                           IN THE SUPREME COURT OF MISSISSIPPI

                                       NO. 2001-CA-01520-SCT

COLBY VAUGHN, A MINOR, BY AND THROUGH HIS GUARDIANS AND NATURAL
PARENTS, BRAD VAUGHN AND TRACY VAUGHN
v.
THE ESTATE OF KENDALL WORRELL AND TILDA B. WORRELL



DATE OF JUDGMENT:                   8/30/2001
TRIAL JUDGE:                        HON. C. E. MORGAN, III
COURT FROM WHICH                    CHOCTAW COUNTY CIRCUIT COURT
APPEALED:
ATTORNEYS FOR                       JOHN BRIAN HYNEMAN
APPELLANT:
                                    H. SCOT SPRAGINS
ATTORNEYS FOR                       MARK R. SMITH
APPELLEES:
                                    MICHAEL N. WATTS
NATURE OF THE CASE:                 CIVIL - TORTS-OTHER THAN PERSONAL INJURY &
                                    PROPERTY DAMAGE
DISPOSITION:                        AFFIRMED - 10/17/2002
MOTION FOR REHEARING
FILED:
MANDATE ISSUED:



     BEFORE McRAE, P.J., EASLEY AND CARLSON, JJ.

     EASLEY, JUSTICE, FOR THE COURT:


                                      PROCEDURAL HISTORY

¶1. On January 10, 2000, Colby Vaughn (Colby), a minor, filed this premises liability suit against his
maternal great-grandmother, Tilda B. Worrell (Tilda), and the Estate of Tilda's deceased husband, Kendall
Worrell (the Estate), in the Circuit Court of Choctaw County, Mississippi, by and through his guardians and
natural parents, Brad and Tracy Vaughn (the Vaughns). Tilda and the Estate filed their answer to the
complaint on March 13, 2000. After discovery was completed, Tilda and the Estate filed their motion for
summary judgment on December 21, 2000. Colby's response to the motion for summary judgment was
filed on February 5, 2001.
¶2. The trial court conducted a hearing on June 21, 2001, on the motion for summary judgment. On August
30, 2001, the trial court rendered its decision granting Tilda's and the Estate's motion for summary
judgment. The trial court's judgment was filed on September 4, 2001. On September 19, 2001, Colby filed
his notice of appeal to this Court.

                                                   FACTS

¶3. On June 22, 1999, eight-year-old Colby was under the supervision of his maternal grandfather, Dixie
Worrell (Dixie). The Vaughns, Dixie and Tilda all lived in Choctaw County, Mississippi, within a close
proximity to each other. Dixie and Tilda lived on adjoining properties.

¶4. While riding his bicycle between Dixie's and Tilda's adjacent properties, Colby fell against a pile of
debris containing sheets of tin stacked under various pieces of concrete and wood located on Tilda's
property. Colby suffered a severe injury to his leg.

¶5. In her affidavit, Tilda stated that she had looked out her window prior to the accident, and she saw
Colby with Dixie on her side of the property. However, Tilda was unaware that Colby was on her property
at the time of the accident.

¶6. In Colby's deposition, he stated that he had ridden his bicycle in Tilda's yard on numerous occasions
and was aware of the existence of the debris pile.

¶7. It is undisputed by the parties that Colby was a licensee on Tilda's property at the time of the accident.
The parties further agree that it is undisputed that under existing case law, no duty exists toward a licensee
except to refrain from willfully or wantonly injuring him and to warn of hidden dangers.

¶8. Colby now appeals to this Court the decision of the trial court granting Tilda's and the Estate's motion
for summary judgment.

                                        STATEMENT OF ISSUES

      I. Whether the trial court erred in granting the appellees' motion for summary judgment.

      A. Whether Colby was a licensee on the property at the time of the accident.

      B. Whether Tilda breached her duty to Colby to refrain from willfully or wantonly injuring
      him or to not set traps for him by exposing him to hidden perils.

