Slips, Trips and Falls

Jonathan Masters Attorney
Jonathan Masters

Slips, Trips or Falls, The Real Law

Interrupting the news last night was a lawyer telling anyone who slips, trips or falls in a place of business or store to call so they can help you get you ‘the money you deserve.’ Having spent a good portion of the last 20 years handling these type of cases, typically referred to as premises liability lawsuits, I thought there was way too much left out of that commercial. According to the commercial any fall meant you could get a fat check. Life most things in life, there much more to this story.

Premises liability is a legal concept which establishes the duty owed to someone injured on a landowner’s property as a result of conditions or activities on the property. In Mississippi, premises liability is distinguished by the classification of the complaining party between:

• invitee,
• licensee, and
• trespasser.

To review these types of claims, you must first determine into which category they fall. A property owner has a different level of responsibility to the injured party, or claimant, depending on their status at the time.



A trespasser is “one who enters upon another’s premises without license, invitation or other right.” Hughes v. Star Homes, Inc., 379 So. 2d 301, 303 (Miss. 1980) (citing Kelley v. Sportsmen’s Speedway, Inc., 224 Miss. 632, 80 So. 2d 785 (1955). The Mississippi Supreme Court added that a trespasser enters another’s property “merely for his own purposes, pleasure, or convenience, or out of curiosity, and without any enticement, allurement, inducement or express or implied assurance of safety from the owner or person in charge.” Titus v. Williams, 844 So.2d 459 (Miss. 2003) (citing White v. Miss. Power & Light Co., 196 So.2d 343, 349 (Miss. 1967)).

Mississippi codified the definition of a trespasser in the 2016 legislative session. See, Miss. Code Ann. 95-5-31. This law defines trespasser as “a person who enters upon the property of another without permission and without an invitation, express or implied, or other legal right.”


A man left the lounge area of the Quarter Inn, a restaurant and lounge in Vicksburg, Mississippi, and climbed through an open window leading to an adjacent rooftop terrace. It was a small window, three feet off the ground and 24 inches by 32 inches. Further, a locked glass door with “NOT AN EXIT” stenciled on the glass was only four feet away from the window. The man fell through the rooftop approximately twenty feet to the ground. The Court noted that he was an invitee at the time he entered the Quarter Inn, however, he became a trespasser when he climbed onto the rooftop terrace. Leffler v. Sharp, 891 So.2d 152 (Miss. 2004).

The local Parent Teacher Association was holding a Winter Carnival at East Tate Elementary School. Anthony Gammel planned on attending the Winter Carnival and parked across the street from the school in the school’s bus parking lot. Anthony was struck by a motorist and killed as he attempted to walk across the roadway to the school. The Court noted the bus parking lot was limited to bus parking only and not used as parking for the general public. The Court held that Anthony was a trespasser on the school’s property when he chose to park in the bus parking lot. Additionally, the Court noted that Anthony lost his status as a trespasser the moment he stepped off the bus parking lot onto the public roadway, and thus was unable to establish any duty owed at the time of the accident by the school. Gammel v. Tate County School District, 995 So.2d 853 (Miss.Ct.App. 2008).


“A licensee is one who enters upon the property of another for his own convenience, pleasure or benefit pursuant to the license or implied permission of the owner…” Little v. Bell, 719 So. 2d 757, 760 (Miss. 1998) (quoting Hoffman v. Planters Gin Co. Inc., 358 So. 2d 1008, 1011 (Miss. 1978)).

A “social guest” is classified as a licensee, or someone who enters a landowner’s or occupier’s premises for his own benefit, pleasure or convenience and with the implied permission of the owner or occupier. Grammar v. Dollar, 911 So.2d 619 (Miss.Ct.App. 2005).


Nuñez was visiting her family and riding an ATV when she crashed into a barbed-wire fence and thrown from the ATV. She alleged that the ATV’s steering and brakes failed and that the owner, Spino, was aware of the problems but failed to warn. In finding that Nuñez was a licensee, the Court noted that she was on Spino’s property riding his ATV for her own pleasure and benefit and was clearly a social guest. The Court further noted that although Nuñez on occasion does some work for Spino, she was merely visiting her family and was not performing any work on the date of the jury. Nuñez v. Spino, 14 So.3d 82 (Miss.Ct.App. 2009).

Plaintiff fell on a walkway and was injured while viewing a neighborhood outdoor Christmas display at the Millers’ residence. Every year the Millers decorated their property with lighting displays and other items symbolic of Christmas and allowed visitors to walk about the property and view the displays. The Millers did not charge admission or receive any form of monetary compensation from visitors to the property. In finding Daulton to be a licensee, the Court noted that the landowner did not receive any tangible form of consideration or obtain any business advantage from the visitors. Daulton v. Miller, 815 So.2d 1237 (Miss.Ct.App. 2001).


An invitee is a person who goes onto the premises of another at the express or implied invitation of the owner or occupant for their mutual advantage. Hoffman v. Planters Gin Co. Inc., 358 So. 2d 1008, 1011 (Miss. 1978); Langford v. Mercurio, 254 Miss. 788, 183 So. 2d 150 (1966); Wright v. Caffey, 239 Miss. 470, 123 So. 2d 841 (1960). A mutual advantage is needed to create invitee status.

Moreover, the benefit received cannot be psychological but must be tangible. Rankin v. Matthews, 2015-CA-00553-COA (2016)(citing Daulton v. Miller, 815 So.2d 1237, 1240 (Miss. Ct. App. 2001)). In Rankin, the Court of Appeals specifically rejected the musician/plaintiff’s assertion that enjoying a free music concert in his garage was a “mutual benefit” such that would convert Rankin into an invitee. ¶13. See also, K.T. v. Klien Road Church of God, 2015-CA-00880-COA (2016)(Mississippi law does not recognize an intangible benefit as a benefit to the landowner in premises liability cases.)


A hired housekeeper has been found to be an invitee in determining the homeowner’s duty of care owed toward the housekeeper. Vaughn v. Ambrosino, 881 So.2d 847 (Miss.Ct.App. 2003).

Church members who do not exceed the scope of the church’s invitation are invitees while attending church for church services or other related functions. Clark v. Moore Memorial United Methodist Church, 538 So.2d 760 (Miss. 1989).

A customer who went to a laundromat as a patron and allegedly tripped and fell on a soft drink can in the parking lot would be considered a business invitee for purposes of premises liability. Ballard v. Watkins, 938 So.2d 298 (Miss.Ct.App. 2006).

A drive-thru restaurant patron that never placed an order because the drive-thru line was too long but instead decided to exit the drive-thru line in an effort to leave the restaurant’s premises was found to be an invitee. Magnusen v. Pine Belt Inv. Corp., 963 So.2d 1279 (Miss.Ct.App. 2007).

A teenager who was visiting his uncle at his uncle’s apartment complex and drowned while swimming in complex’s swimming pool was held to be an invitee. Handy v. Nejam, 2010-CA-01513-COA (2012). The Court noted that the teenager entered the premises as his uncle’s guest and was presumed to be an invitee under the law.



The duty owed to trespassers is merely to refrain from willfully or wantonly injuring him or her. Little v. Bell, 719 So.2d 757 (Miss. 1998) (citing Adams v. Fred’s Dollar Store of Batesville, 497 So.2d 1097 (Miss. 1986)). An owner or occupier has no duty to protect a trespasser from conditions on the premises.

Traditionally, a homeowner is not liable for injuries resulting from passive negligence, which is “the failure to do something that should have been done.” Titus v. Williams, 844 So.2d 459 (Miss. 2003). However, Governor Bryant signed into House Bill 767 in 2016 which codifies the duties owed to a trespasser. It maintains the common law duty to avoid willful and wanton injury, but also establishes several situations with respect to children or an adult who is in a “position of peril”:

(2) A possessor of real property owes no duty of care to a trespasser, except a duty to refrain from willfully or wantonly injuring such a person.
(3) Notwithstanding subsection (2) of this section, a possessor of real property may be subject to liability for injury to a trespasser if:
(a) The possessor discovers the trespasser in a position of peril on the property and fails to exercise reasonable care to prevent injury to that trespasser; or
(b) The trespasser is a child injured by an artificial condition on the possessor’s property and all of the following apply:
(i) The place where the condition existed was one upon which the possessor knew or had reason to know that a child would be likely to trespass;
(ii) The condition is one of which the possessor knew or had reason to know and which the possessor realized or should have realized would involve an unreasonable risk of death or serious bodily harm to a child;
(iii) The injured child because of his or her youth did not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it;
(iv) The utility to the possessor of maintaining the condition and the burden of eliminating the danger was slight as compared with the risk to the child; and
(v) The possessor failed to exercise reasonable care to eliminate the danger or otherwise to protect the child.

Codified at Miss. Code Ann. §95-5-31.

The law also contains a final paragraph which appears to maintain the common law defenses and immunities. It is unclear exactly how this statute will be applied and what, if any, effect it will have on the ultimate outcome of a case other than perhaps broadening the “attractive nuisance” doctrine and extending a duty to a trespasser in peril. Nevertheless, subsection (4) specifically reserves the common law immunities and defenses:

(4) This section does not create or increase the liability of any possessor of real property and does not affect any immunities from or defenses to civil liability established by another section of the Mississippi Code of 1972 or available at common law to which a possessor of real property may be entitled.


