                             REVISED
                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT

                       ____________________

                           No. 95-60668
                       ____________________


                       ANDRES HILL, ET AL.,

                               Plaintiffs,

                            ANDRES HILL,

                               Plaintiff-Appellee-Cross-Appellant,

                               versus

                   INTERNATIONAL PAPER COMPANY,

                               Defendant-Appellant-Cross-Appellee.

_________________________________________________________________

          Appeals from the United States District Court
             for the Southern District of Mississippi

_________________________________________________________________
                         August 21, 1997

Before HIGGINBOTHAM, DAVIS, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:
     Primarily at issue is the duty owed, under Mississippi law, by

a premises owner to an independent contractor for a dangerous

condition on the premises. Plaintiff-appellee Andres Hill contends

that the duty, in regards to all invitees, is singular: to maintain

reasonably safe premises.   Based on this theory, as enunciated in

Tharp v. Bunge Corp., 641 So. 2d 20 (Miss. 1994) (en banc), a jury

rendered a verdict for Hill in the amount of $1.5 million against

International Paper for negligence.     Post-verdict, International
Paper moved for, inter alia, judgment as a matter of law and

remittitur.    In part pursuant to Tharp, the district court denied

the motion for judgment or new trial.     It did reduce the award,

however, to approximately $850,000.     In the light of the quite

recent decision of the Mississippi Supreme Court in Jones v. James

Reeves Contractors, Inc., No. 93-CA-01139-SCT, 1997 WL 137395

(Miss. March 27, 1997) (en banc), we are compelled to VACATE the

judgment and REMAND for further proceedings, including a new trial

if Hill can present triable issues.

                                 I.

     International Paper (IP) operates a paper mill at Moss Point,

Mississippi.    BE&K Construction Company operates nationally at

paper mills, among other sites; and, since July 1989, it has

performed repair and maintenance services at the Moss Point mill

under a long-term contract with IP.     BE&K maintains a large and

continuing presence there — between 50 to 700 employees, depending

on the work being conducted.

     In the contract, BE&K represented that it was “familiar with

the conditions existing on the site at which the work will be

performed and affirms that there have been no representations by

[IP] beyond those set forth in this Agreement”.   In addition, BE&K

agreed to “keep the area in which [it], its employees and agents

are working in a safe and reasonably clean condition during the

performance of the work”.      Finally, it agreed “to provide all

supervision, labor, equipment and tools” necessary to perform work

at the mill and to “furnish its best skill and judgment in the
performance of its obligations ... performing all work ... in a

safe, good and first class workmanlike manner”.

        In the mill’s sheet finishing room, large rolls of paper are

cut into sheets by cutter machines.               Because the rolls weigh

several thousand pounds, they are moved into place at the machines

via floor trolleys — flat steel plates on metal wheels that slide

along tracks built into the floor.           There are ten trolleys in the

sheet    finishing   room;   each    weighs     approximately    128   pounds,

measures 36 inches by 12 inches, and sits approximately 5/8 inches

above the floor. Each trolley track is approximately 16 feet long.

The trolleys and tracks are painted yellow; the surrounding floor,

green.

     In February 1992, there were approximately 130 BE&K employees

on site.    One was Andres Hill, a structural welder. Along with

other BE&K employees, he was working in the sheet finishing room,

upgrading metal structures on the paper cutting machines.

     Hill and the rest of the BE&K crew worked a night shift,

shutting down IP’s production while they fabricated metal in an

area separate from the sheet finishing room, then welded it to the

paper cutters in that room.           While carrying several items and

walking through      the   sheet    finishing    room,   Hill   stepped   on a

trolley, fell, and was injured.

     Hill claimed negligence by IP in the “location, placement, use

and condition of the floor trolley”. Summary judgment was denied

IP; at trial in early 1995, it moved unsuccessfully for judgment as

a matter of law at the close of Hill’s case-in-chief and at the


                                     - 3 -
close of all the evidence. In denying these motions, the district

court relied in part on Tharp.              In addition, the court gave

instructions to the jury that tracked a premises owner’s duty as

Tharp appeared to define it.    The jury found Hill 40%, and IP 60%,

at fault, and awarded Hill $1.5 million in damages.

