Wood v. Rih Acquisitions Ms II, LLC

• Decision Date: 21 January 2009
• Docket Number: No. 08-60079.,08-60079.
• Citation: 556 F.3d 274
• Parties: Mary WOOD, Plaintiff-Appellant, v. RIH ACQUISITIONS MS II, LLC, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

556 F.3d 274

Mary WOOD, Plaintiff-Appellant, v. RIH ACQUISITIONS MS II, LLC, Defendant-Appellee.

No. 08-60079.

United States Court of Appeals, Fifth Circuit.

January 21, 2009.

Joseph Ratcliff Dulaney, Dulaney Law Firm, Tunica, MS, William Dribben Montgomery, Barrett J. Clisby, Oxford, MS, for Plaintiff-Appellant.

Laura Louise Hill, Watkins Ludlam Winter & Stennis, PA, Jackson, MS, Scott Burnham Hollis, Watkins Ludlam Winter & Stennis, PA, Olive Branch, MS, for Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Mississippi.

Before BENAVIDES, SOUTHWICK and HAYNES^*, Circuit Judges.

SOUTHWICK, Circuit Judge:

Mary Wood appeals from the grant of summary judgment in favor of the defendant in a premises liability case. She argues that there were fact questions as to whether the premises were unreasonably dangerous and whether the hazard that caused her to fall was open and obvious. We agree with these contentions and therefore REVERSE and REMAND.

I. BACKGROUND

On January 7, 2006, Mary Wood was a passenger in an automobile that traveled to Bally's Hotel and Casino in Tunica, Mississippi. Her driver pulled underneath a large porte cochere at the entrance to the casino. The traffic lanes there were delineated by rows of reflectors. These reflectors measured approximately four inches by two inches horizontally, rose five-eighths of an inch above the pavement, and were laid at one and one-half foot intervals. The casino manager testified that for aesthetic reasons the reflectors had replaced plastic poles about thirty inches high that previously separated the lanes.

After arriving at the casino, Ms. Wood exited the car through a rear door. Almost immediately, she tripped over one of the reflectors. She broke a hip and elbow as a result of the fall. Prior to her fall, Bally's had received no reports of patrons tripping over these reflectors.

Just less than a year later, Ms. Wood brought suit against RIH Acquisitions. After discovery, RIH filed for and was granted summary judgment on all claims. This appeal followed.

II. DISCUSSION

In reviewing the district court's ruling in this diversity action, this court applies Mississippi substantive law. Foradori v. Harris, 523 F.3d 477, 486 (5th Cir.2008) (citing Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). We review a grant of summary judgment de novo. North American Specialty Ins. Co. v. Royal Surplus Lines Ins. Co., 541 F.3d 552, 555 (5th Cir.2008). Summary judgment is proper when there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

Premises liability analysis under Mississippi law requires three determinations: (1) legal status of the injured person, (2) relevant duty of care, and (3) defendant's compliance with that duty. Massey v. Tingle, 867 So.2d 235, 239 (Miss.2004). Both parties agree that Ms. Wood's status was that of a business invitee at the time of her accident. The premises encountered by a business invitee must be reasonably safe, and when they are not, the invitee is to be warned of perils that are not in plain view. Id. The state supreme court has explained that the existence of a dangerous condition and a failure to warn are different theories of negligence, not different causes of action. Mayfield v. The Hairbender, 903 So.2d 733, 735 (Miss.2005).¹

We review some recent history of Mississippi premises liability law in order to highlight our understanding of the current applicability of certain precedents. Until relatively recently, a hazard that was open and obvious to an invitee could not be the basis for liability. In one example, there was no liability when a patron stumbled on a curb that was six inches high, six inches wide, and painted orange, because the hazard was open and obvious. Kroger, Inc. v. Ware, 512 So.2d 1281, 1282 (Miss.1987). However, that case was quoted and its analysis superceded in a precedent that declared that the obviousness of a hazard was simply a component of comparative negligence. Tharp v. Bunge Corp., 641 So.2d 20, 23-24 (Miss.1994). Recently, the Mississippi Supreme Court has stated that an open and obvious hazard can be unreasonably dangerous and a basis for liability. Mayfield, 903 So.2d at 739.