      C. Whether the debris pile constituted a "trap" or "pitfall" which would preclude summary
      judgment.

                                               DISCUSSION

                                           I. Summary Judgment

¶9. This Court applies a de novo standard of review on appeal from a grant of summary judgment by the
trial court. Jenkins v. Ohio Cas. Ins. Co., 794 So.2d 228, 232 (Miss. 2001); Russell v. Orr, 700
So.2d 619, 622 (Miss. 1997); Richmond v. Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss.
1997); Northern Elec. Co. v. Phillips, 660 So.2d 1278, 1281 (Miss. 1995). Rule 56(c) of the
Mississippi Rules of Civil Procedure provides that summary judgment shall be granted by a court if "the
pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of law." M.R.C.P. 56(c). The moving party has the burden of demonstrating that there is no
genuine issue of material fact in existence, while the non-moving party should be given the benefit of every
reasonable doubt. Tucker v. Hinds County, 558 So.2d 869, 872 (Miss. 1990). See also Heigle v.
Heigle, 771 So.2d 341, 345 (Miss. 2000). "If, in this view, there is no genuine issue of material fact and,
the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered
in his favor. Otherwise, the motion should be denied." Williamson v. Keith, 786 So.2d 390, 393 (Miss.
2001). "Issues of fact sufficient to require denial of a motion for summary judgment obviously are present
where one party swears to one version of the matter in issue and another says the opposite." Tucker, 558
So.2d at 872.

      Of importance here is the language of the rule authorizing summary judgment "where there is no
      genuine issue of material fact." The presence of fact issues in the record does not per se entitle a
      party to avoid summary judgment. The court must be convinced that the factual issue is a material
      one, one that matters in an outcome determinative sense...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.

Simmons v. Thompson Mach. of Miss., Inc., 631 So.2d 798, 801 (Miss.1994)(citing Shaw v.
Burchfield, 481 So.2d 247, 252 (Miss. 1985)). The evidence must be viewed in the light most favorable
to the non-moving party. See Russell, 700 So.2d at 622; Richmond, 692 So.2d at 61; Northern Elec.
Co., 660 So.2d at 1281; Simmons, 631 So.2d at 802; Tucker, 558 So.2d at 872.

¶10. To avoid summary judgment, the non-moving party must establish a genuine issue of material fact
within the means allowable under the Rule. Richmond, 692 So.2d at 61 (citing Lyle v. Mladinich, 584
So.2d 397, 398 (Miss. 1991)). "If any triable issues of fact exist, the lower court's decision to grant
summary judgment will be reversed. Otherwise the decision is affirmed." Richmond, 692 So.2d at 61.

                                                  A. Licensee

¶11. In Little v. Bell, 719 So.2d 757, 760 (Miss. 1998), this Court stated that:

      This Court has consistently held that the duty owed to an entrant on property is determined by
      reference to her status under the common law system. Throughout the state's jurisprudence,
      Mississippi has followed the common-law distinctions between trespassers, licensees, and invitees
      when determining the landowner's duty. Skelton v. Twin County Rural Elec. Ass'n, 611 So.2d
      931, 936 (Miss. 1992) (citing Payne v. Rain Forest Nurseries, Inc., 540 So.2d 35, 37 (Miss.
      1989); Hoffman v. Planters Gin Co., 358 So.2d 1008, 1011 (Miss. 1978); Lucas v. Buddy
      Jones Ford Lincoln Mercury, Inc., 518 So.2d 646, 647 (Miss. 1998)).

It is well-settled under Mississippi law that 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.... Payne v. Rain Forest Nurseries, Inc., 540
      So.2d 35, 37 (Miss. 1989) (citing Hoffman v. Planters Gin Company, Inc., 358 So.2d 1008.
      1011 (Miss. 1978)).

Skelton, 611 So.2d at 936.

¶12. In the case at bar, the parties agree that Colby was a licensee on Tilda's property at the time of the
accident.

                                              B. Duty of Care

¶13. This Court has defined "willful and wanton" as "knowingly and intentionally doing a thing or wrongful
act." Turner v. City of Ruleville, 735 So.2d 226, 229 (Miss. 1999) (quoting Raney v. Jennings, 248
Miss. 140, 158 So.2d 715, 718 (1963)).

¶14. In the case sub judice, it is further undisputed by the parties that the duty owed a licensee is only to
refrain from willfully or wantonly injuring him and to point out hidden dangers. See Skelton, 611 So.2d at
936. Nothing in the record demonstrates that Tilda engaged in any willful or wanton conduct to injure
Colby.

