McNamee v. Jackson Simon Ltd ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 02-60531
Summary Calendar
__________________________
FRANCES F. McNAMEE,
Plaintiff-Appellant,
versus
JACKSON SIMON LIMITED PARTNERSHIP and
M.S. MANAGEMENT ASSOCIATES, INC.,
Defendants-Appellees.
___________________________________________________
Appeal from the United States District Court
For the Southern District of Mississippi
(01-CV-370)
___________________________________________________
December 3, 2002
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Frances McNamee tripped and fell over a concrete parking
bumper in the parking lot of a Service Merchandise. The premises
on which the Service Merchandise is located are owned and leased by
Jackson Simon L.P. and managed by M.S. Management Associates, Inc.
The district court properly found no negligence on the part of
*
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this opinion should not be published and is not precedent except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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appellees. We therefore AFFIRM the district court’s grant of
summary judgment in favor of Jackson Simon L.P. and M.S. Management
Associates, Inc.
I. Facts
McNamee drove into the Service Merchandise parking lot around
7 p.m. and parked in a handicap parking space. McNamee testified
that she had her headlights on when pulling into the space but did
not notice that the spot had a parking bumper. She bought some
presents in the store and returned to her car approximately half an
hour later. After placing some packages on the passenger’s seat,
she began walking around the front of the car to the driver’s side.
She testified that she was in a hurry when walking around the car
because she had to pick up the remainder of her purchases at the
customer loading dock. While turning the corner of the car, she
tripped and fell over the concrete parking bumper, which is painted
a bright “handicap blue.”
The Service Merchandise lot only has bumpers in handicap
spots. The purpose of the bumpers is to protect handicap parking
signs. McNamee stated that prior to the accident she parked in the
lot on several occasions during daylight hours though not in a
handicap spot. She admitted that she “probably saw [the bumpers]
from time to time driving through [the lot]” but did not pay them
significant attention. At her deposition, she admitted that if one
looks for the parking bumper it is noticeable. She stated, “If
you’re looking for it, yes, you can [see it]. But when you’re in
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a hurry to get back to pick up a package because they had it at the
door for you, and I did not see it. [sic]”
The district court found that McNamee did not create a genuine
issue of material fact as to the question of appellees’ negligence.
Finding appellees entitled to judgment as a matter of law, the
court granted summary judgment in their favor.
II. Analysis
We have diversity jurisdiction under 28 U.S.C. § 1332.
Missippi law applies. We review summary judgment rulings de novo,
Potomac Ins. Co. v. Jayhawk Med. Acceptance Corp., 198 F.3d 548,
550 (5th Cir. 2000), and apply the same standard as the district
court. Wyatt v. Hunt Plywood Co., Inc., 297 F.3d 405, 408 (5th
Cir. 2002). Summary judgment is appropriate when there is no
genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. FED. R. CIV. P. 56(c). We view all
evidence and factual inferences in the light most favorable to the
party opposing the motion. Price v. Federal Exp. Corp., 283 F.3d
715, 719 (5th Cir. 2002). We review de novo the district court’s
determination of state law. Salve Regina College v. Russell, 499
U.S. 225, 239 (1991).
It is undisputed that McNamee was a business invitee. “Under
Mississippi law, an invitor . . . or an operator of a business
premises, owes a duty to an invitee to exercise reasonable care to
keep the premises in a reasonably safe condition. The invitor also
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must warn invitees of any dangerous condition which is not readily
apparent, if the invitor knows of or should know of the condition
in question by exercising reasonable care. However, the invitor or
operator of a business is not an insurer against all injuries which
may occur on a premises.” Andrews v. United States, 130 F. Supp.
2d 815, 818 (S.D. Miss. 2000) (internal citations omitted). Merely
establishing the occurrence of an accident on the premises is
insufficient to establish liability. Robinson v. Ratliff, 757 So.
2d 1098, 1102 (Miss. Ct. App. 2000). Plaintiff must prove
negligence on the part of the business or landowner. Id. As with
any other negligence case, plaintiff must establish (1) the
existence of a duty, (2) the breach of that duty, (3) proximate
cause, and (4) damages. Robinson v. Miss. Valley Gas Co., 760 So.
2d 41, 43 (Miss. Ct. App. 2000).
McNamee alleges that shadows cast on the parking bumper from
nearby cars prevented her from seeing it. She claims that the
deposition testimony of her expert witness, which the district
court did not consider, creates a genuine issue of material fact as
to whether the blue parking bumper is a dangerous condition.
William A. Springer, P.E., testified that (1) safer alternative
means of protecting a handicap sign exist, such as a concrete
filled steel post or moving the sign to the corner of the parking
spot; (2) the bumpers should have been painted yellow instead of
the blue that matched the sign and parking lines; (3) the lighting
inadequately illuminated the bumpers; and (4) reflective material
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should have been placed on the bumpers to increase visibility at
night.
Even if the district court had considered Springer’s
testimony, it would not have affected the determination that
McNamee’s “negligence was the sole proximate cause of her
injuries.” The blue parking bumpers meet the reasonably safe
premises standard. They are conditions normally encountered on
business premises, see Ware v. Frantz, 87 F. Supp. 2d 643, 646
(S.D. Miss. 1999) (“Conditions ‘normally encountered’ on business
premises are generally not unreasonably dangerous.”) (citing Tate
v. Southern Jitney Jungle Co., 650 So. 2d 1347, 1351 (Miss. 1995)),
and are readily noticeable if one is paying attention, as McNamee
admitted in her deposition. If McNamee had not been in a hurry,
she would have seen the bumper and avoided the accident.
The district court properly compared the facts here to other
cases decided under Mississippi law in which the owner or manager
was not found negligent. See, e.g., Ware, 87 F. Supp. 2d 643(display stand that protruded into aisle reasonably safe); McGovern
v. Scarborough, 566 So. 2d 1225 (Miss. 1990)(raised doorway
threshold not a dangerous condition); First Nat’l Bank of
Vicksburg, 214 So. 2d 465 (Miss. 1968) (cracked concrete riser on
which customer had to step to enter bank reasonably safe).
McNamee’s attempt to use the district court’s references to
the “open and obvious” doctrine, which Tharp v. Bungee Corp., 641
So. 2d 20 (Miss. 1994), changed from a complete defense in slip-
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and-fall cases to an issue to be considered under a comparative
negligence standard, also fails. “The ‘open and obvious’ standard
is simply a comparative negligence defense used to compare the
negligence of the plaintiff to the negligence of the defendant. If
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. The
district court clearly stated that appellees were not negligent.
Its references to the “open and obvious” doctrine do not affect
that decision. See id. at 25 (“In McGovern, however, we actually
found that there was no negligence attributable to the defendant in
raising a doorway three-quarters of an inch (3/4"). This 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.”)
(citing McGovern v. Scarborough, 566 So.2d 1225 (Miss. 1990)).
III. Conclusion
For the reasons stated above, we AFFIRM the district court’s
grant of summary judgment in favor of appellees.
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