Blanton v. Gardner's Supermarket, Inc., No. 2009-CA-00020-COA (Miss. App. 6/15/2010)

• Decision Date: 15 June 2010
• Docket Number: No. 2009-CA-00020-COA.,2009-CA-00020-COA.
• Parties: CHARLES BLANTON, APPELLANT, v. GARDNER'S SUPERMARKET, INC. D/B/A ROGER'S SUPERMARKET, APPELLEE.
• Court: Mississippi Court of Appeals

Page 1

CHARLES BLANTON, APPELLANT,
v.
GARDNER'S SUPERMARKET, INC. D/B/A ROGER'S SUPERMARKET, APPELLEE. No. 2009-CA-00020-COA. Court of Appeals of Mississippi. June 15, 2010.

COURT FROM WHICH APPEALED: ALCORN COUNTY CIRCUIT COURT, TRIAL JUDGE: HON. PAUL S. FUNDERBURK, DATE OF JUDGMENT: 12/9/2008.

DISPOSITION: AFFIRMED.

ATTORNEYS FOR APPELLANT: NICHOLAS RYAN BAIN, GREG E. BEARD.

ATTORNEY FOR APPELLEE: H. RICHMOND CULP III.

BEFORE MYERS, P.J., ISHEE AND MAXWELL, JJ.

MAXWELL, J., FOR THE COURT:

¶ 1. After falling on accumulated ice and snow in a grocery store parking lot, Charles Blanton filed a premises liability action in the Circuit Court of Alcorn County against Gardner's Supermarket d/b/a Roger's Supermarket (Roger's). Roger's claimed Blanton's injuries were caused by a natural condition in a remote area of the premises and moved for summary judgment, which the circuit court granted.

¶ 2. Blanton now appeals, claiming summary judgment was improper because: (1) an artificial rather than natural condition caused his fall, and (2) the parking lot was defectively designed. We find no genuine issue of material fact and affirm.

FACTS

¶ 3. On December 22, 2004, a winter storm with freezing temperatures covered much of Corinth, Mississippi, in ice and snow. Early the next morning, Blanton and his wife, Sandra Kay Robinson, began their newspaper-delivery route.

¶ 4. Blanton delivered newspapers to Roger's around 6:00 a.m. As they continued to carry out their deliveries, Blanton's wife observed that the parking lot and roads were "just getting slicker." After finishing the paper route, Blanton returned to Roger's to purchase a few items. He noticed Roger's parking lot was covered with "approximately an inch, inch and a half of snow." He parked his vehicle and walked across the parking lot.

¶ 5. When Blanton entered the store, Mark Gardner, the store's vice-president, was using a flat hoe and shovel to clear ice and snow near the store's main entrance. The ice was approximately a half-inch thick. Blanton remembered that he probably commented about store employees "scraping ice and stuff" and that they "had their work cut out." As he returned to his car, Blanton slipped and fell on ice and snow approximately five or six feet from the rear of his vehicle. His fall occurred in the parking lot approximately forty-eight feet from the entrance to Roger's.

¶ 6. Blanton suffered a broken leg and filed a premises liability action against Roger's. Roger's moved for summary judgment, which the circuit court granted.

STANDARD OF REVIEW

¶ 7. The grant or denial of summary judgment is reviewed de novo. Lawrence v. Wright, 922 So. 2d 1, 2 (¶5) (Miss. Ct. App. 2004) (citing Hardy v. Brock, 826 So. 2d 71, 74 (¶14) (Miss. 2002)). In conducting this review, the Court considers all evidentiary matters including admissions in pleadings, answers to interrogatories, depositions, and affidavits. Id. (citing Lee v. Golden Triangle Planning & Dev. Dist., Inc., 797 So. 2d 845, 847 (¶5) (Miss. 2001)).

¶ 8. When a motion for summary judgment is made and supported, "an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in [Mississippi Rule of Civil Procedure 56], must set forth specific facts showing that there is a genuine issue for trial." M.R.C.P. 56(e). To survive summary judgment, the non-movant must offer "significant probative evidence demonstrating the existence of a triable issue of fact." Byrne v. Wal-Mart Stores, Inc., 877 So. 2d 462, 465 (¶3) (Miss. Ct. App. 2003) (citing Young v. Wendy's Int'l., Inc., 840 So. 2d 782, 784 (¶5) (Miss. Ct. App. 2003)).

DISCUSSION

¶ 9. Blanton argues the circuit court erred by granting summary judgment in favor of Roger's. Blanton first claims naturally occurring ice and snow did not cause his fall. Instead, he contends the supreme court's decision in City of Baldwyn v. Rowan, 232 So. 2d 157 (Miss. 1970), supports his argument that an "artificial condition" caused water to improperly drain, puddle and freeze in the area of his fall. He also claims for the first time on appeal that the parking lot's defective design led to his injury.

