Constance Georgen v. Estate of Monique Brown-Barrett and Michael Barrett

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2023-CA-00344-COA

CONSTANCE GEORGEN APPELLANT

v.

ESTATE OF MONIQUE BROWN-BARRETT APPELLEES
AND MICHAEL BARRETT

DATE OF JUDGMENT: 03/02/2023
TRIAL JUDGE: HON. ELEANOR JOHNSON PETERSON
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: ROGEN K. CHHABRA
ATTORNEYS FOR APPELLEES: HARRIS FREDERICK POWERS III
PATRICK M. TATUM
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: REVERSED AND REMANDED - 9/17/2024
MOTION FOR REHEARING FILED:

EN BANC.

McCARTY, J., FOR THE COURT:

¶1. A woman was living at her friend’s house for an extended period of time. One day

during her stay, her friend propped a wooden gate up against the doorway between the

kitchen and the living room. The woman attempted to step over the gate, but it fell—tripping

her and causing her to fall and suffer injuries. She filed a premises-liability lawsuit against

her friend and the friend’s husband as the homeowners. The trial court granted summary

judgment in favor of the homeowners and dismissed the case, ruling that the gate did not

constitute a dangerous condition.

¶2. Reviewing the record in the light most favorable to the woman, we find material facts
were in dispute regarding the nature of the gate as a dangerous condition. We reverse and

remand for further proceedings.

BACKGROUND

¶3. Constance Georgen was living at the home of her friend Monique Brown-Barrett and

Monique’s husband Michael Barrett. On the date in question, Monique was in the kitchen

and placed a wooden safety gate1 in the doorway between the kitchen and living room as a

barricade. Connie was standing in the living room talking to Michael, who was sitting in a

recliner. She then turned to go into the kitchen, saw the baby gate in the doorway, and

attempted to step over the gate. But when Connie was mid-step, the gate “fell and became

entangled between her legs, causing her to suffer a serious fall.” She sustained injuries to her

shoulder, knee, head, and body.

¶4. Connie subsequently filed a complaint against Monique and Michael in the Hinds

County Circuit Court. Her complaint asserted a negligence claim for premises liability related

to her trip-and-fall incident with the gate at the Barretts’ home. The Barretts filed a motion

for summary judgment, arguing the gate was not a dangerous condition. They further alleged

that even if it was a dangerous condition, they did not breach their duty because Connie

admitted that she saw the gate and that she tripped while stepping over it.

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For clarification, we note that Monique testified, “we call it the little doggy gate.”
Connie also testified at her deposition that Monique “has a big dog and then she had a little
dog. . . . That’s why the gate was up, they was – she was separating them so they could eat.”
Because both of the parties’ briefs use the term “baby gate” when referring to the object
placed as a barricade in the doorway that Connie tripped over, we will call it a baby gate.

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¶5. Unfortunately, Monique passed away during the pendency of this case and prior to the

trial court’s ruling on summary judgment. Monique’s Estate was substituted as a party

defendant. Subsequently, the trial court granted summary judgment in favor of Michael and

the Estate,

finding that: (1) Georgen ‘admitted she saw the plainly obvious baby gate’; (2)
Georgen ‘further admitted that she tripped and fell while attempting to step
over it’; (3) ‘a baby gate is not a dangerous condition in/of itself’; (4) ‘the baby
gate was an obvious condition in plain sight’; (5) the Barretts ‘had no duty to
warn her of the gate’; and (6) ‘no duty was breached.’

Connie appealed from the court’s order.

STANDARD OF REVIEW

¶6. On appeal, “[t]he grant of summary judgment is reviewed de novo.” Loving v. MS Eye

Care P.A., 381 So. 3d 1111, 1113 (¶6) (Miss. Ct. App. 2024). “Summary judgment is proper

only when no genuine issue of material fact exists, and the moving party is entitled to

judgment as a matter of law.” Nolan v. Grand Casinos of Biloxi LLC, 309 So. 3d 572, 575

(¶8) (Miss. Ct. App. 2020) (quoting Owen v. Pringle, 621 So. 2d 668, 670 (Miss. 1993)).

