Vu v. Clayton, No. 96-CT-00408-SCT.

• Decision Date: 22 June 2000
• Docket Number: No. 96-CT-00408-SCT.
• Citation: 765 So.2d 1253
• Parties: Luong Dominique VU v. Bac Luu CLAYTON and Muise Xuan d/b/a Xuan Houng Restaurant.
• Court: Mississippi Supreme Court

765 So.2d 1253

Luong Dominique VU v. Bac Luu CLAYTON and Muise Xuan d/b/a Xuan Houng Restaurant.

No. 96-CT-00408-SCT.

Supreme Court of Mississippi.

June 22, 2000.

Rehearing Denied September 14, 2000.

Russell Gill, Melissa D. Batia, Biloxi, Attorneys for Appellant.

Richard W. Sliman, William McDonough, Gulfport, Attorneys for Appellees.

EN BANC.

ON WRIT OF CERTIORARI

WALLER, Justice, for the Court:

¶ 1. While performing repair work in a restaurant attic, Luong Dominique Vu fell through the ceiling and injured his arm. He sued the building owner and the proprietor of the restaurant which was located in the building. At trial, after Vu rested his case-in-chief, the court directed a verdict for defendants Bac Luu Clayton and Muise Xuan d/b/a Xuan Houng Restaurant. Finding that reasonable jurors could have found for Vu, a divided Court of Appeals reversed and remanded. We granted Clayton and Xuan's petition for writ of certiorari, and we reverse the judgment of the Court of Appeals.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2. Clayton owned a building which she rented to her "god sister" Xuan, who operated a Vietnamese restaurant on the premises. Vu was hired as an independent contractor by Xuan to install an ancillary air conditioning unit in the unfinished attic. A plywood walkway led the way to the air conditioning unit which was placed on the rafters in the attic. Vu was holding and adjusting a flashlight for a co-worker when he stepped backward off the plywood walkway. He fell through an approximately 4 × 4 foot cased opening to the floor below, seriously injuring his arm. Apparently, at one time, an attic fan had been placed in the opening, but it had since been removed. At trial, both Vu and his co-worker testified that the area was dusty and that, in the dim light of the attic, the cavity of the opening, which was filled with a number of boxes, appeared to be a continuation of the plywood walkway on which Vu had been standing.

¶ 3. Both Clayton and Xuan denied having ever been in the attic area, which was accessible only through a small trap door. They asserted that they had no knowledge of the conditions existing in the attic. Clayton had purchased the building and rented it to Xuan approximately eight months before the accident. Clayton and Xuan further argued that there were no facts which would give rise to a finding that they should have known about this condition or otherwise charging them with constructive notice of its existence.

¶ 4. A jury trial was held on March 5 and 6, 1996. At the close of Vu's case-in-chief, Clayton and Xuan moved for a directed verdict. The Circuit Court of Harrison County, Mississippi, granted the motion and dismissed the action by order dated March 12, 1996. The Court of Appeals found that the directed verdict was not proper and affirmed in part and reversed and remanded in part. We granted Clayton and Xuan's petition for writ of certiorari.

ANALYSIS

¶ 5. The standard of review in cases where a directed verdict has been granted is as follows:

This Court conducts a de novo review of motions for directed verdict.... If the Court finds that the evidence favorable to the non-moving party and the reasonable inferences drawn therefrom present a question for the jury, the motion should not be granted. Pace v. Financial Sec. Life of Mississippi, 608 So.2d 1135, 1138 (Miss.1992) (citation omitted). Additionally, this Court has held that "[a] trial court should submit an issue to the jury only if the evidence creates a question of fact concerning which reasonable jurors could disagree." Vines v. Windham, 606 So.2d 128, 131 (Miss. 1992).

Little v. Bell, 719 So.2d 757, 760 (Miss. 1998). ¶ 6. In reversing the trial court's decision, the Court of Appeals found:

Looking at the facts now before us in the context of the patchwork of Mississippi premises liability law, we cannot say that the circuit court properly precluded the jury from considering Clayton's and Xuan's liability for Vu's injuries. They were not absolved from liability as a matter of law and a jury properly instructed in the law reasonably could have found in Vu's favor.

Vu v. Clayton, No. 96-CA-00408-COA (Miss.Ct.App. July 20, 1999).

