Skelton By and Through Roden v. Twin County Rural Elec. Ass'n, 90-CA-0523

CourtUnited States State Supreme Court of Mississippi
Citation611 So.2d 931
Docket NumberNo. 90-CA-0523,90-CA-0523
PartiesKristoffer Neal SKELTON, a Minor By and Through his Natural Mother and Next Friend, Linda RODEN v. TWIN COUNTY RURAL ELECTRIC ASSOCIATION, Jimmy Wilkerson, Individually, and Jennie Wilkerson, Individually.
Decision Date31 December 1992

Page 931

611 So.2d 931
Kristoffer Neal SKELTON, a Minor By and Through his Natural
Mother and Next Friend, Linda RODEN
Individually, and Jennie Wilkerson, Individually.
No. 90-CA-0523.
Supreme Court of Mississippi.
Dec. 31, 1992.

Page 933

William R. Armstrong, Jr., Henderson Dantone & Hines, Greenville, for appellant.

Edwin W. Tindall, Lake Tindall Hunger & Thackston, Roy D. Campbell, III, Campbell Delong Hagwood Wade & Stuart, Greenville, for appellees.

En Banc.

PRATHER, Justice, for the Court:


This personal injury action arose on the appeal of 9 year old minor plaintiff Kristoffer Skelton, from the April 18, 1990, summary judgment of the Circuit Court of Washington County in favor of defendants Jimmy and Jenny Wilkerson and the Twin County Rural Electric Association. The appellant timely filed a notice of appeal and alleges error in the trial court's summary judgment in favor of the defendants. Specifically, Skelton questions:

A. Whether a fact issue existed as to whether the electric association and/or the Wilkersons owed a duty of care to Skelton.

B. Whether a fact issue existed as to whether the defendants breached a duty to prevent harm to Skelton from a hidden, dangerous condition.

C. Whether a fact issue existed as to whether defendants breached a duty to prevent harm to Skelton from an attractive nuisance.

This Court affirms the trial court's grant of the defendant's motion for summary judgment.


A. Facts

Jimmy and Jennie Wilkerson have two children, one of whom is Selena. They live in a home rented from Mr. Wilkerson's employer, Twin county Rural Electric Association, for $35.00 per month. At the time of the accident in question, behind the house, underneath a pecan tree, a three-foot metal pipe attached to a guy wire secured the family's television antenna. The pipe was there when the family moved into this rental house in 1982. Around the pecan tree, Mr. Wilkerson placed landscaping timbers and fill dirt to keep water from collecting. Kris Skelton, his older brother Greg, and their parents, Linda and Charles Roden, lived approximately 75 yards from the Wilkersons. The Skelton and Wilkerson children frequently played together. The Wilkersons had told their children, the Skelton children, and the Skelton children's parents, Linda and Charles Roden, that the trees in their yard were off-limits. On August 13, 1987, after supper, but with daylight outside, while playing chase, Kris Skelton, hanging from a pecan tree branch by his hands, slipped, fell onto the pipe, and badly cut his mouth, resulting in permanent

Page 934

damage. It was light enough to see the pipe.

Mrs. Roden considers her son, physically well-coordinated and able to exercise judgment. A clinical psychologist concluded that Skelton exhibited average academic achievement and judgment for his age and intelligence in the low-average range. Dr. MacVaugh described Skelton as possibly lacking impulse control, a boy to whom the tree served as an enticement.

A professional landscape architect, Glenn Cook, examined photographs and stated by affidavit that the pipe posed an obscure danger, particularly because it lacked a top cap to reduce injury. Cook described the ready availability of less hazardous means of securing the antenna.

Skelton, nine years old at the time of the accident, admitted that he knew not to climb the trees in the Wilkersons yard. His mother, Ms. Linda Roden, had previously instructed him not to climb trees. He had climbed the trees before without the Wilkersons' knowing. He knew of the pipe and knew it could hurt him if he fell on it. Skelton's brother stated by affidavit:

I remember that, before Kris Skelton fell out of the tree, Salina [sic] Wilkerson, Kris, and I had been playing in the tree. Salina [sic] had been sitting in a wire chair up in the tree. Kris and I were sitting on a branch. Later we began to play chase.... We had playing in the trees after we were told not to and Mrs. Wilkerson complained to us about it. Salina [sic] and I had put mattresses in a pecan tree to use as a tree house.

On the day of the accident, when Jennie Wilkerson would go outside, the children climbed out of the tree so she would not catch them. When Ms. Wilkerson went back inside, the children returned to playing in the tree. To Skelton, the tree he was climbing did not have any special characteristics distinguishing it from other nearby trees.

