        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2018-CA-00156-COA

WILDA ANN MARTIN                                                           APPELLANT

v.

TRUSTMARK CORPORATION                                                        APPELLEE

DATE OF JUDGMENT:                         01/24/2018
TRIAL JUDGE:                              HON. TOMIE T. GREEN
COURT FROM WHICH APPEALED:                HINDS COUNTY CIRCUIT COURT,
                                          FIRST JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANT:                  MATTHEW THOMPSON
                                          GREGORY J. BOSSELER
ATTORNEY FOR APPELLEE:                    JAMES D. HOLLAND
NATURE OF THE CASE:                       CIVIL - PERSONAL INJURY
DISPOSITION:                              AFFIRMED - 09/10/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       J. WILSON, P.J., FOR THE COURT:

¶1.    Wilda Ann Martin sued Trustmark Corporation after she tripped over the threshold

in the doorway of a women’s restroom in the Trustmark building in downtown Jackson. She

alleges that the threshold is an unreasonably dangerous condition. The circuit court granted

summary judgment in favor of Trustmark, and Martin appealed. The threshold is not a

dangerous condition. Therefore, we affirm.

                       FACTS AND PROCEDURAL HISTORY

¶2.    On December 21, 2015, Wilda Ann Martin and her daughter, Kim Neyland, went

Christmas shopping. When they finished shopping, Martin drove Neyland to downtown
Jackson to meet Neyland’s husband, who worked at a law firm downtown. Because it was

raining, Martin and Neyland decided to park in the covered customer parking adjacent to the

Trustmark building, though they did not have any business at the bank. Martin and Neyland

then entered the building.

¶3.    Neyland had worked in the Trustmark building several years earlier, and there had

been a restroom on the first floor when she worked there. However, she testified that the

door that led to the restroom had a sign on it that read “Health and Wellness” or “Trustwell.”

At her deposition, Neyland was shown a photograph of the door with a sign that stated

“Trustwell” and “Employees Only.” Neyland testified that she did not “recall it saying

‘Employees Only’ at the time.” She did not dispute that it did—she simply did not recall.

¶4.    Neyland testified that she entered the coffee shop in the lobby of the building and

asked an employee, “Is there a restroom?” Neyland testified that the employee, Nigel Davis,

answered, “Yes. Right through those doors.” Davis testified that Neyland asked him, “Is

that restroom still there?” According to Davis, he simply answered “yes” and then continued

serving his customers. Davis testified that at times he had given visitors to the building

“permission” to use the first-floor restroom as a “[c]ourtesy.” However, Davis did not

consider it a “public” restroom, and no one from Trustmark had ever specifically authorized

him to allow customers to use it. Davis also did not know whether Trustmark or the coffee

shop had any policies regarding public use of the restroom.

¶5.    Neyland and Martin went through the “Trustwell” door and walked down a hallway.

The door to the women’s restroom is at the end of that hallway on the left. Inside the door,



                                              2
there is a short entranceway with a white vinyl tile floor. A second doorway (without a door)

separates the entranceway’s white vinyl tile floor from the blue tile floor of the restroom

itself. There is a “threshold” in that doorway. A photograph of the threshold is attached as

an appendix to this opinion. As the photo shows, the threshold is white, but a different shade

than the vinyl tile. The threshold allegedly rises one and one-eighth of an inch from the

adjacent tile floor. It is not an abrupt right angle but a “slanted” threshold.

¶6.    Neyland crossed the threshold into the restroom. Walking behind Neyland, Martin

allegedly tripped over the threshold. She fell and sustained serious injuries to her shoulder.

¶7.    Martin sued Trustmark in Hinds County Circuit Court. In her complaint, she alleged

that she fell because of a “defect in the floor” that was a dangerous condition. In her

amended complaint, she alleged that “she tripped on a foreign object” that was a dangerous

condition. In her deposition, Martin asserted that the threshold “should have been marked

with another hazardous different color flooring.” Martin later submitted a “preliminary

report” from an architect opining that the threshold was a tripping hazard.