“Summary judgment is inappropriate where there are undisputed facts which are susceptible

to more than one interpretation.” Venture Inc. v. Harris, 307 So. 3d 427, 432 (¶16) (Miss.

2020) (quoting McLeod v. Allstate Ins. Co., 789 So. 2d 806, 809 (¶8) (Miss. 2001)).

¶7. In “determin[ing] whether there is a genuine issue of material fact, we will review ‘all

admissions, answers to interrogatories, depositions, affidavits, and any other evidence,

viewing the evidence in a light most favorable to the non-movant[.]’” Nolan, 309 So. 3d at

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575 (¶8) (quoting Elliott v. AmeriGas Propane L.P., 249 So. 3d 389, 395 (¶22) (Miss. 2018));

see also MRCP 56(c). “If any triable issues of material fact exist, the trial court’s decision

to grant summary judgment will be reversed.” Brooks v. Jeffreys, 368 So. 3d 356, 361 (¶10)

(Miss. Ct. App. 2023) (quoting Chaffee ex rel. Latham v. Jackson Pub. Sch. Dist., 270 So.

3d 905, 907 (¶10) (Miss. 2019)).

DISCUSSION

¶8. Connie alleges that several material facts are in dispute: whether the unsecured baby

gate constituted a dangerous condition, whether the Barretts breached their duty as

homeowners and created a dangerous condition by setting up an unsecured baby gate behind

Connie, whether Connie had knowledge of the danger, and whether the Barretts had a duty

to warn her.

¶9. We find the issue involving the existence of a dangerous condition to be dispositive

and warrants reversal. As a result, we do not reach Connie’s remaining issues on appeal.

¶10. “To prevail in . . . a premises-liability case, the plaintiff must prove each element of

negligence: duty, breach of that duty, proximate causation, and damages or injury.” Venture,

307 So. 3d at 432 (¶19) (quoting Bailey Lumber & Supply Co. v. Robinson, 98 So. 3d 986,

993 n.3 (Miss. 2012)). For premises liability claims, “the landowner’s duty to the injured

person depends on whether the person was an invitee, licensee, or trespasser at the time of

the injury.” Keckley v. Estes Equip. Co., 276 So. 3d 1230, 1239 (¶31) (Miss. Ct. App.

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2018).2 “If the circumstances surrounding a person’s entry onto or presence upon property

are in dispute, then the determination of which status a particular plaintiff holds can be a jury

question.” Id. at 1239-40 (¶31) (quoting Payne v. Rain Forest Nurseries Inc., 540 So. 2d 35,

37 (Miss. 1989)).

¶11. In the order granting summary judgment, the trial court stated Connie alleged she was

an invitee but also made a point to state that “the Barretts do not concede this point.”3 On

appeal, Connie contends she was an invitee at the time of the incident because Monique

allowed her to stay at their house in exchange for taking care of Monique’s mother and

helping around the house. The Barretts explicitly reiterate in their appellate brief that they

do not concede that Connie was an invitee. Rather, Monique stated that Connie was staying

at their house as a social guest and visitor. Her testimony specifically refuted that she and

Connie had any agreement for Connie to take care of Monique’s mother in exchange for

room and board and denied that Connie helped around the house or with chores.

¶12. The facts surrounding Connie’s status appear to be in dispute. Because the

circumstances surrounding Connie’s presence at the home of the Barretts are in dispute, the

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“[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.” Keckley,
276 So. 3d at 1239 (¶31) (quoting Clark v. Moore Mem’l United Methodist Church, 538 So.
2d 760, 762-63 (Miss. 1989)). “[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. (quoting Clark, 538 So. 2d at 763)).
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The trial court’s order, however, does not make a specific finding on the
determination of Connie’s status as a matter of law. Nevertheless, viewed in its entirety, the
order implies that the trial court considered Connie an invitee.

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determination of which status Connie holds arguably may be a jury question. See Keckley,

276 So. 3d at 1239-40 (¶31).

¶13. For purposes of this appeal, viewing the facts in Connie’s favor as required, we

proceed on the basis that Connie was an invitee as she alleges. The landowner “owes a duty

to an invitee to keep the premises in a reasonably safe condition and to warn the invitee of

dangerous conditions that are not readily apparent.” Venture, 307 So. 3d at 433 (¶22)

(emphasis added) (quoting Clinton Healthcare LLC v. Atkinson, 294 So. 3d 66, 71 (¶9)

(Miss. 2019)).

