan F. Gadow, Jackson, attorneys for appellee.
    Before LEE, C.J., ROBERTS and RUSSELL, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. On May 5, 2007, seventeen-year-old Ricco Handy drowned while swimming in the pool at the Bellevue Place Apartments in Jackson, Mississippi. Ricco’s mother, Melissa Handy, filed a wrongful death suit in the Hinds County Circuit Court against the owner of Bellevue Place, A. Waddell Nejam d/b/a Bellevue Apartments. Ultimately, the trial court granted summary judgment in favor of Nejam. Melissa now appeals, asserting that the trial court erred in granting summary judgment in favor of Nejam.

FACTS

¶ 2. On the afternoon of May 5, 2007, Ricco and his cousin, Courtney Handy, were visiting Craig Handy, their uncle. Craig lived at the Bellevue Place Apartments. After eating lunch, Craig took a nap. Courtney stated that he asked Ricco to go down to the pool with him. Neither Courtney nor Ricco were able to swim. Melissa, Ricco’s mother, testified via deposition that she had spoken with Ricco on occasion about staying away from bodies of water because of his inability to swim. Courtney testified via deposition that they sat in the shallow end of the pool for a while before Ricco decided to walk toward the deep end of the pool. Courtney stated Ricco was holding on to the side of the pool as he walked into deeper water. Courtney said he did not see the depth markers indicating three, six, and nine feet, but he later admitted he was leaning against the three-foot depth marker.

¶ 3. Courtney stated when Ricco reached the six foot section of the pool, Ricco’s head remained above water due to his height. According to Courtney, Ricco held on to the side of the pool as Ricco walked back and forth from the shallow end to the deeper end of the pool. At one point Ricco submerged his head, lost his grip on the edge of the pool, drifted away from the side of the pool, and ultimately drowned. Several bystanders tried to help pull Ricco from the pool and perform CPR, but no one was able to save Ricco. Courtney ran to Craig’s apartment to notify Craig and to call emergency services.

¶ 4. A sign posted in the pool area stated that there was no lifeguard on duty and that tenants must accompany their guests while in the pool area. Ruby Heard, the complex manager, testified that although there was no floating safety rope in the pool, there was a place on the sides of the pool to attach a safety rope. Heard, who was in charge of maintaining the swimming pool, also stated the bottom of the pool begins to slant down toward the deeper end at the six-foot depth marker.

STANDARD OF REVIEW

¶ 5. In reviewing a lower court’s grant of summary judgment, this Court employs a de novo standard of review. Anglado v. Leaf River Forest Prods., 716 So.2d 543, 547 (¶ 13) (Miss.1998). Summary judgment “shall be rendered forthwith 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.” M.R.C.P. 56(c). This Court will consider all of the evidence before the lower court in the light most favorable to the non-moving party. Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss.1995). The party opposing the motion “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e).

DISCUSSION

¶ 6. On appeal, Melissa contends the trial court erred in granting summary judgment in favor of Nejam. In support of her theory of negligence, Handy offered the affidavit of Dr. Thomas Ebro, an aquatic safety specialist. Dr. Ebro opined Nejam breached his duty to Ricco by failing to provide certain pool equipment, including a floating safety rope.

¶ 7. In order to prevail under her theory of negligence, Handy was required to prove duty, a breach of that duty, causation, and damages. Steele v. Inn of Vicksburg, 697 So.2d 373, 377 (Miss.1997). “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.” Lucas v. Miss. Housing Auth. No. 8, 441 So.2d 101, 103 (Miss.1983). Here, Ricco entered the premises as Craig’s guest; therefore, Ricco is presumed to be an invitee under the law. As such, Nejam owed Ricco “the duty to keep the premises reasonably safe and[,] when not reasonably safe[,] to warn only where there is hidden danger or peril that is not [in] plain and open view.” Little ex rel. Little v. Bell, 719 So.2d 757, 760 (¶ 16) (Miss.1998) (citing Caruso v. Picayune Pizza Hut, Inc., 598 So.2d 770, 773 (Miss.1992)). Moreover, “[t]he risk of drowning in a pool is obvious.” Howze v. Garner, 928 So.2d 900, 904 (¶ 17) (Miss.Ct.App.2005).

¶ 8. In regard to a breach of duty, Handy contends the pool was unreasonably dangerous because it did not have a floating safety rope, depth markers, a bottom stripe on the pool indicating increasing depth, and an emergency telephone near the pool. We note that photographs of the pool taken shortly after Ricco’s drowning indicate the presence of depth markers. Courtney also indicated he saw the depth markers on the side of the pool. The evidence produced showed the following: the water was clean and clear; there were depth markers; Heard routinely inspected the pool and surrounding area; a sign indicated the lack of a lifeguard; and this sign also warned swimmers to swim at their own risk. Although Dr. Ebro opined that the lack of the aforementioned safety features was “more probably than not” the proximate cause of Ricco’s death, the trial court determined this was pure speculation. The trial court found the evidence reflected that Ricco would have entered the deep end of the pool regardless of any additional safety features. We agree with the trial court’s findings. Melissa also contended Nejam had a duty to equip the pool with these safety features. However, Handy has offered no law to support this contention. From the evidence produced, we find Nejam did not breach his duty to keep the pool reasonably safe.

¶9. Were we to find that Nejam failed to keep the premises reasonably safe, there is no evidence Nejam failed to warn of a hidden danger or peril that was not in plain and open view. In Howze, this Court noted that the pool owner’s “failure to provide flotation devices, hire certified lifeguards, install a life-line, or read brochures pertaining to pool safety does not constitute a breach of [the owner’s] duty to warn of hidden perils.” Howze, 928 So.2d at 904 (¶ 17). Furthermore, we reiterate that the risk of drowning in a pool is obvious, and Ricco knew of this risk since his mother, Melissa, had warned him to stay away from bodies of water.

¶ 10. Melissa has not met her burden of proving the pool was not reasonably safe; mere speculation cannot be considered a genuine issue of material fact in order to defeat a summary-judgment motion. Thus, we affirm the trial court’s grant of summary judgment in favor of Nejam.

¶11. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

GRIFFIS, P.J., BARNES, ISHEE, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR. IRVING, P.J., AND ROBERTS, J„ CONCUR IN PART AND IN THE RESULT.

      . The record and transcripts incorrectly state Nejam's name as "Nejam A. Waddell." This error, although pointed out by Nejam in his answer, was never corrected.