      IP moved for judgment as a matter of law, a new trial, or

remittitur.   Although the motion for judgment or for new trial was

denied — again, in part pursuant to Tharp — the court found the

damages excessive and conditionally remitted them.                Upon Hill’s

acceptance of the remittitur, an amended judgment was entered for

approximately $850,000.     Thus, Hill’s total recovery, reduced by

his 40% negligence, was approximately $500,000.

                                     II.

      IP presents three issues: that it was entitled to judgment as

a matter of law because it satisfied its duty as a premises owner

to an independent contractor and its employee, Hill; similarly,

that the jury instructions misstated this element of Mississippi

premises liability law; and, finally, that Hill’s damages, even

post-remittitur, are excessive. Hill cross-appeals, claiming error

in the exclusion of certain evidence concerning liability. Because

of our disposition of the district court’s denial of IP’s motion

for judgment, we need not address the other issues presented.

      For this diversity action, we, of course, apply Mississippi

substantive law. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).

The   interplay   between   Tharp    and    Jones   makes   our    task   most

challenging; indeed, quite “Erie”.


                                    - 4 -
     And, we review de novo the denial of judgment as a matter of

law, according to the same standards used by the district court.

E.g., Conkling v. Turner, 18 F.3d 1285, 1300-01 (5th Cir. 1994).

Such judgment is appropriate if, after viewing the trial record in

the light most favorable to the non-movant, there is no “legally

sufficient evidentiary basis” for a reasonable jury to have found

for the prevailing party.       Id. (quoting FED. R. CIV. P. 50(a)); see

also Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969)

(en banc).

                                    A.

     The   primary   question    before    us   is   the   duty   owed   by    a

Mississippi premises owner to an independent contractor.                      It

springs from some inconsistency in Mississippi case law, at least

as we read it, in defining that duty.           Compare Jackson Ready-Mix

Concrete v. Sexton, 235 So. 2d 267, 269 (Miss. 1970) (“no duty to

protect [an independent contractor] against risks arising from or

intimately connected with defects of the premises, or of machinery

or appliances located thereon, which the contractor has undertaken

to repair”) (quoting 41 AM. JUR. 2d Independent Contractors § 28

(1968)), with Ingalls Shipbuilding Corp. v. McDougald, 228 So. 2d

365, 367 (Miss. 1969) (“duty ... to turn over ... a reasonably safe

place to work or to give warning of danger”), and General Tire &

Rubber Co. v. Darnell, 221 So. 2d 104, 107 (Miss. 1969) (“duty to

exercise ... ordinary care to keep the premises in a reasonably

safe condition”).

                                    1.


                                   - 5 -
     Adding to the mix are the two earlier-referenced decisions by

the Mississippi Supreme Court: Tharp v. Bunge Corp., 641 So. 2d 20,

22, 25 (Miss. 1994) (en banc), which appeared to abolish the “open

and obvious” bar to liability in all premises liability cases; and

Jones v. James Reeves Contractors, Inc., No. 93-CA-01139-SCT, 1997

WL 137395 (Miss. Mar. 27, 1997), which appears to have resurrected

that bar, at least where independent contractors are concerned.

Jones was decided not only after the trial and post-judgment

motions, but also after the initial briefing and argument of this

appeal.     In the new light of Jones, we called for supplemental

briefs.     Although the position of the Mississippi Supreme Court on

this issue is not entirely clear, at least to us, our best “Erie-

guess” is   that Jones did effect a change in Tharp.   As hereinafter

discussed, given the district court’s strong (and understandable)

adherence to the Tharp rule throughout the trial, and in fairness

to it and the parties, we must vacate and remand for further

proceedings, to possibly include a new trial.          To assist the

district court on remand, and in the interest of judicial economy,

our interpretation of Jones’ effect on Tharp follows.

                                  2.

     Mississippi followed the traditional rule that an owner owed

an invitee the duty to use “ordinary care to have his premises in

a reasonably safe condition for use in a manner consistent with the

purposes of the invitation”.    Mississippi Winn-Dixie Supermarkets

v. Hughes, 156 So. 2d 734, 735 (Miss. 1963); see also Caruso v.

Picayune Pizza Hut, Inc., 598 So. 2d 770, 773 (Miss. 1992);


                                - 6 -
McGovern v. Scarborough, 566 So. 2d 1225, 1228 (Miss. 1990); Lucas

v. Buddy Jones Ford Lincoln Mercury, Inc., 518 So. 2d 646, 648

(Miss. 1988); Mercy Reg’l Med. Ctr. v. Doiron, 348 So. 2d 243, 245

(Miss. 1977); General Tire & Rubber, 221 So. 2d at 107; First Nat’l

Bank of Vicksburg v. Cutrer, 214 So. 2d 465, 466 (Miss. 1968);

Stanley v. Morgan & Lindsey, Inc., 203 So. 2d 473, 475-76 (Miss.