¶14. The main issue on appeal is the question of whether a dangerous condition existed.

“[F]or a premises-liability claim to succeed, a dangerous condition must first exist.” Carroll

v. Singing River LLC, 309 So. 3d 567, 570 (¶7) (Miss. Ct. App. 2020) (quoting Patterson v.

Mi Toro Mexican Inc., 270 So. 3d 19, 21 (¶7) (Miss. Ct. App. 2018)). “There is no specific

definition of a ‘dangerous condition,’” but Mississippi caselaw guides that “[a] condition

may be considered ‘dangerous’ in even the simplest of circumstances.” Babin v. Wendelta,

368 So. 3d 363, 370 (¶24) (Miss. Ct. App. 2023).4 The issue of “[w]hether a dangerous

condition exists may be a question of fact for the jury.” Keckley, 276 So. 3d at 1236 (¶18).

¶15. The dangerous condition that Connie alleges in this case is two-fold. She

acknowledges that “the existence of the gate was not dangerous” but claims the condition of

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“[Property] owners are not strictly liable for injuries occurring on the premises, nor
are they insurers of their invitees’ safety.” McCullar v. Boyd Tunica Inc., 50 So. 3d 1009,
1012 (¶14) (Miss. Ct. App. 2010).

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the gate became hazardous because (a) the gate was unsecured and merely leaning against

the doorway, and (b) the gate was set up behind Connie while her back was to the doorway.

¶16. The trial court concluded: “[A] baby gate is not a dangerous condition in [and] of

itself.” In its order, the trial court found that Connie “admitted that she saw the plainly

obvious baby gate” and “admitted that she tripped and fell while attempting to step over it.”

Consequently, the court ruled that as a matter of law the facts did not support her claim of

negligence to hold the Barretts liable under premises-liability law.

¶17. But that is not the crux of Connie’s claims. Her argument is not that the commonly

encountered object of the baby gate itself was inherently dangerous. Instead, her argument

is that the gate was unexpectedly placed, which created a trip hazard. She also argues she was

surprised by the gate. Precedent from this Court has reversed two orders granting summary

judgment in similar situations.

¶18. In the first case, Keckley, this Court reviewed the claim of a customer who sued a

convenience store on a premises-liability claim. 276 So. 3d at 1233 (¶2). According to the

customer, she was walking toward the store’s entrance and attempted to step over a piece of

yellow caution tape. Id. at 1234 (¶6). The caution tape was lying on the ground when a

sudden gust of wind blew the tape up and created a “tripwire,” and she fell. Id. The customer

claimed that when she approached the tape, it appeared to be “loose,” not tied to anything,

and not demarcating an active construction area or other danger. Id. But she said that after

the wind blew the tape off the ground, she then realized the tape was tied to a pole on one

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side of the sidewalk and to a brick pillar on the other side. Id.

¶19. The customer’s premises-liability action alleged the convenience store failed to

maintain the premises in a reasonably safe condition. Id. at 1234 (¶10). The circuit court

granted summary judgment in favor of the store, “find[ing] that the open and obvious yellow

caution tape at issue is not an unreasonably dangerous condition as a matter of law.” Id. at

1235 (¶13).

¶20. On appeal, the focus was on the fact that the tape functioned as a “tripwire.” Id. at

1237 (¶21). This Court found, “Keckley clearly testified that she tripped on this ‘tripwire,’”

and “[a] reasonable jury could find that a tripwire is a dangerous condition.” Id. The majority

opinion authored by now-Presiding Judge Wilson placed additional emphasis on

“Keckley[’s] testi[mony] that the tape suddenly, unexpectedly, and without warning rose up

slightly and caused her to trip and fall.” Id. at 1238 (¶23). Crucially, we reckoned “[t]he

caution tape itself was not ‘hidden[.]’” Id. Yet that did not halt the analysis. Id. It was

specifically that “the tripwire-like effect of the caution tape was ‘hidden and surprising,’”

which raised the caution tape to the level where it could constitute a dangerous condition. Id.

