Harvey v. Great Atlantic and Pacific Tea Company, No. 24855.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: MARIS, THORNBERRY and AINSWORTH, Circuit
• Citation: 388 F.2d 123
• Parties: Bessie L. HARVEY, Appellant, v. The GREAT ATLANTIC AND PACIFIC TEA COMPANY, Inc., Appellee.
• Docket Number: No. 24855.
• Decision Date: 18 January 1968

388 F.2d 123 (1968)

Bessie L. HARVEY, Appellant,
v.
The GREAT ATLANTIC AND PACIFIC TEA COMPANY, Inc., Appellee.

No. 24855.

United States Court of Appeals Fifth Circuit.

January 18, 1968.

388 F.2d 124

John W. Prewitt, of Prewitt, Bullard & Braddock, Vicksburg, Miss., for appellant.

Burkett H. Martin, of Dent, Ward, Martin & Terry, Vicksburg, Miss., for appellee.

Before MARIS,^* THORNBERRY and AINSWORTH, Circuit Judges.

MARIS, Circuit Judge.

This is an action brought by the plaintiff, Bessie L. Harvey, in the District Court for the Southern District of Mississippi against the defendant, the Great Atlantic and Pacific Tea Company, Inc., for personal injuries sustained by the plaintiff when she fell on a platform or ramp on the outside of the defendant's supermarket in Vicksburg, Mississippi. The jurisdiction was based on the diverse citizenship of the parties. After the pleadings were filed and depositions had been taken the defendant moved for summary judgment in its favor which the district court granted. The appeal by the plaintiff which is now before us followed. The sole question for decision is whether summary judgment was properly granted or whether as the plaintiff contends, the case presents issues of fact which she is entitled to have tried by a jury.

The task of the district court in considering a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure is clearly outlined in the decisions. The court may grant the motion only if it appears from the pleadings, depositions, admissions and affidavits, considered in the light most favorable to the opposing party, that there is no genuine issue of fact for trial and that the moving party is entitled to judgment as a matter of law. Poller v. Columbia Broadcasting System, Inc., 1962, 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458; United States v. Diebold, Inc., 1962, 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176. Litigants may not be cut off from their right to trial by jury if they really have issues to try. Sartor v. Arkansas Natural Gas Corp., 1944, 321 U.S. 620, 627, 64 S.Ct. 724,

388 F.2d 125

88 L.Ed. 967; Whitaker v. Coleman, 5 Cir. 1940, 115 F.2d 305; Melton v. Greyhound Corporation, 5 Cir. 1965, 354 F.2d 970. We have recognized that a personal injuries case based on negligence, such as the one now before us, may rarely be disposed of by summary judgment. This is because of the elusive nature of the concept of negligence, the determination of the existence of which requires the forming of a judgment as to the reasonableness of the conduct of the parties in the light of all the circumstances of the case. Gauck v. Meleski, 5 Cir. 1965, 346 F.2d 433, 437; Melton v. Greyhound Corporation, 5 Cir. 1965, 354 F.2d 970, 972-973. If reasonable minds could draw different inferences and reach different conclusions from the facts the issue must be reserved for trial. Marsden v. Patane, 5 Cir. 1967, 380 F.2d 489, 491

We turn, then, to consider, in the light most favorable to the plaintiff, the facts which the parties presented to the district court on the motion for summary judgment. On September 27, 1965 at about 6 P.M. the plaintiff, then about 74 years of age, was hurrying to enter the defendant's supermarket before it closed. The supermarket is located at...