¶ 7. The parties agree that Vu was a business invitee. As an invitee, Clayton and Xuan owed Vu "the duty to keep the premises reasonably safe and when not reasonably safe to warn only where there is hidden danger or peril that is not in plain and open view." Little, 719 So.2d at 760 (citing Caruso v. Picayune Pizza Hut, Inc., 598 So.2d 770, 773 (Miss. 1992)). Of course, the owner or occupant is not an insurer against all injuries. Drennan v. The Kroger Co., 672 So.2d 1168, 1170 (Miss.1996). However,

[A]n owner or operator of a business still owes a duty to an invitee to exercise reasonable or ordinary care to keep the premises in a reasonably safe condition or warn of dangerous conditions not readily apparent, which owner or occupant knows of, or should know of, in the exercise of reasonable care. Jerry Lee's Grocery, Inc. v. Thompson, 528 So.2d 293 (Miss.1988). The invitee is still 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 circumstance. Tate v. Southern Jitney Jungle Co., 650 So.2d 1347, 1351 (Miss.1995).

Fulton v. Robinson Indus., Inc., 664 So.2d 170, 175 (Miss.1995).

¶ 8. In Mississippi, a plaintiff's premises liability claim can be based on one of three theories:

(1) that defendant's own negligence created a dangerous condition which caused plaintiff's injury; (2) that defendant had actual knowledge of a condition which defendant itself did not cause, but defendant failed to adequately warn plaintiff of the danger she faced as an invitee; or (3) that, based upon the passage of time, defendant should have known of the dangerous condition caused by another party if defendant had acted reasonably, i.e., constructive knowledge of the condition should be imputed to defendant. Downs v. Choo, 656 So.2d 84, 86 (Miss. 1995) (citing Munford, Inc. v. Fleming, 597 So.2d 1282, 1284 (Miss.1992)).

K-Mart Corp. v. Hardy, 735 So.2d 975, 980 (Miss.1999). See also Waller v. Dixieland Food Stores, Inc., 492 So.2d 283 (Miss.1986)

(owner or occupant can only be liable for dangerous conditions which he "knows of or should know of in the exercise of reasonable care").

¶ 9. There was no proof that Clayton or Xuan had actual or constructive knowledge of the allegedly dangerous condition. They had become landlord and tenant only a few months before the accident. There was no proof either had ventured up a ladder into the small trap door to examine this space, or that either had constructive notice of the hazard from other sources. Indeed, at the time of purchase, a city inspector had issued a certificate of occupancy which indicated the building was safe.

¶ 10. Vu argues that Clayton and Xuan had constructive knowledge because sufficient time had passed since the dangerous condition had been created. In the eight months Clayton had owned the building, she had hired an air conditioning contractor to install the air conditioning and ductwork in the attic. He apparently abandoned the job or was unavailable to do the work Vu was eventually hired to perform. As noted above, constructive knowledge is generally a function of how long the condition has existed. Hardy, 735 So.2d at 980. In light of the fact that the attic here was highly inaccessible and that neither Clayton nor Xuan had any reason to venture there, it is hard to imagine a scenario under which Clayton or Xuan would have gained constructive knowledge of the allegedly dangerous condition in the attic unless a contractor, whom they had hired to work in the attic, had told them. We find, as a matter of law, that neither Clayton nor Xuan had constructive knowledge of the allegedly dangerous condition in the restaurant's attic.

¶ 11. In contrast to Clayton or Xuan's absence of knowledge of the conditions in the attic, Vu had been in the attic approximately ten times over the course of two days. He had twenty years of experience in climbing into attics. In Tharp v. Bunge Corp., 641 So.2d 20 (Miss.1994), this Court eliminated the open and obvious defense in premises liability actions. However, the Court held that "[t]he party in the best position to eliminate a dangerous condition should be burdened with that responsibility." Id. at 25. In Lumbley v. Ten Point Co., 556 So.2d 1026 (Miss.1989), we held that a hunting camp caretaker's wife who fell from a staircase when a railing broke could not recover from the premises owner. The Court stated, "The appellants (plaintiffs) were in a better situation to discover and know of the defective rail than were the appellees (defendants)." Id. at 1031. Here, Vu was in the better position to determine and eliminate possible dangers. In assessing the respective situations, the contractor with years of experience in performing attic repair work and who had actually been in the attic in question numerous times was certainly in a better position to evaluate hazards and risks than Clayton and Xuan, who had never been in the attic. Because reasonable jurors could not have found that either Clayton or Xuan had knowledge of the allegedly dangerous condition, we find that the trial court correctly directed the verdict in their favor.

¶ 12. Additionally, in Jackson Ready-Mix Concrete v. Sexton, 235 So.2d 267 (Miss.1970), the Court considered a case in which an electrician fell from a utility pole while installing an additional electric line on the property of Jackson Ready-Mix. The electrician accidently allowed his elbow to come into contact with an uninsulated kerney which shocked him and caused him to fall from the pole. The Court found no liability on the part of the premises owner and that the jury should have been instructed peremptorily to return a verdict for Jackson Ready-Mix. The...