         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2015-CA-01867-COA

TIFFANY GRIFFIN                                                              APPELLANT

v.

GRENADA YOUTH LEAGUE                                                           APPELLEE

DATE OF JUDGMENT:                          11/27/2015
TRIAL JUDGE:                               HON. C.E. MORGAN III
COURT FROM WHICH APPEALED:                 GRENADA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   STEVEN CRAIG PANTER
                                           STACY EVERETT PEPPER
ATTORNEYS FOR APPELLEE:                    NAKIMULI ONI DAVIS-PRIMER
                                           J. STEPHEN KENNEDY
NATURE OF THE CASE:                        CIVIL - PERSONAL INJURY
TRIAL COURT DISPOSITION:                   SUMMARY JUDGMENT GRANTED FOR
                                           APPELLEE
DISPOSITION:                               AFFIRMED - 03/28/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE LEE, C.J., FAIR AND WILSON, JJ.

       WILSON, J., FOR THE COURT:

¶1.    On April 28, 2012, Tiffany Griffin attended a charity baseball tournament held at

fields owned and maintained by the Grenada Youth League (GYL), a nonprofit corporation.

Griffin’s sons were on teams playing in the tournament. As she walked down a grassy hill

from the parking lot to the ballfields, Griffin fell and suffered a broken ankle. Griffin sued

GYL on a premises liability theory in the Grenada County Circuit Court. She alleges that she

fell because she stepped into a one-inch-deep “hole” that was obscured by grass that was

three or four inches high. The record does not include any photographs of the supposed
“hole,” and GYL denies that there was a “hole” anywhere in the vicinity. The circuit court

subsequently granted summary judgment for GYL. The court acknowledged that there is a

“dispute over whether there actually was a hole,” but the court ruled “that as a matter of law

the premises was reasonably safe and there was no dangerous condition or peril that required

a warning.” We agree and therefore affirm.

                       FACTS AND PROCEDURAL HISTORY

¶2.    GYL owns and operates a twenty-three-acre park in Grenada with about ten youth

baseball and softball fields. GYL oversees youth leagues and occasionally hosts youth

tournaments at the park. GYL has only one paid employee and is otherwise run by

volunteers, including a volunteer board and president.

¶3.    GYL’s president for the 2012 season, Jeff McWhorter, asked three or four board

members to serve on the grounds committee. Before the season, the committee inspected the

park and did not identify any issues or needed repairs.

¶4.    Most of GYL’s board members are coaches, parents, or grandparents of children who

play baseball or softball at the park. Thus, most board members regularly attend games and

walk and inspect the premises while at the park. In addition, every board member has a key

to an equipment shed at the park, so any of them could easily fill a hole if one were found.

GYL hired a company called Yard Pro to cut the grass in the park during the 2012 season.

Yard Pro cut the grass on a weekly basis.

¶5.    From Monday, April 23, to Saturday, April 28, 2012, GYL hosted its annual Frankie

Bailey Tournament at the park. The tournament, named in honor of a former player who died



                                              2
from childhood cancer, serves as a fundraiser for both St. Jude Children’s Research Hospital

and GYL. There is no admission fee for the tournament, but attendees are encouraged to

make charitable donations. Yard Pro cut the grass the weekend before the tournament began

and again on Wednesday, April 25, 2012.

¶6.    Griffin’s two sons played in GYL leagues and were playing in the tournament. Griffin

attended about six games during the tournament, including on Friday, April 27, and she had

been to the park many times in prior seasons. On April 28, Griffin arrived at the park around

11 a.m. She made a $5 donation when she entered and parked her car in a gravel parking lot

up a gently sloping grassy hill from the ballfields. The lot is framed by wooden light poles

laid sideways on the ground to form a twelve- to eighteen-inch-high boundary around the lot.

¶7.    A paved walkway runs from the parking lot to the ballfields, but Griffin decided to

take a shortcut by stepping over one of the wooden poles and walking down the grassy hill

to the fields. There were no signs warning visitors not to walk down the hill, and McWhorter

acknowledged that people frequently walk down the hill. Griffin was wearing flip-flops and

carrying both a folding chair and a bag holding a bat and batting helmet.

