                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                             March 31, 2005
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                       ____________________                      Clerk

                           No. 04-60642

                         Summary Calendar
                       ____________________


RUBY C SMITH

                Plaintiff - Appellant


     v.

FEDERAL CLEANING CONTRACTORS INC

                Defendant - Appellee


_________________________________________________________________

           Appeal from the United States District Court
        for the Southern District of Mississippi, Jackson
                        No. 3:03-CV-857-LN
_________________________________________________________________

Before KING, Chief Judge, and DAVIS and STEWART, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant Ruby C. Smith filed this action seeking

damages from Defendant-Appellee Federal Cleaning Contractors,

Inc. for a trip-and-fall accident.     The district court granted

summary judgment in favor of Federal, and Smith now appeals.         For

     *
            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that this opinion should not be published and is not precedent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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the following reasons, we AFFIRM the judgment of the district

court.

                           I. BACKGROUND

     On December 1, 2001, Ruby C. Smith and her daughter traveled

to the Northpark Mall in Ridgeland, Mississippi.   They walked up

to the mall entrance at approximately 8:50 a.m., a few minutes

before the mall opened.   As they approached the entrance, Smith

noticed that there was water everywhere and a hose on the ground.

The hose was being used by Federal Cleaning Contractors, Inc.

(“Federal”) to clean the outside of the entranceway.   At that

moment, Smith said to her daughter “this is dangerous” and then

she tripped over the hose and fell.

     Smith filed suit against Federal in Mississippi state court,

alleging that Federal was negligent by, inter alia: (1) failing

to keep the premises in a reasonably safe condition; and (2)

failing to warn of a dangerous condition not readily apparent.

Federal removed the action to the United States District Court

for the Southern District of Mississippi and subsequently filed a

motion for summary judgment.   In support of its motion, Federal

argued that the evidence established that there was no dangerous

condition and that it is not liable because Smith saw the hose

before she fell.

     On June 24, 2004, the district court granted Federal’s

motion.   The court reasoned that the hose did not render the



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premises unreasonably dangerous.       Moreover, it reasoned that the

presence of the hose and any danger it may have posed were

specifically recognized by the plaintiff.      Thus, the court

concluded that Federal did not breach any duty it owed to Smith,

i.e., that Federal was not negligent.      Furthermore, the court

rejected Smith’s argument that the hose was not a “normal” or

“usual” condition since she had never encountered the hose at the

mall before.

     On appeal, Smith now argues that there is a genuine issue of

material fact as to whether: (1) the hose created an

unreasonable, unsafe, and dangerous condition; (2) the use of a

water hose at the entrance of a mall was something a person could

reasonably anticipate; and (3) Smith appreciated the condition

prior to her tripping and falling.

                     II. STANDARD OF REVIEW

     We review the granting of summary judgment de novo, applying

the same standards as the district court.       Burch v. City of

Nacogdoches, 174 F.3d 615, 618 (5th Cir. 1999).      Summary judgment

may be entered if the record, taken as a whole, shows that there

is no genuine issue of material fact and that the movant is

entitled to judgment as a matter of law.       Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986).      To overcome summary judgment,

“the nonmoving party must come forward with specific facts

showing that there is a genuine issue for trial.”       Matsushita



                                   3
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)

(internal quotation marks and emphasis omitted).     The court must

view the evidence in the light most favorable to the nonmoving

party, drawing all reasonable inferences in the nonmovant’s

favor.   King v. Chide, 974 F.2d 653, 656 (5th Cir. 1992).

                          III. DISCUSSION

     Under Mississippi law, a negligence claim consists of four

elements: (1) a duty to conform to a certain standard of conduct;

(2) a breach of that duty; (3) a causal connection between the

conduct and the resulting injury; and (4) actual loss or damage

resulting to the interests of another.      Walmart Stores, Inc. v.