1967).     As the Mississippi Supreme Court explained 30 years ago,

“[T]his is the general rule throughout the United States ... and it

is also the rule in this state.”        Stanley, 203 So. 2d at 475.

     Needless     to   say,   the     key   to     reasonable   safety   was

foreseeability of harm.       As the Mississippi Supreme Court noted

almost 60 years ago, “Requisite care remains always that degree of

care commensurate with appreciable danger appraised in terms of

ordinary prudence and interpreted in the light of the attendant

circumstances.”     Supreme Instruments Corp. v. Lehr, 1 So. 2d 242,

244 (Miss. 1941) (emphasis added).

     In other words, whether premises were reasonably safe depended

on whether the owner could reasonably anticipate that an injury

would occur on his property.        See Stanley, 203 So. 2d at 476 (“not

required    to   anticipate   an    unusual      and   improbable   result”).

Although this question was usually for the jury, see Caruso, 598

So. 2d at 773; Supreme Instruments, 1 So. 2d at 246, some premises

(conditions) were of such a nature that reasonable minds could not

differ that an injury was unforeseeable; therefore, as a matter of

law, the premises were reasonably safe.            See McGovern, 566 So. 2d

at 1228 (raised threshold in doorway); Kroger, Inc. v. Ware, 512


                                    - 7 -
So. 2d 1281, 1282 (Miss. 1987) (orange parking curb in parking

lot); Mercy Reg’l Med. Ctr., 348 So. 2d at 246 (flight of steps

with no handrail); General Tire & Rubber, 221 So. 2d at 107

(failure    to    show   that   owner    maintained   elevator   in    “such   a

defective condition that it could reasonably foresee that some

injury would probably result from its use”).

     For latent dangers, a number of pre-Tharp cases contain

language suggesting that, as urged by IP, the duty owed an invitee

is disjunctive; that is, either provide reasonably safe premises or

warn of those latent dangers.              See Ware, 512 So. 2d at 1282

(“exercise ordinary care, keeping the premises in a reasonably safe

condition    or     warning     of   dangerous    conditions     not   readily

apparent”); see also Wilson v. Allday, 487 So. 2d 793, 798 (Miss.

1986); Buford v. Jitney Jungle Stores of America, Inc., 388 So. 2d

146, 149 (Miss. 1980); Downs v. Corder, 377 So. 2d 603, 605 (Miss.

1979); Mississippi Chem. Corp. v. Rogers, 368 So. 2d 220, 222

(Miss. 1979); Mississippi Power Co. v. Brooks, 309 So. 2d 863, 866

(Miss. 1975); Braswell v. Economy Supply Co., 281 So. 2d 669, 677

(Miss. 1973); McDougald, 228 So. 2d at 367; Nowell v. Harris, 68

So. 2d 464, 467 (Miss. 1953).             In fact, some of the cases that

state the duty in the singular also contain this “alternative”

formulation.       See Mercy Reg’l Med. Ctr., 348 So. 2d at 245;

Stanley, 203 So. 2d at 476; Hughes, 156 So. 2d at 735-36.

     In the light of Tharp, these cases appeared to hold that a

duty to warn arose if, despite his efforts, an owner could not make

the premises reasonably safe.           Therefore, an owner did not have an


                                     - 8 -
“either-or” choice between, on the one hand, providing reasonably

safe premises and, on the other, warning of dangers.      Rather, he

first had a duty to remove or alleviate the danger; if that could

not be achieved with reasonable efforts, then a warning of the

latent defect was required.

     To begin with, we have found only two cases that actually

described a landowner’s duty as “alternative”.     Buford, 388 So. 2d

at 149 (“alternative duty of (a) providing a reasonably safe place

to work or (b) giving warning”) (quoting McDougald, 228 So. 2d at

367). In addition, some of the cases characterize the duty in such

a way as to imply that warnings come into play as a premises

owner’s last resort: “[A]n owner ... owes ... a duty to use

ordinary care to have his premises in a reasonably safe condition

... or at least not to lead them into a dangerous trap or to expose

them to an unreasonable risk, but to give them adequate and timely

notice and warning of latent [dangers]....”     Nowell, 68 So. 2d at

467 (quoting 38 Am. Jur. § 96) (emphasis added); see also Mercy

Reg’l Med. Ctr., 348 So. 2d at 245; Braswell, 281 So. 2d at 677;

Stanley, 203 So. 2d at 476.