¶8.    Griffin testified in her deposition that she fell after stepping into a “hole” that was

“maybe an inch [deep], two inches max,” and “maybe four inches wide.” Griffin testified

that she did not see the “hole” because the grass was “overgrown,” by which she meant

“[t]hree to four inches” high. Griffin testified that when she stepped into the hole, she rolled

her ankle and fell to the ground.

¶9.    McWhorter was working at the concession stand when he was told that someone had



                                               3
fallen on the hill. When McWhorter reached the hill, he was told that Griffin had broken her

ankle, so he called for an ambulance.

¶10.   After Griffin left in an ambulance, McWhorter and another board member surveyed

the area in which she fell. McWhorter testified that the grass was not overgrown and that

they did not find any “hole.” McWhorter testified that if there had been a hole in the area,

he would have noticed it because he walked through the area whenever he went to the

equipment shed. In addition, there had been no other reports of falls or holes in the area.

¶11.   On September 9, 2014, Griffin filed a complaint against GYL alleging, inter alia,

negligence on a premises liability theory. Griffin alleged she “was a business invitee when

she entered onto the property owned by [GYL].” She alleged that she “was severely injured

when she stepped into a drainage ditch.” At her deposition, Griffin stated that she actually

stepped in a “hole,” not a “drainage ditch.”

¶12.   On October 12, 2015, GYL filed a motion for summary judgment. In its motion, GYL

argued that Griffin was a licensee, not an invitee. In addition, GYL argued that even if

Griffin was an invitee, the premises was reasonably safe and that it did not breach any duty

to warn her of hidden dangers. In response, Griffin argued that she was a “public invitee”

and that disputes of fact on the issues of duty and breach precluded summary judgment.

¶13.   On November 30, 2015, the circuit court granted summary judgment for GYL.1 The

court concluded that Griffin was a public invitee and that there was a dispute of fact as to the



       1
       On November 16, 2015, the court granted summary judgment for GYL on all non-
premises-liability claims in the complaint and on Griffin’s claim for punitive damages, all
of which Griffin had conceded at the hearing on GYL’s motion for summary judgment.

                                               4
existence of a “hole”; however, the court ruled “that as a matter of law the premises was

reasonably safe and there was no dangerous condition or peril that required a warning.”

Griffin filed a timely notice of appeal.

                                        DISCUSSION

¶14.   We review an order granting summary judgment de novo. Pigg v. Express Hotel

Partners LLC, 991 So. 2d 1197, 1199 (¶4) (Miss. 2008). The movant is entitled to summary

judgment if there is no genuine issue of material fact. Glover ex rel. Glover v. Jackson State

Univ., 968 So. 2d 1267, 1275 (¶22) (Miss. 2007). But the mere existence of disputed facts

does not preclude summary judgment: “The focal point of our standard for summary

judgment is on material facts[,]” by which we mean those facts “that matter . . . in an

outcome determinative sense.” Simmons v. Thompson Mach. of Miss. Inc., 631 So. 2d 798,

801 (Miss. 1994). “The existence of a hundred contested issues of fact will not thwart

summary judgment where there is no genuine dispute regarding the material issues of fact.”

Sanders v. Advanced Neuromodulation Sys. Inc., 44 So. 3d 960, 965 (¶11) (Miss. 2010)

(quoting Moss v. Batesville Casket Co., 935 So. 2d 393, 399 (¶17) (Miss. 2006)).

¶15.   On a motion for summary judgment, “[t]he evidence is viewed in the light most

favorable to the party opposing the motion.” Davis v. Hoss, 869 So. 2d 397, 401 (¶10) (Miss.

2004). However, “[t]he non-moving party may not rest upon mere allegations or denials in

the pleadings but must set forth specific facts showing that there are genuine issues for trial.”

Pigg, 991 So. 2d at 1199 (¶4) (quoting Massey v. Tingle, 867 So. 2d 235, 238 (¶6) (Miss.

