                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   July 27, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 04-60173
                           Summary Calendar



     TYRONE TIMOTHY WOOTEN, Estate of Elizabeth Ann Clark
     Wooten, on behalf of the wrongful death beneficiaries
     of Elizabeth Wooten

                     Plaintiff - Appellant

     v.

     WAL-MART STORES INC

                     Defendant - Appellee


            Appeal from the United States District Court
              for the Northern District of Mississippi
                         No. 3:02-CV-137-JAD



Before KING, Chief Judge, and JOLLY and HIGGINBOTHAM, Circuit
Judges.

PER CURIAM:*

     Plaintiff-Appellant Tyrone Wooten, executor of the estate of

Elizabeth Wooten, appeals from the district court’s grant of

Defendant-Appellee Wal-Mart Stores, Inc.’s motion for summary

judgment.   For the following reasons, we REVERSE.




     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                               -2-



                          I. BACKGROUND

     Elizabeth Wooten filed a personal-injury lawsuit against

Wal-Mart Stores after she fell while shopping at a Wal-Mart in

Holly Springs, Mississippi.    Elizabeth Wooten claimed that she

was unable to see the small step or curb, over which she

allegedly tripped, as she walked into the garden area of the

store because it was not clearly marked and the area surrounding

the step was cluttered with debris.    After Wal-Mart removed the

case to federal district court, Tyrone Wooten (Wooten)––executor

of Elizabeth Wooten’s estate––notified the court that she had

died and was substituted as Plaintiff in the case.     The complaint

was subsequently amended to include a wrongful-death claim.

     After discovery, Wal-Mart filed a motion for summary

judgment, arguing that Wooten did not have any evidence to

demonstrate that Wal-Mart violated its duty of care.     The

district court granted the motion, and Wooten appeals from this

judgment.

                         II. DISCUSSION

     We review a district court’s grant of summary judgment de

novo, applying the same standard as the district court.        King v.

Ill. Cent. R.R., 337 F.3d 550, 553 (5th Cir. 2003).     Summary

judgment is proper when the record demonstrates no genuine issue

of material fact and where the moving party is entitled to

judgment as a matter of law.    See FED. R. CIV. P. 56(c).   In
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                                  -3-

deciding whether the moving party is entitled to judgment as a

matter of law, all “[d]oubts are to be resolved in favor of the

nonmoving party, and any reasonable inferences are to be drawn in

[that party’s] favor.”     Gowesky v. Singing River Hosp. Sys., 321

F.3d 503, 507 (5th Cir. 2003).

     We, of course, apply Mississippi substantive law to this

diversity case.     See Hill v. Int’l Paper Co., 121 F.3d 168, 170

(5th Cir. 1997).    As in all negligence cases, to survive a motion

for summary judgment, the plaintiff must provide evidence showing

that the defendant owed her a duty, the defendant breached that

duty, and this breach was the proximate cause of the injury she

suffered.   See Ball v. Dominion Ins. Corp., 794 So. 2d 271, 273

(Miss. Ct. App. 2001).    The parties agree that the decedent,

Elizabeth Wooten, was a business invitee.    Therefore, Wal-Mart,

while not an insurer of the decedent’s safety, “owed her the duty

of exercising reasonable care to keep the premises safe, or of

warning [her] of hidden or concealed perils of which [Wal-Mart]

knew or should have known in the exercise of reasonable care.”

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

648 (Miss. 1988).

     In granting Wal-Mart’s motion for summary judgment, the

district court held that Wooten had not presented evidence to

establish that Wal-Mart had breached its duty of care to the

decedent.   In reaching this conclusion, the court held that

“[t]he owner of a business is not an insurer of the safety of its
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                                -4-

customers and is not liable for injuries caused by conditions

which are not dangerous or which are or should be known or

obvious to the customer.” (citing Ball, 794 So. 2d at 292).     The

parties agree, however, that the Mississippi Supreme Court has

abolished the “open and obvious” defense for premises liability

cases, adopting instead a pure comparative negligence regime

under which a plaintiff’s recovery is diminished, but not barred,

where the condition complained of is unreasonably dangerous but

easily observable.   See Tharp v. Bunge Corp., 641 So. 2d 20, 25

(Miss. 1994).   Nevertheless, Wal-Mart asserts that the district

court’s statement that Wooten could not recover as a matter of

law if the condition was “known or obvious” is not grounds for

reversal because the facts in the summary-judgment record do not

demonstrate that the curb over which the decedent allegedly

tripped was unreasonably dangerous.