     In other words, if an owner could not satisfy his duty of

providing reasonably safe premises by eliminating all foreseeable

risks, he had to “at least” warn of latent dangers so as not to let

invitees be injured on dangerous conditions the owner should have

corrected, or made reasonable efforts to correct, in the first

place.   However, other cases state the duty in the alternative

without this   “at least” language.    See Wilson, 487 So. 2d at 798;


                               - 9 -
Downs, 377 So. 2d at 605; Rogers, 368 So. 2d at 222; Brooks, 309

So. 2d at 866; McDougald, 228 So. 2d at 367.

      But, the more recent pre-Tharp cases made clear that the duty

to warn was not an independent choice for premises owners; instead,

it   was   a    “corresponding   duty”   to   the   duty   to   make   premises

reasonably safe.       Brooks, 309 So. 2d at 867.          These cases stated

the duty as follows:

                    [T]he owner of premises: (1) is not an
               insurer of the invitee’s safety, (2) has only
               a duty to keep the premises reasonably safe,
               and (3) when not reasonably safe to warn only
               where there is hidden danger or peril that is
               not in plain and open view.

Caruso, 598 So. 2d at 773 (emphasis added); see also McGovern, 566

So. 2d at 1228.         Therefore, an owner had to make reasonable,

affirmative efforts to eliminate or alleviate the danger — to make

the premises reasonably safe.       See Millers of Jackson, Meadowbrook

Rd., Inc. v. Newell, 341 So. 2d 101, 103 (Miss. 1976) (“[O]ur law

requires that [a landowner] must remove those hazards of which he

has actual or constructive notice”); see also McDougald, 228 So. 2d

at 367.    Only when conditions could not be corrected or removed to

make the premises reasonably safe did a duty to warn arise.

      Pre-Tharp, however, the failure to satisfy any part of the

duty (as described above) did not lead automatically to the owner

being liable.        The “open and obvious” bar provided that, if a

dangerous condition was in plain view and clearly apparent to an

invitee, the owner was not liable for injuries caused by the

condition.      See Diamond Int’l Corp. v. May, 445 So. 2d 832, 835-36

(Miss. 1984); Buford, 388 So. 2d at 149-50; Jackson Ready-Mix

                                   - 10 -
Concrete, 235 So. 2d at 271-72; United Roofing and Siding Co. v.

Seefeld, 222 So. 2d 406, 407-08 (Miss. 1969); Stanley, 203 So. 2d

at 476.

     This rule was not an application of common-law contributory

negligence; by statute, Mississippi has been a pure comparative

fault state since 1910.           See MISS. CODE ANN. § 11-7-15 (1972).

Rather, the “open and obvious” bar was a form of common-law

assumption of risk: when a plaintiff voluntarily and knowingly

engages    in   a   particular    activity         despite        risks     involved,       a

defendant owes that plaintiff no duty of care with respect to those

risks.    See W. PAGE KEETON   ET AL.,   PROSSER   AND   KEETON   ON THE   LAW   OF   TORTS, §

68, at 480-81 (5th ed. 1984).            Restated, pursuant to contributory

negligence, where the defendant is negligent, the plaintiff’s

negligence bars his recovery; however, when a plaintiff “assumes

the risk”, a defendant is simply “not negligent” because he owes no

duty. See id. § 65, at 451-52, § 68, at 480-81.

     In the premises liability context, with respect to open and

obvious conditions, the owner owed an invitee no duty — to make

reasonably safe, remove, or warn.             Although Mississippi did not

unconditionally equate the open and obvious bar with assumption of

the risk, both defenses are essentially grounded on the “no duty”

principle.      See Jackson Ready-Mix Concrete, 235 So. 2d at 270;

United Roofing and Siding, 222 So. 2d at 408.