2004)). In other words, “the non-movant cannot just sit back and remain silent, but he must



                                               5
rebut by producing significant probative evidence showing that there are indeed genuine

issues for trial.” McMichael v. Nu-Way Steel & Supply Inc., 563 So. 2d 1371, 1375 (Miss.

1990) (quoting Newell v. Hinton, 556 So. 2d 1037, 1041 (Miss. 1990)).

¶16.   To prevail in a premises liability case, a plaintiff must prove the elements of duty,

breach of duty, damages, and proximate causation. See Wilbanks v. Hickman, 198 So. 3d

393, 397 (¶10) (Miss. Ct. App. 2016). Thus, to avoid summary judgment, Griffin must show

there is a genuine issue of material fact as to each of these elements. See id.

¶17.   “When a person is injured on the premises of another, the duty owed depends on

whether the person is an invitee, a licensee, or a trespasser at the time of the injury.” Rankin

v. Matthews, 197 So. 3d 933, 936 (¶7) (Miss. Ct. App. 2016). “A landowner’s only duty to

a licensee is to refrain from willfully or wantonly causing injury to him.” Id. at 937 (¶9). “A

landowner owes the highest duty to an invitee[,]” Keith v. Peterson, 922 So. 2d 4, 9 (¶10)

(Miss. Ct. App. 2005), but even so the landowner “is not an insurer of the invitee’s safety[.]”

Caruso v. Picayune Pizza Hut Inc., 598 So. 2d 770, 773 (Miss. 1992). Rather, a landowner

“owes a duty to an invitee to exercise reasonable care to keep the premises in a reasonably

safe condition and, if [he] is aware of a dangerous condition, which is not readily apparent

to the invitee, he is under a duty to warn the invitee of such condition.” Jerry Lee’s Grocery

Inc. v. Thompson, 528 So. 2d 293, 295 (Miss. 1988). Our Supreme “Court has recognized

two classes of invitees: public invitee or business invitee.” Hudson v. Courtesy Motors Inc.,

794 So. 2d 999, 1003 (¶11) (Miss. 2001).

¶18.   “A public invitee is a person who is invited to enter or remain on land as a member



                                               6
of the public for a purpose for which the land is held open to the public . . . .” Id. “On the

other hand, a licensee is one who enters upon the property of another for his own

convenience, pleasure or benefit pursuant to the license or implied permission of the owner.”

Clark v. Moore Mem’l United Methodist Church, 538 So. 2d 760, 763 (Miss. 1989). The

subtle distinction between a public invitee and a licensee is said to “lie[] in the difference

between an invitation and mere permission.” Id. at 764.2

¶19.   The circuit court concluded that Griffin was a “public invitee” at the time of her

injury, but GYL argues that she was a mere licensee. If relevant and material facts are in

dispute, the plaintiff’s status “can be a jury question, but where the facts are not in dispute,

the classification becomes a question of law for the trial judge.” Hudson, 794 So. 2d at 1003

(¶11). However, for purposes of this appeal, we may assume that Griffin was a public

invitee. For even if she were an invitee, the circuit court correctly determined that GYL was

entitled to summary judgment.

¶20.   A landowner owes an invitee a duty to keep the premises reasonably safe and to warn

the invitee of any dangerous conditions on the premises that are not readily apparent. Jerry



       2
            In Clark, the Mississippi Supreme Court held that “a church member who does not
exceed the scope of a church’s invitation, is an invitee while attending a church for church
services or related functions.” Clark, 538 So. 2d at 764. The Court reasoned: “Religious
bodies . . . expressly and impliedly invite members to come and attend their services and
functions. They hold their doors open to the public. While they do not charge admission
fees . . . , churches do depend on contributions . . . in order that they may continue to be open
to the public.” Id.; see also Alexander v. Jackson Cty. Historical Soc’y Inc., 227 So. 2d 291,
292 (Miss. 1969) (holding that visitors who paid for admission to a historical site under the
care and control of a local historical society were “public invitees”); City of Milton v.
Broxson, 514 So. 2d 1116, 1118 (Fla. 1st Dist. Ct. App. 1987) (holding that a spectator at
a softball game at a city park was a public invitee).