The injured party, Bracknell, failed to present any evidence that the private property owner’s association wantonly or willfully injured him. Bracknell was the guest of a resident, however, his guest pass expired. The association did not enforce its rules and regulations to remove guests whose guest passes expired, and it did not enforce its restriction prohibiting guest boats on the private lake. Subsequently, another guest of one of the property owners whose pass had also expired was driving his personal boat, which was prohibited, and crashed into Bracknell causing injury. The Court found that the owner’s association’s lack of attention did not differ from ordinary negligence and did not rise to wanton or willful. Green v. Dalewood, 919 So.2d 1000 (Miss.Ct.App. 2005).

A septic tank had just been installed on a lot when a young child who lived adjacent to the lot climbed into the tank. As the child climbed from the tank the a 100-pound concrete cover fell on his head, killing him. The boy was found to be a trespasser and the development company was found not to have violated the standard of care owed to him, to wantonly or willfully injure him. Hughes v. Star Homes, Inc., 379 So.2d 301 (Miss. 1980). The Court then turned to the attractive nuisance doctrine and held that the defendants were entitled to a peremptory instruction because there was nothing inherently dangerous about the septic tank and thus the attractive nuisance doctrine did not apply. Id. at 305.


As with a trespasser, a landowner or occupier owes a licensee a duty to refrain from willfully or wantonly injuring him. Adams vs. Fred’s Dollar Store, 497 So.2d 1097, 1100 (Miss. 1986).


In Doe v. Jameson Inn, Inc., a minor female who was the guest of a guest of a registered guest entered the hotel for the express purpose of smoking marijuana. 56 So.3d 549 (Miss. 2011). She was subsequently raped in the hotel room. In finding that the minor was not an invitee, the Court noted that the element of mutual benefit was lacking because the hotel received no benefit by virtue of the minor’s child’s presence on the premises. Id. at 555.

In Turnipseed v. McGee, the Court held that it is the landlord’s duty to exercise reasonable care to keep safe the areas of the premises over which he retains control, and if negligent, and “injury results to a tenant or to a person there in right of the tenant, he is liable in tort.” 236 Miss. 159, 109 So.2d 551, 554 (Miss. 1959).

Relying on Turnipseed, the Court in Lucas v. Miss Housing Authority No. 8 held that an invited guest of an apartment tenant was an invitee to the apartment complex when he was on the premises to use the swimming pool in the common area. 441 So.2d 101 (Miss. 1983). The Court stated that “[i]t would be unconscionable to establish a principle of law that [the apartment complex] owed to the six-year-old child of a tenant the duty to use reasonable care not to injure him and, yet, owed to his six-year-old invited guest, swimming in the same pool, only the duty not to willfully or wantonly injure him.” Id. at 103. See also Doe v. Mississippi State Fed’n of Colored Women’s Club Housing for the Elderly in Clinton, Inc. 941 So.2d 820 (Miss.Ct.App. 2006). Again, in relying on the language expressed in Turnipseed and restated in Lucas, a minor was held to be an invitee by virtue of her occasional weekend visits with her father, who was a tenant of the subject apartment complex.

However, compare the above cases with Price v. Park Management, Inc., where the tenant of an apartment complex and his guest were attacked in the tenant’s apartment. 831 So.2d 550 (Miss.Ct.App. 2002). The Court held that the duty owed to the tenant was to keep the premises in a reasonably safe condition, but the duty owed to the guest of the tenant was that of a trespasser, to refrain from wantonly or willfully injuring him. Id. at 551. The Court noted that it is “well settled that social guests of the tenant are owed no special duty by the landlord, but merely the duty owed by the landlord to trespassers that the landlord not wantonly or willfully injure the guest.” Id. (citing Lucas v. Buddy Jones Ford Lincoln Mercury, 518 So.2d 646, 647 (Miss. 1988)).


An invitee is owed the highest duty of care. A landowner or occupier must provide a premise that is reasonably safe and when not reasonably safe to warn hidden dangers or perils, not in plain and open view. Mayfield v. Hairbender, 903 So.2d 733 (Miss. 2005), noted there is a two-part test requiring separate inquiries: (1) whether the owner kept the premises reasonably safe, and (2) whether the owner warned of hidden dangers of which the owner knew or, in the exercise of reasonable care, should have known. Id. at 738. Breaching either duty supports a claim of negligence. Id.


The injured party, an invitee, fell in Home Depot. However, she did not know what caused her to fall. She could only speculate that a pallet or wood piece may have caused her to slip and/or trip, and such speculation contradicted her deposition testimony that she did not know what caused her fall. The Court found that no proof was presented that the injury was the result of negligence by Home Depot and that Home Depot had no knowledge of a dangerous condition. Rod v. Home Depot USA, Inc., 931 So.2d 692 (Miss.Ct.App. 2006).

The Court held it was a question of fact for a jury whether or not Holiday Inn knew or should have known of a loose mirror in its bathroom that subsequently fell and injured Pigg’s minor son an invitee, when he closed the bathroom door on which the mirror hung. Pigg v. Express Hotel Partners, LLC, 991 So.2d 1197 (Miss. 2008).

A hotel guest slipped on a rubber shower mat when exiting the shower. He claimed the mat twisted or slipped causing him to fall. The Court found there was no evidence of a dangerous condition or that the defendant had any knowledge of a dangerous condition. Stanley v. Boyd Tunica, Inc., 29 So.3d 95 (Miss.Ct.App. 2010). A “property owner cannot be found liable for the plaintiff’s injury where no dangerous condition exists.” Id. at 97-98 (citing Delmont v. Harrison County Sch. Dist., 944 So.2d 131, 133 (Miss.Ct.App. 2006)).

Skating rink did not breach a duty owed to its patron that allegedly tripped and fell over a toy while skating. She claimed the toy was thrown onto the floor from the adjacent arcade. However, no evidence was presented that the skating rink employees threw the toy or had any knowledge that the toy was on the skating rink floor. Sullivan v. Skate Zone, Inc., 946 So.2d 828, 832 (Miss.Ct.App. 2007). The Court rejected the “mode of operation” theory of premises liability, which holds that “when an owner of a self-service establishment has actual notice that his mode of operation creates certain risks of harm to customers, and those risks are foreseeable, it is not necessary for the plaintiff to prove notice of the hazard that caused the injury.” Id. (quoting Byrne v. Wal-Mart Stores, Inc., 877 So.2d 462, 466-67 (Miss.Ct.App. 2003)).

But note, the Mississippi Court of Appeals ruling in OIC-Lula, Inc. v. Rueben Smartt, 2014-CA-01459-COA (2016), noting the placement of a wet-floor sign twenty minutes before a fall was not sufficient warning even though Plaintiff walked through that area because when he did, the floor was not wet.

Status Definition Duty Owed

Trespasser Enters property without license, invitation or other right. Refrain from willful or wanton injury (Unless “in peril” or a child injured by an artificial condition – see above)
Licensee Enters property for his own convenience, pleasure or benefit pursuant to the license or implied permission of the owner Refrain from willful or wanton injury
Invitee Enter property with express or implied invitation of the owner or occupant for their mutual advantage Provide a reasonably safe premise and when not reasonably safe to warn only where there is hidden danger or peril that is not plain and open view

There is much more to making a claim for a slip, trip or fall before someone has to issue a check. If your business has been sued or you’d like a review of your business’s premises and procedures before someone’s hurt and calls that lawyer I watched on T.V. last night, call Jonathan Masters at Holcomb Dunbar Attorneys to discuss your issues. 662.234.8775.

Cellphone-location Data to Prosecute Accused for the Drive-by Slaying

It’s always interesting to me how the law continues to address and mold itself to “new” technologies.

From Courthouse News: The Ninth Circuit on Monday signaled it will likely allow federal prosecutors to use a San Francisco man’s cellphone-location data to prosecute him for the drive-by slaying of his young sister’s pimp.

The court’s three-judge panel suggested it would rule against the brother, Antonio Gilton, despite Gilton’s insistence that the data allegedly placing him in the area of the 2012 murder just before it occurred was obtained by San Francisco police via an illegal search warrant.

A ruling against Gilton would seemingly place the Ninth Circuit at odds with the Supreme Court’s landmark 2018 ruling in Carpenter v. United States. There, the high court held that police must have a valid warrant to obtain cellphone-location data, which shows which cell towers a person’s phone connected to during a specific period of time.

But the Supreme Court held in 2011 in another case, Davis v. United States, that evidence obtained through searches conducted in good faith – or based on appellate precedent – is admissible in criminal trials, even if the evidence was obtained illegally.

“Let’s suppose for purposes of this argument that I completely agree with you, that the magistrate [judge] should not have signed this warrant,” U.S. Circuit Judge Jay Bybee said in Monday’s hearing, addressing Gilton’s attorney Mark Goldrosen. “What do we do with the fact that the police went to the trouble of drafting a series of warrants, trying to make sure they crossed all of their Ts and dotted all of their Is, didn’t do so as skillfully as we, on reflection years later, would like; what makes this not done in good faith?”

The case stretches back to June 2012, when city prosecutors charged Gilton’s parents, Barry Gilton and Lupe Mercado, with the murder of Compton-area gang member Calvin Sneed. Sneed, 22, had begun a relationship four months earlier with the couple’s 17-year-old daughter upon her arrival in Los Angeles to live with Antonio Gilton. Sneed became her pimp soon after.