¶15. In Hoffman, 358 So.2d at 1008, this Court set out an exception to the general rule that the duty
owed a licensee is to refrain from willfully and wantonly injuring him:

      We think the premises owner is liable for injury proximately caused by affirmative or active negligence
      in the operation or control of a business which subjects either licensee or invitee to unusual danger, or
      increases the hazard to him, when his presence is known and that the standard of ordinary and
      reasonable care has application.

Hoffman, 358 So.2d at 1013.

¶16. To satisfy the exception carved out within Hoffman, there must be evidence that the landowner (1)
was aware of the licensee's presence on the premises, and (2) that the landowner engaged in affirmative or
active negligence in the control or operation of activities on the premises. Saucier v. Biloxi Reg'l Med.
Ctr., 708 So.2d 1351, 1356 (Miss. 1998). This heightened duty of care owed to a licensee is limited to
require some type of "active" conduct or negligence by the landowner rather than "passive" negligence. Id.

¶17. The record does not reflect any active negligence by Tilda to place her within this exception to the
general rule of the duty of care owed to a licensee.

                                              C. Hidden Peril

¶18. Colby argues that due to his age, he lacked the capacity to perceive the danger posed by riding his
bicycle near the pile of debris, and Tilda, therefore, owed him a duty to specifically warn him of the
potential danger. At the time of the accident, Colby was eight years old. Colby further contends that since
Tilda failed to warn him of the pile of debris the debris constituted a "trap" or a hidden "pitfall."

¶19. Citing Marlon Inv. Co. v. Conner, 246 Miss. 343, 149 So.2d 312 (1963), Colby alleges that
summary judgment should not have been granted as a hidden dangerous condition existed based on his age,
experience, judgment and intelligence. In Marlon, a woman was injured when she slipped on debris while
ascending unlit stairs at night. She had descended the stairs by mistake being misled by a lit sign into
believing the stairs led to the establishment next door. Id. at 312-15. The stairs actually led to locked
doors. Id. The Marlon Court determined that a jury could find that the defendant failed to take reasonable
precautions to prevent her injuries. Id. at 318. The Court held in Marlon that the owner of the premises
must disclose to the licensee any concealed, dangerous condition on the premises of which the owner had
knowledge so the licensee could exercise reasonable care. Id. at 312-15.

¶20. In response, Tilda cites Adams v. Fred's Dollar Store, 497 So.2d 1097 (Miss. 1986), which
analyzed Marlon and the proper application of the standard established in Marlon. In Adams, a woman
was injured when she drove her automobile into a light pole base in an unlit parking lot. Id. at 1098-99. She
alleged that the light pole base amounted to a "trap" or "hidden peril" of which the owner of the premises
should have warned her in order to exercise reasonable care. Id. In Adams, this Court determined that the
concrete light pole did not constitute a "trap," a "hidden peril" or a "concealed pitfall." Id. This Court further
held that the pole was visible by day, stood above ground and was open and obvious. Id.

¶21. In the case sub judice, the record reflects that Colby's great-grandmother, Tilda, occasionally looked
after Colby when his grandfather, Dixie, was not available. Dixie stated in his deposition that there was no
boundary line or fence between his property and Tilda's. Dixie served as caretaker of his property, as well
as, that of his mother, Tilda. When Colby rode his bike, he normally rode in Dixie's yard and Tilda's yard as
"one big yard." In Colby's deposition, he stated that on the day of the accident he was left in the care of his
grandfather, Dixie. Colby further stated that he was familiar with his great-grandmother's yard and rode his
bike in Tilda's yard numerous times on previous occasions and was aware of the existence of the debris
pile. Colby even described the debris pile as a pile of tin with things stacked on top of it.

¶22. The record does not establish a jury issue that the debris pile was a "trap" or a "hidden peril." This
Court finds that the debris pile was open and obvious. Nothing in the record supports Colby's allegation
that his age should require that the debris pile be classified as a "hidden peril."

¶23. Therefore, we find that summary judgment was proper. Colby does not raise any issues that constitute
reversible error.

                                               CONCLUSION

¶24. For the foregoing reasons, the judgment of the trial court is affirmed.

¶25. AFFIRMED.

      PITTMAN, C.J., SMITH, P.J., WALLER, COBB, DIAZ, CARLSON AND GRAVES, JJ.,
      CONCUR. McRAE, P.J., CONCURS IN RESULT ONLY.