Littleton, 822 So. 2d 1056, 1058 (Miss. Ct. App. 2002).     An owner

of premises has a duty only to keep the premises reasonably safe

and, when not reasonably safe, to warn only where there is a

hidden danger or peril that is not in plain and open view.      Tharp

v. Bunge Corp., 641 So. 2d 20, 25 (Miss. 1994); McGovern v.

Scarborough, 566 So. 2d 1225, 1228 (Miss. 1990); see also Ware v.

Frantz, 87 F. Supp. 2d 643, 646 (S.D. Miss. 1999).     There is no

liability for injuries where the condition is not dangerous or

where the condition is or should be known or obvious to the

invitee.   Tharp, 641 So. 2d at 23.   In Tharp, however, the court

held that the open and obvious doctrine is not a complete defense

to negligence actions where the condition complained of is

unreasonably dangerous.   Id.; see also Tate v. S. Jitney Jungle



                                 4
Co., 650 So. 2d 1347, 1351 (Miss. 1995); Ware, 87 F. Supp. 2d at

646.    The court went on to state that the open and obvious

doctrine “is simply a comparative negligence defense used to

compare the negligence of the plaintiff to the negligence of the

defendant[,]” but “[i]f the defendant was not negligent, it makes

no difference if the dangerous condition was open and obvious to

the plaintiff since the plaintiff must prove some negligence on

part of the defendant before recovery may be had.”     Tharp, 641

So. 2d at 24.    Mississippi courts have routinely held that

conditions such as display stands, hand trucks, raised door

thresholds, curbs, and steps are not unreasonably dangerous.     See

Ware, 87 F. Supp. 2d at 647; Littleton, 822 So. 2d at 1059;

McGovern, 566 So. 2d at 1228; Kroger, Inc. v. Ware, 512 So. 2d

1281, 1282 (Miss. 1987).    On the other hand, one court has found

that there was a fact question as to whether a condition was

unreasonably dangerous where a deli counter had a sharp, pointed,

and jagged edge under the counter, at knee level, and out of

sight.    Tate, 650 So. 2d at 1347.   The cases turn on whether the

conditions are usual and whether customers would normally expect

to encounter such conditions on business premises.     Id.

       We agree with the district court that Federal did not breach

any duty owed to the plaintiff.    A hose laying on the ground

outside a shopping mall, clearly visible to anyone walking in the

vicinity, does not pose an unreasonably dangerous condition.     We

see no difference between a hose laying outside a shopping mall

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and display stands, hand trucks, raised door thresholds, curbs,

and steps, all of which have been held not to be unreasonably

dangerous.   Moreover, a hose that is visible to anyone in the

vicinity is distinguishable from a sharp, pointed, and jagged

edge that is out of sight.   In addition, the fact that a hose is

laying in front of a mall’s entranceway because it is being used

to clean the outside of the mall before the mall opens is a

normal business practice that customers would normally expect to

encounter on the shopping mall’s premises.    Thus, the district

court did not err in concluding that the hose did not pose an

unreasonably dangerous condition.

     Since the hose did not pose an unreasonably dangerous

condition, Federal cannot be liable if the hose was known or

obvious to Smith.   Smith admits that she saw the hose before she

fell.   Nevertheless, Smith argues that there is a question of

fact as to whether she appreciated the danger posed by the hose

because she fell almost simultaneously upon seeing.    This

argument is wholly without merit.    The evidence shows that Smith

saw the hose, commented on its dangerousness, and then proceeded

to trip on it.   Thus, it is clear that Smith both saw and

appreciated the hose laying on the ground.    Furthermore, Smith

errs in relying on the rule announced in Tharp, i.e., that the

open and obvious doctrine is not a complete defense to negligence

actions, because that rule only applies where the condition

complained of is unreasonably dangerous.     Tharp, 641 So. 2d at

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25.   Here, we have concluded that the condition was not

unreasonably dangerous.   Accordingly, we hold that the district

court did not err in granting summary judgment in favor of

Federal.

                          IV. CONCLUSION

      For the foregoing reasons, the judgment of the district

court is AFFIRMED.




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