United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 27, 2004
Charles R. Fulbruge III
Clerk
No. 04-60173
Summary Calendar
TYRONE TIMOTHY WOOTEN, Estate of Elizabeth Ann Clark
Wooten, on behalf of the wrongful death beneficiaries
of Elizabeth Wooten
Plaintiff - Appellant
v.
WAL-MART STORES INC
Defendant - Appellee
Appeal from the United States District Court
for the Northern District of Mississippi
No. 3:02-CV-137-JAD
Before KING, Chief Judge, and JOLLY and HIGGINBOTHAM, Circuit
Judges.
PER CURIAM:*
Plaintiff-Appellant Tyrone Wooten, executor of the estate of
Elizabeth Wooten, appeals from the district court’s grant of
Defendant-Appellee Wal-Mart Stores, Inc.’s motion for summary
judgment. For the following reasons, we REVERSE.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 04-60173
-2-
I. BACKGROUND
Elizabeth Wooten filed a personal-injury lawsuit against
Wal-Mart Stores after she fell while shopping at a Wal-Mart in
Holly Springs, Mississippi. Elizabeth Wooten claimed that she
was unable to see the small step or curb, over which she
allegedly tripped, as she walked into the garden area of the
store because it was not clearly marked and the area surrounding
the step was cluttered with debris. After Wal-Mart removed the
case to federal district court, Tyrone Wooten (Wooten)––executor
of Elizabeth Wooten’s estate––notified the court that she had
died and was substituted as Plaintiff in the case. The complaint
was subsequently amended to include a wrongful-death claim.
After discovery, Wal-Mart filed a motion for summary
judgment, arguing that Wooten did not have any evidence to
demonstrate that Wal-Mart violated its duty of care. The
district court granted the motion, and Wooten appeals from this
judgment.
II. DISCUSSION
We review a district court’s grant of summary judgment de
novo, applying the same standard as the district court. King v.
Ill. Cent. R.R., 337 F.3d 550, 553 (5th Cir. 2003). Summary
judgment is proper when the record demonstrates no genuine issue
of material fact and where the moving party is entitled to
judgment as a matter of law. See FED. R. CIV. P. 56(c). In
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deciding whether the moving party is entitled to judgment as a
matter of law, all “[d]oubts are to be resolved in favor of the
nonmoving party, and any reasonable inferences are to be drawn in
[that party’s] favor.” Gowesky v. Singing River Hosp. Sys., 321
F.3d 503, 507 (5th Cir. 2003).
We, of course, apply Mississippi substantive law to this
diversity case. See Hill v. Int’l Paper Co., 121 F.3d 168, 170
(5th Cir. 1997). As in all negligence cases, to survive a motion
for summary judgment, the plaintiff must provide evidence showing
that the defendant owed her a duty, the defendant breached that
duty, and this breach was the proximate cause of the injury she
suffered. See Ball v. Dominion Ins. Corp., 794 So. 2d 271, 273
(Miss. Ct. App. 2001). The parties agree that the decedent,
Elizabeth Wooten, was a business invitee. Therefore, Wal-Mart,
while not an insurer of the decedent’s safety, “owed her the duty
of exercising reasonable care to keep the premises safe, or of
warning [her] of hidden or concealed perils of which [Wal-Mart]
knew or should have known in the exercise of reasonable care.”
Lucas v. Buddy Jones Ford Lincoln Mercury, Inc., 518 So. 2d 646,
648 (Miss. 1988).
In granting Wal-Mart’s motion for summary judgment, the
district court held that Wooten had not presented evidence to
establish that Wal-Mart had breached its duty of care to the
decedent. In reaching this conclusion, the court held that
“[t]he owner of a business is not an insurer of the safety of its
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customers and is not liable for injuries caused by conditions
which are not dangerous or which are or should be known or
obvious to the customer.” (citing Ball, 794 So. 2d at 292). The
parties agree, however, that the Mississippi Supreme Court has
abolished the “open and obvious” defense for premises liability
cases, adopting instead a pure comparative negligence regime
under which a plaintiff’s recovery is diminished, but not barred,
where the condition complained of is unreasonably dangerous but
easily observable. See Tharp v. Bunge Corp., 641 So. 2d 20, 25
(Miss. 1994). Nevertheless, Wal-Mart asserts that the district
court’s statement that Wooten could not recover as a matter of
law if the condition was “known or obvious” is not grounds for
reversal because the facts in the summary-judgment record do not
demonstrate that the curb over which the decedent allegedly
tripped was unreasonably dangerous.