In the early morning hours of June 4, 2012, Sneed was gunned down in his car as he arrived at Gilton’s and Mercado’s Bayview neighborhood home to pick up their daughter, identified in court records only as L.G. According to prosecutors, Sneed died of a gunshot wound to his forehead, fired by an unknown passenger in a silver SUV that had pulled up alongside him.

San Francisco police suspected the Gilton family in the murder, and obtained a search warrant from a state magistrate judge for the seizure of cellphone-location data for both Barry and Antonio Gilton. According to federal prosecutors, the data shows Antonio Gilton had been in the area around Meade and Le Conte Avenues where the shooting occurred, leading them to conclude he was either involved in the murder or had valuable information about the perpetrators.

Both Gilton men, Mercado and several others were subsequently charged in federal court in San Francisco in connection with Sneed’s murder.

But in February 2016, U.S. District Judge William Orrick III granted Antonio Gilton’s motion to suppress his cellphone-location data, reasoning the warrant’s affidavit hadn’t established probable cause justifying a search because it “hardly mention[ed]” him. Orrick also concluded the good-faith exception to the exclusionary rule, which bars the use of evidence in a criminal trial obtained illegally, didn’t apply to Gilton’s case.

On Monday, the appellate panel appeared to reject Orrick’s good-faith finding.

Bybee, a George W. Bush appointee, suggested that even if the magistrate issued the warrant without probable cause, the police still acted on the warrant in good faith, thereby permitting the use of Gilton’s cellphone data at trial.

The suggestion prompted Goldrosen to accuse a San Francisco police sergeant of having “suckered” the magistrate into issuing the warrant without probable cause, and that the good-faith exception established by the Supreme Court in 1984 in United States v. Leon is therefore not applicable.

“You really believe [the police sergeant] didn’t have probable cause and then went to a magistrate and asked for it? That’s a pretty strong indictment of a police officer,” replied Senior U.S. Circuit Judge J. Clifford Wallace, a Nixon appointee.

Wallace set up the core question – can a “reasonable” police officer conclude from the affidavit that, for example, L.G.’s family plotted Sneed’s murder and that L.G. and Antonio Gilton were closely involved, and can the officers act “reasonably” under these circumstances?

“We wish we had lawyers to write these out, but it never happens that way,” Wallace said. “It just seems to me you’re asking a little more than these cases do for what a reasonable police officer might do under these circumstances,” he said, referring to cases like Leon.

U.S. Circuit Judge M. Margaret McKeown wanted to know if the Stored Communications Act “effectively let the officers off the hook here.”

Enacted by Congress in 1986, the Stored Communications Act authorizes telephone companies to disclose call records and cellphone-location data to law enforcement either via a warrant or a court order.

A Clinton appointee, McKeown seemed to reject as unsound Goldrosen’s reply that it didn’t in part because police “did not get an order pursuant to the Stored Communications Act.”

On rebuttal, Justice Department attorney Daniel Lerman argued that San Francisco police “went above and beyond” the requirements of the Stored Communications Act by seeking a warrant. He said the officers satisfied Leon’s good-faith exception, noting five appellate courts had held by the time of Sneed’s murder that no warrant was required to obtain cellphone-location data, and that the rulings and the officers’ actions had occurred long before Carpenter.

“I find it hard to believe that there is no colorable argument for probable cause when you have five courts of appeals reaching the very same conclusions here,” Lerman said. “Here we have officers going above and beyond; they got a warrant when they didn’t need to do so, statute didn’t require them to do so, case law didn’t require them to do so. I think it would be perverse under the motivations of the exclusionary rule to punish the officers for going above and beyond what was required for seeking a warrant.”

The panel concluded the hearing after about an hour of arguments and took the case under submission.

According to media reports, L.G.’s parents turned to law enforcement for help when the girl rebuffed their pleas to leave Sneed. They filed police reports in Culver City and Compton in the Los Angeles area, but the reports were reportedly ignored.

The Los Angeles Police Department and the Los Angeles County Sheriffs’ Department did not respond on Monday to requests for comment or to confirm the existence of the reports.

California is one of the top destinations in the United States for human trafficking, according to a 2016 report published by the Los Angeles County District Attorney. Gangs account for much of the “proliferation” of sex trafficking in the county, the report says.

According to the report, Los Angeles prosecuted 75 new sex trafficking cases in 2015 and 68 new cases involving 88 sex trafficking defendants in 2016. The year of Sneed’s murder, in 2012, the county prosecuted just 15 new sex trafficking cases.

“With heightened sensitivity to these crimes and the approval of Proposition 35, which eliminated barriers to prosecuting human traffickers and toughened penalties, the caseload increased,” the report states.

Requests for comment or information regarding how many pimps have been prosecuted in Los Angeles and San Francisco in the last 10 years were not returned Monday.

According to a 2008 report published on the website of the U.S. State Department, pimps use a “grooming” process to gain the trust of their intended female victims, many of whom are runaways or have a history of sexual abuse.

The first step often involves developing a relationship with the victim – whom she comes to regard as her boyfriend – through the use of flattery, affection and gifts, according to the report. Victims are subsequently forced into performing sexual acts for the pimp’s friends and eventually into prostitution under threat of abuse or violence if they refuse.

Los Angeles prosecutors report having filed sex trafficking cases involving victims as young as 12.

Summary Judgment Win in Slip and Fall

Summary judgment win in a parking lot slip and fall lawsuit in Bolivar County Circuit Court.

slip and fall lawsuitPlaintiff filed suit against a Cleveland, Mississippi business following a slip and fall in its parking lot.  Specifically, Plaintiff alleged that he fell over a finger-sized crack with an inch to a 1 ½ inches of separation.  Evidence reveled that Plaintiff crossed the business’ parking lot at least 26 times before the fall. Moreover, Mississippi Courts have repeatedly held that pavement cracks and changes in elevation are not dangerous conditions that can support a slip and fall lawsuit.  Knight v. Picayune Tire Svcs. Inc., 78 So.2d 356 (Miss. App. 2011).  Indeed, “Mississippi has long recognized that normally encountered dangers such as curves, sidewalks, and steps are not hazardous conditions.  Often [such pathways] contain cracks and changes in elevation; and as such, they do not become hazardous conditions simply because they contain minor imperfections or defects.”  Knight v. Picayune Tire Services, Inc., 78 So. 3d 356 (Miss. App. 2011). See, e.g., City of Greenville v. Laury,172 Miss 118, 159 So. 121, 122 (1935).

In fact, there are at least 17 Mississippi appeal’s court opinions rejecting slip and fall actions over cracks in parking lots and sidewalks:

  • Three-inch depression in a sidewalk is not unreasonably dangerous.  City of Meridian v. Crook, 69 So. 182 (Miss. 1915)(To hold otherwise “would be equivalent to holding that sidewalks in the residence portion of our cities must not deviate three inches from a perfectly smooth surface … The practical result rendering municipalities insurers of the safety of pedestrians.”  Id. at 184).
  • Crack in side walk large enough to catch the heel of a pedestrian’s shoe was not unreasonably dangerous.  Rowe v. City of Winona, 159 So.2d 282 (Miss. 1964), aff’g directed verdict.
  • Seven and One-half inch high side walk crack was not unreasonably dangerous.  Stanley v. Morgan & Lindsey, Inc., 203 So.2d 473 (Miss. 1967).
  • Differential between sidewalk sections of three to 4 inches are not unreasonably dangerous.  City of Biloxi v. Schamback,157 So.2d 386 (Miss. 1963).
  • An uneven concrete gap in parking a lot was not unreasonably dangerous.  Penton v. Boss Hogg Catfish Cabin, LLC,42 So.3d 1208 (Miss. Ct. App. 2010), Aff’g summary judgment.
  • One-inch elevation of a sidewalk did not create a dangerous condition.  Bond v. City of Long Beach, 908 So.2d 879 (Miss. Ct. App. 2005).
  • A crevice in the street stretching a half-inch to 3 inches by 18 inches to 2 feet was not enough to make a street unsafe.  City of Greenville v. Laury, 159 So. 121 (Miss. 1936)(Cited with approval in Knight v. Picayune Tire Svcs. Inc., 78 So.2d 356 (Miss. App. 2011)).
  • Elevation change in homeowners’ driveway did not create an unreasonably dangerous condition to hold homeowners’ liable for a fall in their driveway.  Ringo v. Wilson, 2016 WL 612093.
  • Imperfections to a parking lot are generally not considered unreasonably dangerous conditions.  First Nat’l Bank of Vicksburg v. Cutrer, 214 So.2d 265 (Miss. 1968).
  • Cracks on the edge of a concrete riser are not unreasonably dangerous condition.  First Nat’l Bank of Vicksburg v. Cutrer, 214 So.2d 465 (Miss. 1968).
  • A “seam” creating an uneven surface in an asphalt parking lot is not a dangerous condition.Knight v. Picayune Tire Svcs. Inc., 78 So.2d 356 (Miss. App. 2011)).
  • Hole between sidewalk sections covered by grass not unreasonably dangerous.  City of Meridian v. Raley, 118 So.2d 342 (Miss. 1960).
  • Threshold 3/4 of an inch, not unreasonably dangerous such that a slip and fall claim can be maintained.  McGovern v. Scarborough, 566 So.2d 1225 (Miss. 1990).
  • 3 ½ inch wide and 2 inches deep crackthat caught Wal-Mart customer’s heel not a dangerous condition. Parker v. Walmart Stores, Inc., 267 F. App’x 724 (5thCir. 2008) (granting summary judgment as crack was not a dangerous condition under Mississippi law).
  • 2 inches wide, 4.75 inches long, and 0.75 inches deep in restaurant’s sideway, not a dangerous condition.  Mack v. Waffle House Inc.,No. 1:06CV559, 2007 WL 1153116 (S.D. Miss. Apr. 18, 2007), (granting summary judgment, as the crack was not a dangerous condition so support slip and fall claim under Mississippi law).
  • 10 inches around and 1 ½ inches deep pothole in Burger King parking lot not a dangerous condition.  Quick v. Strategic Restaurants Acquisition Co., No. 3:12-cv-301, 2013 WL 1305583 (S.D. Miss. Mar. 28, 2013)(granting summary judgment.).
  • 1.5 to 1.75 inch indentation in parking lot at Wal-Mart that caught customer’s foot was not a dangerous condition as a matter of law. Chance v. Wal-Mart East L.P., No. 3:14-cv-363, 2015 WL 4496442 (S.D. Miss. July 23, 2015).


