author: KING, JUSTICE, FOR THE COURT:

text:
    Marvin Rerockus Demond CARVER a/k/a Marvin Rerocukus Demond Carver a/k/a Marvin Carver a/k/a Marvin Rerockus Carver a/k/a Marvin R. Carver a/k/a “Foot” v. STATE of Mississippi
    NO. 2015-CT-00384-SCT
    Supreme Court of Mississippi.
    10/12/2017

      OFFICE OF THE STATE PUBLIC, DEFENDER, BY: HUNTER NOLAN AIKENS, GEORGE T. HOLMES, ATTORNEYS FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL, BY: BARBARA WAKELAND BYRD, ATTORNEY FOR APPELLEE
   KING, JUSTICE, FOR THE COURT:

¶ 1. Marvin Rerockus Demond Carver was the passenger in a vehicle not owned by him in which marijuana was found in the rear of the trunk. Although Nicholas Ingram, Carver’s half-brother who had been driving the vehicle, took full ownership of the contraband, Carver was convicted of possession of marijuana. Because the State presented insufficient evidence to support Carver’s conviction, we reverse and render judgment.

FACTS AND PROCEDURAL HISTORY

¶2.' In November 2011, Nicholas Ingram, Carver’s half-brother, planned to drive from Grenada to the coast to surprise his mother for Thanksgiving. Ingram’s and Carver’s grandmother had rented a car for Ingram to take on the trip. She then asked Carver to accompany Ingram so he would not be alone. The trip was described as last-minute, and Carver stated that he had decided to go the same day that Ingram had planned to leave. In a rush, Ingram picked up Carver on his way to the coast.

¶ 3. Wade Zimmerman, a state trooper for the Mississippi Highway Patrol, pulled Ingram over for speeding in Madison County. Trooper Zimmerman testified that he first went to the passenger side of the vehicle, where Carver was sitting, to obtain identification. Trooper Zimmerman returned to his car and then proceeded to the driver’s side of the vehicle. At that time, Trooper Zimmerman testified that he noticed a strong odor of marijuana emanating from the vehicle. He noted that Ingram’s eyes were bloodshot. Trooper Zimmerman asked Ingram to step out of the vehicle for questioning. Ingram first denied smoking marijuana but later admitted he had been smoking after Trooper Zimmerman performed a field sobriety test. Trooper Zimmerman testified that Ingram then consented to a search of the vehicle.

¶4. Under the driver’s seat, Trooper Zimmerman found a small hand gun. In the center console was a small bag containing less than a gram of marijuana. Trooper Zimmerman found two larger bags of marijuana in the right rear side of the trunk of the car, underneath the flap where the spare tire is stored. One bag was wrapped in bubble wrap inside a manila envelope. The second bag was bubble-wrapped and in a white plastic bag. A digital scale also was in the trunk of the vehicle. Subsequently, Ingram and Carver were taken into custody. Ingram had in his possession more than eight hundred dollars in cash.

¶5. Both Ingram and Carver waived their Mirmida rights. Agent Candace Beth Edwards with the Mississippi Bureau of Narcotics first interviewed Ingram. At that time, Ingram admitted purchasing the marijuana from a bar in Grenada and claimed sole ownership of it. Ingram stated that he had paid $300 for the marijuana. He also stated that he had purchased the gun for protection around three months prior after a family member had been killed. Ingram testified that he had purchased the marijuana to smoke with a couple of people for the holiday and that he had been smoking marijuana prior to getting in the car that day. Ingram said that Carver had not known about the marijuana in the car. Agent Edwards testified that Ingram had taken full responsibility for everything illegal that was found in the vehicle.

¶ 6. Agent Edwards then interviewed Carver. She testified that Carver had stated that he had known about the marijuana in the vehicle and that he had agreed to smoke marijuana with Ingram for the holiday. Carver did not state that he had known specifically about the marijuana in the trunk. Agent Edwards testified that she had assumed that he knew about all of the marijuana in the vehicle because the amount in the center console was not enough for a marijuana cigarette.

