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IN THE COURT OF APPEALS 02/11/97 OF THE STATE OF MISSISSIPPI
NO. 93-CA-00860 COA

JOHNNY L. DICKSON APPELLANT v. JITNEY JUNGLE STORES OF AMERICA, INC. APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. ROBERT L. GIBBS COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: JAMES W. NOBLES, JR. ATTORNEY FOR APPELLEE: F. HALL BAILEY NATURE OF THE CASE: CIVIL - PERSONAL INJURY TRIAL COURT DISPOSITION: JUDGMENT FOR THE DEFENDANT MANDATE ISSUED: 7/17/97

BEFORE THOMAS, P.J., COLEMAN, AND SOUTHWICK, JJ. COLEMAN, J., FOR THE COURT:

Johnny L. Dickson, a Jackson police officer, slipped and fell while shopping for his lunch in a Jitney Jungle grocery store on April 3, 1990. Dickson sued Jitney Jungle Stores of America, Inc., (Jitney Jungle) for its negligence in allowing water to remain on the floor of the store, which, Dickson claimed, proximately caused his injuries. After the jury rendered its verdict for Jitney Jungle, the trial court entered its judgment for Jitney Jungle. Dickson moved for a judgment notwithstanding the verdict and a new trial, which the trial court denied. Dickson appeals to this Court to argue that the trial court erred in giving three of the jury instructions for Jitney Jungle. We affirm the judgment of the lower court.

I. FACTS While on duty, Dickson, a veteran of thirty years service with the Jackson Police Department, who was then serving as commander of Precinct One in south Jackson, entered Jitney Jungle store number nine located at Daniel Lake Boulevard and Terry Road in south Jackson at approximately 12:50 p.m. on April 3, 1990, to purchase milk and cheese for a portion of his lunch. After he had taken a halfgallon of milk in a cardboard carton and some cheese from the dairy case, which was located in the rear of the building, Dickson proceeded up aisle number nine of the store toward the checkout lines to pay for the items. While he walked up the aisle toward the front of the store, Dickson slipped on the floor and landed on his left knee. As Dickson testified at trial, "I turned up aisle nine and then, as I did so, about middle ways, my right foot -- I was in a walking mode -- and my right foot slipped in front of me, went straight in front of me, and my knee went directly down to the concrete floor." Dixon sustained a comminuted fracture of his left knee cap, the consequences of which were two operations. The first operation was to repair the fractured patella, and the second operation sometime later was to re-attach the tendon that ran from the quadriceps muscle, a large muscle located in the front of his thigh, to the patella via a wire attached to the tendon and the patella. When Dickson slipped and fell, the cheese and milk he carried in his hands dropped to the floor. The cardboard halfgallon carton of milk hit the ground and burst, spilling the milk in the area where Dickson lay injured. Dickson used his personal, hand-held police communications radio, which he carried in a holster on his belt, to call the precinct to report his injury and to request assistance at the scene of his mishap. From her vantage point at the frozen food counter located at the rear of the store, Tammy McNair, the seafood manager, saw Dickson fall. Ms. McNair's view up aisle number 9 was unobstructed. When she saw Dickson fall, McNair ran to the telephone at the meat counter to call the store comanager, Claude Smith, to tell him to go to aisle nine where Dickson had fallen to the floor. The store employees went to Dickson and helped him until the paramedics arrived. McNair went to aisle eleven to get a roll of paper towels off the shelf to use to soak up the milk which had spilled from the burst carton onto the floor. Within about five minutes of Dickson's distress call from his radio, police and fire rescue personnel were in the store to attend to his injuries. The ambulance arrived about ten minutes later, and Dickson was taken to the hospital. II. TRIAL Dickson filed suit in Hinds County Circuit Court against Jitney Jungle Stores of America, Inc. alleging, inter alia, that Jitney Jungle was negligent by allowing water flowing from a defrosting

