Hill v. Cent. Sunbelt Fed. Credit Union

• Decision Date: 18 October 2022
• Docket Number: 2021-CA-00833-COA
• Citation: 349 So.3d 1181
• Parties: Robert C. HILL, Appellant v. CENTRAL SUNBELT FEDERAL CREDIT UNION, Appellee
• Court: Mississippi Court of Appeals

349 So.3d 1181

Robert C. HILL, Appellant

v.CENTRAL SUNBELT FEDERAL CREDIT UNION, Appellee

NO. 2021-CA-00833-COA

Court of Appeals of Mississippi.

October 18, 2022

ATTORNEY FOR APPELLANT: PERCY W. WATSON, Hattiesburg

ATTORNEY FOR APPELLEE: DOUGLAS BAGWELL, Gulfport

BEFORE WILSON, P.J., GREENLEE AND EMFINGER, JJ.

EMFINGER, J., FOR THE COURT:

¶1. On January 21, 2021, the Circuit Court of Wayne County entered an order granting Central Sunbelt Federal Credit Union's motion for summary judgment and dismissed Robert Hill's complaint. Hill's complaint was filed as a result of injuries he sustained after falling on an outdoor covered porch area in front of the credit union's entrance. Aggrieved by the circuit court's ruling, Hill appealed.

FACTS AND PROCEDURAL HISTORY

¶2. On June 23, 2017, Robert Hill went to Central Sunbelt Federal Credit Union in Waynesboro, Mississippi, to take care of some banking business. At the time he arrived at the credit union, it was raining. This undisputed fact is also corroborated by surveillance video from the porch area outside the credit union. The credit union's surveillance video also shows that while the concrete was wet, there were no puddles or any accumulated rain present on the outdoor covered porch area leading toward the entrance doors. The surveillance video shows Hill approaching the front of the credit union. As Hill crossed the threshold of the covered porch area, he slipped and fell before reaching the entrance doors. Hill remained on the ground after his fall until he left the premises by ambulance. As a result of the fall, Hill suffered a fractured tibia and an injured knee

.

¶3. On June 21, 2018, Hill filed a complaint against the credit union claiming that it was negligent and breached its duty to the public to exercise reasonable care in maintaining its premises in a reasonably safe condition for customers entering and leaving the credit union. On October 18, 2018, the credit union filed an answer to Hill's complaint denying any liability. On April 27, 2020, after discovery was complete, the credit union filed a motion for summary judgment and a memorandum brief in support of the requested relief. On June 18, 2020, Hill filed his response in opposition to the motion for summary judgment. The credit union's motion for summary judgment was heard on October 20, 2020, and the court entered an order granting the motion on January 21, 2021. The circuit court found that "[Hill] failed to put forth specific evidence of knowledge of an alleged rainfall accumulation hazard. Furthermore, a business is not required to remove rain water from its entry way as the rain water falls." On February 1, 2021, Hill filed a combined motion for reconsideration and a memorandum of authorities in support of his motion. The trial court entered an order denying Hill's motion to reconsider on June 28, 2021, and Hill filed his notice of appeal on July 16, 2021.

STANDARD OF REVIEW

¶4. In McKinley v. Lamar Bank , 919 So. 2d 918 (Miss. 2005), the supreme court described the appellate review standard when dealing with rulings on summary judgment motions:

We thus apply a de novo standard of review concerning the propriety of a trial court's grant or denial of summary judgment. Montgomery v. Woolbright , 904 So. 2d 1027, 1029 (Miss. 2004) ; Brown ex rel. Ford v. J.J. Ferguson Sand & Gravel Co. , 858 So. 2d 129, 130 (Miss. 2003) ; Armistead v. Minor , 815 So. 2d 1189, 1191-92 (Miss. 2002) ; Richardson v. Methodist Hosp. , 807 So. 2d 1244, 1246 (Miss. 2002). We recently discussed our responsibilities in reviewing cases involving summary judgments:

We apply a de novo standard of review of a trial court's grant or denial of a motion for summary judgment. Satchfield v. R.R. Morrison & Son, Inc. , 872 So. 2d 661, 663 (Miss. 2004) ; McMillan v. Rodriguez , 823 So. 2d 1173, 1176-77 (Miss. 2002) ; Lewallen v. Slawson , 822 So. 2d 236, 237-38 (Miss. 2002) ; Jenkins v. Ohio Cas. Ins. Co. , 794 So. 2d 228, 232 (Miss. 2001).... Accordingly, just like the trial court, this Court looks at all evidentiary matters in the record, including admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. Id . at 70. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. Id . If, in this view, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Id . When a motion for summary judgment is made and supported as provided in Miss. R. Civ. P. 56, an adverse party may not rest upon the mere allegations or denials of the pleadings, but instead the response must set forth specific facts showing that there is a genuine issue for trial. Miller v. Meeks , 762 So. 2d 302, 304 (Miss. 2000). If any triable issues of fact exist, the trial court's decision to grant summary judgment will be reversed. Otherwise, the decision is affirmed. Id . at 304.