¶ 7. In Carver’s written statement, he said that “the marijuana he had, I knew about because he "said he had sum Sveed’ for us to smoke for Thanksgiving. Me being the older “square,” as he calls me agreed to ‘puff for the special occasion. I didn’t know he had all that much marijuana until the police pulled it out the trunk!” (Emphasis added.) Carver testified about the conversation he had with Ingram, stating:

CARVER: I was like what was we going to do for Thanksgiving. And that’s when he told me that, he mentioned, he said that he will smoke some marijuana with me for Thanksgiving.
COUNSEL: So did you know where the marijuana you were going to smoke for Thanksgiving with Nicholas Ingram, did you know where that marijuana was? CARVER: Well, no, he didn’t tell me where it was or if he already had it or, you know, was he going to buy it or whatever. I didn’t know.
COUNSEL: So it’s fair to say that you did not know that there was any marijuana in the car, but you did .know, ’cause ya’ll had talked about it, that over the holiday, over Thanksgiving, you and your brother were going to smoke some marijuana?
CARVER: Yes, that’s what he told me, that he will smoke some with me for Thanksgiving, as we had mentioned.

¶ 8. Both Ingram and Carver were indicted for possession of thirty grams but less than one kilogram of marijuana with intent to distribute, while in possession of a firearm, and conspiracy to distribute. Ingram pleaded guilty to possession of marijuana, and Carver’s case went to trial. The jury acquitted' Carver of conspiracy but convicted him ■ of the lesser-included offense of possessing more than thirty but less than 250 grams of marijuana. The circuit court then sentenced Carver to serve six years in prison.

¶ 9. The Court of Appeals affirmed Carver’s conviction, finding that the evidence was sufficient “to show that Carver was aware of the presence and character of the marijuana, had dominion and control over it, and intended to possess it.” Garver v. State, No. 2015-KA-00384-COA, 227 So.3d 1149, 1155, 2016 WL 6471407, at *4 (Miss. Ct. App. Nov. 1, 2016), reh’g denied (Apr. 25, 2017), cert. granted, 222 So.3d 311 (Miss. 2017). Judge Irving’s dissenting opinion instead argued that the evidence had been insufficient to bridge the gap between suspicion and proof beyond -a reasonable doubt that Carver had exercised dominion and control over Ingram’s marijuana. Id. at 1162-64, 2016 WL 6471407, at *11.

¶ 10. Carver appeals, arguing three issues. Because the first is dispositive, we decline to address the remaining two issues.

ISSUE

¶ 11. Whether the evidence was sufficient to support the verdict.

DISCUSSION

¶ 12. Because marijuana was not found in Carver’s actual, physical possession, this Court must determine if the evidence was sufficient to establish constructive possession. In constructive-possession cases, the State must prove that the defendant was both aware of the contraband and intentionally,' although not physically, possessed it. Glidden v. State, 74 So.3d 342, 348-49 (Miss. 2011). We have established the following rule regarding constructive possession:

[T]here must be sufficient facts to warrant a finding that defendant was aware of the presence and character of 'the particular substance and was intentionally and consciously in possession of it. It need not be actual physical possession. Constructive possession may be shown by establishing that the drug involved was subject to his dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.

Hamm v. State, 735 So.2d 1025, 1028 (Miss. 1999) (quoting Curry v. State, 249 So.2d 414, 416 (Miss. 1971)). “[T]he State must prove dominion and control over the contraband and not simply the automobile in order to satisfy the Curry test.” Boches v. State, 506. So.2d 254, 259 (Miss. 1987) (quoting Hudson v. State, 362 So.2d. 645, 647 (Miss. 1998)). When the defendant does not own the premises, the State must show additional incriminating circumstances connecting the defendant to the contraband. Fultz v. State, 573 So.2d 689, 690 (Miss. 1990).

¶ 13. As previously stated, proximity usually is an essential element of constructive possession. This Court has expressed sképticism concerning the issue of proximity when marijuana was found under the hood of a car not owned by the defendant. Hudson, 362 So.2d at 647. There, this Court stated: “First, even the proximity is questionable since, the marijuana-was not inside the car, but secreted under the hood of the car.” Id. In reversing the defendant’s conviction of possession, the Hudson Court additionally noted the differences in that case and in Curry, where marijuana had been found inside the defendant’s car in which he was a passenger and within his sight and reach. Id. (citing Curry, 249 So.2d at 414).

