United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 31, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
____________________ Clerk
No. 04-60642
Summary Calendar
____________________
RUBY C SMITH
Plaintiff - Appellant
v.
FEDERAL CLEANING CONTRACTORS INC
Defendant - Appellee
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi, Jackson
No. 3:03-CV-857-LN
_________________________________________________________________
Before KING, Chief Judge, and DAVIS and STEWART, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Ruby C. Smith filed this action seeking
damages from Defendant-Appellee Federal Cleaning Contractors,
Inc. for a trip-and-fall accident. The district court granted
summary judgment in favor of Federal, and Smith now appeals. For
*
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that this opinion should not be published and is not precedent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.
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the following reasons, we AFFIRM the judgment of the district
court.
I. BACKGROUND
On December 1, 2001, Ruby C. Smith and her daughter traveled
to the Northpark Mall in Ridgeland, Mississippi. They walked up
to the mall entrance at approximately 8:50 a.m., a few minutes
before the mall opened. As they approached the entrance, Smith
noticed that there was water everywhere and a hose on the ground.
The hose was being used by Federal Cleaning Contractors, Inc.
(“Federal”) to clean the outside of the entranceway. At that
moment, Smith said to her daughter “this is dangerous” and then
she tripped over the hose and fell.
Smith filed suit against Federal in Mississippi state court,
alleging that Federal was negligent by, inter alia: (1) failing
to keep the premises in a reasonably safe condition; and (2)
failing to warn of a dangerous condition not readily apparent.
Federal removed the action to the United States District Court
for the Southern District of Mississippi and subsequently filed a
motion for summary judgment. In support of its motion, Federal
argued that the evidence established that there was no dangerous
condition and that it is not liable because Smith saw the hose
before she fell.
On June 24, 2004, the district court granted Federal’s
motion. The court reasoned that the hose did not render the
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premises unreasonably dangerous. Moreover, it reasoned that the
presence of the hose and any danger it may have posed were
specifically recognized by the plaintiff. Thus, the court
concluded that Federal did not breach any duty it owed to Smith,
i.e., that Federal was not negligent. Furthermore, the court
rejected Smith’s argument that the hose was not a “normal” or
“usual” condition since she had never encountered the hose at the
mall before.
On appeal, Smith now argues that there is a genuine issue of
material fact as to whether: (1) the hose created an
unreasonable, unsafe, and dangerous condition; (2) the use of a
water hose at the entrance of a mall was something a person could
reasonably anticipate; and (3) Smith appreciated the condition
prior to her tripping and falling.
II. STANDARD OF REVIEW
We review the granting of summary judgment de novo, applying
the same standards as the district court. Burch v. City of
Nacogdoches, 174 F.3d 615, 618 (5th Cir. 1999). Summary judgment
may be entered if the record, taken as a whole, shows that there
is no genuine issue of material fact and that the movant is
entitled to judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). To overcome summary judgment,
“the nonmoving party must come forward with specific facts
showing that there is a genuine issue for trial.” Matsushita
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Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(internal quotation marks and emphasis omitted). The court must
view the evidence in the light most favorable to the nonmoving
party, drawing all reasonable inferences in the nonmovant’s
favor. King v. Chide, 974 F.2d 653, 656 (5th Cir. 1992).
III. DISCUSSION
Under Mississippi law, a negligence claim consists of four
elements: (1) a duty to conform to a certain standard of conduct;
(2) a breach of that duty; (3) a causal connection between the
conduct and the resulting injury; and (4) actual loss or damage
resulting to the interests of another. Walmart Stores, Inc. v.
Littleton, 822 So. 2d 1056, 1058 (Miss. Ct. App. 2002). An owner
of premises has a duty only to keep the premises reasonably safe
and, when not reasonably safe, to warn only where there is a
hidden danger or peril that is not in plain and open view. Tharp
v. Bunge Corp., 641 So. 2d 20, 25 (Miss. 1994); McGovern v.
Scarborough, 566 So. 2d 1225, 1228 (Miss. 1990); see also Ware v.
Frantz, 87 F. Supp. 2d 643, 646 (S.D. Miss. 1999). 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. Tharp, 641 So. 2d at 23. In Tharp, however, the court
held that the open and obvious doctrine is not a complete defense
to negligence actions where the condition complained of is
unreasonably dangerous. Id.; see also Tate v. S. Jitney Jungle
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Co., 650 So. 2d 1347, 1351 (Miss. 1995); Ware, 87 F. Supp. 2d at
646. The court went on to state that the open and obvious
doctrine “is simply a comparative negligence defense used to
compare the negligence of the plaintiff to the negligence of the
defendant[,]” but “[i]f the defendant was not negligent, it makes
no difference if the dangerous condition was open and obvious to
the plaintiff since the plaintiff must prove some negligence on
part of the defendant before recovery may be had.” Tharp, 641
So. 2d at 24. Mississippi courts have routinely held that
conditions such as display stands, hand trucks, raised door
thresholds, curbs, and steps are not unreasonably dangerous. See
Ware, 87 F. Supp. 2d at 647; Littleton, 822 So. 2d at 1059;
McGovern, 566 So. 2d at 1228; Kroger, Inc. v. Ware, 512 So. 2d
1281, 1282 (Miss. 1987). On the other hand, one court has found
that there was a fact question as to whether a condition was
unreasonably dangerous where a deli counter had a sharp, pointed,
and jagged edge under the counter, at knee level, and out of
sight. Tate, 650 So. 2d at 1347. The cases turn on whether the
conditions are usual and whether customers would normally expect
to encounter such conditions on business premises. Id.
We agree with the district court that Federal did not breach
any duty owed to the plaintiff. A hose laying on the ground
outside a shopping mall, clearly visible to anyone walking in the
vicinity, does not pose an unreasonably dangerous condition. We
see no difference between a hose laying outside a shopping mall
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and display stands, hand trucks, raised door thresholds, curbs,
and steps, all of which have been held not to be unreasonably
dangerous. Moreover, a hose that is visible to anyone in the
vicinity is distinguishable from a sharp, pointed, and jagged
edge that is out of sight. In addition, the fact that a hose is
laying in front of a mall’s entranceway because it is being used
to clean the outside of the mall before the mall opens is a
normal business practice that customers would normally expect to
encounter on the shopping mall’s premises. Thus, the district
court did not err in concluding that the hose did not pose an
unreasonably dangerous condition.
Since the hose did not pose an unreasonably dangerous
condition, Federal cannot be liable if the hose was known or
obvious to Smith. Smith admits that she saw the hose before she
fell. Nevertheless, Smith argues that there is a question of
fact as to whether she appreciated the danger posed by the hose
because she fell almost simultaneously upon seeing. This
argument is wholly without merit. The evidence shows that Smith
saw the hose, commented on its dangerousness, and then proceeded
to trip on it. Thus, it is clear that Smith both saw and
appreciated the hose laying on the ground. Furthermore, Smith
errs in relying on the rule announced in Tharp, i.e., that the
open and obvious doctrine is not a complete defense to negligence
actions, because that rule only applies where the condition
complained of is unreasonably dangerous. Tharp, 641 So. 2d at
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25. Here, we have concluded that the condition was not
unreasonably dangerous. Accordingly, we hold that the district
court did not err in granting summary judgment in favor of
Federal.
IV. CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
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