Holcomb Dunbar - North Mississippi Attorneys

Mississippi Premises Liability – Part IV

This is Part IV of our 2016 Mississippi Premises Liability publication. We hope this information is helpful. But keep in mind that the application and impact of laws can vary widely based on the specific facts involved. This information it should not be used as a substitute for consultation with legal or other competent advisers.
SLIP AND FALLS

STANDARD

In order for an injured “invitee” to recover in a slip and fall case, he must show some negligent act of the landowner or occupier caused his injury. This may be shown by proof:

-That the landowner or occupier had actual knowledge of a dangerous condition
and failed to warn the injured party;

-That the dangerous condition existed for a sufficient amount of time to impute
constructive knowledge to the landowner or occupier, in that the landowner or
occupier should have know of the dangerous condition.

Anderson v. B.H. Acquisition, Inc., 771 So.2d 914, 918 (Miss. 2000) (citing Downs v. Choo, 656 So.2d 84, 86 (Miss. 1995)).

EXAMPLES:

Proof of the liquid’s presence on the floor for a sufficient amount of time to give reasonable notice to the owner is required in order to establish a negligence claim in a slip and fall case. Douglas v. Great Atlantic & Pacific Tea Co., 405 So.2d 107, 111 (Miss. 1981).

Gas station manager routinely inspected area around pumps approximately once every 30 minutes on evening the alleged slip and fall occurred, and he did not witness a spill or see any kind of slippery substance. Further, no one reported a spill or slippery substance. The gas station did not breach its duty of care owed to a customer who allegedly slipped and fell in a slippery substance around the gas pumps. Almond v. Flying J Gas Co., 957 So.2d 437 (Miss.Ct.App. 2007).

Court held that it was an issue of fact whether the business created an unreasonably dangerous condition by not having non-skid matting in its self-service drink area. Merritt v. Wal-Mart Stores, Inc., 911 F.Supp. 242 (S.D.Miss. 1995).

Man slipped on a banana in the produce section of the grocery store with an employee standing nearby. There was conflicting testimony regarding the appearance of the banana and thus its age. It was a jury question as to whether the store had actual or constructive knowledge that the banana peel was on the floor. Downs v. Choo, 656 So.2d 84 (Miss. 1995).

An on-duty casino employee fell into a patron who was facing a slot machine causing the patron to fall to the floor and sustain injuries. In order to maintain a claim, the injured patron had to show that the employee was conscious when he fell into her. The employee testified that he fainted, and other evidence showed that he did not have a history of fainting and he did not have a medical condition that would have caused him to faint. Court upheld summary judgment in favor of casino. Webb v. Imperial Palace of Mississippi, LLC, 76 So.3d 759 (Miss.Ct.App. 2011).

OPEN AND OBVIOUS

In Tharp v. Bunge, 641 So.2d 20, (Miss. 1994), the Mississippi Supreme Court abolished the open and obvious defense in negligence actions and initiated the comparative negligence concept. However, the Court announced a few black letter conclusions as a result of the open and obvious nature of certain dangerous conditions and the abolishment of the defense:

1) if an invitee is injured by a natural condition on a part of the business that is immediately adjacent to its major entrance and exit, then there is a jury question as to the openness and the obviousness of the danger. Goodwin v. Derryberry Co., 553 So.2d 40 (Miss. 1989).

2) if an invitee is injured by a natural condition on a remote part of the business premises, and the danger was known and appreciated by the injured party, then there is no jury question. Lucas v. Buddy Jones Ford Lincoln Mercury, Inc., 518 So.2d 646 (Miss. 1988).

3) if an invitee is injured by an artificial/man-made condition on an adjacent or internal part of the business premises, then there is a jury question as to the openness and obviousness of the danger. Tharp v. Bunge, 641 So.2d 20, (Miss. 1994); Tate v. Southern Jitney Jungle, 650 So.2d 1347 (Miss. 1995); Baptiste v. Jitney Jungle, 651 So.2d 1063 (Miss. 1995); Downs v. Choo, 656 So.2d 84 (Miss. 1995); Fulton v. Robinson, 664 So.2d 170, 175 (Miss. 1995).

“Just how open and obvious a condition may have been is a question for the jury, in all except for the clearest of cases.” Bell v. City of Bay St. Louis, 467 So.2d 657, 664 (Miss. 1985). The Mississippi Supreme Court found that Fulton was one of those clearest of cases, where the injured party fell while walking across a snow covered parking lot, and affirmed a directed verdict for the landowner. 664 So.2d at 176.

