     Case: 10-61007 Document: 00511473346 Page: 1 Date Filed: 05/11/2011




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

                                                 FILED
                                                                            May 11, 2011

                                     No. 10-61007                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



HELEN WOTEN,

                                                   Plaintiff - Appellant
v.

AMERICAN NATIONAL INSURANCE COMPANY, doing business as
Edgewater Mall,

                                                   Defendant - Appellee




                    Appeal from the United States District Court
                      for the Southern District of Mississippi
                               USDC No. 1:10-CV-64


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       Helen Woten (“Woten”) appeals the district court’s decision granting
summary judgment to American National Insurance Company, doing business
as Edgewater Mall (“ANICO”). We REVERSE the grant of summary judgment
in favor of ANICO and REMAND the case for proceedings consistent with this
opinion.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                     No. 10-61007

                    I. FACTS AND PROCEDURAL HISTORY
        Woten worked as a cashier at a store in the Edgewater Mall, which is
owned by ANICO.           On November 9, 2009, Woten arrived at work at
approximately 1:00 p.m. Between 5:45 and 6:00 p.m., she left work, returning
at approximately 6:30 p.m. She parked in the same area of the parking garage
as she had earlier that day. As she was walking to the mall from the garage, she
caught her toe on a curb inside of the garage and fell, sustaining an injury to her
elbow that later required surgery.
        The following day, she reported the incident to Michael Skeen (“Skeen”),
an employee of a security services company hired by ANICO to patrol the mall.
Skeen noted in his report that Woten complained that the parking garage was
dark.       He also noted that the lights were on inside of the garage, but he
described the lighting conditions as “dark,” even though the form on which
Skeen made his notes provided the option of choosing “good,” “fair,” or “dim.”
        Woten filed suit against ANICO in January 2010 to recover damages for
her injuries. Her complaint alleged that ANICO was negligent in failing to
provide adequate lighting in the parking garage.             After conducting partial
discovery, ANICO moved for summary judgment, alleging that Woten was a
licensee and that ANICO did not breach any duty it owed to her because it did
not injure her willfully or wantonly. Woten filed a response, alleging that she
was an invitee and that ANICO breached its duty: (1) to keep its premises in a
reasonably safe condition; (2) to warn of dangers not readily apparent of which
the owner knew; and (3) to conduct reasonable inspections to discover dangerous
conditions on its premises.
        The district court found that Woten was an invitee;1 however, it concluded
that the curb was not an “unreasonably dangerous condition” and that Woten


        1
         Neither party disputes the district court’s conclusion that Woten was an invitee;
therefore, we do not address it.

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                                    No. 10-61007

provided no evidence to raise a fact issue about the sufficiency of the lighting.
It granted summary judgment to ANICO and dismissed Woten’s claims with
prejudice. Woten filed a motion to reconsider, arguing that the district court
erred in granting summary judgment on grounds not raised by ANICO in its
motion for summary judgment and that she presented evidence sufficient to
raise a fact issue about the lighting conditions. The district court denied Woten’s
motion and entered a final judgment for ANICO on December 13, 2010. Woten
timely appealed.
           II. JURISDICTION AND STANDARD OF REVIEW
      The district court had jurisdiction over this diversity action under 28
U.S.C. § 1332. This court has jurisdiction pursuant to 28 U.S.C. § 1291.
      We review decisions granting summary judgment de novo, applying the
same standard as the district court. See Triple Tee Golf, Inc. v. Nike, Inc., 485
F.3d 253, 261 (5th Cir. 2007). Summary judgment is appropriate if the moving
party can show that “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” F ED . R. C IV. P. 56(a). We
must view all evidence in a light most favorable to the non-movant. Holt v. State
Farm Fire & Cas. Co., 627 F.3d 188, 191 (5th Cir. 2010). In arguing that a
genuine issue of material fact exists that precludes summary judgment, the non-
movant must identify specific evidence in the record to support its position.
Baranowski v. Hart, 486 F.3d 112, 119 (5th Cir. 2007).            “‘However, the
nonmovant     cannot    satisfy    this   burden   with   conclusory   allegations,
unsubstantiated assertions, or only a scintilla of evidence.’”         Id. (quoting
Freeman v. Tex. Dep’t of Criminal Justice, 369 F.3d 854, 860 (5th Cir. 2004)).
                                  III. DISCUSSION
      We find it unnecessary to address Woten’s contention that the district
court erred in granting summary judgment sua sponte because we conclude that



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                                  No. 10-61007

