         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2014-CA-01826-COA

BARBARA JONES                                                                APPELLANT

v.

WAL-MART STORES EAST, LP, FARON                                               APPELLEES
CABLER, STORE MANAGER AND THOMAS F.
KOPPE, SAFETY MANAGER

DATE OF JUDGMENT:                           12/03/2014
TRIAL JUDGE:                                HON. LAWRENCE PAUL BOURGEOIS JR.
COURT FROM WHICH APPEALED:                  HARRISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     DAVID PAUL PITRE
ATTORNEYS FOR APPELLEES:                    WILBUR PEMBLE DELASHMET
                                            CHAD CHRISTOPHER MARCHAND
                                            ASHLEY POWELL GRIFFIN
NATURE OF THE CASE:                         CIVIL - PERSONAL INJURY
TRIAL COURT DISPOSITION:                    SUMMARY JUDGMENT GRANTED TO
                                            APPELLEES
DISPOSITION:                                AFFIRMED - 04/05/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

       WILSON, J., FOR THE COURT:

¶1.    Barbara Jones alleges that “she tripped and fell in a pothole/crack” in the parking lot

of the Wal-Mart Super Center on Highway 49 in Gulfport. She sued Wal-Mart Stores East

L.P. and two of its employees (collectively, “Wal-Mart”) for negligence. Wal-Mart moved

for summary judgment on three grounds, including that the “pothole/crack” was not a

dangerous condition. The Harrison County Circuit Court granted Wal-Mart’s motion, and

Jones appealed. We agree with the circuit court that there is no genuine issue of material fact
and that Wal-Mart is entitled to a judgment as a matter of law. We therefore affirm.

                        FACTS AND PROCEDURAL HISTORY

¶2.    A little after 5 p.m. on December 5, 2009, Jones and her fiancé, Jerry Bush, stopped

at the Wal-Mart Super Center on Highway 49 in Gulfport to buy some groceries. Jones had

been to the store “maybe” once before, as she usually shopped at a Wal-Mart in Bogalusa or

Covington, Louisiana. Jones got out of the car to go inside the store, but Bush stayed in the

car. As she walked through the parking lot toward the store, Jones tripped and fell forward

onto her right knee. Jones testified that she “was looking straight ahead of where [she] was

going,” not looking down, when she tripped and fell. Jones described the shoes that she was

wearing as a “low heel, quarter boot like.”

¶3.    Jones testified that she did not know what caused her to trip until Bush looked over

the area and told her that she had fallen in a pothole. Jones could not recall that she ever saw

the pothole herself, even after she fell. She only knew that Bush later showed her

photographs that he had taken of it.

¶4.    Jones testified that after she fell, she got up and “hobbled” over to a security guard

who was outside the store, and she then called Bush, presumably on his cell phone. In

response to Wal-Mart’s summary judgment motion, Jones submitted an affidavit from Bush.

Bush claims that from his “vantage point” in the car, he witnessed Jones “step in a hole and

suddenly stumble in the crosswalk in front of the store” and that he “came to her aid soon

thereafter.” Bush says that he confirmed “the exact area of the location where [Jones] fell”



                                               2
by talking to Jones and reviewing Wal-Mart’s own video of the parking lot.

¶5.    Bush got a wheelchair for Jones, and the security guard told them that they should go

inside the store and make a report of the incident. Bush and Jones went to the security desk

and asked to talk to a manager. The store manager, Faron Cabler, spoke with them and made

a report of the incident. Jones also completed a customer statement in which she described

her fall. Jones wrote that she had “stepped in crack pothole outside [Wal-Mart’s] front door

and severely hurt [her] ankle and foot. Right in front of security guard Ron.”

¶6.    Bush also purchased a camera and took photographs of the location where he believed

Jones had fallen. At her deposition, Jones did not recall whether she was with Bush when

he took the photographs. In his affidavit, Bush stated that Wal-Mart employees also took

photographs of the area.

¶7.    Bush then took Jones to the hospital, but the couple returned to Wal-Mart later that

evening. Bush says that when they returned, he saw Wal-Mart employees patching the hole

where he believed Jones had fallen.

¶8.    Cabler and others testified that all Wal-Mart employees are instructed to report any

hazards that they discover in the store’s parking lot, although no employee or security guard1

is specifically tasked with performing regular safety inspections of the lot.