In addition, the Court found that even if the subject crack could somehow be deemed a dangerous condition, the Plaintiff’s numerous prior trips through the parking lot provided him sufficient notice of the parking lot’s condition.  The dismissal relied, in part, on the Mississippi Supreme Court’s opinion in Vaughn v. Ambrosino, 883 So.2d 1167 (Miss. 2004)which provides that:

“With respect to the [failure to warn claim], however, it would be strange logic that found it reasonable to allow a plaintiff to pursue a [slip and fall] claim against a defendant for failure to warn of an open an obvious danger. One would struggle, indeed, to justify the need to warn a plaintiff of that which was open an obvious. Stated differently, a warning of an open and obvious danger would provide no new information to the plaintiff. Stated still another way, a thing warned of is either already known to the plaintiff, or it’s not. If it’s already known to the plaintiff, then the warning serves no purpose. If it is not already known to the plaintiff, then the thing warned of was not open and obvious in the first instance. Thus, an invitee may not recover for failure to warn of an open and obvious danger.”

Holcomb Dunbar attorneys Jonathan Masters and Josh Moore presented the successful arguments.


Holcomb Dunbar Opens New Jackson Office


Jonathan Masters Jackson MS office

Holcomb Dunbar Attorneys is pleased to announce the opening of its new Jackson, Mississippi office expanding its services to the firm’s regional and national clients throughout central and south Mississippi. 

“We have served the Jackson, Mississippi area for many years.  By opening this new office, however, we hope to better serve our central and south Mississippi clients from the State’s capital.”

Holcomb Dunbar is a full-service, regional law firm offering services in Mississippi, Tennessee and Alabama.  The firm focuses on representing individuals and companies in the courtroom.  In addition to its robust civil litigation practice, the firm provides a full range of services in commercial transactions and litigation, real estate, family and domestic matters, workers compensation, product’s liability, professional liability, white collar criminal defense and mass-tort defense.

In addition, Holcomb Dunbar is a member of TAGlaw, a worldwide alliance of law firms.  With 140 member firms based


in nearly 100 countries, TAGlaw is the premier global network of independent law firms whose success is driven by broad, deep, local relationships all over the world.  The TAGlaw alliance enables Holcomb Dunbar to use its local expertise to deliver highly effective legal solutions while drawing upon the collective wisdom and experience of other member firms within the United States and around the world as needed.

Origins of Legal Contingency Agreements

Contingency Fee Agreements

No fee unless we recover for you” … “The no fee promise” … “No charge unless we win!”

We see and hear these and similar ads daily. But where did these arrangements come from? And how did they develop into the wide-spread use that we see and hear constantly?  Thanks to the Professor Peter Karsen’s 1998 article, Enabling the Poor to Have Their Day in Court: The Sanctioning of Contingency Free Contracts, a History to 1940, we have a bit of an answer.

The typical legal contingency fee agreement is a contract in which the fees are payable only if there is a favorable result.  Legal contingency fee agreements are typically calculated as a percentage of the client’s recovery through a settlement or trial verdict.  And if there is no settlement or verdict, the attorney and client recovery nothing.

Contingency fee-like agreements trace their roots to thirteenth century England where the practice of third parties “financing” litigation, called champerty, was deemed illegal.  The prohibition originally sought to stop wealthy individuals from financing litigation against competitors in an effort to take their land and property to increase their own wealth through a proxy. These prohibitions, however, had the ultimate effect of limiting the lower classes access to the courts.  Indeed, without the means to pay an attorney the poor where without a means to effectively enforce their rights.

Even today, English courts manage lawyer funded litigation differently than the U.S.  English solicitors typically enter what known as a “conditional fee agreement.”  If the case is won, the solicitor may recover a nominal hourly fee, plus a “success fee” that is be no greater than 100 percent of the nominal fee.

From the beginning, attitudes in America were quite different.  Indeed, America’s founders had the radical notion that the criminally accused had a right to counsel which was preserved in the Constitution’s Sixth Amendment. England didn’t adopt a similar right to counsel for another 50 years.

The belief in a right to an attorney and access to courts filtered into the civil justice system as well.  This notion pushed American courts to reject England’s “loser pays” system removing the Sword of Damocles over a losing party of potentially having to pay the winner’s attorney’s fees. And gradually, the same sentiment advanced the use and acceptance of contingency agreements.

In 1813, Pennsylvania Justice Hugh Henry Brackenridge wrote “parties not monied” sometimes “stipulate for something out of what was recoverable,” with attorneys “taking what are called contingency fees.”  Though the practice was still not accepted by all courts and attorneys of the day, notable attorneys such as Henry Clay and Daniel Webster worked under contingency agreements.

Reported cases from across the country in the early 1800s illustrate America’s growing acceptance of contingency agreements though still tinged with some skepticism.  For example, in 1823 arguing before the Kentucky Supreme Court an attorney in Rust v. LaRue, noted “[a client] may not have anything else to give, and without the aid of the matter in this contest, he can never sue for his right, not having otherwise the means to employ counsel…” By the mid-1800s these agreements continued to gain approval.  InLytle v. State, Arkansas Justice Scott in 1857 expressed the general sentiment spreading across the county that “rights are nothing without the means of enforcing them.”  And, around the same time, state legislatures were redefining the broad scope of champerty to provide for contingency fee agreements.

And by 1875, U.S. Supreme Court Justice Morrison Waite in Write v. Tebbitsnoted the wide-spread use and acceptance stating that contingency fee agreements ‘legitimate and honorable.’

Today, such contracts are common and permeate the legal community.  While still not practical or available to all matters, for better or worse, they remain entrenched in our legal system.


Can you sue yourself?

In Utah, you apparently can.  As the 2015 opinion summarizes: “Barbara Bagley, acting in different capacities, appears as both the appellants and the appellee in this case. Bagley represents the estate of Bradley M. Vom Baur. She also appears on her own behalf as Vom Baur’s heir. We refer to these two roles collectively as Plaintiffs. Bagley is also the defendant and alleged tortfeasor (Defendant).”

Did you get that?  Here’s another quote to clear things up a bit, “Bagley  finds herself on both sides of this dispute because not only is she her husband’s heir and the personal representative of his estate, she is also the defendant driver whose negligence allegedly caused the accident.”

Let me help — Ms. Bagley was apparently the negligent driver that caused her husband’s death.  She then filed a wrongful death action against herself as her husband’s heir.

The lower determined that the language of the wrongful death and survival action statutes prevents a tortfeasor from seeking recovery from herself and that the plaintiffs therefore could not bring suit against the defendant.   On appeal however, Utah Court of Appeals found “that the plain language of the statutes does not bar such suits” and sent it back for trial.

I wonder which table Ms Bagley sat at the trial!

Read the full opinion.

Can iPhone users sue Apple for charges to app developers? Supreme Court to decide

U.S. SUPREME COURTCan iPhone users sue Apple for charges to app developers? Supreme Court to decideBY DEBRA CASSENS WEISSPOSTED JUNE 18, 2018, 3:06 PM CDT    inShare    Dedi Grigoroiu/ U.S. Supreme Court agreed Monday to decide whether people who buy iPhone apps can sue Apple over 30 percent commissions charged to app developers on sales.Four iPhone users are seeking triple damages in a would-be class action that alleges Apple violated antitrust law by monopolizing the app market, report SCOTUSblog, Bloomberg News, the Wall Street Journal and CNet. A federal court had ruled that consumers can’t sue because they weren’t directly overcharged, but the San Francisco-based 9th U.S. Circuit Court of Appeals reversed in January 2017.The 9th Circuit had reasoned that consumers could sue because they bought the apps through the Apple App Store. Apple’s cert petition argues the 9th Circuit erred under a 1977 Supreme Court decision, Illinois Brick Co. v. Illinois, which held that only direct purchasers can sue under antitrust law.The federal government had argued, in response to a request for its views, that the 9th Circuit had erred.The St. Louis-based 8th U.S. Circuit Court of Appeals had followed Illinois Brick in a 1998 decision. The court had held consumers could not sue Ticketmaster for an alleged monopoly over ticket distribution because the direct victims would be concert venues. The circuit split is cited in Apple’s cert petition.The case is Apple v. Pepper.