B. Procedural History

On October 19, 1988, Skelton sued the electric association and the Wilkersons. Skelton alleged that, within an area used by the children for recreation, the defendants "failed to provide adequate protection, safeguards, warnings, or barriers to entry to the tree above the guywire pipe by young children." Skelton alleged that the defendants "knew, or should have known" of the attraction created by the tree "in the vicinity of other recreational areas immediately adjacent" and that "the attraction provided the the tree with branches extending over a 3 1/2 foot, unguarded pipe protruding from the ground, created an unreasonable hazard, danger or threat of injury to children of tender years." Skelton prayed for a jury trial, a judgment of $175,000 against each defendant, and costs.

The electric association admitted owning the property on which the accident occurred and admitted Jimmy Wilkerson's employment with the association, but denied liability. The association contested the accuracy of Skelton's description of the property it owned. Separately, the Wilkersons admitted the association's ownership of their house, but denied that they occupied all of the alleged association property described by Skelton. The Wilkersons admitted that the association required Jimmy Wilkerson to be on call. The Wilkersons admitted that, underneath a tree in the backyard stood a metal pole with a guywire that secured an antenna. They also admitted that the children played in the pecan orchard north of their home. The association further:

denies that it was negligent in any manner which proximately caused or contributed to the injury of plaintiff herein and denies any legal duty, under the circumstances, to plaintiff, since it was not in possession of the premises at the time of the alleged incident, said premises being leased to Jennie and Jimmy Wilkerson for good and valuable consideration, and under circumstances by which defendant is not liable for any defects or negligence, if any, existing on or respecting the subject premises.... The sole proximate cause of the plaintiff's injuries was negligence by parties other than this defendant, and for whom defendant is not legally liable.

Page 935

In defense, the Wilkersons asserted assumption of risk, comparative negligence, and the negligence of Skelton's mother and others.

On February 22, 1990, the association moved for summary judgment pursuant to rule 56 of the Mississippi Rules of Civil Procedure, alleging that the association "had no knowledge that [Skelton] was on the premises and in fact had neither the opportunity to control the access to or conduct by said minor on the property." The Wilkersons also moved for summary judgment, acknowledging that the tree and pipe were situated in their yard, under their control. The Wilkersons alleged, however:

Prior to the day of the accident the Plaintiff had been admonished by the Wilkersons not to play in any of the trees on the surrounding property, including the subject pecan tree. The Plaintiff understood that warning and, although he occasionally climbed the trees in violation of that rule, he always made a point not to get caught.

The Wilkersons described Skelton as a social guest who knew of the open and obvious pipe and the rule not to climb trees in the yard. The Wilkersons denied any knowledge of the children's playing in the tree that day.

In its April 13, 1990, ruling the court found Skelton to have been a social guest and, therefore, a licensee to whom the host owed a duty to avoid wanton injury and a duty to warn of hidden danger. The court found the pipe to have been plainly visible and no danger but for Skelton's climbing the tree. The court found that the tree was not an attractive nuisance because it occurred naturally and did not, itself, attract Skelton to the premises. Finding no breach of duty, the court granted summary judgment to the Wilkersons. The court also granted summary judgment to the electric association holding that the association exercised no dominion or control over the premises leading to liability.


Standard of review

In this appeal, Skelton contends the trial court failed to grant him the benefit of favorable inferences in its assessment of facts, and so inappropriately granted summary judgment to the defendant.

A party moving for summary judgment challenges the legal sufficiency of the claim. Miss.R.Civ.P. 56 Comment. Under Mississippi law, the trial court ruling on a motion for summary judgment takes as true any well-pleaded allegations and defenses. The court reviews all admissions, answers to interrogatories, depositions, affidavits, and any other evidence, viewing the evidence in a light most favorable to the non-movant. McFadden v. State, 580 So.2d 1210, 1213-14 (Miss.1991). The movant and non-movant bear the burdens of production corresponding to the burdens of proof they would bear at trial. Palmer v. Biloxi Regional Medical Center, Inc., 564 So.2d 1346, 1355 (Miss.1990). The movant must persuade the trial court that no genuine issue of material fact exists, and that the existing facts warrant judgment for the movant as a matter of law. The movant must produce significant, probative evidence to support the motion, and neither party may rely upon mere allegations or denials. Id. at 1355-56. The court will then grant a motion for summary judgment if the court determines, beyond a reasonable doubt, that the...

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