¶8.    Trustmark moved for summary judgment on two grounds. Trustmark argued (1) that

the threshold is not a dangerous condition and (2) that Martin was, at best, a licensee because

she ventured into a part of the building that was not open to the public. The circuit court

granted Trustmark’s motion for summary judgment. Martin appealed.

                                         ANALYSIS

¶9.    We review the grant or denial of summary judgment de novo, applying the same

standards as the circuit court. Clark v. Moore Mem’l United Methodist Church, 538 So. 2d



                                               3
760, 762 (Miss. 1989). The evidence is viewed in the light most favorable to the non-

movant, Davis v. Hoss, 869 So. 2d 397, 401 (¶10) (Miss. 2004), but the non-movant “may

not rest upon mere allegations or denials in the pleadings but must set forth specific facts

showing that there are genuine issues for trial.” Pigg v. Express Hotel Partners LLC, 991

So. 2d 1197, 1199 (¶4) (Miss. 2008) (quoting Massey v. Tingle, 867 So. 2d 235, 238 (¶6)

(Miss. 2004)). The movant is entitled to summary judgment if there is no genuine issue of

material fact. Glover ex rel. Glover v. Jackson State Univ., 968 So. 2d 1267, 1275 (¶22)

(Miss. 2007). Indeed, “the court must grant summary judgment unless . . . the record

demonstrates the minimum quantum of evidence sufficient to justify a determination in favor

of the [non-movant] by a reasonable juror.” Id. at 1274 (¶19).

¶10.   In a premises liability case, the business owner’s duty to the injured party depends on

the status of the injured party. Double Quick Inc. v. Moore, 73 So. 3d 1162, 1166 (¶12)

(Miss. 2011). “The injured party should be classified as an invitee, licensee, or trespasser.”

Id. “A landowner owes the highest duty to an invitee.” Keith v. Peterson, 922 So. 2d 4, 9

(¶10) (Miss. Ct. App. 2005). “[A]n invitee is a person who goes upon the premises of

another in answer to the express or implied invitation of the owner or occupant for their

mutual advantage.” Leffler v. Sharp, 891 So. 2d 152, 156 (¶11) (Miss. 2004) (quoting Corley

v. Evans, 835 So. 2d 30, 37 (¶21) (Miss. 2003)). “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 . . . .” Id. “[A] trespasser is one who enters upon another’s

premises without license, invitation, or other right.” Id. “An invitee who goes beyond the



                                              4
bounds of his invitation loses the status of invitee and the rights which accompany that state.”

Id. at 157 (¶16) (quotation marks and ellipsis omitted). “If the circumstances surrounding

a person’s . . . presence upon property are in dispute, then the determination of which status

a particular plaintiff holds can be a jury question.” Payne v. Rain Forest Nurseries Inc., 540

So. 2d 35, 37 (Miss. 1989) (quotation marks omitted).

¶11.   In this case, Martin argues that she was an invitee at the time of her injury, while

Trustmark maintains that she was, at most, a licensee. However, even if we assume for the

sake of argument that Martin was an invitee, Trustmark was entitled to summary judgment.

Although a landowner owes the highest duty to an invitee, an invitee’s premises liability

claim still requires proof of a dangerous condition. Griffin v. Grenada Youth League, 230

So. 3d 1083, 1087-88 (¶¶17, 19-20) (Miss. Ct. App. 2017); see also McCullar v. Boyd Tunica

Inc., 50 So. 3d 1009, 1012 (¶13) (Miss. Ct. App. 2010) (“In every premises-liability case, the

plaintiff must show that a dangerous condition exists.”); Stanley v. Boyd Tunica Inc., 29 So.

3d 95, 97-98 (¶10) (Miss. Ct. App. 2010) (“[A] property owner cannot be found liable for

the plaintiff’s injury where no dangerous condition exists.” (quotation marks omitted)).

“[R]egardless 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.” Jones v. Wal-Mart

Stores E. LP, 187 So. 3d 1100, 1104 (¶12) (Miss. Ct. App. 2016). Because the threshold that

Martin fell over was not a dangerous condition, we need not address the parties’ arguments

about Martin’s status at the time of her fall.

