Tharp v. Bunge Corp., 90-CA-01160

• Decision Date: 21 July 1994
• Docket Number: No. 90-CA-01160,90-CA-01160
• Citation: 641 So.2d 20
• Parties: Tony THARP and United States Fidelity & Guaranty Company v. BUNGE CORPORATION.
• Court: Mississippi Supreme Court

Page 20

641 So.2d 20

Tony THARP and United States Fidelity & Guaranty Company v. BUNGE CORPORATION.

No. 90-CA-01160.

Supreme Court of Mississippi.

July 21, 1994.

H.L. Merideth, Jr., Roy D. Campbell, III, Campbell DeLong Hagwood & Wade, Greenville, for appellants.

Andrew N. Alexander, III, Lake Tindall & Thackston, Greenville, for appellee.

En Banc.

ON PETITION FOR REHEARING

McRAE, Justice, for the Court:

This case was originally affirmed September 2, 1993. After deliberation of the parties' arguments on petition for rehearing, the original opinions are withdrawn and these opinions are substituted therefor.

I.

This case involves two different complaints. In the original premises-liability complaint, the plaintiff-appellant, Tony Tharp, sued the defendant-appellee, Bunge Corporation, alleging that he had sustained personal injuries while on Bunge's premises. Bunge then counterclaimed on a separate issue, accusing Tharp of fraud and conversion. The trial judge ordered separate trials for the original complaint and Bunge's counterclaim. On Tharp's original premises-liability complaint, a jury rendered a verdict for Tharp in the amount of one hundred thirteen thousand eight hundred twenty-eight dollars ($113,828.00), but the trial court granted Bunge's Motion for Judgment Notwithstanding the Verdict (JNOV). On appeal, Tharp asserts this was error.

In Bunge's counterclaim charging Tharp with conversion of Bunge's soybeans through the use of a scheme involving fraudulent scale tickets, the trial judge allowed the issue of fraud to go to the jury, but refused to allow the jury to consider the conversion claim. Bunge asserts the trial court's denial of jury consideration of the conversion issue was error.

Through our inherent powers we hereby abolish the so-called "open and obvious" defense to negligence actions. We hold that the trial court's granting of the JNOV was erroneous, and this error, which is based on the "open and obvious" defense, requires the original jury verdict to be reinstated. Lastly, we also find that the trial court erred in its refusal to allow the conversion jury instructions, and that this error requires reversal for a new trial on the issue of conversion.

II. ORIGINAL COMPLAINT OF THARP AGAINST BUNGE

A. Statement of the Facts

As early as 1972, Bunge owned and operated a grain storage facility in Greenville, Mississippi. Bunge received grain from farmers at this facility and then shipped it by truck and by barge on the Mississippi River. Extending from the grain storage facility was a long conveyor, surrounded by a catwalk, which extends from the building outward, over a levee, to Bunge's barge loading facility on Lake Ferguson, which eventually connected to the Mississippi River. A door, which provided access to the floor of the catwalk, was located along the conveyor just as it cleared the levee. The door had a metal plate mounted at the bottom of the opening between the west and east frame of the gate to the catwalk. The top edge of this plate was four inches above the floor of the catwalk. The door was kept locked by Bunge, with access restricted to only a few people, among whom were grain samplers who inspected the grain in the conveyor.

No steps or ladders were provided to assist the grain samplers in getting from the ground surface of the levee into or out of the door to the catwalk. The levee beneath the conveyor sloped sharply; the distance from the surface of the levee to the east frame of the door was 29 inches and the distance from the surface of the levee to the west frame of the door was 39 inches. Therefore, when one exited the door onto the sloping ground beneath, there was a step-off from 29 to 39 inches. At the time of the accident, Tharp was 5'8" tall and weighed 165 pounds. His stride was measured in the courtroom at approximately 30 inches.

Tony Tharp, while working for the Mississippi Department of Agriculture, used the door to enter the conveyor to sample grain that was being shipped out by Bunge, since it was necessary to have an independent entity sample or grade the grain to be shipped in order to certify the quality of the grain to a buyer. At some point prior to the accident in question, Bunge began placing a tarpaulin under the catwalk to catch soybeans that were scattered by a rapidly moving conveyor belt. The arrangement of the tarpaulin varied from day to day. This tarpaulin was ordinarily put in place each morning by Bunge employees and had to be emptied periodically during the day as grain collected in it. The height from which the tarpaulin was suspended on the day of the accident was a fact in dispute at trial.