¶ 10. Roger's however maintains the circuit court properly found Blanton's injury resulted from the natural accumulation of snow and ice in a remote location of the business premises, and thus argues summary judgment was proper under the natural-conditions rule and black-letter conclusions set forth by the supreme court in Fulton v. Robinson Indus., Inc., 664 So. 2d 170, 175 (Miss. 1995), and more recently applied by this Court in Lawrence, 922 So. 2d at 2 (¶6).

I. Whether Roger's Was Negligent

A. Slip and Fall Cases and the Open and Obvious Doctrine

¶ 11. Prior to 1994, liability was not imposed on business owners if an invitee sustained an injury as a result of an open and obvious dangerous condition on the business's premises.

¶ 12. However, in Tharp v. Bunge Corp., 641 So. 2d 20 (Miss. 1994), the supreme court abolished the "open and obvious" defense by holding that if the "defendant and the plaintiff were both at fault in causing or attributing to the harm, then damages could be determined through the comparative negligence of both." Fulton, 664 So. 2d at 172 (quoting Tharp, 641 So. 2d at 24). The supreme court essentially changed the open and obvious doctrine "to be just another comparative negligence concept used to compare the negligence of the plaintiff to the negligence of the defendant." Id. (citing Tharp, 641 So. 2d at 25).

¶ 13. In Fulton, the supreme court reviewed several issues involving slip and falls on snow and ice and the progeny of Tharp and held that "[a]n owner or operator of a business still owes a duty to an invitee to exercise reasonable or ordinary care to keep the premises in a reasonably safe condition or warn of dangerous conditions not readily apparent, which owner or occupant knows of, or should know of, in the exercise of reasonable care." Id. at 175 (citing Jerry Lee's Grocery, Inc. v. Thompson, 528 So. 2d 293, 295 (Miss. 1988)). According to Fulton, invitees are "still required to use in the interest of [their] own safety that degree of care and prudence which a person of ordinary intelligence would exercise under the same or similar circumstance." Id. (citing Tate v. S. Jitney Jungle Co., 650 So. 2d 1347, 1351 (Miss. 1995)).

¶ 14. The supreme court further recognized that when addressing potentially dangerous natural conditions, Mississippi courts "look at the natural condition in terms of what the customer can `normally encounter' or `expect,'coupled with an examination of whether the condition is `unusual' or `usual' in order to determine whether a jury question exists." Id. Viewed in that context, the Fulton court reasoned "because it was the winter season," the business's "parking lot was covered with snow, sleet, slush, and ice." Id. The supreme court found these were "`normal' and `usual' condition[s] which Fulton [could] `expect to encounter[,]'" and absent any negligence by the business, no jury question existed. Id.

¶ 15. The Fulton court found it important to restate Mississippi law in light of Tharp, noting that the entire body of slip and fall case law on the open and obvious doctrine can be summed up in these black-letter conclusions:

(1) if an invitee is injured by a natural condition on a part of the business that is immediately adjacent to its major entrance and exit, then there is a jury question as to the openness and the obviousness of the danger. Goodwin v. Derryberry Co., 553 So. 2d 40 (Miss. 1989).

(2) if an invitee is injured by a natural condition on a remote part of the business premises, and the danger was known and appreciated by the injured party, then there is no jury question. Lucas v. Buddy Jones Ford Lincoln Mercury, Inc., 518 So. 2d 646 (Miss. 1988).

(3) if an invitee is injured by an artificial/man-made condition on an adjacent or internal part of the business premises, then there is a jury question as to the openness and obviousness of the danger. Tharp v. Bunge Corp., 641 So. 2d 20 (Miss. 1994); Tate v. S. Jitney Jungle, 650 So. 2d 1347 (Miss. 1995); Baptiste v. Jitney Jungle, 651 So. 2d 1063 (Miss. 1995); Downs v. Choo, 656 So. 2d 84 (Miss. 1995).

Fulton, 664 So. 2d at 175. Under the second black-letter conclusion, where the fall is due to a natural condition in a remote area and the defendant knows and appreciates the danger, there is no jury question as to the defendant's negligence. Id. Roger's argues the circuit court properly granted summary judgment under this rule.

i. Natural and Artificial Conditions

¶ 16. Though Blanton recognizes the rules set forth in Fulton, he argues his injury did not stem from naturally occurring ice and snow. Instead, he claims water puddled and accumulated in a depression in the store's parking lot, which then froze and created an "artificial condition" that caused him to fall. Therefore, he contends summary judgment was improper under the third...