¶ 14. Evidence of constructive possession also has been insufficient where contraband was found in a car not owned lay the defendant but where the defendant had been driving,and had been the sole person present in the car. In Fultz, the defendant had been driving his sister’s car. when he was pulled over for driving erratically. Fultz v. State, 573 So.2d 689, 689-90 (Miss. 1990). More than seven ounces of marijuana were found in the trunk of the car. Id. at 690. This- Court. reversed the defendant’s conviction and reasoned that, although the defendant had been the sole person in the car and had admitted to smoking marijuana, the State had failed-to prove a connection between the defendant and the contraband. Id. at 691. Similarly, in Ferrell, the defendant was the sole occupant of the car but was not the owner. Ferrell v. State, 649 So.2d 831, 832. (Miss. 1995). Contraband was found concealed in a matchbox. Id. at 834. This Court reversed the possession charge, stating that “the contraband was not positioned in such a way that its presence would be reasonably apparent to a person riding in the car.” Id. at 835.

¶ 15. Even proximity coupled with knowledge previously has presented insufficient evidence to establish constructive possession. In Martin, the defendant was found standing over two Tupperware containers of marijuana in a kitchen 'where more than eight ounces of marijuana were recovered. Martin v. State, 804 So.2d 967, 970 (Miss. 2001). The defendant admitted that he had known that the others had been “messing with marijuana” but denied he had been involved. Id. at 969. This Court reversed the defendant’s conviction, finding that the defendant’s “mere presence in the kitchen area where the marijuana was found, without more, is simply not enough.” Id. And in Naylor v. State, a narcotics unit entered a bathroom and observed the defendant jumping into the bathtub while another individual attempted to-flush.cocaine down, the toilet. Naylor v. State, 730 So.2d 561, 563 (Miss. 1998). The defendant also had been in possession of more than seven hundred dollars in cash. Id. at 566. However, this-Court reversed and rendered the defendant’s conviction, finding that the evidence was insufficient to prove that the defendant had possessed the cocaine. Id. at 566-67.

¶ 16. This ease, too, involves a situation in which we express skepticism of the proximity of Carver to the marijuana found in the trunk of a car not owned by him, in addition to Carver’s knowledge of the marijuana. However, the biggest obstacle in this case is the issue of dominion and control. This Court has held that “mere presence does not indicate participation in the purchase. Nor does it support an inference of dominion and control.” Berry v. State, 652 So.2d 745, 748 (Miss. 1995). Dominion and control must be established by evidence more compelling than the momentary handling of the contraband. Momentary handling of the contraband is not enough to establish constructive possession. Berry v. State, 652 S6.2d 745, 751 (Miss. 1995). There, the defendant placed drugs in the glove compartment of a vehicle at his Mend’s direction. Id. In finding that constructive possession had not been established, this Court stated that, '“possession is defined ... in terms of the exercise óf dominion and control.” Id. No evidence had been presented that the defendant had owned the drugs, had paid for them, or had controlled them in any way. Id.

¶ 17. Evidence of dominion and control in this case is lacking. Ingram took full responsibility for everything illegal that had been found inside the vehicle. Moreover, Zimmerman testified that initially he had approached the passenger’s side of the car; yet it was not until he returned from his patrol car to the driver’s side of the vehicle that he noticed the strong odor of marijuana. Zimmerman also noticed that Ingram’s eyes had been bloodshot. After a field sobriety test, Ingram admitted that he had been smoking but denied smoking in the car. Zimmerman then found the gun under Ingram’s seat and a small amount of marijuana in the center .console. Ingram additionally had more than eight hundred dollars in cash in his pocket. The patrolman testified that he had found two larger bags of marijuana in the trunk of the vehicle, both wrapped in bubble wrap. Ingram and Carver each testified that Carver had no knowledge of the marijuana in the trunk. Moreover, Ingram testified that the marijuana had been under the flap for the spare tire, not in plain view. And although Ingram and , Carver were half-brothers, this Court, previously has held that “[i]t cannot be presumed that, simply because two people associate with one .another, they are accomplices in a common crime.” Cunningham v. State, 583 So.2d 960, 962 (Miss. 1991).

