Maddox v. Townsend

• Decision Date: 18 April 2011
• Docket Number: No. 10–60330.,10–60330.
• Citation: 639 F.3d 214
• Parties: Tony MADDOX; Kathy Maddox, Plaintiffs–Appellants,v.TOWNSEND AND SONS, INCORPORATED, doing business as Sunflower Store, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

639 F.3d 214

Tony MADDOX; Kathy Maddox, Plaintiffs–Appellants,

v.TOWNSEND AND SONS, INCORPORATED, doing business as Sunflower Store, Defendant–Appellee.

No. 10–60330.

United States Court of Appeals, Fifth Circuit.

April 18, 2011.

Hal H.H. McClanahan, III (argued), Columbus, MS, for Plaintiffs–Appellants.Ronald Lamar Roberts (argued), Christopher James Latimer, Mitchell McNutt & Sams, P.A., Columbus, MS, for Defendant–Appellee.Appeal from the United States District Court for the Northern District of Mississippi.Before KING, DAVIS and SOUTHWICK, Circuit Judges.LESLIE H. SOUTHWICK, Circuit Judge:

In this premises liability suit, the plaintiffs Tony and Kathy Maddox appeal from the summary judgment granted to the defendant, Townsend & Sons, Inc. We REVERSE and REMAND.

FACTUAL AND PROCEDURAL HISTORY

Twice a week for eight months, Tony Maddox made deliveries to a grocery store owned by Townsend & Sons in Columbus, Mississippi. On September 26, 2005, he wheeled his delivery cart up a ramp to the top of the store's concrete loading dock, situated approximately five feet off the ground. While waiting on the dock, he leaned or sat on a chain hanging about 30 inches high between two metal posts that supported the roof of the loading dock. Maddox alleges he also put a portion of his weight on one of the metal posts. The S-hook connecting the chain to the other post straightened under his weight and gave way. Maddox fell off the dock, breaking his pelvis and suffering other injuries.

Maddox brought suit against Townsend & Sons in the U.S. District Court for the Northern District of Mississippi. He alleged that Townsend & Sons failed to keep its premises reasonably safe and failed to warn Maddox of unknown dangers. His wife joined the suit for loss of consortium; we will refer to them together as “Maddox” except when the context shows otherwise. The district court granted Townsend & Sons summary judgment on all claims. Maddox timely appealed.

DISCUSSION

We apply the federal standard of review to the validity of a grant of summary judgment in a diversity case. Nunez v. Superior Oil Co., 572 F.2d 1119, 1123 n. 5 (5th Cir.1978). We review a district court's grant of summary judgment de novo. Cates v. Dillard Dep't Stores, Inc., 624 F.3d 695, 696 (5th Cir.2010). Summary judgment is appropriate if the pleadings and evidence pointed out to the district court show no disputed material facts and that the movant is entitled to judgment as a matter of law. Id. We view the evidence and draw reasonable inferences in the light most favorable to the non-movant. Id.

The parties agree that Mississippi law applies. That law identifies three separate and declining levels of duty that are owed to invitees, licensees, and trespassers. Titus v. Williams, 844 So.2d 459, 464–65 (Miss.2003). Our analysis is limited to understanding the duties towards invitees. Also agreed is that Maddox was a business invitee. The duties Mississippi landowners owe to business invitees were described by that state's highest court:

While a premises owner is not an insurer of the safety of invitees, the premises owner does have a duty of reasonable care, to maintain its premises in a reasonably safe condition. That duty includes not only the duty to keep its premises in a reasonably safe condition, but the duty to warn of any dangerous conditions not readily apparent which the owner knew, or should have known, in the exercise of reasonable care and the duty to conduct reasonable inspections to discover dangerous conditions existing on the premises....

We have set forth a two-part test requiring two separate inquiries: (1) whether the owner kept the premises reasonably safe, and (2) whether the owner warned of hidden dangers of which the owner knew or, in the exercise of reasonable care, should have known. The breach of either duty supports a claim of negligence.

Pigg v. Express Hotel Partners, LLC, 991 So.2d 1197, 1199–1200 (Miss.2008) (Dickinson, J.) (quotation marks and citations omitted).

The Pigg court explicitly separated the issue of whether the premises were reasonably safe from whether there were hidden dangers for which a warning was needed. The same Supreme Court justice had earlier emphasized the issue separation in holding that the “duties—(1) to keep the premises reasonably safe, and (2) to warn of hidden dangers—are separate. The breach of either duty supports a claim of negligence. Each must be separately analyzed.” Mayfield v. The Hairbender, 903 So.2d 733, 738 (Miss.2005) (Dickinson, J.). The court rejected the defendant's argument that its duty was either to “make the premises reasonably safe, or warn the invitee of a dangerous condition that is not in plain view,” and instead held that a property owner must comply with both duties. Id. at 738–39 (emphasis omitted).

