BEFORE ROY NOBLE LEE, ROBERTSON AND ANDERSON
ANDERSON, JUSTICE, FOR THE COURT:
In this appeal we are asked to decide whether Lydia C. Clark (Clark), the pastor's wife and a member of the defendant church, Moore Memorial United Methodist (Moore Memorial), was an invitee on the day she slipped and fell after attending a church function. The trial court determined that Clark was, as a matter of law, a licensee and granted to Moore Memorial summary judgment on the issue of Clark's status. Thereafter, the Circuit Court of Montgomery County court granted full summary judgment in favor of Moore Memorial and entered final judgment against Clark. See, Rules 56 (b) and 56 (c), Mississippi Rules of Civil Procedure.
On July 10, 1983, at approximately 10:35 a.m., Clark slipped and fell on the wood floor in the hallway of the church's Fellowship House located near the church in Winona, Mississippi, as she was going from her Sunday School class to her home between Sunday School and church services. Clark suffered a broken hip and underwent hip replacement surgery. It is uncontradicted that Clark was voluntarily attending Moore Memorial for purposes of worship and spiritual guidance and" (b)ecause I enjoy the class, I enjoy the fellowship and I get some good out of it. "It is also undisputed that Moore Memorial is an unincorporated non-profit religious association.
Further, it is undisputed that there was no liquid, debris or other foreign substance on the floor. Clark stated in her deposition that she had walked through the hall" many, many times; "that she had walked across the floor at 10 a.m. that morning; and that at all times the floor" looked clean and in good condition. "She admitted that there was nothing on the floor that caused her to fall. Her position is that the floor was maintained (waxed and buffed) such that it was slippery. Clark conceded that she did have knowledge of the fact that a waxed and polished hardwood floor might be slippery.
George L. McMath was Moore Memorial's janitor at the
time of the accident. He was deposed and stated that he had been maintaining the floors in a particular fashion for several years preceding Clark's fall. Once a month he swept the floors and then used a cleaning (or stripping) solution to remove old wax and dirt. After that dried, he applied Johnson's Heavy Duty Liquid Traffic Wax. When this had dried, he used a buffer to bring out the shine.
In between these monthly re-waxings, McMath swept and mopped up spills, crumbs and dirt. He also used a little Mop and Glow mixed with water whenever he noticed scuff marks. He would apply the Mop and Glow/water mixture to the mark, let it dry and then buff it the same as he buffed the wax. There was no set pattern to McMath's use of the Mop & Glow. McMath was aware the Mop and Glow was not recommended for use on wood floors, but stated that this was only because it turned the floor white. McMath stated that his method of cleaning the floor did not make it any more slippery than a normal waxed floor.
Moore Memorial submitted the affidavit of Alvin Kirk Rosenhan. Rosenhan, an engineer, averred that for a period exceeding six months he conducted a test using an identical piece of wooden flooring and following McMath's cleaning procedures. Rosenhan concluded that" repeated usage of the cleaner, wax compounds and Mop-and-Glow on the materials did not produce an unreasonable slick or hazardous surface; "and Clark's shoes and her hurried pace were" the most likely cause of her fall. "Clark submitted the affidavit of Deborah Jean Phillips Smith, the owner and operator of a maid service. Smith opined that the floor should have been stripped once every three months with a mechanical stripper to avoid wax buildup; that the failure to do so caused the floor to be slippery; that the use of Mop and Glow" substantially contributed to the wax buildup and subsequent slippery condition; "and that this slippery condition would not be" open and obvious "to persons such as Clark.
Plaintiff Clark also submitted the affidavit of Joan Emerson, long time church secretary. Emerson averred that prior to Clark's fall, she, Emerson, had fallen three times on the same floor. Further, she stated that two of her falls had not been the result of foreign substances on the floor. Emerson claims she told the janitor about the floor's condition. McMath's understanding was that whenever Emerson spoke to him about the floor her concern was debris that had been left by various church groups meeting in the Fellowship House. He claimed no one had ever complained about his general maintenance of the floor.
The last deposition of importance is that of Rev. Gladwyn Clark. Rev. Clark stated he was familiar with The Book of Discipline of the United Methodist Church (Book of Discipline). Under the laws and policies of the Book of Discipline the church has a duty to invite delinquent members to attend church functions; members must be loyal to the church through their presence at church functions, including Sunday School classes; and, the church" profits "by a member's presence. Rev. Clark also averred that Moore Memorial could not exist without the personal and economic support of its members through tithes, endowments, memorials, rents from properties, and profits from businesses. Rev. Clark concluded that the church's and its members' relationship was one of mutual benefit and Moore Memorial regularly invited members and others to attend and participate in church services.
Clark and her husband tithed by giving one-tenth of their income to the church on the first and fifteenth of each month. Clark also gave $1.25 each time she went to Sunday School class; twenty-five cents went into the church's general fund and the remaining dollar went toward various projects the class supported, such as a center for the handicapped in Senatobia.
On April 8, 1985, the circuit court entered its order granting Moore Memorial's motion for partial summary judgment on the issue of Clark's status at the time of her fall. Relying in part on McNulty v. Hurley, 97 So.2d 185 (Fla. 1957), the lower court determined that at that time Clark was a licensee. On October 3, 1986, Moore Memorial moved for full summary judgment. On October 27, 1986, the circuit court granted summary judgment and entered its final judgment against Clark. It determined that the church owed to Clark, a licensee, the duty to refrain from wilfully or wantonly injuring her, unless her injury was caused by Moore Memorial's affirmative or active negligence. The lower court further determined that as a matter of law, the negligence charged did not involve active negligence because the negligence, if any, resulted from" the prior creation of a condition in the premises. "The court concluded that the church had not wilfully or wantonly injured Clark and, therefore, there was no triable issue for the jury.
We recently repeated the standard of review of grants or denials of summary judgment, in Short v. Columbus Rubber & Gasket Co. Inc., ___ So.2d ___, (Miss. No. 58,045, dec'd November 30, ...