¶18. The Court of Appeals found that Carver’s expression of his intention to smoke marijuana manifested constructive possession of an undivided interest in the amount of marijuana to be smoked. Carver v. State, No. 2015-KA-00384-COA, 227 So.3d 1149, 1154-55, 2016 WL 6471407, at *4 (Miss. Ct. App. Nov. 1, 2016), reh’g denied (Apr. 25, 2017), cert. granted, 222 So.3d 311 (Miss. 2017). We disagree. Testimony shows that the marijuana was found in the right rear of the trunk of the vehicle, under the flap-for the spare tire. Carver denied knowledge of the marijuana in the trunk, and Ingram testified that Carver had not known of the marijuana in the trunk. Thus, proximity and knowledge of the contraband in this case present skepticism. Carver admitted that he had planned on smoking marijuana over. the holiday. However, no evidence established that Carver had exercised dominion or control over the marijuana found in the trunk of the vehicle. Even had Carver had knowledge of the marijuana secreted in the trunk, the State must have proven beyond a reasonable doubt that Carver had constructively possessed the contraband. This it failed to do.

¶ 19. In addition, the appeals court stated that “[tjhere was no evidence at trial that suggested that Carver did not exercise dominion and control over Ingram’s rental car and the marijuana in it.” Id. As the dissent noted, “it was the State’s burden to prove that Carver exercised dominion or control over the marijuana; it was not Carver’s burden to prove a negative or his innocence.” Id. at 1162, 2016 WL 6471407 at *11. The evidence in this case falls short of the sufficiency required to establish a conviction of constructive possession. Accordingly, we reverse and render Carver’s conviction and sentence.

¶ 20. REVERSED AND RENDERED.

RANDOLPH AND KITCHENS, P.JJ., COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR. WALLER, C.J., AND ISHEE, J., NOT PARTICIPATING.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966).


source: Caselaw Access Project

author: /s/ James D. Maxwell, II JAMES D. MAXWELL II' JUSTICE FOR THE COURT' KING, JUSTICE,

license: Public Domain

text:
    BUFFALO SERVICES, INC. d/b/a B-Kwik Food Mart, Buffalo Services, Inc., Clifton Van Cleave and Lane McCarty, Petitioners v. Brander SMITH, Respondent
    No. 2016-IA-01687-SCT
    Supreme Court of Mississippi.
    March 29, 2017
   ORDER

This matter is before the Court, en banc, on the Petition for Interlocutory Appeal filed by Petitioners Buffalo Services, Inc. d/b/a B-Kwik Food Mart, Buffalo Services, Inc., Clifton Van Cleave, and Lane McCarty (Buffalo Services) and a response filed by Brander Smith. Buffalo Services seeks leave to appeal the November 28, 2016 Order of Wilkinson County Chancery Court, which denied its summary-judgment motion in Civil Action No. 2016-0003.

After due consideration, the Court finds the Petition for Interlocutory Appeal is well-taken and should be granted. The Court further finds no additional briefing is necessary.

Smith sued Buffalo Services for premises liability. Buffalo Services owns two buildings located at 1290 and 1294 Highway 24 in Centerville, Mississippi. Buffalo Services operates a convenience store and gas station out of one building. It leased the other building to a discount clothing store operator. According to Smith’s complaint, Smith was in the clothing store on April 30, 2015, when Donald Galmon crashed his vehicle into that store, injuring Smith.

Smith alleged Buffalo Services “failed to fulfill their duties to make their premises reasonably safe for pedestrians shopping in the subject store from the risk of being struck by a moving vehicle.” In particular, she claimed Buffalo Services failed in its duty to erect vertical bollards, “parking stops,” “and/or other physical barriers in order to prevent the encroachment or obstruction of pedestrian ways by cars.” But as a matter of law, Buffalo Services owed Smith no such duty.

Instead, “Mississippi unequivocally holds that ‘no duty is owed by a convenience store owner, to persons inside the store, to erect barriers in order to prevent vehicles from' driving through the store’s plate glass window.’” Cheeks v. Auto-Zone, Inc., 154 So.3d 817, 823 (Miss. 2014) (quoting Carpenter v. Stop-N-Go Markets of Georgia, Inc., 512 So.2d 708, 709 (Miss. 1987)) (emphasis added). Indeed, as this Court has found, “[i]t cannot be contended with any degree of reason or logic that the owner of a store, by failing to erect an impregnable barrier between the entrance of his store and an adjacent area where motor vehicles are driven and parked, should have anticipated that automobiles will be negligently propelled over the curb and across the sidewalk into the entrance of his store.” Id. “If as a matter of law such occurrences are to be guarded against, there would be no limitation on the duty owed by the owners of establishments into which people are invited to enter.” Id.

