Tyrоne 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-Aрpellee.
No. 04-60173
United States Court of Appeals, Fifth Circuit
Decided July 27, 2004.
Summary Calendar.
John Max Edwards, Jr, Mark Nolan Halbert, Phelps Dunbar, Tupelo, MS, for Defendant-Appellee.
Before KING, Chief Judge, and JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Plaintiff-Apрellant Tyrone Wooten, executor of the estate of Elizabeth Wooten, appeals from the district court‘s grant of Defendant-Apрellee Wal-Mart Stores, Inc.‘s motion for summary judgment. For the following reasons, we REVERSE.
I. BACKGROUND
Elizabeth Wooten filed a personal-injury lawsuit against Wal-Mart Storеs 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, оver which she allegedly tripped, as she walked into the garden area of the store because it was not clearly marked and the arеa surrounding the step was cluttered with debris. After Wal-Mart removed the case to federal district court, Tyrone Wooten (Wooten)—executоr of Elizabeth Wooten‘s estate—notified the
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 rеcord demonstrates no genuine issue of material fact and where the moving party is entitled to judgment as a matter of law. See
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 сases, 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 exercisе 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 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 272). 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 barrеd, 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 becаuse the facts in the summary-judgment record do not demonstrate that the curb over which the decedent allegedly tripped was unreasonably dаngerous.
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
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, 449 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 аn absolute bar to recovery; instead, other evidence in the record creates a genuine issue of material fact regarding whethеr, on the date of the accident, the debris in the garden area concealed the presence of the step, thus creating an unrеasonably 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 reasonаbly 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 dеbris 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 сonclude 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.