We contrast this fairly recent innovation in the open and obvious defense, to some caselaw relating to "dangers which are usual and which customers normally expect to encounter on the business premises, such as thresholds, curbs and steps." Tate v. Southern Jitney Jungle Co., 650 So.2d 1347, 1351 (Miss.1995). The category of usual and normally expected dangers was apparently created in Tate, as no prior reference to that concept in the state's jurisprudence has been discovered. Part of the reason for the creation may be that Tate was released a year after Tharp and needed to address and perhaps minimize concerns about how much was altered on the legal landscape. Tate favorably discussed a pre-Tharp precedent which had held that a door threshold that was raised three-fourths of an inch from the height of the approach from each side had not made the premises unreasonably dangerous. Id. (citing McGovern v. Scarborough, 566 So.2d 1225, 1228 (Miss.1990)). Arguably, the curb in the 1987 Kroger precedent we just discussed would be similarly expected and non-actionable.² Tate itself involved a customer who scraped her knee on a sharp-edged metal strip fastened beneath a delicatessen counter. The strip was below the usual line of sight. A jury question existed on whether that strip caused the premises to be unreasonably dangerous. Id. Tate can be read to find that door thresholds are in the category of hazards that can be expected and therefore do not make premises unreasonably dangerous, while the sharp metal strip beneath a deli counter was not such an expected hazard.

Having discussed Tate, we are nonetheless uncertain about the present role in state law of this principle that usual and normally expected hazards are not unreasonably dangerous. This category of hazards was created in an opinion in which four of nine justices joined, while a fifth concurred in the result. Tate, 650 So.2d at 1351. It was written as an explanation of why certain pre-Tharp precedents had not been undermined despite the court's changed view about open and obvious hazards, but the principle was not part of the holding in the case. Id. Four Tate dissenters criticized Tharp and the impact it had on prior premises liability law. Id. at 1352 (Smith, J., dissenting). The absence of a majority may explain why Tate's categorizing of some dangers as usual and normally expected has been quoted only once by the supreme court. That quoting was by, ironically, the writer of the Tate dissent, writing only eight months after Tate. Fulton v. Robinson Indus., Inc., 664 So.2d 170, 175 (Miss.1995) (Smith, J., for the court). We now examine this later opinion.

Fulton concerned a slip and fall on accumulated ice and snow in a restaurant parking lot. Id. at 171. The opinion reviewed Tharp and Tate and also discussed prior precedents arguably affected by those two then-recent decisions. The Fulton opinion referred to the Tate category of dangers that are "usual and which customers normally expect to encounter on the business premises, ... [and] claimed physical defect[s] on the defendant's premises . . . which may be found to be unusual and unreasonably dangerous." Id. at 174-75 (quoting Tate, 650 So.2d at 1351). The described developments in Mississippi law were said to have left these principles in place:

An 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, 650 So.2d at 1351.

Id. at 175. The "law still revolves around what the owner can `anticipate' or `expect,' or what is `usual.'" Id.

The Fulton court then identified three situations, with different combinations of facts about whether hazards were natural or man-made, whether they were near or distant from the store entrance, and whether they were open and obvious. Id. We will explore the categories later. Important here is that their description was prefaced by a statement that they summarized all caselaw on open and obvious hazards: "The entire body of slip and fall case law combined with this Court's latest pronouncements on the open and obvious doctrine can be summed up in these black letter conclusions," an announcement that is then followed by the description of the three categories. Id.

One question about the effect of the Fulton analysis on the Tate label of usual and expected hazards arises from the fact that an open and obvious hazard is not necessarily a usual and expected one. To state an extreme example, a ten-foot-wide and five-foot-deep hole in the casino parking lot would, at least during a sunny day, likely be open and obvious. However, it would likely not be the kind of hazard that business invitees would usually expect to encounter without clear warning. The hole's open and obvious character would not prevent a jury question from arising as to whether it was unreasonably dangerous. On the other hand, the usual and normally expected hazards listed in Tate — thresholds, curbs, and steps — would likely also be open and obvious. Thus, it appears that the open and obvious category contains all usual and normally expected hazards.

Our search through these cases has been to find answers to whether the Tate labeling of certain hazards...