There were two exceptional circumstances in Cheeks, giving rise to a duty. Not only did the auto business create a situation that made a vehicle crashing into a pedestrian entering or exiting the building reasonably forseeable, but also the auto business assumed a duty to protect-patrons walking in and out of the store from incoming vehicles by erecting concrete bollards for the specific purpose of preventing vehicles from crashing into the front of the store. Id. at 823-24.

Here, we have neither circumstance. Smith has not alleged—let alone presented evidence—that Buffalo Services created a situation that made injury to a patron inside the clothing store by a vehicle reasonably foreseeable. Nor did Buffalo Services undertake extra measures to protect patrons entering or exiting the clothing store. While there are bollards on the property, in contrast to Cheeks, none were placed to prevent vehicles from crashing into the front of the store. See id. So there is no evidence Buffalo Services voluntarily assumed the duty to protect clothing-store patrons from vehicles driving into the front of the store. Cf. id. at 823, 24.

Instead, the general rule, which we affirmed in Cheeks, applies—as a matter of unequivocal Mississippi law,' Buffalo Services owed Smith no duty to protect her from a third-party’s negligently driving a vehicle into the clothing store leased by a third party. Id. at 824. Thus, Smith cannot rely on the lack of bollards, parking stops, or other physical barriers in front of the clothing store as evidence of negligence, because Buffalo Services was under no “duty to erect protective barriers to insure the safety [of] patrons inside the store” from wayward vehicles driven by third parties. Id.

Because Smith failed to establish a premises-liability ■ claim, the - trial court erred when it denied Buffalo Services’ motion for summary judgment.

IT IS THEREFORE ORDERED the Petition for Interlocutory Appeal filad by Buffalo Services, Inc. d/b/a B-Kwik Food Mart; Buffalo Services, Inc., Clifton Van Cleave and Lane McCarty is hereby granted.

IT IS FURTHER ORDERED the Or-' der of the Wilkinson County Circuit Court, Civil Action No, 2016-0003, dated November 28, 2016, which denied the Petitioners summary judgment, is reversed, and a judgment is rendered in favor of the Petitioners,, dismissing all claims against them. The notice of appeal having been deemed filed, the filing fee is due and payable to the Clerk of this Court.

IT IS FURTHER ORDERED Respondent, Branden Smith, is taxed with all costs of this appeal.

SO ORDERED.

/s/ James D. Maxwell, II JAMES D. MAXWELL II' JUSTICE FOR THE COURT'

TO AGREE: DICKINSON AND RANDOLPH, P.JJ., MAXWELL, BEAM AND CHAMBERLIN, JJ.

COLEMAN, J., AGREES IN PART WITHOUT SEPARATE WRITTEN STATEMENT.

KING, J., OBJECTS TO THE, ORDER WITH SEPARATE WRITTEN STATEMENT JOINED BY WALLER, C,J, AND KITCHENS, J.; COLEMAN, J., JOINS IN PART.

KING, JUSTICE,

OBJECTING TO THE ORDER WITH SEPARATE WRITTEN STATEMENT:

¶ 1. Because this case contains unresolved' issues of material fact concerning whether the defendants had a duty to Smith through prior knowledge of dangerous conditions on their property and whether the defendants breached their duty to provide reasonably safe premises, I respectfully object to the order granting interlocutory appeal'.

112. Brander Smith alleged that she had been injured when Donald Galmon’s vehicle crashed into Daisy’s Discount Clothing Store (“Daisy’s”), and that Buffalo Services, Inc., Clifton Van Cleave, and Lane McCarty (“Buffalo Services”) had been negligent in failing to fulfill their duties to make their premises reasonably safe for customers shopping in Daisy’s from -the risk of being struck by a moving vehicle. Premises liability establishes the duty owed to a person who is injured on a landowner’s premises as a result of conditions on the land. Double Quick, Inc. v. Moore, 73 So.3d 1162, 1165 (Miss. 2011). A landowner has a duty to keep the premises reasonably safe or, when the premises is not reasonably safe, has a duty to warn where there is a hidden danger or peril that it not in plain view. Thomas v. Columbia Grp., LLC, 969 So.2d 849, 853 (Miss. 2007).

