276 So.3d 1230
Miss. Ct. App.2018Background
- On April 15, 2011, Teri Keckley tripped and fell entering the Flying J convenience store in Pearl after a gust of wind lifted yellow caution tape lying flat across a sidewalk; she later discovered the tape was tied to a pole and a brick pillar, creating a "tripwire."
- Pilot Travel Centers LLC (owner/operator) and Estes Equipment Co. (contractor) had recently performed underground tank and conduit work near the store; orange barrels and caution tape had been placed earlier and left in place while concrete cured.
- Keckley used a front sidewalk entrance rather than a crowded breezeway entrance; she saw the tape on the ground before stepping over it and testified it appeared loose and not demarcating a work area.
- Keckley sued Pilot and Estes for premises liability, alleging failure to maintain the premises in a reasonably safe condition and failure to warn; Denco (concrete subcontractor) was later granted summary judgment and dismissed.
- The trial court granted summary judgment for Pilot and Estes, concluding the tape was an open-and-obvious condition and not unreasonably dangerous as a matter of law; Keckley appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the caution tape was an unreasonably dangerous condition | Tape looked discarded and harmless on ground; gust of wind caused a hidden "tripwire" effect making it dangerous | Tape is a common, normally encountered object (like hoses/thresholds) and not unreasonably dangerous as a matter of law | Court: Genuine issue of material fact; tape could be a dangerous, hidden/ surprising defect for a jury (reversing SJ) |
| Whether Keckley’s choice to step over the tape was sole proximate cause | She used a common customer walkway; tape appeared innocuous; not sole proximate cause | She should have used breezeway; her decision to step over was the proximate cause | Court: Not sole proximate cause as a matter of law; triable issue remains |
| Whether Pilot had a duty to warn given tape was in plain view | Primary claim is failure to maintain premises, not just failure to warn; openness does not bar maintenance claim | No duty to warn because danger was open and obvious | Court: Openness does not bar a maintenance claim; whether tape’s danger was hidden is triable |
| Whether Keckley lost invitee status by stepping over tape (becoming licensee/trespasser) | Remained an invitee using an open, common entrance | Crossing the tape exceeded invitation, making her a licensee/trespasser with lesser protection | Court: Status disputed on the record; factual question for jury, not SJ basis |
| Whether Pilot/Estes had actual or constructive knowledge | Manager allegedly told Keckley tape had been there several days and they had tried to contact contractors; raises knowledge issue | No evidence they created or knew of the hazard; no duty absent notice | Court: Conflicting testimony creates a genuine issue of material fact on knowledge |
Key Cases Cited
- Karpinsky v. American National Insurance Co., 109 So. 3d 84 (Miss. 2013) (standard of review on summary judgment)
- Jerry Lee’s Grocery, Inc. v. Thompson, 528 So. 2d 293 (Miss. 1988) (business owes invitee duty to keep premises reasonably safe and warn of nonobvious dangers)
- Mayfield v. The Hairbender, 903 So. 2d 733 (Miss. 2005) (open-and-obvious dangers negate duty to warn but do not eliminate duty to maintain premises)
- Cox v. Wal-Mart Stores East L.P., 755 F.3d 231 (5th Cir. 2014) (sudden, hidden defect that acts without warning can present jury question on unreasonable danger)
- Tharp v. Bunge Corp., 641 So. 2d 20 (Miss. 1994) (no duty to warn for open-and-obvious dangers)
- Leffler v. Sharp, 891 So. 2d 152 (Miss. 2004) (invitee who goes beyond invitation may lose invitee status)
- Vivians v. Baptist Healthplex, 234 So. 3d 304 (Miss. 2017) (whether a dangerous condition exists may be a jury question)
- McCullar v. Boyd Tunica, Inc., 50 So. 3d 1009 (Miss. Ct. App. 2010) (plaintiff must show a dangerous condition in every premises-liability case)