Tate v. Southern Jitney Jungle Co.

• Decision Date: 19 January 1995
• Docket Number: No. 92-CA-0370,92-CA-0370
• Parties: Brenda TATE v. SOUTHERN JITNEY JUNGLE COMPANY.
• Court: Mississippi Supreme Court

Page 1347

650 So.2d 1347

Brenda TATE v. SOUTHERN JITNEY JUNGLE COMPANY.

No. 92-CA-0370.

Supreme Court of Mississippi.

Jan. 19, 1995.

Rehearing Denied March 23, 1995.

Angela Miller, Miller & Miller, McComb, for appellant.

F. Hall Bailey, Wise Carter Child & Caraway, Jackson, for appellee.

En banc.

BANKS, Justice, for the Court:

This premises liability case is on appeal from Pike County Circuit Court where the trial court granted a directed verdict in favor of Jitney. The court found that the counter in the deli upon which Tate injured her knee was open and obvious and that Jitney was entitled to a judgment as a matter of law. We have concluded that the condition here in question may be found to be unreasonably dangerous and, if so, the fact that it is readily observable, or "open and obvious," is but a fact to be considered by the jury in assessing damages under our comparative fault doctrine. We reverse and remand for further proceedings.

I.

On March 26, 1990, Brenda Tate (Tate), her husband, O.C., and daughter, Sabrina, visited the deli at the Southern Jitney Jungle (Jitney) store in McComb for lunch. While in the deli, Tate bumped her knee on the corner of a metal raised strip which ran horizontally at knee level around the deli counter. Brenda Tate filed a complaint against Jitney, alleging that the defendant had actual knowledge that the position of the strip was dangerous to persons passing. Tate alleged, in the alternative, that even if the defendant lacked actual knowledge of the defective condition of the counter, the condition had existed for so long a time prior to the happening of the accident to plaintiff, that defendant, in the exercise of due care, could and should have had such knowledge and notice.

Jitney filed its answer denying that it was negligent; however, it admitted that on or about March 26, 1990, the plaintiff reportedly struck her knee on the counter of the deli while she was in Jitney. Jitney asserted affirmatively that (1) if Tate injured her knee, she was guilty of negligence in failing to keep a proper lookout and failing to exercise reasonable care for her own safety; and (2) Tate's negligence was the sole proximate, or at least a contributing, cause of the accident in question.

As her first witness in her case in chief, Tate testified that on the day of the accident, March 26, 1990, she entered the store with her husband, O.C. Tate, and daughter, Sabrina Tate, to eat lunch at the deli. She and her family often visited the store to either eat or buy groceries. As Tate made her selection and proceeded to the cash register, she remembered that she had forgotten to get iced tea. Just as she turned around the corner to get the tea, she bumped her right knee on the sharp edge of the metal strip.

Immediately after the accident, Tate informed the cashier and deli manager, Kenneth Jennings, that she injured herself on the edge of the counter. Tate testified that Jennings instructed her to report the incident and showed her where to go, and said, "You need to report it because I have told them before that this spot needs to be fixed because someone else have (sic) gotten hurt here." Tate reported the accident to Kim Norman, the customer service representative, who placed an ice pack on Tate's leg and called the store manager. Tate stated that she declined the store manager's offer to go to the emergency room.

Tate testified that later that day, upon returning to work, the pain became unbearable and she decided to have the knee checked at Southwest Mississippi Regional Medical Center emergency room. She received a shot for pain, a temporary cast, and a prescription for pain and was told to see her family doctor for follow-up treatment. Tate's family doctor, Dr. Alva Dillon, referred her to Dr. Richard Conn, an orthopedist, who later performed surgery on her knee.

Tate testified that after the injury, her knee would give away without warning and on one occasion in February 1991, she fell and fractured her left ankle. In addition to not being able to continue working and contributing to the family income, she was not able to perform her usual housework and to drive the car as often as she had prior to the injury, and she experienced weight gain.

On cross-examination, Tate testified that she had visited Jitney numerous times before, had eaten at the deli many times, and had never hit her knee. In addition, she stated that nothing obscured her view of the deli counter as she walked through the line. However, Tate testified that there was nothing in place to warn her of the dangerous corner of the strip around the counter nor was there anything to indicate that the corner was capable of causing serious injury.