¶ 3. “While premises owners do not have a duty ‘to erect protective barriers to insure the safety of patrons inside [a] store’ or ‘to protect against runaway vehicles where such incidents would be unforeseeable,’ such a duty can arise depending on the factual circumstances of a given case.” Stanley v. Scott Petroleum Corp., 184 So.3d 940, 942 (Miss. 2016). Reasonable foreseeability depends on the particular facts of the case and the duty the plaintiff asserts for each defendant; Cheeks v. AutoZone, Inc., 154 So.3d 817, 823 (Miss. 2014). Previously, this Court has emphasized that “the foreseeability of the injury sustained provided the touchstone for liability.” Id. In Cheeks, the plaintiff had been injured by a vehicle crashing into an AutoZone storefront.. Id. at 818. After the jury found in favor of the plaintiff, the trial judge granted AutoZone’s judgment notwithstanding the verdict (JNOV) and found that AutoZone owed no duty to the plaintiff. Id. at 822. This Court found that, because the AutoZone parking lot had contained no raised sidewalk or protective bollards on one side of its store, because AutoZone had prior notice of cars bumping into its storefronts, because it had allowed customers to drive onto the sidewalk to park, and because AutoZone had put protective,bollards on one side of its store and not the other ;side, the trial court had erred in granting JNOV. Id. at 823-24.

• ¶ 4. I believe that, as in Cheeks, the factual- circumstances in this case are sufficient to create genuine issues of material fact and to preclude summary judgment. Buffalo Services owned the buildings on the property, which Roused a gas station in one part and Daisy’s, leased by Daisy An-gelty, in the second part. Clifton' Van Cleave had been president of Buffalo Services since 2001 and had worked for the company on and off since he was in high school. Before Van Cleave acquired the company in 2001, his father had owned the company for approximately fifteen years prior. Additionally, Lane McCarty, the bulk manager, testified that he had been working for Buffalo for more than, thirty years. Dorothy Neal, -Daisy’s sister, testified in her deposition that, prior to the accident in dispute, she remembered a car hitting Daisy’s once before. Neal testified^ that Daisy had leased the store for six or seven years prior -to the incident and that she thought that someone had run into -the store before Daisy had opened her. business. She had not been present at the store at that time but testified that she remembered someone running into the front door and that she had seen damage to the store at that time. .

¶ 6. Also, three bollards were located at the west corner of Daisy’s. Van Cleave testified that the three bollards presumably were there because a pay phone .previously had been located there. Therefore, if customers needed protection while using a pay phone on the sidewalk because vehicles might pull up too far and injure them, it is logical to foresee that the same situation might occur in the front of the building as well.

¶ 6. Thus, there is a genuine issue of material fact regarding whether Buffalo Services had knowledge of the dangerous conditions on its property. Buffalo Services had owned the property for more than thirty years. If at least once before a vehicle had run into the building, likely when Buffalo Services had owned the building, and Buffalo Services had faded to erect bollards or other protective measures for the safety of its customers after having this knowledge, then I believe a jury is entitled to decide whether Buffalo Services breached its duty to provide a reasonably safe premises to its invitees.

¶7. Further, the building was located directly off the highway, where motorists regularly drive at high rates of speed. The gas station and Daisy’s shared the same parking lot, which sloped downward toward the building. According to the forensic report by Lamar Hawkins, Daisy’s was situated approximately 3.25 feet lower than the entrance from the highway and 3.5 feet lower than the Camp Street entrance. Hawkins opined that parking lot accidents were foreseeable and that a certain amount of driver error is inevitable, especially in stores with parking spaces perpendicular to a sidewalk and building. Additionally, because Daisy’s was located at a lower elevation than the entrance to the parking lot, Hawkins opined that this created a greater potential for a vehicle to stray from driver error and roll down grade into customers and/or a building.

¶8. Daisy’s and the gas station shared the same parking lot. Each parking space located in front of the gas station contained parking stops, which Buffalo regularly kept painted. The parking spaces in front of Daisy’s were painted and maintained but contained no parking stops. Van Cleave stated that the parking stops located in front of the gas station were there to help customers park in front of the store and admitted that in some instances parking stops are used to stop vehicles from crashing into stores. He testified that bollards could be used to protect the building and admitted that bollards could be put in front of a store to protect customers who are walking inside the store or who may be inside the store.