(emphasis added). We ultimately concluded genuine issues of material fact were in dispute

that precluded summary judgment, and we reversed and remanded for further proceedings.

Id. at 1241 (¶37).

¶21. Just as the caution tape itself was not inherently dangerous, the baby gate here is not

inherently dangerous—and the parties are in agreement that the object of the gate itself is not

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dangerous. Akin to Keckley, a reasonable jury could find that the circumstances of the gate

here had a “tripwire-like effect.” Like the customer in Keckley admitted to seeing and trying

to step over the yellow caution tape, Connie admitted to seeing the gate and attempting to

step over it. Similar to the customer’s testimony that she perceived the caution tape lying on

the ground looking loose but did not know the tape was secured by ties to poles at both ends

of the tape, Connie claims she realized that there was a baby gate set-up in the doorway

between the kitchen and living room but did not know the gate was unsecured and merely

leaning on the door frame without the tension-locking mechanism.

¶22. Connie testified that as she attempted to step over it, “the gate didn’t have leverage

and fell so fast,” her foot got caught in the gate, and then “she just kind of tumbled into it.”

If the unsecured, propped-up condition of the gate was “hidden and surprising” and created

a tripwire-like effect for the baby gate, a reasonable jury could find that the baby gate was

a “dangerous condition.”

¶23. We also reversed the grant of summary judgment in Brooks v. Jeffreys, 368 So. 3d

356, 358 (¶1) (Miss. Ct. App. 2023). There, a homeowner hired a company to clean her

home. Id. at (¶2). While the owner was on the phone, the employees were at her house

cleaning. Id. at (¶3). One mopped behind her, out of her field of vision. Id. When the

homeowner turned around, she slipped and fell on the wet floor. Id. The trial court granted

summary judgment in favor of the cleaning company, finding the homeowner should have

known the floor was wet. Id. at (¶6).

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¶24. On appeal, this Court found that “[t]here [was] conflicting evidence whether Brooks

was aware the area behind her had been mopped and was wet before she turned around.” Id.

at 362-63 (¶18). Chief Judge Barnes, writing for a unanimous Court, explained, “If [Brooks]

did not know the floors were wet, it would not be a danger she expected.” Id. at 363 (¶18).

Summary judgment was improper, in part, because “a question of material fact exists as to

whether the Defendant created a dangerous condition when the [company’s] employees

mopped behind Brooks after she went to [a] credenza, leaving a damp floor upon which she

slipped.” Id. at 362 (¶15).

¶25. While Brooks involved a claim for general negligence and not premises liability, we

find parallels in today’s case. Just as the dangerous condition was created behind the

homeowner in Brooks, the baby gate was set up behind Connie’s back. Connie testified under

oath that she was not looking when the baby gate was set up and did not see Monique lean

the gate against the doorway. Taking the facts in the light most favorable to the non-movant,

if Connie did not know the baby gate was blocking her path and unsecured, a reasonable jury

could find it was a dangerous condition.

¶26. Our de novo review of the record reveals that this case involves contradictory

testimony from the parties and disputed facts about the effect of the admittedly unsecured

gate. More specifically, genuine issues of material fact exist as to whether the unsecured baby

gate was an unreasonably dangerous condition. “When we review an order granting summary

judgment, ‘it is not our duty to weigh the competing evidence; it is our duty to determine if

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there is conflicting evidence for trial.’” Keckley, 276 So. 3d at 1241 (¶36) (quoting Est. of

Johnson v. Chatelain ex rel. Chatelain, 943 So. 2d 684, 687 (¶8) (Miss. 2006)). “If the

undisputed facts can support more than one interpretation, then this Court, ‘will not hesitate

to reverse and remand for a trial on the merits.’” Venture, 307 So. 3d at 432 (¶16) (quoting

McLeod, 789 So. 2d at 809). Accordingly, we find summary judgment was improper at this

stage.5

¶27. Because we find the issue of the existence of a dangerous condition dispositive and

warrants reversal, our analysis ends here. As such, we do not reach Connie’s second question

on appeal as to whether there were material facts in dispute regarding the Barretts’ alleged

breach of duty owed to Connie.