On September 17, 1984, Tharp arrived at the conveyor site to relieve fellow inspector, Aubra Moody, who was taking his lunch break. Tharp climbed through the door, and Moody stepped down. After approximately one hour, Moody returned to the catwalk to relieve Tharp. As Tharp was exiting, he chose to jump from the doorway, instead of stepping down. When he did so, he apparently didn't lift his foot high enough to clear the tarpaulin and caught his foot in the tarpaulin, causing him to fall and suffer a knee injury.

B. History of the Proceedings

Tharp sued Bunge and one of its employees, Poole Chapman, in the Circuit Court of Washington County on June 11, 1985, alleging that Bunge was negligent in failing to provide a ladder or steps to get from the slope of the Mississippi River levee onto Bunge's catwalk and was negligent in putting a tarpaulin across the door. Bunge answered and filed a counterclaim against Tharp alleging conversion and fraud which had arisen under an unrelated set of facts. After it had paid $39,758.20 in medical benefits, Tharp's workers' compensation carrier, United States Fidelity & Guaranty Company (hereinafter "U.S.F. & G.") intervened.

Tharp filed a motion to separate the original claim and the counterclaim, and on July 12, 1986, the trial judge ordered separate trials for each claim. Tharp's complaint went to trial on November 30, 1987, and following Tharp's proof at trial, the trial court directed a verdict in Bunge's favor. Tharp immediately filed a motion for reconsideration and on October 26, 1989, the trial court granted his motion. The case was retried on May 14, 1990, and proceeded to jury verdict in favor of Tharp in the amount of $113,828.00. Bunge then filed a Motion for JNOV or, in the alternative, a Motion for New Trial. On June 21, 1990, while the motion was pending, this Court decided McGovern v. Scarborough, 566 So.2d 1225 (Miss.1990). Citing McGovern, the trial court, on September 6, 1990, granted Bunge's Motion for JNOV, stating that, in retrospect, its earlier ruling granting a directed verdict had been correct. This ruling was formalized by Order on September 24, 1990, and Tharp perfected this appeal.

C. Analysis

The Trial Court Erred in Sustaining Bunge's Motion for JNOV and Setting Aside the Jury Verdict in Favor of Tharp.

1. Standard of Review

A Motion for JNOV tests the legal sufficiency of the evidence supporting the verdict. Goodwin v. Derryberry Co., 553 So.2d 40, 42 (Miss.1989); Stubblefield v. Jesco, Inc., 464 So.2d 47, 54 (Miss.1984). The motion asks the Court to hold, as a matter of law, that the verdict may not stand. The trial court must consider the evidence of the non-moving party in the light most favorable to the non-moving party and give that party the benefit of all favorable inferences that reasonably may be drawn. If the evidence is sufficient to support a verdict in favor of the non-moving party, the motion for JNOV must be denied. Goodwin, 553 So.2d at 42-43. When a JNOV has been entered by the trial court, this Court is required to review the evidence in the light most favorable to the appellant, disregarding any evidence of the appellee in conflict with the evidence favorable to the appellant. "If the evidence and the reasonable inferences drawn therefrom would support a verdict for the appellant, then the verdict must be reinstated." Waller v. Dixieland Food Stores, Inc., 492 So.2d 283, 286 (Miss.1986). See also Hollie v. Sunflower Stores, Inc., 194 So.2d 217, 218 (Miss.1967).

2. Applicable Law

Without negligence attributable to the defendant, there can be no recovery. In Mississippi Butane Gas Systems, Inc. v. Welch, 208 Miss. 637, 648, 45 So.2d 262, 264-265 (1950) we noted that there exists the fundamental condition "that there must first be negligence, and without it, there is nothing for the jury (to decide)." See New Orleans & Northeastern Railroad Co. v. Lee, 205 So.2d 923, 924 (Miss.1968).

Mississippi led the nation at the turn of this century by being the first state to adopt a pure comparative negligence standard. Mississippi Code Ann. Sec. 11-7-17 (1972) reads that "all questions of negligence and contributory negligence shall be for the jury to determine." Miss.Code Ann. Sec. 11-7-17 (1972). For the open and obvious defense to be a complete bar to a negligence claim, the plaintiff must be one hundred percent (100%) negligent himself. Miss.Code Ann. Sec. 11-7-15 (1972). Mississippi Code Ann. Sec. 11-7-15 states the fact that "the person injured, or the owner of the property ... may have been guilty of contributory negligence shall not bar a recovery, but damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person injured, or the owner of the property...." Miss.Code Ann. Sec. 11-7-15 (1972).

Mississippi, however, until today, stills employs the complete defense of a danger being open and obvious. Previously, this Court has found that:

"(t)he owner or occupant then is not an insurer against all injuries. (citations omitted). In fact, 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. King v. Dudley, 286 So.2d 814, 816 (Miss.1973); General Tire & Rubber Co. v. Darnell, 221 So.2d 104, 107 (Miss.1969).

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