     Prior to Tharp, all this law was the same for independent

contractors as for other invitees.           An owner had a duty to make his

premises reasonably safe for an independent contractor. See United


                                    - 11 -
Roofing and Siding, 222 So. 2d at 408; General Tire & Rubber, 221

So. 2d at 107.     That duty included taking affirmative efforts to

ensure safety; an owner could not simply rely on warnings to

satisfy his duty.     See McDougald, 228 So. 2d at 367.           (Although

some cases involving independent contractors contained language

suggesting that the duty was “alternative”, we read those cases in

the same light as we did supra (i.e., that the duty is not

alternative), especially in the light of Tharp.)          But, there was no

duty to warn an independent contractor against “open and obvious”

conditions.    See Diamond Int’l, 445 So. 2d at 835; Buford, 388 So.

2d at 149-50; Jackson Ready-Mix Concrete, 235 So. 2d at 270; United

Roofing and Siding, 222 So. 2d at 407-08; General Tire & Rubber,

221 So. 2d at 107.

     There were, however, two exceptions to a premises owner’s duty

with regard to independent contractors.        First, there was no duty

to “protect [a contractor] against risks arising from or intimately

connected   with   defects   of   the   premises,   or    of   machinery   or

appliances located thereon, which the contractor has undertaken to

repair”.    United Roofing and Siding, 222 So. 2d at 408 (quoting 41

AM. JUR. 2D Independent Contractors § 28); see Diamond Int’l, 445

So. 2d at 835-36; Downs, 377 So. 2d at 605; Jackson Ready-Mix

Concrete, 235 So. 2d at 271.

     And second, the owner was “not liable for death or injury of

an independent contractor or one of his employees resulting from

dangers which the contractor, as an expert, has known, or as to

which he and his employees ‘assumed the risk’”.          United Roofing and


                                  - 12 -
Siding, 222 So. 2d at 408 (quoting 41 AM. JUR. 2D Independent

Contractors § 28); see Diamond Int’l Corp., 445 So. 2d at 836;

Jackson Ready-Mix Concrete, 235 So. 2d at 271.           In this context, we

read “has known” not to mean a warning by the owner but rather

knowledge of the hazards inherent in the work being performed by

the independent contractor.      E.g., Jackson Ready-Mix Concrete, 235

So. 2d at 271-72 (holding that electrician injured by uninsulated

wire while installing electric line on utility pole had “assumed

the risk”). This exception was described as “[c]losely related” to

the   “intimately   connected”    exception,    see     United    Roofing      and

Siding, 222 So. 2d at 408 (quoting 41 AM. JUR. 2D Independent

Contractors § 28).

      In Tharp, the en banc Mississippi Supreme Court, in a five-

four split, effected a most dramatic change in Mississippi premises

liability law by abolishing the “open and obvious” bar, applying

instead “true comparative negligence”.          Tharp, 641 So. 2d at 25.

As a result, a premises owner can no longer claim to have no duty

with respect to open and obvious conditions.            Id. at 24.     Instead,

he must take affirmative steps to alleviate or eliminate the

dangers, even if they are clearly visible to an invitee.                 Id. at

25.    As Tharp explained, “The party in the best position to

eliminate a dangerous condition should be burdened with that

responsibility.      If   a   dangerous   condition     is   obvious    to     the

plaintiff, then surely it is obvious to the defendant as well.                 The

defendant, accordingly, should alleviate the danger.” Id. In sum,

Tharp reaffirms     the   duty   under    Mississippi    law     to   remove    or


                                  - 13 -
alleviate dangerous conditions that made premises not reasonably

safe.   It also extends that duty to apply to all such conditions,

latent and patent.

     Tharp therefore appeared to make it impossible to rely on

invitee knowledge of a dangerous condition in assessing an owner’s

foreseeability of harm (i.e., whether premises were “reasonably

safe”). Invitee knowledge (actual or constructive) would simply be

another way of saying that the condition was (or should have been)

“open and obvious” to the invitee.       Tharp makes that knowledge

relevant in assessing the negligence vel non of the invitee, not

that of the owner.   Making that knowledge a factor in determining

the negligence of the owner would simply be bringing the “open and

obvious” defense back into Mississippi law through the back door.

     More importantly, the Tharp rule appeared to apply in all

premises liability cases, including those involving independent

contractors.   As discussed supra, the open and obvious bar applied

equally to all invitees.   Tharp’s abolition of that bar therefore

logically applied, for example, to independent contractors.      The

Mississippi Supreme Court gave no indication that it intended to

limit its holding to a particular type of invitee.         Id. at 22

(“Through our inherent powers we hereby abolish the so-called ‘open

and obvious’ defense to negligence actions.”).

