Nancy G. Lefler v. Tommie L. Wasson

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2019-CA-00393-COA

NANCY G. LEFLER APPELLANT

v.

TOMMIE L. WASSON APPELLEE

DATE OF JUDGMENT: 02/19/2019
TRIAL JUDGE: HON. GEORGE M. MITCHELL JR.
COURT FROM WHICH APPEALED: ATTALA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: JASON EDWARD CAMPBELL
MICHAEL SALTAFORMAGGIO
BENJAMIN SETH THOMPSON
MACK AUSTIN REEVES
ATTORNEYS FOR APPELLEE: WILLIAM M. DALEHITE JR.
ANNA MARIE LIVINGSTON
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED - 05/05/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE BARNES, C.J., WESTBROOKS AND McCARTY, JJ.

McCARTY, J., FOR THE COURT:

¶1. After renting a house from Tommie Wasson, Nancy Lefler slipped and fell on a brick

path behind the house. She sued Wasson for negligence. Wasson denied she had any notice

that the bricks on the path were dangerous and moved for summary judgment.

¶2. The circuit court granted the request and dismissed the lawsuit. Because there was

no genuine issue of material fact as to the existence of a hazardous condition, we affirm.

FACTS AND PROCEDURAL HISTORY

¶3. After a bidding war, Wasson purchased an historic house in Kosciusko. Lefler
entered into a lease agreement with her to rent the home. Prior to entering into the lease

agreement, Wasson inspected the home and property. She discovered that one of the aging

bricks on a path behind the house was missing—it had popped out and was beside the

sidewalk. After this discovery, Wasson’s son mortared the brick into place. Wasson never

discussed the condition of the brick with Lefler before she moved into the rental home.

¶4. Subsequent to the brick repair, Wasson, Lefler, and Lefler’s husband inspected the

home again. The Leflers signed the lease agreement that same day. They moved into the

home a week later. After moving in, Lefler walked up and down the brick steps in the

backyard about five times. She never had any problem going up or down the steps.

¶5. A few days after moving in, Lefler was leaving the rental home by the backyard path.

She tripped and fell over a brick on the stairs. Lefler went to the hospital, where she was

diagnosed with a broken ankle. The fall happened just fourteen days after Wasson purchased

the home.

¶6. Lefler subsequently filed a lawsuit against Wasson for negligence, claiming that she

failed to keep the premises in a reasonably safe condition, which resulted in her slip and fall.

The parties conducted discovery, and depositions were taken for Lefler, Wasson, and

Wasson’s son. Afterward, Wasson sought summary judgment, arguing that the rented

property was maintained in a reasonable manner and that she did not have notice or reason

to have notice that the brick could loosen from the stairs. The trial court granted summary

judgment, and Lefler appealed.

STANDARD OF REVIEW

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¶7. “We review the grant or denial of a motion for summary judgment de novo, viewing

the evidence in the light most favorable to the party against whom the motion has been

made.” Karpinksy v. Am. Nat’l Ins. Co., 109 So. 3d 84, 88 (¶9) (Miss. 2013) (internal

quotation mark omitted). “A grant of summary judgment will be upheld only when, viewing

the evidence in the light most favorable to the nonmoving party, there are no genuine issues

of material fact” and “the moving party is entitled to judgment as a matter of law.” Forbes

v. Gen. Motors Corp., 993 So. 2d 822, 824 (¶7) (Miss. 2008). However, “summary judgment

is appropriate when the non-moving party has failed to make a showing sufficient to establish

the existence of an element essential to the party’s case, and on which that party will bear the

burden of proof at trial.” Karpinsky, 109 So. 3d at 89 (¶11) (internal quotation marks

omitted).

DISCUSSION

¶8. At oral argument, the parties agreed that Lefler was an invitee on Wasson’s business

premises. Mississippi law provides that “[t]he owner or operator of business premises owes

a duty to an invitee to exercise reasonable care to keep the premises in a reasonably safe

condition . . . .” Jerry Lee’s Grocery Inc. v. Thompson, 528 So. 2d 293, 295 (Miss. 1988).

Furthermore, “[a] landlord owes an invitee the duty to keep the premises reasonably safe and

when not reasonably safe to warn only where there is hidden danger or peril that is not in

plain and open view.” Mayfield v. The Hairbender, 903 So. 2d 733, 737-38 (¶20) (Miss.

2005) (footnote and internal quotation marks omitted). This duty requires the business owner

to take certain steps to protect its customers from “dangerous conditions” on the premises of

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which the business is or should be aware. Thompson, 528 So. 2d at 295.

¶9. While the duty requires protecting customers from dangerous conditions, it is not

unlimited in scope. “Mississippi has long recognized that normally encountered dangers

such as curves, sidewalks, and steps are not hazardous conditions.” Jones v. Wal-Mart Stores

E. LP, 187 So. 3d 1100, 1104 (¶14) (Miss. Ct. App. 2016) (citation omitted). “Often such

pathways contain cracks and changes in elevation; and, as such, they do not become

hazardous conditions simply because they contain minor imperfections or defects.” Id. We

have also held that “no . . . property owner can be expected to maintain its sidewalks in a

perfectly level condition, and where the defect consists of some slight variation between two

adjoining paving blocks, no liability is imposed.” Bond v. City of Long Beach, 908 So. 2d

879, 881-82 (¶7) (Miss. Ct. App. 2005).

¶10. The brick stairs and path in this case fall within the “normally encountered dangers”

that do not give rise to liability. To escape this general standard, Lefler argues that Wasson

did not maintain the premises in a reasonably safe condition and that she knew or should

have known the brick path was dangerous because her son came and replaced a brick that had

been dislodged. Yet Lefler has not created a genuine issue of material fact just because one

brick was loose and needed to be mortared back into place. This does not lead to the

inference that all the bricks on the path would potentially be loose. Ultimately, the brick was

still in full view and had been safely traversed by Lefler approximately five times prior to the

accident. As we concluded in Jones, because “the crack at issue in this case was not

concealed,” these are conditions “normally encountered by business invitees” that do not

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warrant the imposition of liability. Jones, 187 So. 3d at 1105 (¶17) (internal quotation marks

omitted).

¶11. During oral argument, counsel for Lefler argued strongly that reversal of summary

judgment was required due to the case of Vivians v. Baptist Healthplex, 234 So. 3d 304

(Miss. 2017). There, the Supreme Court reversed a grant of summary judgment in favor of

a premises owner because there was proof in the record that there had been five other slip-

and-falls on the very same steps of a therapy pool. Id. at 306-07, 309 (¶¶10, 21). The Court

concluded that the plaintiff “adduced ample evidence that his slip and fall on the Healthplex

therapy pool steps was substantially similar to the subsequent slip and fall occurrences, and

. . . a genuine issue of material fact exists with regard to the existence of a dangerous

condition.” Id. at 307 (¶12).

¶12. Unlike Vivians, here, there were no prior or subsequent slip-and-falls known to

Wasson. She had only owned the premises for fourteen days before the incident when Lefler

fell. The only prior information known to the property owner was that one brick loosened

and that she immediately had it repaired. The sidewalk and stairs remain within the general

premise such that they are not hazardous conditions. There is nothing in this record that

requires reversal.

¶13. AFFIRMED.

BARNES, C.J., CARLTON, P.J., GREENLEE, WESTBROOKS, TINDELL,
McDONALD, LAWRENCE AND C. WILSON, JJ., CONCUR. J. WILSON, P.J.,
CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

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