     While we might agree with Wal-Mart that the district court’s

reference to the obviousness of the condition is not necessarily

grounds for reversal,2 we disagree with Wal-Mart’s further

contention that the summary-judgment record is devoid of facts

supporting a finding of dangerousness.    In his motion in



     2
          Importantly, the district court’s judgment relied, in
the alternative, on a finding that the step to the garden area
was not dangerous or that any danger it posed should have been
known or obvious to the decedent. Cf., Tharpe, 641 So. 2d at 25
(refusing to abrogate McGovern v. Scarborough, 566 So. 2d 1225
(Miss. 1990), on similar grounds because, there, the court “went
into great detail to say that the defendant was not negligent and
merely threw in the phrase ‘open and obvious’ at the end”).
                          No. 04-60173
                               -5-
opposition to summary judgment, Wooten attempted to demonstrate

that Wal-Mart breached its duty of care by presenting evidence

that the garden area where the decedent fell was in complete

disarray on the date in question, with pallets of garden

materials and other debris “in the way” of the step, which was

not clearly marked to increase its visibility.   In response, Wal-

Mart argues that its evidence demonstrates that the step was

marked with a bright orange stripe on the day of the accident,

that the decedent knew about the step because she had visited the

garden area on numerous previous occasions, and that the presence

of debris in the garden area is immaterial because there is no

evidence that decedent actually tripped over this debris.

     Wal-Mart’s arguments miss the mark.   The Supreme Court of

Mississippi has indicated that a business owner has a duty “to

warn of a condition even though the injured party . . . was aware

of the hazard” when the injured party “could not see [the hazard]

at the time of his accident.”   Biloxi Reg’l Med. Ctr. v. David,

555 So. 2d 53, 56 (Miss. 1989) (discussing Litton Sys., Inc. v.

Enochs, 499 So. 2d 1213, 1215 (Miss. 1984)).   Thus, even if Wal-

Mart’s evidence shows that the decedent had traversed the step

numerous times, a contention that Wooten now disputes, this would

not form an absolute bar to recovery; instead, other evidence in

the record creates a genuine issue of material fact regarding

whether, on the date of the accident, the debris in the garden

area concealed the presence of the step, thus creating an
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                               -6-
unreasonably dangerous condition.3    See McGovern, 566 So. 2d at

1228 (stating that an owner has a duty either “to keep the

premises reasonably safe” or, “when not reasonably safe” to warn

of “hidden danger or peril that is not in plain and open view”).

A jury might reasonably infer that Wal-Mart breached its duty of

care in allowing this debris to accumulate and that this breach

was the proximate cause of the decedent’s fall.    See, e.g., Miss.

Dep’t of Transp. v. Cargile   847 So. 2d 258, 262 (Miss. 2003)

(stating that “proof of a causal connection” may “be established

by circumstantial evidence” if the evidence is “sufficient to

make the plaintiff’s asserted theory reasonably probable,” and,

in any event, “it is generally for the trier of fact to say

whether circumstantial evidence meets this test”).    We therefore

conclude that the district court erred in awarding summary

judgment to Wal-Mart.

                         III. CONCLUSION

     Accordingly, we REVERSE the judgment of the district court

and REMAND for further proceedings.




     3
          This issue of concealment distinguishes the case at bar
from past Mississippi cases where a curb or sidewalk on a
business-owner’s premises was held not to present an unreasonably
dangerous condition. See, e.g., Stanley v. Morgan & Lindsey,
Inc., 203 So. 2d 473, 477 (Miss. 1967) (seven and one-half inch
curb to sidewalk); Ball, 794 So. 2d at 272-73 (curb from business
to parking lot).
