Davis v. Illinois Cent. R. Co.

• Decision Date: 24 January 1991
• Docket Number: No. 90-1738,90-1738
• Citation: 921 F.2d 616
• Parties: John T. DAVIS, Plaintiff-Appellant, v. ILLINOIS CENTRAL RAILROAD CO., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 616

921 F.2d 616

John T. DAVIS, Plaintiff-Appellant, v. ILLINOIS CENTRAL RAILROAD CO., Defendant-Appellee.

No. 90-1738

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

Jan. 24, 1991.

Paul Snow, Paul Snow & Associates, Jackson, Miss., for plaintiff-appellant.

Charles T. Ozier, Clifford K. Bailey, III, Wise, Carter, Child & Caraway, Jackson, Miss., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before KING, GARWOOD, and DUHE, Circuit Judges.

DUHE, Circuit Judge.

In this diversity case, John T. Davis sued the Illinois Central Railroad Company for injuries he sustained when he fell from a railroad trestle or bridge after tripping over a spike left by a company employee. The district court granted the defendant's motion for summary judgment, concluding that since Davis had failed to provide any evidence of willful or wanton conduct, Illinois Central could not be held liable under Mississippi law. We affirm.

Late one Friday night Davis and his friend Todd Winters left their college dormitory in Winters's truck and headed for a sandbar along the Bowie River, where they planned to meet other students to build a bonfire. Davis had never before been to the sandbar. On the way, the two men stopped at a local bar, where they drank beer and played pool for about forty-five minutes.

Winters parked the truck in an unlit area near the south end of the railroad bridge, and the men headed for the sandbar. The company had posted a "no trespassing" sign on the bridge, but Davis testified that he had not seen it. Holding a flashlight to illuminate the path, Winters led the way north across the bridge and down the hill to the sandbar.

After about an hour, Davis and Winters left the sandbar. As they crossed back over the dark trestle, Davis tripped on a spike extending about three or four inches upward from a railroad tie. He plummeted off the east side of the bridge and landed on the rocks thirty feet below. Because of this fall, Davis is now paraplegic.

In his deposition, Davis did not remember whether Winters was using the flashlight at the time of the accident. Davis admitted that the spike was neither hidden nor concealed, except by the cover of darkness. He also conceded that he was not on the trestle for any business purpose and that the railroad derived no benefit from his presence there. Finally, he admitted that the railroad had not given him verbal or written permission to use the trestle.

Summary Judgment Standard of Review

In reviewing a grant of summary judgment, we use the same standard of review used by the district court. Netto v. Amtrak, 863 F.2d 1210, 1212 (5th Cir.1989). To support summary judgment, the evidence, including affidavits, depositions, answers to interrogatories, and admissions on file, must demonstrate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Lowery v. Illinois Cent. Gulf R.R. Co., 891 F.2d 1187, 1190 (5th Cir.1990); Netto, 863 F.2d at 1212. Under this standard, we consider the evidence "in the light most favorable to the party resisting the motion." Trevino v. Celanese Corp., 701 F.2d 397, 407 (5th Cir.1983). We review questions of law de novo. Lowery, 891 F.2d at 1190; USX Corp. v. Tanenbaum, 868 F.2d 1455, 1457 (5th Cir.1989).

Federal Rule of Civil Procedure 56(c) mandates summary judgment if a party fails to establish the existence of an element essential to its case and on which it has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265, 273-75 (1986); Washington v. Armstrong World Indus., Inc., 839 F.2d 1121, 1122 (5th Cir.1988). Like the district court, we find that summary judgment is appropriate because Davis has failed to provide any evidence of the kind of willful or wanton conduct required to hold the railroad liable for his injuries.

Status of the Plaintiff: Trespasser or Licensee?

The district court appropriately applied Mississippi law, as required by Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Mississippi rigidly adheres to the common-law distinctions between trespassers, licensees, and invitees in determining the duties of landowners toward persons entering on their property. See Lucas v. Buddy Jones Ford Lincoln Mercury, Inc., 518 So.2d 646, 648 (Miss.1988); Adams v. Fred's Dollar Store, 497 So.2d 1097, 1102 (Miss.1986).

Under Mississippi law, a trespasser is a person who enters the property of another "without license, invitation or other right." Kelley v. Sportsmen's Speedway, Inc., 224 Miss. 632, 644, 80 So.2d 785, 791 (1955). A licensee, in contrast, enters the property of another "pursuant to the license or implied permission of the owner" but enters for the "convenience, pleasure or benefit" of the licensee. Hoffman v. Planters Gin Co., 358 So.2d 1008, 1011 (Miss.1978). Finally, an invitee "goes on the premises of another in answer to the express or implied invitation of the owner ... or for their mutual advantage." Lucas v. Miss. Housing Authority # 8, 441 So.2d 101, 103 (Miss.1983).

Both parties agree that Davis was not an invitee when he crossed the railroad's trestle. Davis asserts that he was a licensee because the trestle was part of a well-defined pathway that the railroad knew the public used to get to the sandbar. The railroad contends that Davis was a trespasser because the railroad had posted a "no trespassing" sign and railroad employees consistently warned people to keep off the trestle.

Viewing the facts in the light most favorable to the nonmovant, we assume that Davis was a licensee on the trestle. In determining the railroad's duty to Davis, however, we believe that this assumption makes no difference. Whether Davis was a trespasser or a licensee, the railroad's duty to him was the same--to refrain from willfully or wantonly injuring him. Adams, 497 So.2d at 1101; Illinois Cent. Gulf R.R. v. Burns, 396 So.2d 637, 640 (Miss.1981); see Hughes v. Star Homes, Inc., 379 So.2d 301, 304 (Miss.1980).

The Active-Conduct Exception

The Mississippi Supreme Court has recognized an exception to the rule governing a landowner's duty to a licensee:

A landowner owes a licensee the bare duty to refrain from willfully or wantonly injuring him. There is one recognized exception in that ordinary reasonable care is required where the landowner engages in active conduct and the plaintiff's presence is known to him. This exception is not applicable where the licensee is injured as a result of the condition of the premises, or passive negligence.

Lucas, 518 So.2d at 648 (citations omitted). This active-conduct exception is inapplicable in this case, however, because Davis presented no evidence that the railroad was engaged in active conduct at the time of his fall.

A spike extending from a railroad tie on a remote trestle near midnight has all the earmarks of a condition of the premises. Yet Davis argues that leaving the spike should be considered active instead of passive conduct because the railroad acted affirmatively in creating the situation that resulted in the injury. We find no authority in Mississippi law for this interpretation.

In a recent Mississippi case with analogous facts, a landowner who intended to use a concrete block as the base for a light pole left the block in a shopping center parking lot. See Adams v. Fred's Dollar Store, 497 So.2d 1097 (Miss.1986). Intending to turn her car around, the plaintiff drove into the parking lot at night, when the lot was dark and all stores were closed. She ran into the concrete block and was injured. Although the lot was posted with a "no trespassing" sign, the plaintiff said that she had not seen it.

Because the evidence suggested that other people had used the lot to turn around, the Mississippi Supreme Court assumed that the plaintiff was a licensee with the landowner's implied permission to use the property. In granting summary judgment for the landowner, the court refused to apply the active-conduct exception: "This exception has no application where the licensee is injured as a result of the condition of the premises, or passive negligence. Any negligence here was passive at most, and thus does not fall within the exception." Adams, 497...