OWNER CREATES CONDITION

Perhaps the most difficult type of fall to defend occurs when the evidence demonstrates that the owner or occupier of the premises created the dangerous condition which caused the injury. Where an injured party who slipped and fell on a business’ premises demonstrates that the dangerous condition was created by negligence of the business or its employees, the injured party need not prove notice to the business. Miller v. R.B. Wall Oil Co., Inc., 970 So.2d 127 (Miss. 2007) (citing Drennan v. Kroger, Co., 672 So.2d 1168, 1170 (Miss. 1996)). However, if the dangerous condition was created by someone who is not associated with the business, the injured party must demonstrate that the owner or occupier had actual or constructive knowledge of the dangerous condition as well as sufficient opportunity to correct the condition. Id.

Proof of a business owner’s knowledge of a dangerous condition is unnecessary where the condition is created by his negligence or the negligence of someone under his authority. Elston v. Circus Circus Mississippi, Inc., 908 So.2d 771 (Miss.Ct.App. 2005), cert. denied, 920 So.2d 1008 (Miss. 2005). The Court in Elston reversed the grant of summary judgment for the business where the injured party slipped and fell in a puddle of water in the vicinity where plants were watered by the business’ agents. The Court noted that a jury may conclude that the business was negligent because it created the dangerous condition and/or because it had constructive notice of the puddle. Id. at 776.

A patron at Fred’s Discount Store slipped on a plastic grocery sack on the floor near the checkout stand and suffered injuries. A Fred’s representative testified that the shopping bags are required to be kept in a bag well by the cashier and that only Fred’s employees handled the plastic bags. However, the patron did not know how the plastic bag came to be on the floor, nor did she know how long it had been there. The Court found that a reasonable inference could be drawn that Fred’s caused the shopping bags to be on the floor, and thus, the bag was on the floor due to Fred’s negligence. Fred’s Stores of Tennessee, Inc. v. Pratt, 67 So.3d 820 (Miss.Ct.App. 2011).

UNKNOWN PERSON CREATES THE CONDITION – CONSTRUCTIVE KNOWLEDGE

In contrast to a dangerous condition created by the owner or occupier of a premises, the most difficult way for an injured party to prove negligence on the part of an owner or occupier is when he must establish liability by showing constructive knowledge of the dangerous condition.

Constructive knowledge is established when the dangerous condition is shown to have existed for such a length of time that, in the exercise of reasonable care, the business operator should have known of the condition. Almond v. Flying J Gas Co., 957 So.2d 437 (Miss.Ct.App. 2007). Courts will not indulge presumptions of an injured party’s deficient evidence as to the length of time the hazard existed, but instead, an injured party must present admissible evidence as to the relevant actual length of time in order to establish the owner’s or occupier’s constructive knowledge. Waller v. Dixieland Food Stores, Inc., 492 So.2d 283, 286 (1986); see also Dickens v. Wal-Mart Stores, 841 F.Supp. 768, 771 (S.D.Miss. 1994).

A gas station’s manager inspected the area around gas pumps approximately once every thirty minutes on the evening that injured party alleged she slipped and fell on slippery liquid substance near pumps. The manager did not witness a spill or see any kind of slippery substance on the ground around the pumps, and no one reported a spill or a slippery substance during the manager’s shift. The Court noted that the injured party did not offer any admissible evidence as to the length of time the alleged slippery substance was present. The Court found that the gas station did not breach its duty of care to the injured party. Almond, 957 So.2d at 440.

Injured party did not present any evidence as to how long a soft-drink can, which she alleged to have tripped on and fallen, was in the parking lot of the laundromat. Thus, the owner did not have constructive knowledge of the dangerous condition and was not liable for injuries. Ballard v. Watkins, 938 So.2d 298 (Miss.Ct.App. 2006).

In Evans v. Aydha, 2015-CA-00028-COA, (April 19, 2016), the Mississippi Court of Appeals overturned a summary judgment ruling in favor of the premises owner. In plaintiff’s deposition she was unable to identify exactly how the “black spot” got on the ground or how long it had been there. In response to the summary judgment motion, Plaintiff offered an affidavit of her daughter. The daughter returned to the scene after the accident. There she saw a black spot that was “mostly black, dirty, and it was obvious to me that the oily residue had been on the pavement for an extended period of time, at least several dates . . . [the spot] looked slippery.” ¶11. This, the Court found, was enough to create a jury question and thus defeat summary judgment.

2018