¶9.    Cabler testified that if a crack or hole was discovered in the parking lot, it would be

repaired by either in-house maintenance or an outside contractor. Cabler explained that the

       1
        According to Wal-Mart, the store’s security guards are employed by an independent
contractor, not Wal-Mart.

                                              3
store’s employees could repair “small cracks” with an asphalt patch purchased from Lowe’s

or Home Depot. Cabler would work through Wal-Mart’s corporate office to hire a contractor

to address more significant issues. There is no direct evidence that Cabler or any other Wal-

Mart employee was aware of the crack in question prior to Jones’s fall. After the incident,

Cabler asked an employee to fill in the crack with an asphalt patch.

¶10.   On May 7, 2012, Jones filed a complaint against Wal-Mart, Cabler, and Thomas

Koppe, the store safety manager. On September 3, 2012, Wal-Mart moved for summary

judgment. Wal-Mart argued that it was entitled to a judgment as a matter of law because

Jones herself did not know what caused her fall; because there was no evidence that Wal-

Mart had actual or constructive notice of the crack; and because the crack that allegedly

caused her fall was not a dangerous condition. In response, Jones argued that all three issues

raised genuine issues of material fact. Following a hearing, the court granted Wal-Mart’s

motion for summary judgment, and Jones timely appealed.

                               STANDARD OF REVIEW

¶11.   “We review the grant or denial of a motion for summary judgment de novo, viewing

the evidence ‘in the light most favorable to the party against whom the motion has been

made.’” Karpinsky v. Am. Nat’l Ins., 109 So. 3d 84, 88 (¶9) (Miss. 2013) (quoting Pratt v.

Gulfport–Biloxi Reg’l Airport Auth., 97 So. 3d 68, 71 (¶5) (Miss. 2012)). “A grant of

summary judgment will be upheld only when, viewing the evidence in the light most

favorable to the nonmoving party, there are no genuine issues of material fact” and “the



                                              4
moving party is entitled to judgment as a matter of law.” Forbes v. Gen. Motors Corp., 993

So. 2d 822, 824 (¶7) (Miss. 2008). However, “summary judgment is appropriate when the

non-moving party has failed to make a showing sufficient to establish the existence of an

element essential to the party’s case, and on which that party will bear the burden of proof

at trial.” Karpinsky, 109 So. 3d at 89 (¶11) (quotation marks omitted). Furthermore, the non-

moving “party may not rest upon the mere allegations or denials of his pleadings, but his

response, by affidavits or [depositions, answers to interrogatories, or admissions], must set

forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e).

                                       DISCUSSION

¶12.   The parties agree that Jones was a business invitee of Wal-Mart when she fell in the

parking lot. Under Mississippi law, “[t]he owner or operator of business premises owes a

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

condition.” Jerry Lee's Grocery Inc. v. Thompson, 528 So. 2d 293, 295 (Miss. 1988). This

duty requires the business owner to take certain steps to protect its customers from

“dangerous conditions” on the premises of which the business is or should be aware:

       [I]f the operator 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.
       . . . When a dangerous condition on the premises is caused by the operator’s
       own negligence, no knowledge of its existence need be shown. When a
       dangerous condition on the premises . . . is caused by a third person
       unconnected with the store operation, the burden is upon the plaintiff to show
       that the operator had actual or constructive knowledge of its presence.

Id. (citations omitted). If a dangerous condition is “open and obvious,” the business owner



                                               5
has no duty to warn customers of its existence, but “it does not eliminate the [owner’s] duty

to maintain the premises in a reasonably safe condition.” Mayfield v. The Hairbender, 903

So. 2d 733, 739 (¶27) (Miss. 2005) (emphasis added). Thus, there may remain a question

whether the business “was negligent for failure to repair an alleged dangerous condition.”

Id. As the foregoing indicates, 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. Stanley v. Boyd Tunica Inc., 29 So. 3d 95, 97 (¶10) (Miss. Ct. App. 2010). Because

“the store owner is not an insurer of business invitees’ injuries,” mere proof that the invitee

fell and was injured while on the premises is insufficient to establish liability. Byrne v.

Wal-Mart Stores Inc., 877 So. 2d 462, 465 (¶6) (Miss. Ct. App. 2003).

¶13.   In this case, Wal-Mart argues that it is entitled to a judgment as a matter of law

because Jones herself cannot say that the crack at issue caused her fall; because there is no

evidence that the store or its employees had actual or constructive knowledge of the crack;

and because the crack simply was not a dangerous condition. Jones argues that, considered

together, her own testimony, Bush’s affidavit, and a still picture from video of the store’s

parking lot are sufficient evidence of the location of her fall to survive summary judgment.

