McGovern v. Scarborough
| Decision Date | 08 August 1990 |
| Docket Number | No. 89-CA-0030,89-CA-0030 |
| Parties | Tommy McGOVERN v. Clayton SCARBOROUGH d/b/a Sonny's Barbeque. |
| Court | Mississippi Supreme Court |
Stan Perkins, Greenville, for appellant.
J. Murray Akers, Greenville, for appellee.
Before HAWKINS, P.J., and ANDERSON and PITTMAN, JJ.
Tommy McGovern has appealed from a judgment rendered upon a directed verdict in favor of the defendant Clayton Scarborough in the circuit court of Washington County. McGovern as an invitee to Scarborough's place of business sued because he stumbled on the threshold to the entrance door, alleging it was unsafe and dangerous.
We find no evidence from which a jury could find this door entrance was not reasonably safe, and affirm.
During November, 1984, Scarborough had a part-time barbeque place in Greenville, where he sold barbeque, slaw and baked beans two or three days a week, under the name "Sonny's Barbeque." He was living with his mother, who helped him prepare food for his business. At home Scarborough shared in the food expenses with his mother and stepfather, McGovern.
On November 27, 1984, shortly before 4:00 p.m., Scarborough asked McGovern to drive him over to the building where his stand was located. At the time Scarborough had no transportation. Besides giving him his ride, McGovern was going to help Scarborough on his inventory to determine what was needed for the following day's business. McGovern had not been to the building in, as he testified, "quite a while."
Scarborough unlocked the front door and went inside. McGovern shortly followed, and as he stepped through the open front door, he stumbled on the door's threshold and fell forward. He attempted to grab a chair as he was falling, and his head hit a counter. McGovern suffered a ruptured cervical disk from the fall.
Scarborough testified that before the accident the threshold under the door was bad, and he had to replace the door. The new door was too long, but in cutting it he cut it too short. The existing threshold was either a one by four inch or a one by six inch board, over which was an aluminum cover with a rubber seal. Scarborough said that he replaced the threshold board with a two by four inch, which was actually one and three quarter inches by three and three-quarter inches. He replaced the aluminum cover on top of the new board.
At trial two pictures of the door taken April 21, 1987, were offered into evidence, Scarborough testifying that they accurately portrayed the door's condition on the date of the accident. The floor of the interior of the building was some kind of tile laid on concrete. From the photographs, it appears that, aside from the threshold, the floor was at least two inches higher than the exterior walkway. Thus, a person would have to step up to enter the building, in any event. On the pictures the aluminum threshold cover is a different color than the floor, the door stop and the door itself, and is in plain and open view.
At trial, when the plaintiff had rested, the circuit judge sustained a motion for a directed verdict, finding that the doorway "was open and obvious and did not constitute a hidden peril," and that the "Plaintiff was negligent in failing to watch where he was walking and this negligence was the sole proximate cause of the Plaintiff's injury."
The circuit judge based his ruling on two decisions of this Court, Kroger, Inc. v. Ware, 512 So.2d 1281 (Miss.1987), and Stanley v. Morgan & Lindsey, Inc., 203 So.2d 473 (Miss.1967).
McGovern has appealed.
In City of Greenville v. Laury, 172 Miss. 118, 159 So. 121 (1935), the plaintiff was stepping from the sidewalk into the street, and caught her heel in a crevice in the street one to three inches wide and deep, and eighteen inches to two feet in length. In reversing and rendering a judgment for the plaintiff this Court held:
Actionable negligence is not determinable alone from the doing of an act resulting in injury to another. Such an act (one prohibited by statute aside) creates liability only when the circumstances attending it are such that the actor should have inferred that the doing of the act "creates an appreciable chance of causing" injury to another.
172 Miss. at 122, 159 So. at 121.
The question then is, Could the jury have justly said that this crevice in the appellant's street was of such character as to make the street unsafe for use by persons in the exercise of reasonable care, and that an ordinarily prudent person ought reasonably to have anticipated that some injury would probably result therefrom to a person when using the street and exercising reasonable care and caution in so doing? This question must be answered in the negative. It will not be sufficient to say that injury to such a person was possible, and therefore the appellant was liable to the appellee for her injury. In order to render the appellant liable to the appellee injury to some one because of the crevice must have been so probable that a reasonably prudent man should have anticipated that probability. [Emphasis added]
172 Miss. at 123, 159 So. at 123.
In Stanley v. Morgan & Lindsey, Inc., 203 So.2d 473 (Miss.1967), the plaintiff tripped over a curb in stepping from the parking lot onto the sidewalk on the store premises. In affirming a directed verdict for the defendant, we held:
The owner of a business is not an insurer of the customers using the parking lot and sidewalks, and is not liable for injuries caused by conditions which are not dangerous or which are or should be known or obvious to the customer. [Emphasis added]
In reversing and rendering a judgment for the plaintiff in General Tire & Rubber Co. v. Darnell, 221 So.2d 104 (Miss.1969), and in speaking of an actually dangerous condition, we held:
The invitee is 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 circumstances.
[I]n the usual case, there is no obligation to protect the invitee against dangers which are known to him or which are so obvious and apparent to him that he may reasonably be expected to discover them.... Prosser, Law of Torts, 403, 404 (3rd ed. 1964)
In Mercy Regional Medical Center v. Doiron, 348 So.2d 243 (Miss.1977), in reversing and rendering a judgment for the plaintiff in which she fell down some steps that had no handrail, we held:
We are of the opinion that plaintiff's injury belongs to that class of ordinary accidents which are properly imputed to the carelessness or the misfortune of the one injured.
In Daniels v. Morgan & Lindsey, Inc., 198 So.2d 579 (Miss.1967), we affirmed a directed verdict for the defendant where the plaintiff fell on a freshly waxed floor. We held duty of owner was only to make premises "reasonably safe."
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