Fulton v. Robinson Industries, Inc., 92-CA-00446-SCT

• Decision Date: 14 September 1995
• Docket Number: No. 92-CA-00446-SCT,92-CA-00446-SCT
• Citation: 664 So.2d 170
• Parties: William FULTON v. ROBINSON INDUSTRIES, INC.
• Court: Mississippi Supreme Court

Page 170

664 So.2d 170

William FULTON v. ROBINSON INDUSTRIES, INC.

No. 92-CA-00446-SCT.

Supreme Court of Mississippi.

Sept. 14, 1995.

Rehearing Denied Nov. 22, 1995.

George T. Holmes, Jackson, for appellant.

Robert P. Thompson, Copeland Cook Taylor & Bush, Jackson, for appellee.

En Banc.

SMITH, Justice, for the Court:

William Fulton appeals to this Court from Circuit Court of the First Judicial District of Hinds County which granted Robinson Industries' motion for a directed verdict at the conclusion of Fulton's presentation to the jury of his case in chief. Robinson Industries [hereinafter Robinson], was the owner of a McDonald's restaurant located on I-55 North, in Jackson. Fulton slipped and fell on the accumulated ice and snow in the parking lot of the restaurant. The circuit court reasoned that defendant met its duty of reasonable care to keep the premises safe or warn of a hidden danger based upon the ice, snow, slush, or ice under ice, being an open and obvious danger and requiring no warning. Fulton's subsequent motion for a new trial was also denied.

Aggrieved, Fulton raises the sole issue that it was error for the lower court to grant a motion for directed verdict. After thoroughly reviewing the record, this Court finds no error in granting the motion for a directed verdict in light of the facts presented in the lower court. Moreover, after thoroughly reviewing the case law on slip and falls, and the open and obvious doctrine abolished by this Court in Tharp v. Bunge Corp., 641 So.2d 20 (Miss.1994), we find that the open and obvious defense cannot be applied. While it cannot be said that Fulton was not being careful, nevertheless, he was 100% responsible for his own injuries suffered during a slip and fall which clearly was a mere accident. The natural condition of snow and ice on the restaurant parking lot and Robinson's non-removal of same did not constitute any negligence by Robinson, under the facts of this case.

FACTS

The City of Jackson had been blanketed by snowfall during the dates of January 6, 1988, to January 8, 1988. On the brisk morning of January 8, 1988, William Fulton [hereinafter Fulton], and his mother, Ruby Fulton [hereinafter Mrs. Fulton], arranged to meet the brother, Jake Fulton [hereinafter Jake], at the McDonald's restaurant located at 4710 I-55 North, Jackson. Fulton parked his pickup truck, with Jake pulling up alongside him. Upon arrival, the entire group noticed that the parking lot was covered in snow, some of which was flattened by tire tracks from patron ingress and egress. All three parties knew that the grounds at both the McDonald's parking lot and the rest of the City were covered in snow, slush, ice and sleet.

Mrs. Fulton exited Fulton's truck, and son Jake aided her in their joint walk across the

open parking lot toward the restaurant. Fulton walked with a permanent limp, due to a prior accident, and thus followed behind cautiously. In the middle of the parking lot, Fulton slipped, fell on the ice, and hit his head. The family turned around to discover that Fulton had fallen and was bleeding. Fulton was rushed to St. Dominic's Emergency Room where he received treatment.

STANDARD OF REVIEW

On review of a decision on a motion for directed verdict, the Supreme Court must consider the evidence in the same light as the trial court. Wirtz v. Switzer, 586 So.2d 775 (Miss.1991). Thus, this Court must review the circuit court's holding de novo.

DISCUSSION OF LAW

WHETHER THE CIRCUIT ERRED IN GRANTING ROBINSON'S MOTION FOR

A DIRECTED VERDICT?

This Court has stated as a general rule:

[i]n deciding if the motion for directed verdict on the issue of individual liability was due to be granted, the trial court must view the evidence most favorably to the non-moving party, and if by any reasonable interpretation, it can support an inference of individual liability which the non-moving party seeks to prove, the motion must be denied. (citation omitted). We take a like view of the evidence when considering on appeal the charge that the Circuit Court erred in directing a verdict.

Turner v. Wilson, 620 So.2d 545, 550-51 (Miss.1993) (citation omitted).

When a motion for directed verdict is made and granted at the close of the plaintiff's case-in-chief, such is proper if the plaintiff's evidence is so lacking that reasonable jurors would be unable to reach a verdict in favor of that party. Tate v. Southern Jitney Jungle, 650 So.2d 1347, 1349-50 (Miss.1995).