Maddox claims Townsend & Sons breached both its duties when it failed (1) to keep its property reasonably safe by inspecting and replacing the S-hook, and (2) to warn Maddox about the dangerous S-hook about which it should have known. In granting summary judgment, the district court held the property to be reasonably safe. The court also found that the danger was known to Maddox, and therefore Townsend & Sons had no duty to provide Maddox a warning. We examine each issue in turn.

I. Reasonably Safe Premises

An owner has a duty to invitees to maintain its premises in a reasonably safe condition, but it is not the insurer of the safety of the invitees to its premises. Pigg, 991 So.2d at 1199.

Among the reasons that it is appropriate to remove from the jury the issue of whether the premises were maintained in a reasonably safe condition is that the plaintiff failed to identify what specifically the landowner did negligently, or what exactly the dangerous condition was on the property. E.g., Boyd v. Magic Golf, Inc., 52 So.3d 455, 460–61 (Miss.Ct.App.2011) (affirming a directed verdict); Blanton v. Gardner's Supermarket, Inc., 45 So.3d 1223, 1231 (Miss.Ct.App.2010) (affirming summary judgment).

Maddox has identified what he perceives to be the negligence and the nature of the dangerous condition. The S-hook on the chain is said to be the dangerous condition, and Townsend & Sons' inadequate inspections and failure to repair or replace the S-hook are the claimed negligent acts that caused his injuries. The district court rejected that the S-hook was the hazard and found the danger to be the five-foot drop. The drop being obvious, the premises were reasonably safe beyond any dispute of material fact:

The court finds that the danger in the present case was not the chain but the height of the loading dock which was clearly visible to all on or around it. Had the chain broken on level ground, it is very unlikely that the plaintiff would have suffered any injuries at all. The presence of the chain was obviously in itself a “warning sign” to all business invitees and any other persons directing them to exercise caution near the edge of the dock. The defendant has stated that the sole purpose of the chain was to keep persons from backing off the edge of the dock. It was clearly not intended as a seat for deliverymen waiting their turn in line, nor foreseen that deliverymen would try to use a chain as a seat.

The district court appears correct that a raised concrete platform at the back of a grocery store, constructed at a sufficient height to match the level of trucks unloading goods, would not by itself create doubts about the reasonable safety of the premises. Summary judgment appears to have been entered because of the view that no one would have perceived the chain to be completely safe to sit upon; it hung at the edge of the dock and a fall at that location obviously could cause serious injuries; liability cannot be created from the fact that the chain did not do something it was not intended to do. This is a common-sense view that jurors might accept. Nonetheless, we determine that there were fact issues under Mississippi law as to whether Townsend & Sons had an obligation to anticipate some of this kind of conduct and, having failed to do so, whether it became partially responsible for Maddox's injuries.

We start with the basics. The existence of a duty is a legal issue. Donald v. Amoco Prod. Co., 735 So.2d 161, 174 (Miss.1999). We have already identified a premises owner's duty towards invitees. Whether the duty was breached by the premises owner acting unreasonably as to the condition of the property is a question of fact to be proven by a plaintiff by a preponderance of the evidence. See Palmer v. Anderson Infirmary Benev. Ass'n, 656 So.2d 790, 794 (Miss.1995). Even so, summary judgment is appropriate as to whether premises were reasonably safe if there is no dispute of material fact and the defendant shows entitlement to judgment as a matter of law. See Fed.R.Civ.P. 56(a).

We next examine the evidence. One deponent stated that Maddox sat on the middle of the chain for five minutes before falling. Two others stated they heard Maddox say soon after the accident that it was stupid for him to have sat on the chain. One of the deponents heard Maddox say he knew the chain was not to sit on, while another heard him say it was his fault. On the other hand, Maddox in a deposition and an affidavit swore he was next to the chain because of crowded conditions on the loading dock. He leaned simultaneously against the chain and the metal post to which the chain was attached. Without recalling precisely what happened, he heard something pop and fell to the pavement. Maddox denied making the statements about the fault being his.

Both parties presented photographs of the loading dock with notations as to where each contended Maddox had sat or leaned. Both accept that the chain released when the weight placed on it caused the S-hook to straighten.

Thus, the evidence is contested as to the relative strength of the chain and hook assembly. According to Townsend & Sons, for five...