     The facts of Tharp reinforced this conclusion.    The plaintiff

in Tharp was an inspector with the Mississippi Department of

Agriculture, sampling grain to be shipped in order to certify its

quality for the buyer.   Id.   As such, he was not an invitee with no


                                - 14 -
expertise, such as a customer in a store.                     See Hardy v. K Mart

Corp., 669 So. 2d 34, 36 (Miss. 1996); Tate v. Southern Jitney

Jungle Co., 650 So. 2d 1347, 1348 (Miss. 1995).                    On the other hand,

because Tharp addressed the “open and obvious” bar, and not the two

above-described exceptions for independent contractors, it probably

left those exceptions intact.                Jones settles the issue; it is not

necessary    for       us    to   determine    whether     Tharp    abolished    these

exceptions.       Jones either scaled back or clarified the rule in

Tharp, by carving out an exception for independent contractors.                      A

detailed discussion of Jones is in order.

      In    Jones,      the       premises    lessee     (Howard    Industries)    was

expanding its plant.               Jones, 1997 WL 137395, at *1.             McCaskill

Brothers Plumbing Co. was the contractor for, among other things,

the plumbing work, including installation of a sewer lift station.

Id.   The lift station required excavating a hole approximately 15

feet deep.       Id.        Because McCaskill’s supervisor noticed water in

the soil, he had a system installed to “dewater” the soil prior to

the excavation.         Id.

      McCaskill then contracted with James Reeves Contractor, Inc.,

for equipment and an operator to excavate the hole.                         Id. at *2.

Reeves testified that, while digging, he discovered a subsurface

flowing stratum of “watersand”, a very dangerous condition, and

that he notified McCaskill’s supervisor; the supervisor denied

having     the   conversation.           Id.      Soon    after,    three    McCaskill

employees were killed when the walls of the excavation caved in.

Id.


                                         - 15 -
     A wrongful death action was brought against Howard, James

Reeves, and the project architects.              Id. at *1.    The trial court

awarded summary judgment to the defendants.              Id.   It held, inter

alia, that Howard, the premises lessee, breached no duty to the

workers.     Id.     The Mississippi Supreme Court affirmed.         In regard

to Howard, the court gave three independently viable reasons for

its holding.

     The first basis, which is not relevant to the issue at hand,

concerned the fact that Jones County, Mississippi, “owned the site

and was responsible for constructing the building.               Howard[, the

premises lessee,] was the authorized agent of Jones County for the

purpose     of     completing     the   construction   project.”      Id.   The

Mississippi Supreme Court agreed with the trial court that, under

this scenario, Howard had no liability for accidents occurring on

the premises.        Id. at *9.

     Next, the court stated that, “even if this avenue of recovery

were not closed”, Howard would still not be liable.                Id. at *10.

Citing Jackson Ready-Mix Concrete, 235 So. 2d at 270, and seeming,

without saying so, to retreat from Tharp, the court stated: “The

owner/occupier is not an insurer of the invitee’s safety, and he is

not liable for injuries [arising out of conditions] which are not

dangerous or which are, or should be[,] known to the business

invitee.”     Id. at *10 (emphasis added).

     Therefore, for a second no-liability basis, and under the

“intimately      connected”     exception    for   independent     contractors,

discussed supra, the court held that Howard did not owe McCaskill’s


                                        - 16 -
employees any duty with respect to “defects of the premises ...

which the contractor has undertaken to repair”.            Id. (quoting

Jackson Ready-Mix Concrete, 235 So. 2d at 271).          The court noted

that, arguably, McCaskill’s installation of the dewatering system

was a repair mechanism necessary for excavation of the hole (which

in turn was necessary for installation of the lift station, the

work for which Howard hired McCaskill), bringing the case “squarely

within” this exception.    Id.

      Along this line, the Jones plaintiffs countered that McCaskill

was on site to perform contract plumbing work, not to repair a

defect in the soil, meaning that the risks arising from the

“watersand” were not intimately connected with the work for which

McCaskill was hired. To deal with this alternative interpretation,

the   Mississippi   Supreme    Court   invoked   a   variation   of    the

“intimately   connected”      exception,   set   forth    in   Magee    v.

Transcontinental Gas Pipe Line Corp., 551 So. 2d 182, 185 (Miss.