McKinley , 919 So. 2d at 925 (¶13) (emphasis added) (quoting Harrison v. Chandler-Sampson Ins. Inc. 891 So. 2d 224, 228 (¶11) (Miss. 2005) ).

ANALYSIS

¶5. Hill argues on appeal that the circuit court committed reversible error by granting the credit union's request for summary judgment because there were disputed issues of fact regarding liability. Hill claims that the issue of the openness and obviousness of the alleged dangerous condition was a question for the jury. Further, Hill claims that whether the credit union breached its duty to keep its premises in a reasonably safe condition or reasonably inspect its premises was also a question for a jury. Finally, Hill claims that whether the warning sign that was leaning against the exterior of the credit union building provided adequate warning of the condition of the entryway was a question that a jury should consider.

¶6. Hill's burden of proof for his slip-and-fall premises liability claim is set forth in Moore v. Rouse's Enterprises LLC , 219 So. 3d 599, 602 (¶7) (Miss. Ct. App. 2017) :

"A landowner owes a business invitee a duty of reasonable care for the invitee's safety." Hudson v. Courtesy Motors Inc. , 794 So. 2d 999, 1003 (¶9) (Miss. 2001). "The duty owed by a premises owner to a business invitee is the ‘duty to exercise reasonable or ordinary care to keep the premises in a reasonably safe condition.’ " McSwain v. Sys. Energy Res. Inc. , 97 So. 3d 102, 107 (¶11) (Miss. Ct. App. 2012) (quoting Jones v. James Reeves Contractors Inc. , 701 So. 2d 774, 782 (Miss. 1997) ). As this Court noted in Grammar v. Dollar , 911 So. 2d 619, 624 (¶12) (Miss. Ct. App. 2005) :

In order for an invitee to recover in a slip-and-fall case, the invitee must (1) show that some negligent act of the defendant caused his injury; or (2) show that the defendant had actual knowledge of a dangerous condition and failed to warn the plaintiff; or (3) show that the dangerous condition existed for a sufficient amount of time to impute constructive knowledge to the defendant, in that the defendant should have known of the dangerous condition.

(Citing Anderson v. [B.H. Acquisition Inc. ], 771 So. 2d [914,] 918 (¶8) [(Miss. 2000)] ).

Concerning the three possible theories of liability in a premises liability claim, in Thomas v. Shed 53 LLC , 331 So. 3d 66, 71 (¶17) (Miss. Ct. App. 2021), this Court reasoned:

"[R]egardless of the invitee's precise theory of premises liability, proof that her injury was caused by a ‘dangerous condition’ is an essential element of her claim." Jones [v. Wal-Mart Stores E. LP ], 187 So. 3d [1100,] 1104 (¶12) [(Miss. Ct. App. 2016)]. "[A] property owner cannot be found liable for the plaintiff's injury where no dangerous condition exists." Stanley v. Boyd Tunica Inc. , 29 So. 3d 95, 97-98 (¶10) (Miss. Ct. App. 2010). Moreover, a business "is not required to keep the premises absolutely safe, or in such a condition that no accident could possibly happen to a customer." Stanley v. Morgan & Lindsey Inc. , 203 So. 2d 473, 476 (Miss. 1967).

And, finally, in Venture Inc. v. Harris , 307 So. 3d 427, 433 (¶¶24-25) (Miss. 2020), the Court explained:

"The invitee is still required to use in the interest of his own safety that degree of care and prudence which a person of ordinary intelligence would exercise under the same or similar circumstance." Fulton v. Robinson Indus. Inc. , 664 So. 2d 170, 175 (Miss. 1995) (citing Tate v. S. Jitney Jungle Co. , 650 So. 2d 1347, 1351 (Miss. 1995) ). "The owner of a business is not ... liable for injuries caused by conditions which are not dangerous ...." McGovern v. Scarborough , 566 So. 2d 1225, 1227 (Miss. 1990) (quoting Stanley v. Morgan & Lindsey Inc. , 203 So. 2d 473, 476 (Miss. 1967) ).

This Court has distinguished cases that "involved dangers which are usual and which customers normally expect to encounter on the business premises, such as thresholds, curbs and steps" from those cases involving a "physical defect on the defendant's premises condition which may be found to be unusual and unreasonably dangerous ...." Tate , 650 So. 2d at 1351. Obviously, the plaintiff must present evidence to prove the existence of a dangerous condition . Stanley v. Boyd Tunica Inc. , 29 So. 3d 95, 97-98 (Miss. Ct. App. 2010).

(Emphasis added).

¶7. Rain falling on an outdoor porch is a natural condition that a person would normally expect to encounter on premises such as the credit union's entranceway. While we agree with Hill that the question of whether a "dangerous condition" is "open and obvious" is a question for a jury, as shown above, Hill must first produce evidence that a "dangerous condition" existed on the premises.¹ Further, our supreme court has held that res ipsa loquitur (i.e., "the thing speaks for itself") does not apply in slip-and-fall cases. Douglas v. Great Atl. & Pac. Tea Co. , 405 So. 2d 107, 111 (Miss. 1981). Therefore, if there is no evidence that there was a "physical defect" on the credit union's premises that was "unusual and unreasonably dangerous," our analysis stops there.

¶8....