                                               7
Lee’s Grocery, 528 So. 2d at 295. Unless the dangerous condition was created by the

landowner’s own negligence, the plaintiff must prove that the landowner had actual or

constructive knowledge of the condition. Id.; Jones v. Wal-Mart Stores E. LP, 187 So. 3d

1100, 1103 (¶12) (Miss. Ct. App. 2016); Stanley v. Boyd Tunica Inc., 29 So. 3d 95, 97 (¶9)

(Miss. Ct. App. 2010). Thus, “regardless of the invitee’s precise theory of premises liability,

proof that her injury was caused by a ‘dangerous condition’ is an essential element of her

claim.” Jones, 187 So. 3d at 1104 (¶12) (citing Stanley, 29 So. 3d at 97 (¶10)). “In other

words, a property owner cannot be found liable for the plaintiff’s injury where no dangerous

condition exists.” Stanley, 29 So. 3d at 97-98 (¶10) (quotation marks omitted); see also, e.g.,

Adcock v. Wal-Mart Stores E. LP, No. 3:10-cv-313-DPJ-FKB, 2011 WL 3047623, at *3

(S.D. Miss. July 25, 2011) (“It is axiomatic that no liability attaches absent a dangerous

condition.” (collecting cases)). The landowner “is not an insurer against all injuries[,]” and

mere proof that the invitee fell and was injured while on the premises is insufficient to

establish liability. Jerry Lee’s Grocery, 528 So. 2d at 295.

¶21.   In the present case, Griffin argues that summary judgment should have been denied

because the hole that allegedly caused her to fall was a “dangerous condition,” and a

reasonable inspection of the premises would have revealed its existence. Thus, Griffin

argues, GYL at least had constructive knowledge of the hole and should have repaired it or

warned her of it. She also argues that GYL’s own claims that it regularly inspected the

premises support an inference that it had actual knowledge of the hole.

¶22.   We conclude that Griffin’s claim fails as a matter of law because the alleged “hole”



                                              8
simply was not a “dangerous condition” within the meaning of Mississippi premises liability

law. We recently addressed a similar issue in the context of a trip-and-fall in a parking lot.

We observed that sidewalks or parking lots often “contain cracks and changes in elevation,”

and we held that such “minor imperfections or defects” are not “hazardous conditions” for

purposes of a premises liability claim. Jones, 187 So. 3d at 1104 (¶14) (quoting Knight v.

Picayune Tire Servs. Inc., 78 So. 3d 356, 359 (¶9) (Miss. Ct. App. 2011)). A long line of

Mississippi cases holds that cracks and uneven pavement are not dangerous conditions; they

are simply issues that invitees “may normally expect to encounter as they traverse a parking

lot or sidewalk.” Id. at 1106 (¶17). “No property owner can be expected to maintain its

sidewalks in a perfectly level condition, and where the defect consists of some slight

variation between two adjoining paving blocks, no liability is imposed.” Id. at 1104 (¶14)

(quoting Bond v. City of Long Beach, 908 So. 2d 879, 881-82 (¶7) (Miss. Ct. App. 2005)).

¶23.   The same reasoning applies—indeed, with even greater force—to the present case.

If a crack or uneven spot in a manmade sidewalk or parking lot is not a dangerous condition,

it necessarily follows that a very minor indentation or depression on the side of a grassy,

gently sloping hill also is not a dangerous condition. Griffin testified that the alleged “hole”

was “maybe an inch [deep], two inches max,” and “maybe four inches wide.” To accept

Griffin’s argument that such a “hole” amounts to a dangerous condition would impose on

landowners a duty to maintain all open lawns and fields in a perfectly level condition.

Mississippi law does not require that of a landowner, even in paved areas of the premises.

See Jones, 187 So. 3d at 1104 (¶14). No open, grass-covered space is going to be perfectly



                                               9
level, not even a fairway on a golf course. Cf. Hoffman v. City of New Orleans, 771 So. 2d

217, 219 (La. Ct. App. 2000) (“One can hardly expect a public baseball outfield to be as

smooth and even as the green of a golf course. Like any grass covered field it is bound to

contain dips and inclines no matter what maintenance is performed.”). Mississippi law does

not impose liability based on a minor indentation on the side of a park’s grassy hill.

