Caruso v. Picayune Pizza Hut, Inc.

• Decision Date: 22 April 1992
• Docket Number: No. 07-CA-59515,07-CA-59515
• Citation: 598 So.2d 770
• Parties: Merline A. CARUSO v. PICAYUNE PIZZA HUT, INC.
• Court: Mississippi Supreme Court

Page 770

598 So.2d 770

Merline A. CARUSO v. PICAYUNE PIZZA HUT, INC.

No. 07-CA-59515.

Supreme Court of Mississippi.

April 22, 1992.

Colette A. Oldmixon, David R. Smith, Smith Smith Tate & Cruthird, Poplarville, for appellant.

Haldon J. Kittrell, Aultman Tyner McNeese & Ruffin, Columbia, for appellee.

En Banc.

HAWKINS, Presiding Justice, for the Court:

Merline A. Caruso sued Picayune Pizza Hut, Inc., in the circuit court of Pike County for injuries alleged to have been received when she stumbled while walking over a mat in a Pizza Hut in Picayune. Following a jury verdict in favor of Pizza Hut and judgment dismissing her complaint, she has appealed. Finding there was a jury question on liability and no other error, we affirm.

FACTS

Picayune Pizza Hut, Inc., a Mississippi corporation, owned and operated a Pizza Hut in Picayune. With the exception of the area just around the salad bar, which was reddish-orange color tile, the entire dining area was covered by a green carpet. The most heavily traveled area was around the salad bar. The carpeted area was approximately one-quarter inch higher than the tiled area. A rubber covered, inch-wide metal tacking strip surrounded the carpet. The strip was tacked into the concrete, and served to hold the carpet in place.

On Friday afternoon, May 2, 1986, the restaurant manager, Gregory L. Pendleton, noticed that approximately two feet of the strip next to the salad bar area had worked loose and peeled up. Pendleton attempted to nail the strip to the floor, but was unsuccessful. The "concrete had come loose; not all the nails would go back in. So, I was able to tack it back down up to about two inches from the end which was not tacked down which was still standing up a couple of inches." He telephoned a repair service, and was told no one could come to the restaurant until the next day.

Pendleton said that the two inches of protruding strip was about an inch and a half to two inches in height, and could be a hazard to traffic. He got a commercial floor mat and placed it over the spot. The mat had rubber backing which extended about half an inch around the covering, and was, according to Pendleton, "very heavy," weighing "about four or five pounds."

Pendleton said the rug on the floor was unsightly and very obvious, but he thought he had corrected the problem insofar as presenting a hazard. Initially, he also placed a chair on the mat, but he said customers kept removing the chair, so he finally made no attempt to put the chair Thomas Kent, assistant manager, came to work at five o'clock that afternoon, and Pendleton told him about the mat and why it had been placed on the floor. Kent also made an attempt to hammer the molding but without success. He said the loose strip was perhaps six inches in length. He testified that with the mat on the damaged area it was "flush with the carpet," was "flat," and "there was not" a protrusion, and "I did not see any reason to move it or lay anything else down." The mat, according to Kent, was approximately three feet by four feet in diameter, bright red with some black woven into it, with a rust-colored tile floor on one side and a green carpet on the other. Kent in turn informed the employees to watch the mat, and inform him if it created any problem to customers. In addition to Kent, there were two waitresses and a cook working that shift.

                back on the mat.  The mat was in Pendleton's line of vision, and for the next two to three hours he continued to observe it and whether it caused any problems to customers.  He felt that the condition was safe.  Pendleton left work around five that afternoon.  Customer count on Fridays was around "215 to 250" and around a hundred during lunch.  Pendleton testified that customers walked over the mat "continually" with no problem at all.  "It was safe.  I found no problem at all."   According to Pendleton, the area was "very well lit," with "Tiffany lamps all around the booths, the globe lites [sic]," and "lights recessed in the ceiling over the salad bar area."
                

Pizza Hut's safety manual contains a statement: "Notify your manager or supervisor immediately of any unsafe condition that you cannot immediately correct." The manual also stated to "block off the floor area" until it could be repaired.

No one had any problem walking over the mat until around eight that evening when the plaintiff, Merline A. Caruso, "tripped over this little obstacle on the floor" with her right foot as she was returning from the salad bar to her table. As she tripped, she lunged forward into a chair in which a man was seated. She said that the chair kept her from falling to the floor. She did not spill her plate. When she sat down she told her husband that she had tripped, and noticed a protrusion under the "throw rug."

Mr. Caruso called a waitress and she was informed about Mrs. Caruso's tripping. Mrs. Caruso informed the waitress, "Well, I twisted, and I'm a little bit uncomfortable."