In this case sub judice, the thrust of Fulton's argument is that even though he knew the parking lot was covered in slush, snow, and ice, nevertheless, when he stepped on a patch of soft slush, there must have been a hidden layer of slippery hard ice underneath, which caused him to slip and fall. Robinson's defense is that it was so obvious to Fulton that the ground was covered with ice, that regardless of the form or consistency of the ice, it was open and obvious and required no warning.

The trial court granted a directed verdict for the Robinson using this logic:

Premise 1: The defendant, as a commercial business, had a duty to the plaintiff, a business invitee, to exercise reasonable care to keep the premises in a reasonably safe condition or to warn of a hidden danger.

Premise 2: The snow, sleet, and slush were open and obvious to all in plaintiff's party.

Conclusion: Thus, by virtue of the fact that the danger was open and obvious and that the incident happened outside as opposed to inside, defendant met its duty of reasonable care.

Since the time of the lower court's ruling, great changes in the law have taken place on the application of the open and obvious doctrine. In Tharp v. Bunge Corp., 641 So.2d 20 (Miss.1994), this Court decided to abolish 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." Id. at 24. In essence, we stripped the open and obvious standard to be just another comparative negligence concept used to compare the negligence of the plaintiff to the negligence of the defendant. Id. at 25.

Other recent cases have solidified Tharp's impact. In Tate v. Southern Jitney Jungle Co., 650 So.2d 1347 (Miss.1995), this Court concluded that a deli counter upon which the plaintiff had injured her knee may be found to be unreasonably dangerous and, if so, the fact that it was readily observable, or "open and obvious," is but a fact to be considered by the jury in assessing damages under our comparative fault doctrine. Id. at 1347-48.

In Baptiste v. Jitney Jungle, 651 So.2d 1063 (Miss.1995), this Court held that a genuine issue of fact was presented where a delivery man who had known that debris piles existed on the loading dock had injured himself by tripping over such debris on one of his unloading rounds. The lower court's summary judgment was reversed by applying the new standards of Tharp.

In Downs v. Choo, 656 So.2d 84 (Miss.1995), a customer fell on a darkened banana peel. Since "[t]here was a dispute as to the timely and non-negligent removal of the banana from the produce bin by the store's employee," the trial court was held to have erred in granting a summary judgment. Id. at 86. The Downs majority also reaffirmed Tharp and held that the open and obvious doctrine was not a complete defense where the "condition complained of was unreasonably dangerous." Id. at 87, citing Tate v. Southern Jitney Jungle Co., 650 So.2d 1347, 1351 (Miss.1995).

In light of Tharp and its progeny, at first glance it would appear that perhaps this case should be remanded and the motion for a directed verdict reversed. However, a closer look at the entire body of case law on slip and fall, and the abolished open and obvious doctrine reveals that this Court must affirm the motion for directed verdict based solely on the facts indicating no negligence whatsoever by Robinson.

To reach this conclusion, a study of slip and fall due to natural conditions is appropriate at this juncture. In Lucas v. Buddy Jones Ford Lincoln Mercury, Inc., 518 So.2d 646, 648 (Miss.1988), accumulated ice at the defendant's Greenwood business caused plaintiff, a licensee, to fall. The Delta area had been "struck by a vicious winter storm" that year. Id. at 647. Lucas basically arrived at defendant's business, walked "across the lot toward the service area, ... [and w]hen she reached the freight ramp, she slipped and fell on ice that had accumulated during the storm, injuring her arm." Id.

The trial court granted summary judgment for defendant, and this Court affirmed, stating that even if Lucas were an invitee, the defendant still "would have only owed her the duty of exercising reasonable care to keep the premises safe, ... and the ice which caused Lucas to fall was in no way hidden or concealed." Id. at 648. Stated in the alternative, this statement means that a business does not need to clear off any fallen snow in its parking lot well away from the immediate surrounding entrance or exit of the physical building in order to be exercising reasonable care. Moreover, Robinson had exercised reasonable care to keep its restaurant premises safe since the law does not require it to clear the snow off its parking lot.

Another point to sharpen is that the Lucas incident happened as she approached the freight entrance ramp. Though this Court never engaged in a dialogue about whether Buddy Jones Ford would be liable or a jury question would be created had this incident occurred on the ramp or some other physically adjacent part of the building, it is important to note that both Lucas and Fulton did not have close proximity to the actual building when their respective slips and falls occurred.

In City of Baldwyn v. Rowan, 232 So.2d 157 (Miss.1970), this Court found that a jury question was created as to whether the City was negligent in failing to eliminate a hazard when a...