1989).   Magee held:

           Where a party ... contracts with another ...
           to perform original construction or repair
           work ... and devolves upon the contractor the
           right and fact of control of the premises and
           the nature and details of the work, the owner
           has no liabilities for injuries experienced by
           the contractor’s workers where those injuries
           arose out of or were intimately connected with
           the work.

Id.

      Thus, where the owner surrenders to the contractor all control

over the performance of that aspect of the work that gives rise to

the injury, there is also no liability.          Id. at 186.     Because


                                 - 17 -
McCaskill had, by contract, “unfettered control over that portion

of the work which gave rise to the injury” — namely, the excavation

of the hole — Howard was “absolved of responsibility”. Jones, 1997

WL 137395, at *10-11.    As this analysis is simply a variant of the

“intimately connected” exception, we take this language to mean

that, here too, Howard owed no duty.

       Had the court ceased its analysis at this point, we might have

concluded that Jones does not create an exception to the Tharp

rule, despite the earlier-referenced language by the Jones court

from    Jackson   Ready-Mix   Concrete,   which    arguably   touches    on

conditions that are “open and obvious”.           As support for such a

possible no-exception conclusion, we note, for starters, that the

Jones plaintiffs contended that the trial court had erroneously

based its decision on the “open and obvious” bar.        The Mississippi

Supreme Court summarily rejected this contention:

            The plaintiffs correctly note that this Court
            abandoned the “open and obvious” defense as a
            complete bar to recovery in premises liability
            cases in [Tharp]. However, ... it is apparent
            that the words “open and obvious” or any hint
            that such a defense might have been the basis
            for the trial court’s decision are strictly a
            figment   of   the    plaintiffs’   attorney’s
            imagination. Accordingly, it is unnecessary
            to address this point.

Id. at *12.

       In other words, although Tharp was raised in Jones,              the

Mississippi Supreme Court did not find it relevant.           Along this

line, we note that the author of the pertinent part of the en banc




                                 - 18 -
Jones opinion had joined the dissent in the earlier five-four Tharp

decision.   See id. at *9; Tharp, 641 So. 2d at 27-29.

     In addition, Tharp’s abolition of the “open and obvious” bar

and the “intimately connected” exception (including its variant in

Magee) could easily co-exist.        Nevertheless, the Jones court went

on to explain what the duty of Howard would be and, in the process,

we conclude, carved out an exception to Tharp.

     As a third basis for its holding, the court noted:                 “[E]ven if

there existed a duty on the part of Howard to make the premises

safe [for McCaskill’s employees], the only way in which that duty

would remain intact is if John McCaskill, Jr., as site supervisor,

did not know of the condition of the soil.”              Jones, 1997 WL 137395

at *11 (emphasis added).      Of course, knowledge by a contractor of

a condition is imputed to its employees.                 Id. (citing City of

Jackson v. Ball, 562 So. 2d 1267, 1270 (Miss. 1990)).

     Looking at the record, the court concluded that McCaskill’s

supervisor had knowledge of the soil condition — possibly actual

(from Reeves’   warning      and   from   being    on    site)    and    certainly

constructive (from the contract, in which McCaskill represented

that it “has visited the site [and] become familiar with local

conditions under which the Work is to be performed”).                   Id.   Again

citing Jackson Ready-Mix Concrete, the court held that, because of

McCaskill’s supervisor’s knowledge of the condition, “Howard had no

duty to warn of a danger which McCaskill should reasonably have

appreciated   before    exposing     himself      (and    by     extension,    his

employees) to it.”     Id.   In the words of the court, if there was a


                                   - 19 -
duty to make the premises reasonably safe, it no longer “remain[ed]

intact”.    Id.

      This last rationale for upholding the summary judgment in

Jones is the most troubling to our interpretation of Tharp and

other Mississippi cases.     Tharp appeared to make it impossible to

rely on invitee knowledge of a dangerous condition in assessing an

owner’s negligence. After all, an owner’s negligence vel non turns

on   the   foreseeability   of   harm   (i.e.,   whether   premises   are

“reasonably safe”).     Invitee knowledge, actual or constructive,

would simply be another way of saying that the condition was, or

should have been, “open and obvious” to the invitee.        Again, Tharp

seemed to make that knowledge relevant in assessing only the

negligence vel non of the invitee, not that of the owner; making

that knowledge a factor in determining the negligence of the owner

appears to bring the “open and obvious” bar back into Mississippi

law through the back door.