CONCLUSION

¶28. Viewing the record in the light most favorable to Connie, we find a genuine issue of

material fact existed as to whether the baby gate was a “dangerous condition” for the

purposes of premises-liability law. More specifically, the facts are not conclusive as to

whether a baby gate that was not set up in a secure manner and was placed behind Connie

5
To the extent the separate opinion views Connie’s injuries as a result of her own
negligence and not the result of Monique’s actions, this presents a classic case of
comparative negligence that is for a jury to resolve. See Miss. Code Ann. § 11-7-15 (Rev.
2019) (“the fact that the person injured . . . may have been guilty of contributory negligence
shall not bar a recovery, but damages shall be diminished by the jury in proportion to the
amount of negligence attributable to the person injured”); Jones v. Wal-Mart Stores E. LP,
187 So. 3d 1100, 1106 (¶17) (Miss. Ct. App. 2016) (a defense that the dangerous condition
was seen by the plaintiff is an issue that “should be considered by the jury under a
comparative negligence standard”).

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constitutes a hazardous condition. Because there are material facts in dispute, we reverse and

remand for further proceedings consistent with this opinion.

¶29. REVERSED AND REMANDED.

McDONALD, LAWRENCE, SMITH AND EMFINGER, JJ., CONCUR.
CARLTON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY
BARNES, C.J., AND WILSON, P.J. WESTBROOKS, J., NOT PARTICIPATING.

CARLTON, P.J., DISSENTING:

¶30. The majority finds that reversal of the circuit court’s order granting summary

judgment in the Barretts’ favor is warranted due to the existence of genuine issues of material

fact as to whether the unsecured baby gate in this case constituted a dangerous condition.

I disagree for the reasons addressed below.

¶31. Like the majority, I proceed on the basis that Connie was an invitee as she alleges.

As the majority recognizes, a premises owner “owes a duty to an invitee to keep the premises

in a reasonably safe condition and to warn the invitee of dangerous conditions that are not

readily apparent.” Maj. Op. at ¶13 (emphasis added; emphasis on “invitee” omitted)

(quoting Venture Inc. v. Harris, 307 So. 3d 427, 433 (¶22) (Miss. 2020)). A premises owner

“is not liable for injuries caused by conditions which are not dangerous or which are or

should be known or obvious to the [invitee].” Wal-Mart Stores Inc. v. Littleton, 822 So. 2d

1056, 1058-59 (¶9) (Miss. Ct. App. 2002). I also find particularly relevant here the principle

that “an invitee is still required to use in the interest of his own safety that degree of care and

prudence which a person of ordinary intelligence would exercise under the same or similar

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circumstance.” Stephens v. City of Gulfport, 379 So. 3d 399, 407 (¶27) (Miss. Ct. App.

2024).

¶32. In this case, I recognize that Connie does not assert that the baby gate itself is a

dangerous condition. Rather, as the majority has summarized, Connie asserts that the baby

gate became hazardous “because (a) the gate was unsecured and merely leaning against the

doorway, and (b) the gate was set-up behind Connie while her back was to the doorway.”

¶33. I find that these assertions regarding the “hazardous” nature of the baby gate to be

nonsensical based on two undisputed facts: Connie admitted that she saw the baby gate;

and—more importantly—Connie admitted that she tripped and fell while attempting to step

over it. The baby gate was open and obvious, and by its very nature it is not meant to be

stepped over. A baby gate is just that: a gate used to obstruct passage through an entry way,

as it was used in this case.

¶34. In short, I find that the baby gate was not a dangerous condition, and regardless if it

was leaning against the doorframe or tension-secured, the risk of stepping over the gate was

plainly open and obvious. Connie admitted that she saw it. Nevertheless, she chose to

attempt to step over the gate instead of moving it or attempting to open the gate. I find that

the Barretts had no duty to warn Connie of the danger of tripping over the gate under these

circumstances. As noted, Connie must exercise “that degree of care and prudence which a

person of ordinary intelligence would exercise under the same or similar circumstance.”

Stephens, 379 So. 3d at 407 (¶27). Connie failed to do so here. Accordingly, I find that

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summary judgment in the Barretts’ favor should be affirmed.

BARNES, C.J., AND WILSON, P.J., JOIN THIS OPINION.

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