Tate's husband, O.C. Tate, testified that after the accident he noticed that the deli corner had a sharp pointed edge on it where his wife hit her knee. O.C. testified that there was nothing hiding or concealing the corner of the deli counter on the day of the accident.

Tate called Kenneth Jennings, deli manager, as an adverse witness, who testified that the deli counter had not changed during the three and one-half year period prior to Tate's accident. He stated that he recalled that prior to the accident in question, one other person bumped her knee, but that person kept on going and did not report it. Jennings noted that the one previous incident at the deli should be compared to the number of times customers bump into or knock down displays throughout the store, which happens about once or twice a week.

Tate also called Kim Norman, as an adverse witness, who testified that on the day of the accident, "Someone said that [Tate] had hit her knee and I wound up over there, I usually do the reports, and I just filled out the report saying that she had bumped her knee on the deli counter. I got some ice and we put it on her knee, and that's basically all I remember." She stated she sent the report to Warren Magee, Jitney's loss prevention man.

After Norman's testimony, the plaintiff rested and the defendant moved for a directed verdict. In granting the directed verdict, the court stated:

In Kroger [Inc. v. Ware, 512 So.2d 1281 (Miss.1987) ], the Court held that a business invitee--that a business entity owes an invitee or visitor the duty to exercise ordinary care keeping the premises in a reasonably safe condition or warning of dangerous conditions not readily apparent, which the owner or occupant knows of or should know of in the exercise of reasonable care. Now, here we have no condition that was dangerous, or there was no--no condition that was inherently dangerous or--it appears that the counter and the corner of the counter was open and obvious and could be observed and on at least twenty different occasions this Plaintiff had seen the counter, and had gone by without being injured, and there--the Court in Kroger v. Ware held there is no liability for injuries where the condition is not dangerous, or where the condition is or should be known or obvious to the invitee. In this case--in that case Mrs. Ware, in this case Mrs. Tate. In that case Mrs. Ware encountered a condition which was permanent in place, known and obvious, a factual setting bearing no resemblance to cases in which the Court had found a jury question to exist, and they held that there must be some evidence of negligence given a jury before it can determine that a defendant is guilty of negligence, and here there was none, and in that case all nine justices concurred, and in the McGovern v. Scarborough [566 So.2d 1225 (Miss.1990) ] case this case is cited as one of the two principle cases upon which Judge Boggan relied when he directed a verdict in favor of the business owner. I must admit that I was, I also thought that if you got hurt in a store you ought to be able to sue and let the jury decide whether something was dangerous or whether it was inherently dangerous and so forth, but in Kroger v. Ware the Supreme Court decided I was wrong; well I try not to make the same mistake twice, ... I'm going to sustain the motion for a directed verdict.

In the court's final judgment filed March 19, 1992, a directed verdict was granted for Jitney and the case was dismissed with prejudice. This appeal followed.

II.

This Court has determined that where a motion for a directed verdict is made at the close of the plaintiff's case-in-chief, the trial court should look "solely to the testimony on behalf of the opposing party; if such testimony, along with all reasonable inferences which can be drawn therefrom, could support a verdict for the party, the case should not be taken from the jury." Biloxi Regional Medical Center v. David, 555 So.2d 53, 57 (Miss.1989) (quoting Hall v. Mississippi Chemical Express, Inc., 528 So.2d 796, 798 (Miss.1988)). The motion should be denied unless the plaintiff's evidence is so lacking that reasonable jurors would be unable to reach a verdict in favor of that party. Wilner v. Mississippi Export Railroad Co., 546 So.2d 678, 681 (Miss.1989). On review, this Court must consider the evidence in that same light. Guerdon Industries, Inc. v. Gentry, 531 So.2d 1202, 1205 (Miss.1988).

Tate contends that since the defective corner of the counter was not known or open and obvious, Jitney had a duty to warn her of the hidden or concealed perils of which it knew or should have known in the exercise of reasonable care. Tate argues that since there was testimony that another customer bumped her knee on the counter, Jitney knew or should have known of the dangerous condition of the counter. Tate relies on Bell v. City of Bay St. Louis, 467 So.2d 657 (Miss.1985), to support the proposition that whether or not the sharp edges of the counter were an unreasonably dangerous condition is a jury question.

In Bell, the plaintiff slipped and fell on grass and debris left on a city sidewalk by city maintenance personnel and broke her legs. The city denied that the debris was left on the sidewalk....