     Case: 13-60454   Document: 00512657729     Page: 1   Date Filed: 06/10/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
                                 No. 13-60454                           June 10, 2014
                                                                       Lyle W. Cayce
JACKIE COX; RICKY LEE COX                                                   Clerk


                                           Plaintiffs - Appellants
v.

WAL-MART STORES EAST, L.P.,

                                           Defendant - Appellee




                Appeal from the United States District Court
                  for the Northern District of Mississippi


Before BENAVIDES, CLEMENT, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
      This appeal concerns the grant of summary judgment to Wal-Mart, the
defendant in a premises liability case. We reverse and remand to the district
court for further proceedings.
                 I. Factual and Procedural Background
      Plaintiffs Jackie and Ricky Cox went to the Wal-Mart in Fulton,
Mississippi on April 24, 2011. As Mrs. Cox entered through an automatic
sliding door, she fell and sustained injuries. Cox’s trip and fall was witnessed
by Everitt Gunner, who was sitting on a bench located ten to twelve feet from
the door when Cox entered the store. Gunner testified that for about an hour
before Cox’s fall, he had observed the door threshold “rocking” or rising up
three-eighths to one-half inch whenever customers or carts crossed the
       Case: 13-60454     Document: 00512657729     Page: 2   Date Filed: 06/10/2014



                                    No. 13-60454
threshold. He testified that this occurred because the plate was not secured
tightly to the ground, as if there were screws loose. Gunner testified that he
was looking at Cox when she entered, and that she stepped on one side of the
metal plate, causing the other side to rise up and catch her other shoe, causing
the fall. Gunner’s testimony was countered by Cindy Bailey, an assistant
manager at the store, who disputed that the threshold moved or rocked.
        Jackie and Ricky Cox filed a complaint in Mississippi state court in
December 2011.          Mrs. Cox alleged personal injury claims, while Mr. Cox
brought a claim for loss of consortium. In April 2012, Wal-Mart removed the
case to federal court pursuant to 28 U.S.C § 1332. Wal-Mart then moved for
summary judgment. The district court determined that the defect in the
threshold which caused Cox to fall and be injured was not unreasonably
dangerous as a matter of law, and granted summary judgment to Wal-Mart.
Plaintiffs now appeal.
                                   II. Discussion
        The question before us is whether the district court erred when it
granted summary judgment to Wal-Mart, based on its conclusion that the
defect in the door threshold was not unreasonably dangerous as a matter of
law.     We review a grant of summary judgment de novo.              Wood v. RIH
Acquisitions MS II, LLC, 556 F.3d 274, 275 (5th Cir. 2009).               Summary
judgment is appropriate when there is no genuine issue as to any material fact,
and the moving party is entitled to judgment as a matter of law. Id.; Fed. R.
Civ. P. 56(a). We must view the evidence and draw reasonable inferences in
the light most favorable to the nonmoving party. Maddox v. Townsend & Sons,
Inc., 639 F.3d 214, 216 (5th Cir. 2011). Mississippi substantive law applies in
this diversity case. See Wood, 556 F.3d at 275.
         “Premises liability analysis under Mississippi law requires three
determinations: (1) legal status of the injured person, (2) relevant duty of care,
                                         2
    Case: 13-60454    Document: 00512657729      Page: 3   Date Filed: 06/10/2014



                                 No. 13-60454
and (3) defendant’s compliance with that duty.” Wood, 556 F.3d at 275 (citing
Massey v. Tingle, 867 So. 2d 235, 239 (Miss. 2004)). The parties agree that
Cox’s legal status at the time of the fall was that of a business invitee. “While
a premises owner is not an insurer of the safety of invitees, the premises owner
does have a duty of reasonable care, to maintain its premises in a reasonably
safe condition.” Pigg v. Express Hotel Partners, LLC, 991 So. 2d 1197, 1199
(Miss. 2008); see Wood, 556 F.3d at 275.        A landowner’s duty to invitees
includes a “duty to keep its premises in a reasonably safe condition,” and a
duty to “warn of any dangerous conditions not readily apparent which the
owner knew, or should have known, in the exercise of reasonable care and the
duty to conduct reasonable inspections to discover dangerous conditions
existing on the premises.” Pigg, 991 So. 2d at 1199-1200 (quoting Gaines v. K-
Mart Corp., 860 So. 2d 1214, 1216 (Miss. 2003)). The breach of either duty
supports a claim of negligence. Id. at 1200; Mayfield v. The Hairbender, 903
So. 2d 733, 738 (Miss. 2005).
      For purposes of the summary judgment motion, the district court
implicitly accepted Gunner’s testimony that the door threshold was defective
and was rocking up and down as people walked across it. However, the court
determined that the defect in the threshold was not an unreasonably
dangerous condition as a matter of law. The district court relied on language
included in Tate v. S. Jitney Jungle Co., which noted that a door threshold is
among those “dangers which are usual and which customers normally expect
to encounter on the business premises, such as thresholds, curbs and steps.”
Tate v. S. Jitney Jungle Co., 650 So. 2d 1347, 1351 (Miss. 1995). “The category
of usual and normally expected dangers was apparently created in Tate, as no
prior reference to that concept in the state’s jurisprudence has been
discovered.” Wood, 556 F.3d at 276. The Mississippi Supreme Court has not
applied any kind of categorical exclusion for “dangers which are usual” in cases
                                       3
       Case: 13-60454   Document: 00512657729   Page: 4   Date Filed: 06/10/2014