While we might agree with Wal-Mart that the district court’s
reference to the obviousness of the condition is not necessarily
grounds for reversal,2 we disagree with Wal-Mart’s further
contention that the summary-judgment record is devoid of facts
supporting a finding of dangerousness. In his motion in
2
Importantly, the district court’s judgment relied, in
the alternative, on a finding that the step to the garden area
was not dangerous or that any danger it posed should have been
known or obvious to the decedent. Cf., Tharpe, 641 So. 2d at 25
(refusing to abrogate McGovern v. Scarborough, 566 So. 2d 1225
(Miss. 1990), on similar grounds because, there, the court “went
into great detail to say that the defendant was not negligent and
merely threw in the phrase ‘open and obvious’ at the end”).
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opposition to summary judgment, Wooten attempted to demonstrate
that Wal-Mart breached its duty of care by presenting evidence
that the garden area where the decedent fell was in complete
disarray on the date in question, with pallets of garden
materials and other debris “in the way” of the step, which was
not clearly marked to increase its visibility. In response, Wal-
Mart argues that its evidence demonstrates that the step was
marked with a bright orange stripe on the day of the accident,
that the decedent knew about the step because she had visited the
garden area on numerous previous occasions, and that the presence
of debris in the garden area is immaterial because there is no
evidence that decedent actually tripped over this debris.
Wal-Mart’s arguments miss the mark. The Supreme Court of
Mississippi has indicated that a business owner has a duty “to
warn of a condition even though the injured party . . . was aware
of the hazard” when the injured party “could not see [the hazard]
at the time of his accident.” Biloxi Reg’l Med. Ctr. v. David,
555 So. 2d 53, 56 (Miss. 1989) (discussing Litton Sys., Inc. v.
Enochs, 499 So. 2d 1213, 1215 (Miss. 1984)). Thus, even if Wal-
Mart’s evidence shows that the decedent had traversed the step
numerous times, a contention that Wooten now disputes, this would
not form an absolute bar to recovery; instead, other evidence in
the record creates a genuine issue of material fact regarding
whether, on the date of the accident, the debris in the garden
area concealed the presence of the step, thus creating an
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unreasonably dangerous condition.3 See McGovern, 566 So. 2d at
1228 (stating that an owner has a duty either “to keep the
premises reasonably safe” or, “when not reasonably safe” to warn
of “hidden danger or peril that is not in plain and open view”).
A jury might reasonably infer that Wal-Mart breached its duty of
care in allowing this debris to accumulate and that this breach
was the proximate cause of the decedent’s fall. See, e.g., Miss.
Dep’t of Transp. v. Cargile 847 So. 2d 258, 262 (Miss. 2003)
(stating that “proof of a causal connection” may “be established
by circumstantial evidence” if the evidence is “sufficient to
make the plaintiff’s asserted theory reasonably probable,” and,
in any event, “it is generally for the trier of fact to say
whether circumstantial evidence meets this test”). We therefore
conclude that the district court erred in awarding summary
judgment to Wal-Mart.
III. CONCLUSION
Accordingly, we REVERSE the judgment of the district court
and REMAND for further proceedings.
3
This issue of concealment distinguishes the case at bar
from past Mississippi cases where a curb or sidewalk on a
business-owner’s premises was held not to present an unreasonably
dangerous condition. See, e.g., Stanley v. Morgan & Lindsey,
Inc., 203 So. 2d 473, 477 (Miss. 1967) (seven and one-half inch
curb to sidewalk); Ball, 794 So. 2d at 272-73 (curb from business
to parking lot).