Jones also argues that a fact-finder could infer that Wal-Mart had actual or constructive

knowledge of the crack because it was in a high-traffic area directly in front of the store. For

purposes of this appeal, we may assume for the sake of argument that these two disputes

presented triable issues of fact. We may do so because we conclude that the circuit court



                                               6
properly granted summary judgment on the ground that the crack is not a dangerous

condition.

¶14.   “Mississippi has long recognized that normally encountered dangers such as curves,

sidewalks, and steps are not hazardous conditions. Often such pathways contain cracks and

changes in elevation; and, as such, they do not become hazardous conditions simply because

they contain minor imperfections or defects.” Knight v. Picayune Tire Servs. Inc., 78 So. 3d

356, 359 (¶9) (Miss. Ct. App. 2011) (quotation marks, brackets omitted); accord Parker v.

Wal-Mart Stores Inc., 261 F. App’x 724, 726-27 (5th Cir. 2008) (same); see also Trull v.

Magnolia Hill LLC, 171 So. 3d 518, 521 (¶10) (Miss Ct. App. 2014) (“Mississippi caselaw

has consistently held that the existence of slight variations in walkways . . . does not

constitute a dangerous condition.”); Penton v. Boss Hoggs Catfish Cabin LLC, 42 So. 3d

1208, 1210 (¶11) (Miss. Ct. App. 2010) (same). “[N]o . . . 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.” Bond v. City

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

¶15.   Thus, in Penton, supra, a customer tripped and fell on an uneven concrete pad on the

walkway leading to a restaurant from its parking lot, but we held, as a matter of law, that the

slight height difference was not a dangerous condition. Penton, 42 So. 3d at 1210-11 (¶¶11-

12). Similarly, in Knight, supra, we held that a “seam” creating an uneven surface in an

asphalt parking lot is not a dangerous condition. Knight, 78 So. 3d at 358-59 (¶¶4-5, 8-9).



                                              7
In addition, in a number of different cases, federal courts applying our common law have

reached similar conclusions. For example:

       •      In Parker, supra, a Wal-Mart customer fell when the heel of her shoe
              landed in a crack in the expansion joint of a curb. Parker, 261 F.
              App’x at 725. Though the crack was 3.5 inches wide and 2 inches
              deep, id., the Fifth Circuit held that the store was entitled to summary
              judgment because the defect was not a dangerous condition under
              Mississippi law, id. at 727-28.

       •      In Mack v. Waffle House Inc., No. 1:06CV559, 2007 WL 1153116
              (S.D. Miss. Apr. 18, 2007) (Walker, Mag. J.), a customer was injured
              after tripping on a crack in the restaurant’s sidewalk that was 2 inches
              wide, 4.75 inches long, and 0.75 inches deep. The court granted
              summary judgment, holding that the crack was not a dangerous
              condition. Id. at *1-*2.

       •      In Quick v. Strategic Restaurants Acquisition Co., No. 3:12-cv-301,
              2013 WL 1305583 (S.D. Miss. Mar. 28, 2013) (Reeves, J.), a Burger
              King customer tripped and injured herself in a “pothole” in the parking
              lot that was “no more than 10 inches around and [1.5] inches deep.” Id.
              at *2. The court held that the restaurant was entitled to summary
              judgment because the pothole was not a dangerous condition. Id.

       •      In McCain v. Lehman Bros. Inc., No. 3:06-CV-327, 2008 WL 872431
              (S.D. Miss. Mar. 27, 2008) (Wingate, C.J.), the court held that “two
              large cracks” in the sidewalk outside of the Metrocenter Mall were not
              a dangerous condition given that the concrete blocks on either side of
              the cracks “had only a slight height differential.” Id. at *3.

       •      Finally, in Chance v. Wal-Mart East L.P., No. 3:14-cv-363, 2015 WL
              4496442 (S.D. Miss. July 23, 2015) (Barbour, J.), a Wal-Mart customer
              fell and injured herself when her foot stuck in a 1.5 to 1.75 inch
              indentation in the store parking lot. Id. at *1. The court held that, as a
              matter of law, the complained of indentation was not a dangerous
              condition. Id. at *2.

These federal decisions obviously are not binding on this Court but are persuasive. See, e.g.,



                                              8
Corban v. United Servs. Auto. Ass’n, 20 So. 3d 601, 611 n.15 (Miss. 2009); Boteler v. State

Farm Cas. Ins., 876 So. 2d 1067, 1070 (¶10) (Miss. Ct. App. 2004).

¶16.   The result may be different if a defect is concealed from view. See Parker, 261 F.

App’x at 727 (citing Wooten v. Wal-Mart Stores Inc., 104 F. App’x 977 (5th Cir. 2004)).