                                 No. 13-60454
subsequent to Tate, although there is federal case law adopting it. See id. at
276-79 & n.4-5 (describing Tate and its history and discussing federal cases
applying Tate). The district court’s analysis, and many of Wal-Mart’s appellate
arguments, are premised on the existence of a categorical exclusion for “usual”
or “expected” dangers that cannot be unreasonably dangerous as a matter of
law.
        Setting aside significant questions regarding whether this categorical
exclusion is the law in Mississippi, see Wood, 556 F.3d at 276 (“Having
discussed Tate, we are nonetheless uncertain about the present role in state
law of this principle that usual and normally expected hazards are not
unreasonably dangerous.”); Woten v. Am. Nat’l Ins. Co., 424 F. App’x 368, 370
(5th Cir. 2011) (describing the confusion in the case law), we conclude that the
district court’s analysis improperly extends a categorical exclusion to defective
conditions. Even if the Tate court intended to create or recognize a categorical
exclusion for door thresholds, there is no justification in the Mississippi case
law for expanding any category of “usual dangers” to include defects. Instead,
the most recent Mississippi cases weigh against any such categorical exclusion
applying to defects in regularly occurring dangers. In one recent case involving
“broken, unlevel pavement” that “probably jutted up two inches over the
bottom step”—certainly a regularly occurring danger that would presumably
fall within the Tate categorical exclusion, if the Mississippi courts recognized
one—the Mississippi Supreme Court denied judgment as a matter of law. See
Mayfield, 903 So. 2d at 734, 739. Likewise, in Pigg, the Mississippi Supreme
Court found that there was a fact issue regarding whether a hotel “knew or
should have known” of a loose mirror, “and whether it was negligent in
inspecting its premises,” and that “a jury must be allowed to decide whether
Holiday Inn breached its duty to keep the premises reasonably safe and
whether its inspections of its rooms was reasonable.” Pigg, 991 So. 2d at 1200.
                                       4
    Case: 13-60454     Document: 00512657729      Page: 5   Date Filed: 06/10/2014



                                  No. 13-60454
Even in a case involving a regularly occurring danger, the Mississippi Court of
Appeals stressed the “unbroken, unlittered, dry and otherwise unobstructed”
condition of a curb in holding that summary judgment for the defendant was
appropriate. Thompson v. Chick-Fil-A, 923 So. 2d 1049, 1052-53 (Miss. Ct.
App. 2006).
      The cases discussed in Tate itself likewise weigh against expanding any
Tate categorical exclusion to defects. Those cases involved permanent, known
hazards, not unexpected defects. For example, in McGovern, one of the cases
cited by Tate, the Mississippi Supreme Court affirmed a directed verdict in
favor of a store owner after the customer tripped on the store’s raised
threshold.    The court found that having a raised threshold was not an
unreasonably dangerous condition.       McGovern v. Scarborough, 566 So. 2d
1225, 1228 (Miss. 1990). However, the McGovern court stressed that there was
nothing unusual about the threshold, and that “it is impossible to envision this
doorway as creating a danger of some kind, in some way different from
thousands of like doorways.” Id. In Kroger, another case relied on by Tate, a
store customer who tripped and fell over a six-inch curb could not recover
because she “encountered a condition, which was permanent, in place, known,
and obvious—a factual setting bearing no resemblance to cases in which we
have found a jury question to exist.” Kroger, Inc. v. Ware, 512 So. 2d 1281,
1282 (Miss. 1987).
      Somewhat ironically, given the parties’ focus on the categorical exclusion
referenced in Tate, this case is more akin to the factual situation in Tate itself,
which involved a sharp edge beneath a deli counter which caused injury to the
plaintiff. The Mississippi Supreme Court held that Tate could not be resolved
as a matter of law, because there was “a claimed physical defect on the
defendant’s premises. . . which may be found to be unusual and unreasonably
dangerous, notwithstanding the fact that it might have been observable.” Tate,
                                        5
     Case: 13-60454       Document: 00512657729         Page: 6     Date Filed: 06/10/2014