¶24.   Griffin also alleges that she did not see the hole because the grass in the area was

“overgrown.” However, in her deposition she admitted that the grass, which had been

mowed only three days prior to her fall, was only “[t]hree to four inches” high, which is

hardly unusual. A one-inch-deep indentation is not transformed into a dangerous condition

simply because three to four inches of grass grows in the area.3

¶25.   Because the “hole” that caused Griffin’s injury was not a dangerous condition, her

claim fails as a matter of law. Jones, 187 So. 3d at 1104 (¶12). Moreover, even if we

assumed that it was a dangerous condition, GYL would be entitled to summary judgment

because Griffin produced no evidence that would support a reasonable inference that GYL

created the hole or that it had actual or constructive knowledge of the hole. See Jones v.



       3
         Griffin relies heavily on Alexander, supra, but its facts are distinguishable. In that
case, the plaintiff was injured when she stepped into a five-inch-deep hole surrounding one
of several posts that the defendant Jackson County Historical Society had placed in the
ground to mark the boundary between the parking lot and the lawn of the Old Spanish Fort
in Pascagoula. Alexander, 227 So. 2d at 292. The hole was concealed by a “type of
crawling grass [that] had grown up around the post,” while “[t]he remainder of the yard was
smoothly mowed.” Id. Mississippi caselaw distinguishes between “naturally occurring
defects,” such as the hillside indentation at issue in this case, and unusual or unexpected
conditions created by the defendant, such as the hole at the Old Spanish Fort, which may
give rise to liability. See Jones, 187 So. 3d at 1105 (¶16) (quoting City of Natchez v.
Jackson, 941 So. 2d 865, 869-70 (¶¶5-9) (Miss. Ct. App. 2006)).

                                              10
Imperial Palace of Miss. LLC, 147 So. 3d 318, 319-21 (¶¶5-12) (Miss. 2014). There was no

evidence, for example, that any other visitor had stumbled in the area, that GYL had received

prior complaints about the hill, or that the “hole” at issue had existed for any significant

length of time.

¶26.   Likewise, there is no merit to Griffin’s argument that there is a triable issue of fact

with respect to GYL’s alleged failure to conduct reasonable inspections. GYL, of course,

maintains that it did conduct reasonable inspections of the park, and there is no evidence to

the contrary. But in any event, Griffin also “failed to put forth any proof that reasonable

inspections would have led to the discovery of the [one-inch-deep hole],” which, given the

lack of evidence presented, “could have been created . . . only minutes prior to the injury.”

Id. at 322 (¶15). Thus, Griffin failed to present evidence creating any genuine issue of

material fact as to GYL’s actual or constructive knowledge of the hole or that a reasonable

inspection would have revealed the hole. Accordingly, GYL was entitled to summary

judgment for this reason as well.

                                       CONCLUSION

¶27.   Griffin was injured when she tripped and fell as she walked down a grassy hill while

wearing flip-flops and carrying a folding chair and baseball equipment. She was on GYL’s

property, but a landowner is not an insurer or strictly liable for all injuries that occur on its

property, so mere proof that an invitee fell and was injured on the premises is not sufficient

to create liability. Griffin’s claim fails as a matter of law because the alleged one-inch-deep

indentation, or “hole,” that supposedly caused her to fall is not a dangerous condition. Under



                                               11
Mississippi law, a landowner is not expected or required to keep open, grass-covered lawns

or fields in a perfectly level condition. Moreover, Griffin presented no evidence that GYL

had actual or constructive knowledge of the hole or that a reasonable inspection would have

uncovered it. Therefore, the circuit court properly granted GYL’s motion for summary

judgment.

¶28. THE JUDGMENT OF THE CIRCUIT COURT OF GRENADA COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR,
GREENLEE AND WESTBROOKS, JJ., CONCUR.




                                            12