Woten raised a genuine issue of material fact concerning the adequacy of
lighting in the parking garage.
      As the owner of the premises, ANICO had a duty to Woten—an invitee—to
ensure that the premises were “reasonably safe, and when they are not, . . . to
[warn] of perils that are not in plain view.” Wood v. RIH Acquisitions MS II
LLC, 556 F.3d 274, 276 (5th Cir. 2009). The duty to keep the premises in a
reasonably safe condition and the duty to warn of dangers that are not open and
obvious are “different theories of negligence, not different causes of action.” Id.
(citing Mayfield v. The Hairbender, 903 So. 2d 733, 738-39 (Miss. 2005) (en
banc)). Even though a condition may ultimately be deemed “open and obvious,”
such a conclusion does not bar recovery for negligence; rather, it is to be
considered by the factfinder when determining the comparative negligence of the
plaintiff and defendant. Mayfield, 903 So. 2d at 738-39; see also Maddox v.
Townsend & Sons, Inc., No. 10-60330, 2011 U.S. App. LEXIS 7950, at *4 (5th
Cir. Apr. 18, 2011) (noting that the issue of whether premises are reasonably
safe is separate from the question of whether there “were hidden dangers for
which a warning was needed”).
      The district court addressed whether the curb itself constituted an
unreasonably dangerous condition and held that it did not. It relied on Tate v.
S. Jitney Jungle Co., 650 So. 2d 1347 (Miss. 1995), a case in which the
Mississippi Supreme Court noted that a curb is not an unreasonably dangerous
condition because it is a type of “danger[] which [is] usual and which customers
normally expect to encounter on the business premises.” Id. at 1351. In Wood,
we noted that “we are . . . uncertain about the present role in [Mississippi] law
of this principle that usual and normally expected hazards are not unreasonably
dangerous” in light of the Mississippi Supreme Court’s pronouncement that a
finding that a danger is open and obvious does not bar recovery for negligence.
556 F.3d at 276 (noting the confusion about how the Supreme Court’s decision

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in Tharp v. Bunge Corp., 641 So. 2d 20, 23-24 (Miss. 1987) (en banc) (holding
that the obviousness of a danger is a factor for comparative negligence, not a bar
to recovery), can be reconciled with its decision in Tate, 650 So. 2d at 1351
(noting that usual and expected dangers are not unreasonably dangerous)).
However, we need not resolve this confusion because Woten contends that it was
the inadequacy of the lighting combined with the curb—not just the curb—that
formed the unreasonably dangerous condition.
      Insufficient lighting can constitute an unreasonably dangerous condition.
See, e.g., Lloyd G. Oliphant & Sons Paint Co. v. Logan, 12 So. 3d 614, 620 (Miss.
Ct. App. 2009) (noting that an employer had a duty to provide adequate lighting
in a stairwell); Melton v. Greyhound Corp., 354 F.2d 970, 973 (5th Cir. 1965)
(reversing summary judgment in favor of defendant because the question of
whether the lighting was insufficient was to be determined by a jury). With
respect to the issue of the adequacy of the lighting, we must keep in mind that
in reviewing a summary judgment in a Mississippi law premises liability case,
“we will affirm if . . . . no reasonable factfinder could conclude that the premises
were not reasonably safe.”      Maddox, 2011 U.S. App. LEXIS 7950, at *9.
Additionally, as we noted in Wood, “summary judgment for a defendant is rarely
sustained” in premises liability cases under Mississippi law. 556 F.3d at 280.
      In the district court, Woten argued two lighting deficiencies: ANICO’s
failure to replace a broken light and inadequate interior garage lighting. In
rejecting Woten’s lighting arguments, the district court focused its attention on
the fact that Woten claimed that a light was broken, but the evidence showed
that the broken light was located on the exterior of the parking garage away
from where Woten fell. We agree with the district judge that this particular
evidence does not suffice to raise an issue of material fact as to the adequacy of
the lighting in the interior of the parking garage.



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                                  No. 10-61007

      However, Woten did point to evidence in the summary judgment record
establishing that there was a genuine issue of material fact about the lighting
in the area where Woten fell, i.e., the interior lighting. The security guard
described the lighting conditions where Woten fell as “dark” in his report about
the incident and again during his deposition.       Although later questioning
indicates that he may have marked “dark” because it was dark outside, not
because it was dark inside the garage, it is unclear from his testimony that this
is the case. “On review of a grant of summary judgment, all facts and inferences
must be construed in the light most favorable to the non-movant”—in this case,
Woten. Kirschbaum v. Reliant Energy, Inc., 526 F.3d 243, 248 (5th Cir. 2008).
We therefore construe this ambiguous testimony in her favor. Additionally,
Woten testified that although the interior lights were on, it was “dim” or “dark”
in the garage. See Maddox, 2011 U.S. App. LEXIS 7950, at *17 (addressing the
conflicting evidence there and concluding that, on summary judgment, the
plaintiff’s version must be accepted). “As judges, we try to discern the outer
limit of what a reasonable juror could find.” Id. at *18. Within that outer limit,
what is necessary “for the premises to be reasonably safe, is a question for
jurors.” Id.
      We conclude that the district court improperly granted summary judgment
in favor of ANICO, as there was a genuine issue of material fact concerning
whether the interior of the parking garage where Woten fell had adequate
lighting and whether the lighting, combined with the curb, constituted an
unreasonably dangerous condition.       Accordingly, we reverse the grant of
summary judgment in favor of ANICO.
                                IV. CONCLUSION
      For the foregoing reasons, the decision granting summary judgment to
ANICO is REVERSED and the case is REMANDED for further proceedings
consistent with this opinion.

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