                                       No. 13-60454
650 So. 2d at 1351. The claimed physical defect, the court said, “does not
appear to be a condition that one would normally encounter.” Id. Thus, Tate
itself supports the proposition that a defect that a customer would not normally
expect to encounter falls outside the range of any categorical exclusions created
by that case.
       We conclude that the district court erred in extending Mississippi’s so-
called “categorical exemption” to defective thresholds. However, that is not the
end of the inquiry; we must still determine whether the defective condition
could be found unreasonably dangerous as a matter of law. See Pigg, 991 So.
2d at 1199-1200 (noting that landowners have a duty of care to maintain their
premises in a “reasonably safe condition”). In Parker v. Wal-Mart Stores, Inc.,
a panel of this court examined Mississippi case law 1 and determined that
“normally encountered dangers such as curbs, sidewalks, and steps are not
hazardous conditions. These normally occurring dangers often contain cracks
and changes in elevation; they do not become hazardous conditions simply
because they contain minor imperfections or defects.” 261 F. App’x 724, 726-
27 (5th Cir. 2008). It then held that “[a]lthough the curb contained a small
crack, this alone is insufficient to transform it into an unreasonably dangerous
condition.” Id. The instant case does not involve a known, permanent, or
visible condition, but an alleged defect that caused the threshold to
unexpectedly move up and down.                Although the defect alleged in Cox’s
complaint is a minor defect, the hidden and surprising nature of the defect



       1 See also Cutrer, 214 So. 2d at 466 (cracks on the edge of concrete riser not
unreasonably dangerous condition); City of Biloxi v. Schambach, 157 So. 2d 386, 392 (Miss.
1963) (sidewalk defect insufficient to impose liability); City of Greenville v. Laury, 159 So.
121, 122 (Miss. 1935) (reasonable jury could not have found that a crevice in the sidewalk
made the street unsafe for use); Bond v. City of Long Beach, 908 So. 2d 879, 882 (Miss. Ct.
App. 2005) (one inch elevation of the sidewalk did not create dangerous condition which the
city should have anticipated).
                                              6
    Case: 13-60454     Document: 00512657729     Page: 7   Date Filed: 06/10/2014



                                  No. 13-60454
could remove it from the “normally encountered dangers” patrons expect to
encounter when crossing a threshold. Id.; see also Tate, 650 So. 2d at 1351.
We must accept Cox’s allegation that the threshold was broken and suddenly
rose up one-half inch when Cox stepped on it.         The fact that the alleged
defective condition changed suddenly and without warning—unlike cracked or
uneven concrete, or visible changes in texture and elevation—is sufficient for
a reasonable jury to conclude that it creates an unreasonable or unusually
dangerous condition.
      Further, the plaintiffs point to evidence in the record indicating that
Wal-Mart may not inspect the doors to ensure they are functioning correctly
and that despite an internal policy calling for daily inspections, the assistant
manager of the store had no knowledge of that policy. While these facts are
not, standing alone, sufficient to impute liability to Wal-Mart, they do bear on
whether Wal-Mart maintained its premises in a reasonably safe condition, and
whether Wal-Mart should have known and warned of any defect. See Pigg, 991
So. 2d at 1200. Under Mississippi law, these questions are for the jury. Id.
      The district court’s dismissal of Ricky’s Cox’s claim was entirely
premised on the dismissal of Jackie Cox’s personal injury claims. E.g., J & J
Timber Co. v. Broome, 932 So. 2d 1, 6 (Miss. 2006) (explaining that “Mississippi
law dictates that if the underlying personal injury claim is disposed of, the loss
of consortium claim cannot be maintained on its own”). Thus, we also reverse
the dismissal of Ricky Cox’s loss of consortium claim.
                               III. Conclusion
      For the foregoing reasons, we REVERSE the grant of summary judgment
to Wal-Mart and the dismissal of both plaintiffs’ claims, and remand this case
for further proceedings.




                                        7