¶12.   As this Court has held before, “[c]ommon architectural conditions [in] a building are



                                                 5
not considered unreasonably dangerous conditions.” Benson v. Rather, 211 So. 3d 748, 754

(¶22) (Miss. Ct. App. 2016). In other words, “usual dangers that customers normally expect

to encounter on a business’s premises, such as thresholds, curbs, and steps, fail to constitute

unreasonably dangerous conditions.” Id. at 755 (¶23) (emphasis added); accord Tate v. S.

Jitney Jungle Co., 650 So. 2d 1347, 1351 (Miss. 1995).

¶13.     In Dickinson v. Vanderburg, 141 So. 3d 455 (Miss. Ct. App. 2014), the plaintiff

tripped and fell on a two-inch raised threshold at the entrance to the defendant’s business.

Id. at 458 (¶9). She alleged that the defendant “should have placed signs warning customers

of the raised threshold or painted the elevated area a different color to draw attention.” Id.

However, the circuit court granted summary judgment in favor of the defendant, and this

Court affirmed. Id. at 456-58 (¶¶2, 10). We held, as a matter of law, that the two-inch

“raised threshold” was not an “unreasonably dangerous” condition because customers must

expect to encounter such common architectural features in a place of business. Id. at 458

(¶10).

¶14.     Similarly, in Benson, supra, the plaintiff tripped and fell “on a concrete lip jutting

[about two and a half inches] from the threshold of a doorway between . . . two service bays”

at a tire store. Benson, 211 So. 3d at 750, 754 (¶¶5, 19). The business owner admitted “that

he had painted both the floor of the service bay and the concrete lip that Benson stumbled

over the same shade of gray.” Id. at 751 (¶6). Nonetheless, citing Dickinson, the circuit

court granted summary judgment in favor of the defendant, and we affirmed. Id. at 754-55

(¶¶19, 22-24). We reaffirmed that “usual dangers that customers normally expect to



                                               6
encounter on a business’s premises, such as thresholds, curbs, and steps, [do not] constitute

unreasonably dangerous conditions.” Id. at 755 (¶23). “[U]ndamaged thresholds” are

“common architectural features for buildings,” not “unreasonably dangerous” conditions.

Id. Therefore, we held, as a matter of law, that the two-and-a-half-inch raised threshold

between the service bays—though painted the same color as the surrounding floor—was not

an unreasonably dangerous condition. Id. at (¶24).

¶15.   As can be seen from the appendix to this opinion, this case also involves an ordinary

threshold. It is not materially different from the thresholds in Dickinson and Benson. Indeed,

the sloping threshold in this case is not as high as the thresholds at issue in those two cases.

In addition, it is not significant that the vinyl tile of the entranceway and the threshold are

both white. The threshold and the tile are different shades of white, and Martin admitted that

she had no difficulty seeing the threshold after she fell. Moreover, in Benson, the threshold

and the surrounding floor were all painted the “same shade of gray,” Benson, 211 So. 3d at

751 (¶6), but this Court still held as a matter of law that the threshold was a common

architectural feature, not a dangerous condition. Id. at 754-55 (¶¶22-24). Likewise, the

threshold in this case is a common architectural feature that an invitee can expect to

encounter,1 not a dangerous condition. Id. Therefore, the circuit court properly granted

Trustmark’s motion for summary judgment.



       1
         In her deposition, Martin asserted that the threshold was “in the middle of the floor,”
and on appeal she argues that its location rendered it an “unexpected” hazard. However, the
threshold is not “in the middle of the floor.” As can be seen from the photo in the appendix,
it is between the short entranceway to the restroom and the restroom itself. Martin’s own
expert described it as the “threshold at the entrance to the lady’s restroom.”

                                               7
¶16.   AFFIRMED.

      BARNES, C.J., CARLTON, P.J., GREENLEE, TINDELL AND C. WILSON,
JJ., CONCUR. McDONALD, J., DISSENTS WITHOUT SEPARATE WRITTEN
OPINION. WESTBROOKS, J., DISSENTS WITH SEPARATE WRITTEN
OPINION, JOINED BY McDONALD AND LAWRENCE, JJ. McCARTY, J., NOT
PARTICIPATING.