Source: Can iPhone users sue Apple for charges to app developers? Supreme Court to decide

McDonalds Sued over its Cheese Sales

Here’s a new class action lawsuit for you to ponder.

According to the lawsuit, for years McDonald’s sold a Quarter Pounder, Double Quarter Pounder and the “with cheese” options as four separate menu items.

At some point, however, McDonald’s “ceased separately displaying these products for purchase on menus.” Instead, the lawsuit claims, in McDonald’s updated menu only the Quarter Pounder with cheese and Double Quarter Pounder with cheese were listed.

“A customer who wanted a Quarter Pounder was required to order and pay for a Quarter Pounder with cheese, which was given to the customer without cheese.” “Similarly, when a customer wanted a Double Quarter Pounder, the customer was required to order and pay for a Double Quarter Pounder with cheese, which was given to the customer without cheese. This practice was also used when a customer wanted a value meal that included either a Quarter Pounder or a Double Quarter Pounder.”

The lawsuit further charges that customers “continue to be overcharged for these products, by being forced to pay for two slices of cheese, which they do not want, order or receive, to be able to purchase their desired product.”  This in turn, according to the complaint, is allowing McDonald’s to be “unjustly enriched by these practices because it receives payment for cheese it does not deliver to its customers.”

The named plaintiffs, to gather their evidence, ordered the offending quarter pounders without cheese and pasted in their receipts in to the complaint, and sure enough, the quarter pounders’ cost exactly the same, cheese or naught!

I bet this would not happen at IHOb.


Anonymous Sperm Donor not a Legal Parent

In a case of first impression in Mississippi, the Supreme Court was asked to addressed what rights, if any, an anonymous sperm donor has in a child conceived of his sperm. The Court concluded that an anonymous sperm donor is not a legal parent whose rights must be terminated.  In short, the court founds that “… there is no legal or policy basis to find that an anonymous sperm donor is a parent in this specific context.”


Here’s a full copy the April 5, 2018 opinion:



NO. 2016-CA-01504-SCT









¶1. Christina Strickland and Kimberly Day were a same-sex couple legally married in Massachusetts in 2009—a marriage that later was recognized legally in Mississippi. At the time of their marriage, the couple resided in Mississippi. A year later, the newlywed couple sought to bring a child into their family through the use of artificial insemination (AI) of spermfromananonymousdonor. Kimberlyservedasthegestationalmotherandeventually

gave birth to Z.S.1 in 2011. Z.S. was born in Mississippi.
¶2. The couple separated in 2013. And eventually, in October 2016, the Rankin County Chancery Court entered a final judgment of divorce. In the judgment, the chancery court found, among other things, that Christina acted in loco parentis to Z.S., but that Christina was not Z.S.’s legal parent. Central to the chancery court’s decision was the finding that the anonymous sperm donor had parental rights that must be terminated and thus precluded Christina from being Z.S.’s legal parent. Christina appeals to this Court.
¶3. This case presents an issue of first impression. We never before have addressed what rights, if any, an anonymous sperm donor has in a child conceived of his sperm. Accordingly, we must determine whether the chancery court erred in finding that the rights of the anonymous sperm donor precluded a finding that Christina was Z.S.’s legal parent. After review of the record and the relevant law, we find that the chancery court erred in this finding. First, an anonymous sperm donor is not a legal parent whose rights must be terminated. And second, the doctrine of equitable estoppel precludes Kimberly from challenging Christina’s legal parentage of Z.S. And so we reverse the findings of the chancery court and remand the case for a custody determination in a manner that is consistent with this opinion.


¶4. Christina and Kimberly first began a romantic relationship in 1999. Later, while still unmarried, the couple decided to adopt a child. After going through the adoption process,

1 BecauseZ.S.wasaminoratthetime,initialswillbeusedtoprotecthisanonymity. 2

the couple adopted a child named E.J.,2 finalized in 2007. Kimberly alone served as the adoptive parent because Mississippi law precluded same-sex couples from adopting jointly. In 2009, Kimberly and Christina were married in Massachusetts. Kimberly took Christina’s last name.

¶5. In 2010, the newlywed couple decided to add to their family through the use of assisted reproductive technology3 (ART)—specifically, AI of sperm from an anonymous donor. Both Kimberly and Christina considered, and were evaluated to determine, which one of them should carry the child. And after testing and consultation with a fertility clinic, the couple decided that Kimberly would serve as the gestational mother, and that they first would attempt in vitro fertilization4 (IVF) with Kimberly’s ova.

¶6. They searched for sperm, eventually choosing sperm from a Maryland sperm bank. The name of the anonymous donor is unknown and he was identified only as a number—“Donor No. 2687.” Kimberly signed an acknowledgment agreeing that she would “never seek to identify the donor.” The acknowledgment further stipulated that the donor never would be advised of Kimberly’s identity. In the clinic paperwork, Kimberly was recognized as a married woman, and Christina was identified as her spouse. Both women

2 Because E.J. was a minor at the time, initials will be used to protect his anonymity.

3 ART refers to various practices and procedures beyond AI, including in vitro fertilization, intracytoplasmic sperm injection, egg donation, and surrogacy, which provide individuals the opportunity to conceive children other than through sexual intercourse.

4 IVF refers to a method of fertilizing a human ovum outside of the body. K. Anderson, L. Anderson, and W. Glanze, IVF, Mosby’s Medical, Nursing, & Allied Health Dictionary 842 (4th ed. 1994).


signed an acknowledgment stating that they were:

voluntarily undergoing, individually and as a couple, treatment . . . in order to conceive a child through this treatment and that [they] acknowledged [their] natural parentage of any child born to [them] through this technique.

Christina testified that she was involved in and supportive through every step of the conception and pregnancy.
¶7. As for the birth of Z.S., Christina testified that the couple planned on traveling to Massachusetts to have the child, so that both she and Kimberly could be listed as parents on the birth certificate. But on April 12, 2011, six weeks before her due date, Kimberly gave birth to Z.S. via a cesarean section in a Mississippi hospital. The reason Z.S. was born in Mississippi, and not in Massachusetts, is disputed. Kimberly claimed it was because she did not want Christina on the birth certificate,5 while on the other hand, Christina claimed it was due to the unforseen, emergency cesarean section. Nevertheless, because Z.S. was born in Mississippi, Kimberly’s name was the only name placed on his birth certificate.

¶8. As it relates to child rearing, Christina testified that, as a family unit, Kimberly and she raised their two children as coparents. And during the first year of Z.S.’s life, Christina stayed home with him while Kimberly worked full time. Christina further testified that the children—both Z.S. and E.J.—share a close child-parent bond with her, and they call her “Mom.”

¶9. In January 2013, Christina and Kimberly separated. Following the separation, Christina continued to visit both children. She also paid child support, medical, and daycare

5 Mississippi law at the time precluded both members of a same-sex couple from being listed on a birth certificate. See Miss. Code Ann. § 41-57-14 (Rev. 2013).


expenses for Z.S.
¶10. On August 13, 2015, while still married to Christina, Kimberly married a second spouse. Christina then filed for divorce in the Harrison County Chancery Court on August 31, 2015. On November 16, 2015, Kimberly filed a motion for declaratory judgment and complaint for divorce in the Rankin County Circuit Court. In that motion, Kimberly sought a declaration that her second marriage was valid and that her first marriage was dissolved. Christina then filed her answer and counterclaim for divorce in which she sought legal and physical custody of the children, and to be named a parent of Z.S. The Harrison County and Rankin County cases were consolidated in Rankin County. And on May 17, 2016, an order was entered declaring Christina’s and Kimberly’s marriage valid, and Kimberly’s remarriage void.
¶11. On September 27, 2016, Kimberly and Christina filed a consent and stipulation agreeing that Z.S. was born during their marriage, that they jointly would pay all school expenses for Z.S., and that Kimberly would retain physical and legal custody of E.J. Kimberly and Christina agreed to allow the chancery court to decide custody, visitation, and child support as to Z.S., child support and visitation of E.J., and Christina’s parentage of Z.S. ¶12. A hearing was held on September 27, 2016, and a final judgment of divorce was entered on October 18, 2016. In the final judgment, the chancery court made various findings. Relevant to this appeal, the chancery court ordered Christina to pay child support for both children, and held that Z.S. was born during a valid marriage. But the chancery court held that Z.S. was “a child born during the marriage, not of the marriage,” and so both


parties were not considered parents. The chancery court found that the anonymous sperm donor constituted “an absent father,” and even though the donor might never be identified, the donor’s legal parentage precluded a determination that Christina was Z.S.’s legal parent. The chancery court concluded that Christina had acted in loco parentis6 to Z.S. and awarded her visitation rights.

¶13. On October 21, 2016, three days after entry of the final judgment, Christina filed her timely notice of appeal.


¶14. A chancellor’s findings will not be disturbed on review unless he abused his discretion, was manifestly wrong, or made a finding which was clearly erroneous. Bank of Mississippi v. Hollingsworth, 609 So. 2d 422, 424 (Miss. 1992). A chancellor’s conclusions of law are reviewed de novo. Consolidated Pipe & Supply Co. v. Colter, 753 So. 2d 958, 961 (Miss. 1999). Because the issues here raise questions of whether a chancellor correctly applied the law, we review this case de novo.