freezer to remain on the floor of the store. Dickson claimed that: (1) the water was attributable to Jitney Jungle's actions in the operation of the store, (2) Jitney Jungle did not warn of the danger presented by the water draining into the aisle, and (3) Jitney Jungle failed to inspect the premises in a timely manner to discover the water. He asserted Jitney's negligence proximately caused him to slip and fall, thus resulting in the injury to his knee. At the trial, a question of fact arose concerning the substance on the floor that caused Dickson to slip and fall. Dickson presented testimony which established that Jitney Jungle had notice that if the drain was stopped up, water would accumulate behind the freezers in aisle nine when the freezers on aisle eight went into a defrost mode. He also presented the testimony of the three police officers who responded to Dickson's distress call to explain that the floor around where Dickson lay was wet. However, none of these officers would identify the wet spot as having been made by water. In its defense, Jitney offered the testimony of Tammy McNair, in which she stated that after she assisted in cleaning up the milk on the floor, she walked down aisle nine toward the back of the store to follow a trail of milk from the spot where Dickson had fallen to the dairy case from which Dickson had taken the carton of milk. It appears from this testimony that Jitney Jungle hoped that the jury might infer that Dickson had slipped on the trail of spilt milk. Rachel Padget, a former cashier at the store, testified that defrosting freezers had spilled over into the aisles when the drains clogged, but she added that when new freezers with glass doors replaced the tub-type freezers after Dickson fell, there were no more leaks from the newly installed freezers with glass doors. Steve Booker, Jitney Jungle's refrigeration general maintenance employee who was in charge of the freezers located within its store number nine, testified that the new freezers with glass doors had been installed in January of 1990, which, of course, antedated Dickson's fall on April 3, 1990. Booker explained that when the new freezers with glass doors had been installed to replace the old "tub" or "coffin" freezers, the drains were replaced. According to Booker, no leaks had occurred in the area of aisle number nine where Dickson fell after the new glass-door freezers had been installed. Jitney Jungle's defense was that the condition of the floor where Dickson fell was "open and obvious, " that Dickson failed to exercise reasonable care for his own safety, and that therefore Dickson was precluded from recovering damages from Jitney Jungle for his injuries. The jury returned a verdict for Jitney Jungle, and the trial court entered a judgment for Jitney Jungle. Dickson filed motions for judgment notwithstanding the verdict and for a new trial, which the trial court denied. Dickson has now appealed. III. ISSUES Dickson raises two issues on appeal, both involving the jury instructions proposed by Jitney's counsel, to which Dickson's counsel objected, but which, nevertheless, the trial judge gave to the jury before they deliberated. We state these two issues as Dickson framed them in his brief:

FIRST ISSUE The trial court erred in giving Defendant's Instructions D-8 and D-9 because the same

contain conflicting statements of the law which allow the defense based on an "open and obvious danger" to premises as contributory negligence being a complete bar to the Appellant's claim and which negates the duty of the store owner to maintain its premises in a reasonably safe condition and places the entire fault on the business invitee who had no control of the premises or equipment causing the conditions resulting from the store owner's failure to properly maintain its equipment and premises.

SECOND ISSUE The trial court erred in granting Defendant's Instruction D-3 which contains an erroneous definition of "proximate cause" because it contains a "but for" and singular definition of proximate cause which negates the comparative negligence doctrine and erroneously instructed the jury that there could be but one event immediately preceding the fall which was the proximate cause of the injury. Said instruction ignores that there can be more than one proximate cause of injury and is in hopeless conflict with Plaintiff's Instruction P-9 so that the jury was left with a definition of proximate cause which, when applied as defined by the court, led to a verdict for the Defendant, which is based on an erroneous statement of the law.