Mrs. Caruso further testified:

A. I said, "But I think you-all should make a report." And my husband and I both suggested that they should put some kind of item or article over it that could be seen, not just the throw rug, because that was on such a low level that you really didn't realize. It was more of a camouflage or to cover it up rather than to give you notice that there was something wrong.

Q. This protrusion, where was it located?

A. After I sat down and I looked back, I realized it was located at the connecting point between the carpet and the tile area. Now, I never did see what was under the throw rug. All I saw was the protrusion in the throw rug and the throw rug where it was located itself. And that's when I saw how the metal stripping ran from the other side, and that's what I assumed it to be, would be the metal stripping as to the location of the lump in the throw rug.

Q. How tall was the protrusion or the lump in the throw rug?

A. I estimated it to be about two and a half, two to two and a half inches high.

Q. And how long was this area?

A. It was about eighteen inches.

According to Mr. Caruso, under the mat there was a protrusion "anywhere from three to four inches or something like that," and he guessed "a couple of feet" in length.

Mrs. Caruso, who was employed as an assistant court clerk in Louisiana, developed neck and back problems from her accident, and filed suit against Pizza Hut.

Following trial, the jury returned a verdict in favor of Pizza Hut, and Mrs. Caruso has appealed.

LAW

This case was presented to and decided by a jury. This Court has held that "except in the clearest cases" questions of negligence are for the jury. Bell v. City of Bay St. Louis, 467 So.2d 657, 664 (Miss.1985). Of course, where the facts are disputed, negligence is a jury issue. White's Lumber & Supply Co. v. Collins, 186 Miss. 659, 192 So. 312 (1939); Glens Falls Ins. Co. of Glens Falls, N.Y. v. Linwood Elevator, 241 Miss. 400, 130 So.2d 262 (1961). And, even where the facts are undisputed, where reasonable minds may reach different conclusions, negligence is a jury issue. McIntosh v. Deas, 501 So.2d 367 (Miss.1987); F.W. Woolworth Co. v. Stokes, 191 So.2d 411 (Miss.1966); Gow Co. v. Hunter, 175 Miss. 896, 168 So. 264 (1936).

In the recent case of McGovern v. Scarborough, 566 So.2d 1225, 1228 (Miss.1990), we stated:

Thus, we have repeatedly held the owner of premises:

(1) is not an insurer of the invitee's safety,

(2) has only a duty to keep the premises reasonably safe, and

(3) when not reasonably safe to warn only where there is hidden danger or peril that is not in plain and open view. (Emphasis added)

The duty of the proprietor is to "eradicate the known dangerous situation within a reasonable time or to exercise reasonable diligence in warning those who were likely to be injured because of the danger." (Emphasis added) J.C. Penney Co. v. Sumrall, 318 So.2d 829, 832 (Miss.1975). We held in Jerry Lee's Grocery, Inc. v. Thompson, 528 So.2d 293, 295 (Miss.1988), that the owner "owes a duty to an invitee to exercise reasonable care to keep the premises in a reasonably safe condition," and if the owner is aware of a "dangerous condition not readily apparent to the invitee, he is under a duty to warn the invitee of the condition." (Emphasis added) Also, Waller v. Dixieland Food Stores, Inc., 492 So.2d 283 (Miss.1986); Wilson v. Allday, 487 So.2d 793 (Miss.1986).

Moreover, as succinctly stated in 65 C.J.S. Negligence, Sec. 2(9), pp. 472-473:

If one has acted with ordinary prudence and judgment, he is not negligent even though danger might have been avoided if he had acted in a different manner, and, hence, the doing of an act in a certain manner is not necessarily negligent merely because there may have been a safe manner of doing it; a choice of action may be mistaken and yet prudent.

The question in this case is first, whether the floor was reasonably safe after Pendleton put the mat over the loose strip, and second, if the jury found it was not then reasonably safe, was there sufficient warning given of the peril.

I. LIABILITY

Caruso's major contention on appeal is that she was entitled to a directed verdict or at the very least a new trial on the issue of liability. Both are governed by familiar principles of this Court enunciated in numerous decisions. On a motion for a directed verdict the court "must consider the evidence in the light most favorable to the party opposed to the motion." Rester v. Morrow, 491 So.2d 204, 211-212 (Miss.1986). A motion for a new trial is addressed to the sound discretion of the circuit judge, and may be granted when the verdict of the jury "is against the overwhelming weight of the evidence." Bobby Kitchens v. Mississippi Insurance Guar. Ass'n, 560 So.2d 129, 132 (Miss.1989).

Viewing the evidence, as we must, favorably to Pizza Hut, we find no abuse of discretion on the part of the circuit judge in overruling the motion for a new trial, and a jury issue was clearly...