I. Parental Rights and Anonymous Sperm Donors

¶15. The chancery court’s decision, finding Christina not the legal parent of Z.S., turned largely on its determination that the sperm donor was the “natural father,” whose parental


“[A] person acting in loco parentis [is] one who has assumed the status and obligations of a parent without a formal adoption.” Logan v. Logan, 730 So. 2d 1124, 1126 (Miss. 1998). A person acting in loco parentis has a right to custody of a child, but only against third persons. Farve v. Medders, 128 So. 2d 877, 879 (Miss. 1961). The custody rights of a person holding this status are inferior to the custody rights of the natural parent. Davis v. Vaughn, 126 So. 3d 33, 37 (Miss. 2013).


rights were subject to termination. On appeal, Christina argues that this finding is not supported by the evidence and is an erroneous conclusion of law. We agree.
¶16. At the outset, we are cognizant of the fact that we never before have determined what parental rights, if any, anonymous sperm donors possess in the children conceived through the use of their sperm. As such, this is an issue of first impression.

¶17. In searching our state’s existing law, the only law that even addresses AI is the disestablishment-of-paternity statute—Mississippi Code Section 93-9-10(2)(d) (Rev. 2013). And while Section 93-9-10(2)(d) does not address anonymous sperm donors’ parental rights directly, we find it useful as it illustrates the Legislature’s intent on such rights. Indeed, under Section 93-9-10(2)(d), a father cannot seek to disestablish paternity when the child was conceived by AI during the marriage to the child’s mother. Reading this provision, in light of the context before us, the logical conclusion—while not explicit—is that the Legislature never intended for an anonymous sperm donor to have parental rights in a child conceived from his sperm—irrespective of the sex of the married couple that utilized his sperm to have that child.

¶18. How, on one hand, can the law contemplate that a donor is a legal parent who must have his rights terminated, while at the same time prohibiting the nonbiological father of a child conceived through AI from disestablishing paternity? These two policies cannot co- exist. And for one to make such a logical leap effectively would say that the child has three legal parents: the mother who birthed the child, the natural father who donated his sperm, and the person who was married to the child’s mother (and is statutorily prohibited from


disestablishing paternity). Three parents—that cannot be what the Legislature intended. Indeed, even the chancery court here said that cannot be possible.
¶19. In making its determination, the chancery court seemed to place great weight on the biological connection between the anonymous sperm donor and Z.S. Yet the Supreme Court of the United States has held that “[p]arental rights do not spring full-blown from the biological connection between the parent and child. They require relationships more enduring.” Lehr v. Robertson, 463 U.S. 248, 260, 103 S. Ct. 2985, 77 L. Ed. 2d 614 (1983) (quoting Cuban v. Mohammed, 441 U.S. 360, 397, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979) (Stewart, J., dissenting)) (emphasis added). In a similar vein, we too have held that a biological connection alone is not enough to establish parentage. See Griffith v. Pell, 881 So. 2d 184, 186 (Miss. 2004) (finding that a biological father does not have any paternity rights where “he fails to establish that he has had a substantial relationship with the child”). ¶20. As a broader policy consideration, we find that requiring parents of a child conceived through the use of AI to terminate parental rights of the donor would not be in the best interest of the child—to say nothing of the expense and time it would require. When children are involved, we consistently have held that “the polestar consideration . . . is the best interest and welfare of the child.” Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983).

¶21. The consequences of assigning rights to donors, who do not engage in an act of procreation but provide biological material with no intention to act as a parent, would disrupt the familial relationships and expectations of Mississippians who have conceived children through the use of AI. For one, it would elevate the rights of a donor—who is a complete


stranger to the child, and likely never will be identified—over the rights of a person who has known and cared for the child. Make no mistake—affirmance here arguably would impose parentage, and all its responsibilities, on anonymous sperm donors who contribute sperm to assist families in achieving pregnancy—perhaps creating a chilling effect on sperm donation. Furthermore, it effectively would leave many children conceived through this method with one legal parent. And in the tragic situation in which a mother dies during childbirth or before a proper termination proceeding—it would leave the child an orphan. Such a notion is untenable and certainly contrary to the public policy of this state.

¶22. On appeal, Kimberly’s position is that all of the nonbiological parents of children conceived through AI should be required to terminate the sperm donor’s parental rights and then establish parentage through the adoption process. We disagree. As a practical matter, the process of requiring one under these circumstances to adopt her own child (one which she intentionally agreed to bring into the family) would be intrusive, time-consuming, and expensive. In fact, it would require: parents who use AI with anonymous sperm donation to file a petition and wait thirty days to seek a hearing; a guardian ad litem to be appointed by the court at the parents’ expense; and a hearing to be held to determine whether an unknowable sperm donor has abandoned the child. See Miss. Code Ann. § 93-15-107 (Rev. 2013).

¶23. One of the rationales behind termination statutes no doubt is to safeguard the rights of any potential parent-child relationship. Indeed, this Court has held that “[p]arents have a liberty interest, more precious than any property interest, in the care, custody, and


management of their children and families.” G.Q.A. v. Harrison Cty. Dep’t Of Human Res., 771 So. 2d 331, 335 (Miss. 2000) (citing Santosky v. Kramer, 455 U.S. at 753–54, 758–59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982)). The seriousness of the action is reflected in the fact that termination of such rights requires clear and convincing evidence of the statutory grounds for termination. Chism v. Bright, 152 So. 3d 318, 322 (Miss. 2014) (citing Kramer, 455 U.S. at 754).

¶24. But with anonymous sperm donors there is no reason to protect the donor, as the donor has no intention or desire to act as a father. In reaching its conclusion in this case, the chancery court found that the donor was merely an “absent father,” but in reality, the donor is a nonexistent father. For the child could never find the donor, much less have a meaningful relationship with him. It is one thing for a child to cling to the hope of a possibility of discovering and eventually building a relationship with an absent father; it is quite another thing for a child to know that he has a natural father that he has no possibility of ever discovering, let alone having a relationship with. That is, short of perhaps a court order mandating the disclosure of the donor’s identity, it is arguably factually and legally impossible for the child ever to obtain the identity of the donor.

¶25. The impracticality and futility of applying the termination statute in this context is clear. Under Section 93-15-107, the natural father is a necessary party to such termination action, but here, or with any anonymous donor, whose identification cannot be known, compliance with the statute arguably is impossible. One cannot serve a party with no information to act upon and which likely never can be acquired.


¶26. To that end, Kimberly argues that Christina, and nonbiological parents alike, can effectuate this service though publication. To be sure, the text of the statute does allow for publication of service of a “necessary party whose address is unknown after diligent search[.]” Miss. Code Ann. § 93-15-107(1)(b) (Rev. 2013) (emphasis added.) Publication in this instance is for a party whose address is unknown, not a party whose identity is unknown. (Emphasis added). What is more, how can it be evaluated whether there was a diligent search for the party, if the party is unknown? The chancery court itself conceded that it is unlikely that the donor ever could be hailed before the court. The chancery court also conceded that this donor’s identification likely would never be known. And with an absence of identification, publication practically cannot be effectuated in every case in which a couple utilizes AI to bring a child into the family. Indeed, publication under the statute presupposes that, while one may not know the exact location of the party, one at least knows, at a minimum, the identity of the party. This is not to say that, under these circumstances, service by publication could not be accomplished; it is, however, to say that, as a matter of public policy, we find it unwise to demand that it must be accomplished.

¶27. And so, we ask, would it not be futile for the chancery court to require parties to comply with a statute the chancery court itself admits cannot be satisfied due to reasons beyond the control of the parties? Though this exact question is not before us here, we find it demonstrative of the impracticability and futility of requiring compliance with Section 93- 15-107(1)(b) in this context.

¶28. Aside from our determination that anonymous sperm donors, in general, do not


possess parental rights in the children conceived through the use of their sperm, we also find that there is no other vehicle which allows us to conclude that the anonymous sperm donor here is Z.S.’s parent. The donor was not married to the mother at the time of Z.S.’s conception or birth, he has not executed a voluntary acknowledgment of paternity, and he has not been adjudicated to be the child’s “natural” father under state law. Miss. Code Ann. § 93-9-28 (Rev. 2013).

¶29. In sum, we find that the chancery court erred in finding that an anonymous sperm donor was Z.S.’s parent whose parental rights had to be terminated. Indeed, we find that there is no legal or policy basis to find that an anonymous sperm donor is a parent in this specific context.

II. Equitable Estoppel

¶30. Christina argues that the chancery court erred in failing to apply equitable estoppel as a bar to Kimberly’s argument that Christina was not Z.S.’s legal parent. At the very core of the doctrine of equitable estoppel are “fundamental notions of justice and fair dealings.” PMZ Oil Co. v. Lucroy, 449 So. 2d 201, 206 (Miss. 1984). The doctrine applies when “there is a (1) belief and reliance on some representation; (2) a change of position as a result thereof; and (3) detriment or prejudice caused by the change of position.” B.C. Rogers Poultry Inc. v. Wedgeworth, 911 So. 2d 483, 492 (Miss. 2005). Indeed, we previously have defined equitable estoppel “as the principle by which a party is precluded from denying any material fact, induced by his words or conduct upon which a person relied, whereby the person changed his position in such a way that injury would be suffered if such denial or


contrary assertion was allowed.” Koval v. Koval, 576 So. 2d 134, 137 (Miss. 1991) (emphasis added).
¶31. Reviewing the record before us, we find that the elements of estoppel are met here. First, the evidence in the record shows that Kimberly made numerous representations that Christina was an equal coparent to Z.S. Indeed, Kimberly, along with Christina, signed an agreement at the clinic acknowledging the couple’s joint intention to undergo the AI procedure. Additionally, after the birth of Z.S., the couple sent out birth announcements that read: “Hatched by Two Chicks. Chris[tina] and Kimberly proudly announce the birth of their son.” And the record is replete with evidence of Christina’s belief and reliance on this representation.