IV. ANALYSIS AND RESOLUTION OF THE ISSUES A. Standard of Review In Boone v. Wal-Mart Stores, Inc., 680 So. 2d 844, 845 (Miss. 1996), the Mississippi Supreme Court reiterated the following standard of review for error in granting and denying jury instructions: On appeal, this Court does not review jury instructions in isolation; rather, they are read as a whole to determine if the jury was properly instructed. Accordingly, defects in specific instructions do not require reversal where all instructions taken as a whole fairly -although not perfectly -- announce the applicable primary rules of law. However, if those instructions do not fairly or adequately instruct the jury, this Court can and will reverse.

This Court must resolve these two issues in accordance with this standard of review.

B. FIRST ISSUE: Did the trial court err when it gave Defendant's Instructions D-8 and D-9?

The two jury instructions which the trial judge granted Jitney Jungle and of which Dickson complains in this first issue read as follows:

JURY INSTRUCTION NO. D-8 The Court instructs the jury that a store operator owes a duty to its customers to exercise ordinary care to keep the premises in a reasonably safe condition or to warn the customer of hidden or concealed perils which the store operator knows of or should know of in the exercise of reasonable care. But the responsibility of the store operator is not absolute; it is not that of an insurer. The store operator is entitled to assume that the customer will see and observe that which would be obvious through reasonably expected use of an ordinary person's senses. There is no duty to give the customer notice of an obvious defect or condition. JURY INSTRUCTION NO. D-9 The Court instructs the jury that a customer in a store such as Johnny Dickson has a duty to use ordinary reasonable care for his own safety and to use that degree of care and prudence which a person of ordinary intelligence and prudence would exercise under the same or similar circumstances and must make reasonable use of his own faculties to observe and avoid dangers upon the premises. The Court further instructs the jury that a store owner has no duty to warn a customer of a dangerous condition that is open and obvious to anyone exercising ordinary or reasonable care for his own safety. Therefore, the Court instructs you that if you find from a preponderance of the evidence in this case that the condition of the floor was open and obvious to anyone exercising ordinary and reasonable care for his own safety and that Johnny Dickson failed to exercise ordinary or reasonable care for his own safety, then he was negligent and should you find from a preponderance of the evidence that such negligence was the sole proximate cause of the accident in question and the injuries to Johnny Dickson, if any, it is your sworn duty to return a verdict for the Defendant, Jitney Jungle Stores of America, Inc.

Dickson initiates his argument on this issue with the rhetorical question, "Is Mississippi truly a comparative negligence state?," which he then answers, "`Not totally,' because of the resort to contributory negligence's being a total bar via the use of the open and obvious danger doctrine, which ignores the negligence of the original actor in creating the hazard and places the entire blame on the injured party for either not seeing what he or she should have seen, and being hurt by what is described by others as an `open and obvious' danger, or by the failure to recognize the hazard presented by the conditions present." He further argues that the "open and obvious" danger "is the purest form of contributory negligence being a bar to the claim of an injured party," and that it "shortcuts the `assumption of the risk' doctrine which requires that, at least, the injured party recognize the hazard and voluntarily expose himself or herself to that danger." Dickson concludes his argument by submitting "that the time has come for this Honorable Court to give the `open and obvious danger rule' its proper demise and burial, since it is not only violative of the comparative negligence statute, but is an assumption of risk defense with two key elements missing, that being the recognition of the hazard and a voluntary exposure to the known hazard."

On July 6, 1994, Dickson filed his brief with the Mississippi Supreme Court. Fifteen days later, on July 21, 1994, that court unknowingly accepted Dickson's invitation "to give the `open and obvious danger rule' its proper demise and burial" in Tharp v. Bunge Corp., 641 So. 2d 20, 25 (Miss. 1994) when it advised the bench and bar: We now abolish the so-called "open and obvious" defense and apply our true comparative negligence doctrine. The jury found that there was negligence in the case at hand; the trial judge erred in construing the open and obvious defense as a complete bar when it really is only a mitigation of damages on a comparative negligence basis under Miss. Code Ann.

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