       WESTBROOKS, J., DISSENTING:

¶17.   The majority finds that even if Martin was found to be an invitee, the restroom

threshold at issue was not a dangerous condition. Admittedly, much of Mississippi’s premise

liability case law rejects the notion of a threshold as a dangerous condition. See, e.g.,

McGovern v. Searborough, 566 So. 2d 1225, 1228 (Miss. 1990) (court affirmed directed

verdict in favor of defendant because raised threshold at doorway entering building from

sidewalk was reasonably safe); Dickinson v. Vanderburg, 141 So. 3d 455, 458 (Miss. Ct.

App. 2014) (court affirmed grant of summary judgment in favor of defendant where raised

entryway threshold found not to be dangerous condition); Benson v. Rather, 211 So. 3d 748,

755 (¶24) (Miss Ct. App. 2016) (court held threshold not unreasonably dangerous feature and

was common, usual and expected hazard for auto-mechanic service bay); Trull v. Magnolia

Hill, LLC, 171 So. 3d 518, 521 (¶11) (Miss. Ct. App. 2014) (summary judgment affirmed

where court found casino entrance threshold was not dangerous condition). The vast

majority of these and other cases supporting the majority’s position involve thresholds raised

above the outdoor sidewalk and/or placed at the entry ways of businesses—deeming them

“open . . . obvious,” “reasonably safe,” and in no “way different from thousands of like

doorways.” McGovern, 566 So. 2d. at 1228. However, none extend the blanket rule to



                                              8
unexpected internal thresholds.

¶18.   The Court in Fulton v. Robinson, 664 So. 2d 170, 175 (Miss. 1995), held that “if an

invitee is injured by an artificial/man-made condition on an adjacent or internal part of the

business premises, then there is a jury question as to the openness and obviousness of the

danger.” Here, the placement of the threshold is not necessarily “usual and [where]

customers normally expect to encounter [it] on the business premises.” Tate v. S. Jitney

Jungle Co., 650 So. 2d 1347, 1351 (Miss. 1995). Martin testified that the threshold was

positioned “in the middle of the floor,” which, if true, renders it fundamentally different from

the other threshold cases applying the rule articulated by McGovern and its progeny. In the

record, Wilda Ann Martin claims that although “paying attention,” she did not notice,

anticipate, or expect the one-and-one-eighth inch raised “unlevel flooring,” positioned

several paces “after you came through the doorway”—not at the entrance of the building or

the restroom.

¶19.   Lastly, Martin’s complaint and testimony indicate the threshold was similar in color

and texture to that of the adjoining vinyl tile, making it difficult to notice. By her account,

“[i]t was not a different color to be noticed” before Martin tripped. Kim Neyland described

both the vinyl floor and threshold as “white” and “white color[ed].” To counter Martin’s

assertion, Trustmark presented a photograph of the threshold during Martin’s deposition; she

was able to see the threshold clearly at that time but maintains that on the day of the accident

she was paying attention and did not notice a contrast between the vinyl floor and threshold

prior to her fall. Contradictions between Neyland’s and Martin’s description of the threshold,



                                               9
Trustmark’s description, and the photograph exhibit evince a genuine issue of material fact.

A determination of the presence or absence of a dangerous condition, like that of Martin’s

status and Davis’ authority, is better suited for a jury.

¶20.   The current case presents with “significant complexity” as to the determinations of

status, liability, authority, duty, and dangerous condition—all highly “contested and

disputed” by the parties—and the Court generally should find the facts specially and state its

conclusions of law thereon. Tricon Metals & Servc. Inc. v. Topp, 516 So. 2d 236, 239 (Miss.

1987). The circuit court’s order here did not. Genuine issues of material fact exist as to (1)

Martin’s status at the time of the incident; (2) whether the Trustmark bathroom threshold is

indeed a dangerous condition; (3) whether Davis granted Martin permission to enter the

restroom; and (4) whether Davis had the authority to do so. Accordingly, I would reverse the

grant of summary judgment and remand this case to the circuit court for further proceedings.

       McDONALD AND LAWRENCE, JJ., JOIN THIS OPINION.




                                               10
APPENDIX




   11