¶32. Second, as a result of her belief of and reliance on Kimberly’s representation, Christina clearly changed her position. For example, Christina signed an acknowledgment to undergo the AI treatment with Kimberly as “a couple,” served as Z.S.’s primary caretaker for at least the first year of the child’s life, and gave Z.S. her last name—Strickland. And lastly, the record shows that Christina suffered detriment which was caused by the change of position. That is, by changing her position in reliance on her belief that she would be an equal coparent, Christina took on all the responsibilities and rewards that accompany parenthood. To now deprive Christina of these responsibilities and rewards, and diminish her parent-child relationship with Z.S., is certainly a detriment to Christina, to say nothing of the detriment to Z.S. himself.

¶33. At the hearing, Kimberly argued that the fact that she was married to Christina at the


time was not material to her decision to have Z.S.; she was planning on having a child of her own regardless of her marital circumstances. But the evidence in the record belies this assertion. For one, Kimberly allowed Christina to take part in the process of conceiving Z.S.—even signing an acknowledgment at the clinic together. In fact, in the clinic paperwork, Kimberly was recognized as a married woman, and Christina was specifically identified as her spouse. What is more, Kimberly admitted in her testimony that the couple had discussed the possibility of Christina, and not Kimberly, carrying and having the baby. This further evidences the couple’s plan to undertake the role of parenthood together, as it undercuts Kimberly’s assertion that her primary reason for having Z.S. was to fulfill a lifelong desire to have a child biologically her own. It also is particularly telling that Kimberly and Christina sent out birth announcements which held out Z.S. as their own. Simply put, it is strong evidence of Kimberly’s position regarding Christina’s coparent status. This announcement, by its own terms, represented to those receiving it that both Kimberly and Christina were Z.S.’s parents.

¶34. All this in the record shows that Kimberly’s original representation was that Christina was Z.S.’s equal coparent, and that Christina relied on this representation in changing her position. To now allow Kimberly to challenge Christina’s parentage of Z.S. undoubtedly will cause injury to Christina and the child. The gravity of the injury is particularly clear in this case, as Christina has had to confront the possibility that Kimberly will allow another adult to adopt Z.S. And Christina, with an inferior in loco parentis status, could do nothing to prevent it. At bottom, to deny Christina the relationship she has built with Z.S. would be a


miscarriage of justice. And so, we find that Kimberly is estopped from challenging Christina’s parental rights as to Z.S., as this position is wholly inconsistent with her earlier position, which held Christina out to be the parent of Z.S.


¶35. In this case of first impression, we hold that under Mississippi law, an anonymous sperm donor does not possess any parental rights in a child conceived through the use of his sperm. And to that end, the chancery court erred in finding that the anonymous sperm donor here was Z.S.’s parent, whose rights were subject to termination.

¶36. As for Christina’s parental rights, we hold that the doctrine of equitable estoppel precluded Kimberly from challenging Christina’s parentage of Z.S.—where there was ample evidence the then-married couple jointly and intentionally agreed to have Z.S. through the use of AI. In reaching this holding, we reverse the chancery court’s finding that Christina acted in loco parentis, but was not an equal parent with parental rights as to Z.S. And so we remand the case to the Rankin County Chancery Court with instructions to determine custody as to Z.S. in accord with the multifactor test articulated in Albright, 437 So. 2d at 1005. The Albright analysis shall be on the record, and with a guardian ad litem representing Z.S. through the course of the proceedings. See generally Albright, 437 So. 2d at 1005.






¶38. The narrow issue before the Court is whether two people legally married who jointly engage in a process of assisted reproduction technology resulting in the natural birth by the gestational mother are both considered parents for purposes of divorce and determination of parental rights of the minor child. I conclude that they are and that the decision of the chancellor should be reversed and remanded.

¶39. This decision is based on the legal status of the parties at the time of birth and on the basis of equitable estoppel. The conception and birth was a process both parties agreed to and relied upon. Simmons Hous., Inc. v. Shelton ex rel. Shelton, 36 So. 3d 1283, 1287 (¶15) (Miss. 2010) (Equitable estoppel “is defined generally as ‘the principle by which a party is precluded from denying any material fact, induced by his words or conduct upon which a person relied, whereby the person changed his position in such a way that injury would be suffered if such denial or contrary assertion was allowed.’”). See also Koval v. Koval, 576 So. 2d 134, 137 (Miss. 1991) (“The doctrine of estoppel is based upon the ground of public policy, fair dealing, good faith and justice, and its purpose is to forbid one to speak against his own act, representations, or commitments to the injury of one to whom they were directed and who reasonably relied thereon.”).


¶40. While this Court can use common-law principles to render a decision here,7 the Legislature should speak directly to the recognition of the legal status of children born during a marriage as the result of assisted reproductive technology. Miss. Baptist Hosp. v. Holmes, 214 Miss. 906, 931, 55 So. 2d 142, 152 (1951) (“[T]he function of creating a public policy is primarily one to be exercised by the Legislature and not by the courts.”). The Legislature has spoken that a spouse cannot “disestablish” paternity of a child born by this process. Miss. Code Ann. § 93-9-10(2)(d) (Rev. 2013). Today’s decision is the only logical extension of that code section, but the Legislature should nonetheless further address these developments in the law.

¶41. For the preceding reasons, I respectfully concur only in part and in the result.



¶42. All justices agree that, at least in the instant case, the trial judge erred in finding that the parental rights of the anonymous sperm donor must be terminated before the legal status of Christina Strickland could be adjudicated. However, I agree with Presiding Justice Randolph that we should not be rendering a decision based on an issue never presented to the

7See Funk v. United States, 290 U.S. 371, 383, 54 S. Ct. 212, 216, 78 L. Ed. 369 (1933) (noting the power of the “courts, in the complete absence of . . . legislation on the subject, to declare and effectuate, upon common-law principles, what is the present rule upon a given subject in the light of fundamentally altered conditions[.]”); State v. Edward Hines Lumber Co., 150 Miss. 1, 115 So. 598, 605 (1928) ([T]he public policy of the state must be found in its constitution and statutes, ‘and when they have not directly spoken, then in the decisions of the courts . . . .’”).


trial court, e.g., the application of equitable estoppel. Accordingly, I would reverse the chancellor’s order, hold that he erred in finding that the anonymous sperm donor enjoyed parental rights, and remand the case to the trial court to allow the parties to present whatever evidence and arguments they wish that accord with the Court’s holding.



¶43. I agree with the plurality that the chancellor wrongly declared the sperm donor the natural father. He was neither a party to the proceeding nor asserted any claim to the child. So it was error to grant him parental rights. I also agree with Presiding Justice Randolph and Justice Coleman that it is improper to decide this case based on equitable estoppel—an argument not presented to the chancellor. Restraint is particularly called for here, because the facts the plurality and Chief Justice Waller rely on to find equitable estoppel are hotly contested on appeal. The proper course is to remand to the chancellor for factual findings, keeping in mind the polestar consideration of all custody matters—the best interest of the child.

¶44. I do, however, agree with Chief Justice Waller on one point—what parental rights a sperm donor may or may not have is a policy issue for the Legislature, not the Court. And since the Legislature admittedly has never spoken on this issue, we should be extremely hesitant to draw conclusions about the disestablishment-of-paternity statute, when that statute is wholly inapplicable here. Indeed, it is dangerous for the plurality to weigh in so heavily


with what it views to be the best policy, since we all agree the chancellor erroneously inserted this issue into the case.



¶45. Time-tested maxims of trial practice and appellate review constrain me to depart from opinions of my fellow justices. First, due process requires that courts may not adjudicate rights or liabilities of persons not made parties to a proceeding. See Baker by Williams v. Williams, 503 So. 2d 249, 254 (Miss. 1987) (“[A] decree in equity cannot adjudicate the rights or liabilities of persons not parties to the proceeding.”). The next fundamental tenet is that appellate review is constrained to the trial court record presented on appeal.8 See Copeland v. Copeland, 235 So. 3d 91 (Miss. 2017) (“This Court may not act upon or consider matters which do not appear in the record and must confine itself to what actually does appear in the record.”). Finally, our precedent mandates that a trial court cannot be held in error for an issue not presented to it for determination. See Burnham v. Burnham, 185 So. 3d 358, 361 (Miss. 2015) (“The well-recognized rule is that a trial court will not be put in error on appeal for a matter not presented to it for decision.”).

¶46. The trial-court record reveals that Christina and Kimberly entered a Consent and Stipulation, jointly agreeing on the issues to be presented to and decided by the chancellor.