Alternatively, a walkway feature may be a dangerous condition if it is of a type that is not

“usual” and “normally expected” by invitees. See Wood v. RIH Acquisitions MS II LLC, 556

F.3d 274, 281 (5th Cir. 2009) (declining to hold, as a matter of law, that raised reflectors in

the driveway near a casino entrance were not an unreasonably dangerous condition (citing

Tate v. S. Jitney Jungle Co., 650 So. 2d 1347, 1351 (Miss. 1995))); cf. City of Natchez v.

Jackson, 941 So. 2d 865, 869-70 (¶¶5-9) (Miss. Ct. App. 2006) (stating that although

“naturally occurring defects in sidewalks” are not dangerous conditions, a hole in a steel

“coal grate” placed in the middle of a sidewalk may be, particularly given the defendant's

“admission” that the grate was an “unreasonable trip hazard”). But the crack at issue in this

case was not concealed, and we have held that such cracks in walkways are a condition

“normally encountered” by business invitees. Knight, 78 So. 3d at 359 (¶9).

¶17.   Jones primarily argues that her case is distinguishable because this crack is not a mere

crack but a “crevasse four inches deep and four inches wide and twelve inches long.” Jones

worries that “in a few more decades an innocent injured victim will find themselves at the

bottom of a cavern looking up at a . . . premises owner (this time not with a ruler or yardstick

but with a long spooling measuring tape, eager to convince the courts to rule that this too was


                                               9
not big enough be deemed hazardous).” While ably argued, we believe that Jones’s

contention is overstated. The crack at issue here, while perhaps slightly larger than those at

issue in prior cases, remains a crack of the sort that customers of a business may normally

expect to encounter as they traverse a parking lot or sidewalk.2 The crack, pothole, or other

height differential at issue in each of the cases discussed above was large enough to cause

the plaintiff to trip and fall, just as Jones alleges occurred here. The principle derived from

those cases is that such cracks are not dangerous conditions because they are normally

encountered by invitees, not because they are of any particular size. Knight, 78 So. 3d at 359

(¶9). Viewed from this perspective, this crack is not distinguishable, and it is not a

dangerous condition.

¶18.   Jones also relies heavily on our Supreme Court’s decision in Mayfield, 903 So. 2d

733, arguing that it precludes summary judgment on her negligence claim. However,

Mayfield held only that an open and obvious danger is not an absolute defense in a premises

liability case in which the plaintiff alleges that the defendant was negligent in failing to repair

a dangerous condition. See id. at 737 (¶¶16-19). Rather, the issue should be considered by

the jury under a comparative negligence standard. See id. at (¶19). The Mayfield opinion did

not address the question whether the defect at issue in that case—broken pavement that

“jutted up” over steps leading to the business, see id. at 734 (¶3)—constituted a dangerous


       2
         Photographs that Bush took of the crack are reproduced in Jones’s initial brief on
appeal, which is available on the Court’s website. Wal-Mart argues that the photographs
actually contradict Jones’s claim that the crack was four inches deep.

                                                10
condition. Accordingly, Mayfield is not on point in this case.

¶19.   For the foregoing reasons, we agree with the circuit court that there is no genuine

issue of material fact and that Wal-Mart is entitled to a judgment as a matter of law because

the parking lot crack that allegedly caused Jones to trip and fall was not a dangerous

condition. Accordingly, we affirm without reaching the alternative grounds for summary

judgment urged by Wal-Mart.3

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

    LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON AND FAIR, JJ.,
CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT
SEPARATE WRITTEN OPINION. JAMES, J., DISSENTS WITHOUT SEPARATE
WRITTEN OPINION. GREENLEE, J., NOT PARTICIPATING.




       3
         Jones argues that she is entitled to the benefit of a spoliation presumption because
Wal-Mart destroyed evidence by filling in the crack after she left the store. See Thomas v.
Isle of Capri Casino, 781 So. 2d 125, 133 (¶37) (Miss. 2001) (“When evidence is . . .
destroyed by one party (the ‘spoliator’), thus hindering the other party’s ability to prove his
case, a presumption is raised that the missing evidence would have been unfavorable to the
party responsible for its loss.”). The argument is without merit. Bush took photographs of
the crack before he and Jones left the store, and for purposes of this appeal, we have accepted
Jones’s contentions as to what they depict. Jones did not file suit until almost two and a half
years after the incident. Wal-Mart was not obligated to leave an allegedly injury-causing
crack in its parking lot indefinitely.

                                              11