      Nevertheless, this seems to be precisely what Jones does, at

least in the context of independent contractors.       As quoted supra,

Jones explicitly states that an independent contractor’s knowledge

of a defect can absolve the owner of liability:

            The owner/occupier is not an insurer of the
            invitee’s safety, and he is not liable for
            injuries [arising out of conditions] which are
            not dangerous or which are, or should be[,]
            known to the business invitee.

Id. at *10 (citing Jackson Ready-Mix Concrete, 235 So. 2d at 270)

(emphasis added).




                                 - 20 -
      In this light, a premises owner could defend a negligence

action by the employee of an independent contractor by contending,

for example, that he warned the independent contractor of a defect.

If proven, the independent contractor’s knowledge would satisfy the

owner’s duty.      Under IP’s formulation of Mississippi law (in its

initial brief), this knowledge makes the premises, as a matter of

law, “reasonably safe”; it is not foreseeable that a contractor (or

its   employee)    will   be   injured   by   a   condition   of   which   the

contractor has knowledge.

      We see little difference, however, between IP’s formulation

and a contention that, because of the contractor’s knowledge, the

owner simply had “no duty” with respect to that defect because it

was, or should have been, “open and obvious” to the independent

contractor.       After all, as previously quoted, the Mississippi

Supreme Court defined that bar, pre-Tharp, as follows: “There is no

duty to warn the invitee of a defect or danger ... which is obvious

or which should be observed by the invitee in the exercise of

ordinary care.”     Jackson Ready-Mix Concrete, 235 So. 2d at 269-70

(quoting 65 C.J.S. Negligence § 63 (1966)) (emphasis added).

Translated, this reads:        “There is no duty to warn an independent

contractor of a defect or danger of which it has actual knowledge

or of which it, in the exercise of reasonable care, should have

knowledge.” In Jones, Reeves’ possible warning to the contractor’s

supervisor and the contractor’s observations about the work-site

during the work are the “actual knowledge”, while the contract

provision about inspecting the site is the “constructive knowledge”


                                   - 21 -
— in sum, what the contractor should have known, or is deemed to

know.

                                 B.

     That being said, we apply Mississippi law as best we can to

the record before us.   In the light of Jones, if an independent

contractor has actual or constructive knowledge of a dangerous

condition (via warning, contractual provision, etc.), its employees

cannot recover against the premises owner for negligence.   Whether

this rule is characterized as a type of “open and obvious” bar (a

no duty rule) or as proof that a warning or knowledge satisfies an

owner’s duty is, for purposes of this opinion, irrelevant.      The

owner is not liable.

     But, our review of the record convinces us that Tharp was a

key issue, if not the key issue, throughout the trial.   Hill relied

on it in opposing IP’s summary judgment motion.     It was made an

issue of law in the pre-trial order.      The meaning of Tharp was

contested at trial, particularly in IP’s Rule 50 motions and in the

district court’s rulings on them.       Most importantly, the jury

instructions set out a premises owner’s duty in the light of Tharp:

make reasonably safe; take reasonable efforts to remove dangers if

not reasonably safe; and if danger cannot be removed, warn invitee.

See Tharp, 641 So. 2d at 25.

     In sum, the district court was guided in large part, and

properly so, by “the law according to Tharp”.    In our view, that

law has changed — rather dramatically.    Accordingly, in the light




                               - 22 -
of Jones, and based on our review of the record, we are not able to

determine whether a reasonable juror could have found for Hill.

     In a sense, our inability to make this call is somewhat akin

to when we reverse and remand for a new trial because of an

erroneous jury instruction that affected the outcome of the case.

See, e.g., Davis v. Ector County, Tex., 40 F.3d 777, 786 (5th Cir.

1994); FDIC v. Mijalis, 15 F.3d 1314, 1318 (5th Cir. 1994).       As

noted, IP raises an erroneous instruction issue.    (Hill counters

that the issue was not preserved in district court; IP claims an

exception to the usual objection-requirement.    We do not address

these points.)

     However, in our view, the better procedure, on this record and

due to what we perceive as a mid-course change in Mississippi law,

is the variation we have utilized on judgment as a matter of law.

In any event, in fairness to the court and the parties, we must

vacate the judgment and remand for further proceedings, including

a new trial should Hill be able to present triable issues.

                               III.

     For the foregoing reasons, the judgment is VACATED and the

case is REMANDED for further proceedings consistent with this

opinion.



                                         VACATED AND REMANDED




                              - 23 -