8 Otherwise, parties could “sandbag” trial judges in hopes of prevailing before appellate courts. Such a practice contravenes the fair and efficient administration of justice on appeal. See Order Adopting the Mississippi Rules of Appellate Procedure (Dec. 15, 1994).


(See Appendix I). Inter alia,9 Christina and Kimberly agreed to submit to the trial court the issues of visitation and child support of and for E.J. and Z.S. The issue of custody was raised as to Z.S. only. Christina claimed, and Kimberly testified, that they “shared . . . parenting” of both children. The chancellor held, based on the pleadings, exhibits, and testimony, that Christina stood in loco parentis to both children., E.J. and Z.S. See Logan v. Logan, 730 So. 2d 1124, 1126 (Miss. 1998) (“[A] person acting in loco parentis [is] one who has assumed the status and obligations of a parent without a formal adoption.”)

¶47. In this appeal, Christina challenges the chancellor’s findings as to Z.S. only, vastly expanding and reframing issues that were never presented to, nor considered by, the trial court. (See Appendix II, comparing the agreed-upon issues before the trial court vis à vis the issues raised in this appeal, verbatim et literatim). Equitable estoppel was raised for the first time on appeal, and therefore should not be considered by this Court. See Burnham, 185 So. 3d at 361.10

9 Additionally, they asked who would claim E.J. and Z.S. for state and federal income tax purposes, and whether Christina would be placed on the birth certificate of Z.S. and named as a parent thereon. Christina failed to name the State Board of Health as a party in to these proceedings. See Miss. Code Ann. § 41-57-23(1) (Rev. 2013).

10 Assuming arguendo that this Court is not procedurally barred from considering equitable estoppel, the “facts” relied upon by the plurality were disputed at trial. The chancellor, who heard the testimony and observed the witnesses’ demeanor, commented in his bench ruling that “[t]here are two different versions of how the child was cared for and how it came to be that Christina Strickland became a part of his life. Kimberly actually maintains that she was primarily involved in seeking out this procedure [artificial insemination]. Christina claims that she was very much involved with the whole thing. There is a little bit of diametrically opposed testimony as to who was making these decisions.” Notwithstanding, the plurality relies on Christina’s testimony and opines that “Kimberly is estopped from challenging Christina’s parental rights as to Z.S. . . .” (Plurality Op. ¶ 34.)


¶48. As to the sperm donor, the chancellor erred in declaring him a natural father whose parental rights had to be terminated. However, I disagree with the plurality’s blanket assertion that in any case, no anonymous sperm donors will be accorded the burdens and benefits of natural fathers. Because the record is devoid of an attempt to notice the sperm donor in order to make him a party to these proceedings, the trial court erred in granting the sperm donor such rights. No citation is required for the proposition that in all child-custody, support, and visitation cases, a bonafide effort to give notice of the proceedings is required. Our state and federal constitutions require no less. Further, the parties failed to offer the chancellor documented evidence of a waiver or consent to the proceedings. A diligent review of the record reveals that neither party presented pleadings or affidavits supporting a purported waiver. Our precedent mandates that cases be decided on the facts contained in the record. See In re Adoption of Minor Child, 931 So. 2d 566, 579 (Miss. 2006).

¶49. The plurality’s holding regarding sperm donors begins with suggesting that the “legislative intent”11 of the disestablishment-of-paternity statute—a statute not at issue in this case—puts the plurality at odds with paragraphs ten through fourteen of the chancellor’s final decree. I agree that paragraphs ten through fourteen should be struck from the final decree after remand, but only because they are obiter dictum. The statute referenced in the plurality’s opinion never was quoted or argued by either party at the trial level.

¶50. Christina sought custody of Z.S. only. The trial court awarded custody of E.J. and

11 An inquiry into legislative intent is a hazardous undertaking under even the best of circumstances.


Z.S. to Kimberly based on the best interests of the children.12 Still, the trial court found that Christina, standing in loco parentis to Z.S. and E.J., was entitled to the burdens and benefits of a parent, granting her rights to visitation and ordering child support. This finding is consistent with established legal principles, with or without the sperm donor or a determination of who is Z.S.’s natural father. See Griffith v. Pell, 881 So. 2d 184, 186 (Miss. 2004) (“Merely because another man was determined to be the minor child’s biological father does not automatically negate the [parent-child] relationship held by [Christina] and the minor [children].”) Further, substantial evidence in the record supports the chancellor’s finding. Christina argues that the trial court erred in this finding as to Z.S. only, for Christina pleaded that she stood in loco parentis to E.J.

¶51. As to Z.S., she argues that married men had their “parental status . . . recognized notwithstanding a lack of genetic relationship to their marital children.” Christina cites J.P.M. v. T.D.M., 932 So. 2d 760, 762 (Miss. 2006), and Griffith, 881 So. 2d at 185. According to this Court:

In both Pell and J.P.M., a husband learned during the pendency of divorce proceedings that he was not the biological father of a child born of, or just prior to, the marriage. In those cases, we reasoned that the natural-parent presumption had been overcome based on several facts: (1) the husbands stood in loco parentis . . . .

In re Waites, 152 So. 3d 306, 312 (Miss. 2014) (quoting Smith v. Smith, 97 So. 3d 43, 47 (Miss. 2012)). In Pell and J.P.M., nonbiological fathers were granted in loco parentis status, entitling them to burdens and benefits associated with parenthood, successfully rebutting the

12 “Court[s] shall in all cases attempt insofar as possible, to keep the children together in a family unit.” Bredemeier v. Jackson, 689 So. 2d 770, 775 (Miss. 1997).


natural-parent presumption in a child-custody battle. In Pell, the Court remanded for a best- interest Albright13 analysis. Significantly, in J.P.M., the Court affirmed the chancellor’s decision to award physical custody to the husband standing in loco parentis, for his decision was based on the best interest of the child—the polestar consideration in all child-custody cases.

¶52. In the case sub judice, the chancellor found that it was not in the best interest of either child for Christina to have custody. While the chancellor’s custody determination was not manifestly wrong or clearly erroneous, the chancellor erred by failing to address each Albright factor on the record.

¶53. Christina’s equal-protection argument as it relates to her standing in loco parentis is without merit. In loco parentis is a gender-neutral legal principle. There is no different treatment, analysis, or outcome for men and women who establish in loco parentis status. See, e.g., In re Waites, 152 So. 3d at 307 (finding that husband of child’s mother acted in loco parentis, even though husband and mother were married during child’s birth and raised child together, because he was not biological father of child). Christina’s in loco parentis status was a gender-neutral determination.

¶54. For the reasons herein stated, I would reverse and remand for the trial court to examine the record and the chancellor’s notes and issue a final decree consistent with this dissent.


13 Albright v. Albright, 437 So. 2d 1003 (Miss. 1983). 23

Issues presented to the trial court verbatim et literatim14

The following issues are therefore, presented to his Court for determination:

  1. Custody of the minor child. [Z.S.];
  2. Child support for the benefit of [Z.S.];
  3. Visitation of the minor child [Z.S.];
  4. Whether Christina Strickland shall be placed on the birth certificate of [Z.S.] and named as a parent thereon;
  5. Child support for the benefit of [E.J.];
  6. Visitation of the minor child [E.J.];
  7. Who will claim the children for Federal and State Income tax purposes;

14Substituted initials for full name.



A. Custody of the minor child, [Z.S.];

B. Child support for the benefit of [Z.S.];

C. Visitation of the minor child, [Z.S.];

D. Whether Christina Strickland shall be placed on the birth certificate of [Z.S.] and named as a parent thereon;

E. Child support for the benefit of [E.J.];

F. Visitation of the minor child, [E.J.];

G. Who will claim the children for Federal and State Income tax purposes;

APPELLANT’S “STATEMENT OF ISSUES” Presented on appeal verbatim et literatim (See Appellant’s Brief 1)

1. Whether the trial court erred in holding that a child born to a married couple who achieved pregnancy via medically assisted reproductive technology (“A.R.T.”) with sperm from an anonymous donor may be denied the benefit and protection of a parental relationship with both spouses.

a. Whether children born to married parents who give birth to a child via A.R.T. with sperm from an anonymous donor are entitled to the marital presumption that both spouses are their legal parents.

b. Whether the Supreme Court’s decision in Obergefell v. Hodges requires Mississippi to apply laws relating to the marital presumption of parentage in a gender- neutral manner so as to apply equally to married same-sex couples.

c. Whether the doctrine of equitable estoppel precludes a parent from seeking to disestablish her spouse’s parentage of the couple’s marital child based solely on the absence of a genetic relationship, when the child was born as a result of anonymous donor insemination, to which both spouses consented.

d. Whether the trial court erred in ruling that a man who contributes sperm anonymously for use in A.R.T., whose identity is not and cannot be known, constitutes the legal parent of a child born to a married woman and therefore prevents recognition of the spouse as a parent.

e. Whether the trial court committed reversible error by failing to apply precedent that recognizes the parental rights of a spouse to a child born during the marriage, reared as her own from birth, with an attached parent-child relationship and where no putative father exists or seeks to displace her parental rights.

2. Whether the trial court erred in failing to recognize the constitutionally protected liberty interests of Christina and Z.S. in their parent-child relationship that may not be disturbed absent a compelling governmental interest.

3. Whether, consistent with the U.S. Constitution, the marital presumption may denied only to same-sex couples.