Harvey v. Great Atlantic and Pacific Tea Company

Decision Date18 January 1968
Docket NumberNo. 24855.,24855.
Citation388 F.2d 123
PartiesBessie L. HARVEY, Appellant, v. The GREAT ATLANTIC AND PACIFIC TEA COMPANY, Inc., Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

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, 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 the southeast corner of Washington Street and Bowmar Avenue in the city of Vicksburg. The building is set back from both streets to enable automobiles to be parked between the building and the sidewalk. Around the building and immediately adjacent to it is a concrete platform, apron or ramp, 20 inches wide on the west side of the building, which is raised 6 inches above the level of the parking areas adjacent to it. At the time of the accident the plaintiff had parked her automobile in the parking area to the south of the building and was proceeding to the west or Washington Street side in order to enter the supermarket. An automobile was parked at the southwest corner of the building between the platform along its west side and Washington Street. Between the automobile and the building some sacks of peat moss were piled 18 inches high on the platform. The plaintiff climbed over these sacks in order to get past the parked automobile and in doing so she lost her footing, fell and broke her hip. Asserting that the defendant knew of and permitted the use of the platform in question as a walkway for its customers the plaintiff charged that the defendant was guilty of negligence in placing sacks of peat moss on the platform which constituted a hazard to its use by its customers.

The plaintiff had visited the defendant's supermarket frequently on previous occasions and had used the platform in question as a walkway for entering the building. While it had been constructed as...

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26 cases
  • Tyler v. Vickery
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • August 20, 1975
    ...the light most favorable to it but also to all reasonable inferences which may be drawn from these facts. Harvey v. Great Atlantic & Pacific Tea Co., 5 Cir. 1968, 388 F.2d 123, 124-25; Liberty Leasing Co. v. Hillsum Sales Corp., 5 Cir. 1967, 380 F.2d 1013, 1014-15. The inferences the nonmov......
  • Clea v. Mayor and City Council of Baltimore
    • United States
    • Maryland Court of Appeals
    • September 1, 1986
    ...the light most favorable to it but also to all reasonable inferences which may be drawn from these facts. Harvey v. Great Atlantic & Pacific Tea Co., 5 Cir.1968, 388 F.2d 123, 124-25; Liberty Leasing Co. v. Hillsum Sales Corp., 5 Cir.1967, 380 F.2d 1013, 1014-15. The inferences the non-movi......
  • Gross v. Southern Railway Company
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • May 30, 1969
    ...the historical facts are concededly undisputed. * * *. The court also explained the basis for the rule in Harvey v. Great Atlantic & Pacific Tea Co., 5 Cir. 1968, 388 F.2d 123, 125, by stating: * * * We have recognized that a personal injuries case based on negligence, such as the one now b......
  • Daboll v. Hoden
    • United States
    • Iowa Supreme Court
    • October 16, 1974
    ...at note 4 therein and Wright & Miller, 10 Federal Practice and Procedure: Civil section 2729 n. 75. In Harvey v. Great Atlantic & Pacific Tea Co., 388 F.2d 123, 125 (5 Cir. 1968), the court explained the reason for the rule is because of the elusive nature of the concept of negligence, the ......
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