¶ 9. Moreover, the sidewalk in front of Daisy’s was not raised and was level with the parking lot. Neal testified that people sometimes drove past the parking spaces and onto the sidewalk on Daisy’s side. If customers parked directly in front of Daisy’s, located at the bottom of a downward slope, directly off the highway where the sidewalk was not raised and contained no protective barriers, there is a genuine issue of material fact regarding whether it was reasonably foreseeable for a driver to lose control of his or her vehicle and crash into the store, especially in light of the fact that Smith produced testimony that similar accidents previously had happened more than once and when Buffalo Services had been owned by the same family for more than thirty years.

¶ 10. The order states that Buffalo Services did not assume a duty to protect patrons walking in and out of the store and did not create a situation that made an injury reasonably foreseeable. However, the assumption of duty or creation of a situation is not a requirement for a business owner to have a duty. It clearly has been established that a business owner “owes a duty to the invitee to keep its premises in a reasonably safe condition and to warn of dangerous conditions which are not readily apparent to the invitee.” Drennan v. Kroger Co., 672 So.2d 1168, 1170 (Miss. 1996). Because it had a duty to keep its premises reasonably safe and, if not, to warn its invitees of the dangerous conditions not readily apparent, prior knowledge of at least one similar incident, in addition to the dangerous conditions present on its premises, likely created foreseeability of the same incident occurring again. If Buffalo Services could reasonably foresee the same accident occurring again, it had a duty either to make its premises reasonably safe or to warn its customers of the danger. If the only way to be held liable for a reasonably foreseeable incident was through the assumption of a duty, a business owner would be able to foresee injury to its invitees, do nothing to avoid the injury, and then say that, because the business owner did not assume the duty to protect, it has no liability. Smith provided testimony that Buffalo Services had prior knowledge of dangerous conditions on its property, therefore creating a jury issue as to whether Buffalo Services was negligent in failing to remedy the conditions or to warn its invitees of the conditions.

¶ 11. The question in negligence cases is “whether the party charged with negligence acted as a reasonable and prudent person would have under the same or similar circumstances. If a defendant’s conduct is reasonable in light of the ‘foreseeable risks,’ there is no negligence and no liability.” Donald v. Amoco Prod. Co., 735 So.2d 161, 175 (Miss. 1999) (citations omitted). Ordinarily, premises owners have no duty to erect protective barriers to insure the safety of patrons inside their stores. Yet, when factual circumstances warrant, a duty is created. Here, Smith provided testimony that:

• a similar accident had occurred at the building where Daisy’s was located;
• the gas station and Daisy’s shared the same parking lot;
• the parking spaces in front of the gas station contained parking stops while the parking spaces in front of Daisy’s did not;
• three bollards were located at the corner of Daisy’s, presumably for protection of customers who used the pay phone that previously was located against the building;
• the sidewalk in front of Daisy’s was not raised;
• Daisy’s was located directly off a highway;
• Daisy’s was located on the lower end of a downward slope off the highway; and
• customers of Daisy’s sometimes had pulled up too far and had parked on the sidewalk.

¶ 12. Because Smith produced testimony that Buffalo Services had prior notice of at least one similar incident and because of the particular facts of this case, I believe that issues of material fact exist and, therefore, would deny interlocutory appeal and remand this case for trial. Accordingly, I object to the order granting interlocutory appeal and holding that the trial judge erred in failing to grant summary judgment to Buffalo Services.

WALLER, C.J., AND KITCHENS, J., JOIN THIS SEPARATE WRITTEN STATEMENT. COLEMAN, J„ JOINS IN PART.

      . As described by Smith, a "parking stop” is "a small barrier at the end of a parking space.

      . As Justice King points out in his separate statement, in addition to bollards protecting the gas pumps, there was a set of bollards in the far comer of the building. But that is where the similarities to Cheeks end. In Cheeks, Auto Zone erected bollards for the specific purpose of keeping cars from crashing into the store. Cheeks, 154 So.3d at 821. It also admitted the bollards served as a "safety measure” designed to protect patrons entering and exiting the store. Id. at 824. So because Auto Zone had undertaken the duty to 'protect patrons entering and exiting with bollards,' they had assumed a duty to do so non-negligently—:i.e., placing the bollards in such a way that a vehicle could not drive straight into the store through the gap created by the large doorway. Id. The bollards in this case were not placed in front of the store and were not erected for the purpose of preventing vehicles from crashing into the store.