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W. A. PAYNE, JR. v. RAIN FOREST NURSERIES

MARCH 08, 1989

W. A. PAYNE, JR.
v.
RAIN FOREST NURSERIES, INC.



BEFORE HAWKINS, P.J.; PRATHER AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

This action has been brought by an occasional retail customer of a wholesale nursery business for personal injuries he sustained late on a June afternoon while inspecting plants for possible purchase. The plaintiff leaned against a post and dislodged a heating unit which fell on him and injured him. The case turns, first, on whether there is evidence that plaintiff entered the premises after the close of business on the day in question and was thus a trespasser and, second, on whether the Circuit Court erroneously instructed the jury that, if defendant were a wholesaler, plaintiff could not recover.

 We hold that the evidence created a factual issue on the first point and find no error in submission of the status question to the jury. On the second, we hold that the Circuit Court erred and reverse and remand for a new trial.

 II.

 Rain Forest Nurseries, Inc. (Rain Forest) is a Mississippi corporation with its principal place of business in Hattiesburg, Mississippi. The owners of Rain Forest Nurseries are Gary M. Nieman and Suzanne Nieman, husband and wife. Rain Forest commenced business in 1975. The primary business of Rain Forest is the sale of cut flowers and decorative plants to florists. A large sign at the entrance to the company's facilities reads" Rain Forest Nurseries, Inc. - Hattiesburg, Ms. - Wholesale Only ".

 Occasionally, Rain Forest is approached by members of the general public for the purpose of purchasing plants at its greenhouse facilities. The owners and employees of Rain Forest varied in their estimates of the frequency of retail sales - from one or two per month to a half dozen per month. Rain Forest engages in no advertising.

 By his own account, W. A. Payne, Jr., Plaintiff below and Appellant here, had been an occasional visitor to Rain Forest's place of business, making approximately five visits in the year preceding the date of his injury, June 22, 1982. In fact, five days before the accident Payne had visited the nursery and purchased over $50.00 in house plants.

 On the date of the accident, June 22, 1982, Payne visited Rain Forest sometime in the mid-afternoon but did not make any purchases. His mother had expressed an interest in purchasing some house plants, so Payne returned with his mother and ten-year-old son later that day - sometime around 4:30 p.m. When the group reached the entrance to the nursery, they discovered that the gate to the facility was closed. Payne's son got out of the truck and opened the gate, allowing Payne's pickup truck to go through. The boy then shut the gate behind the truck as there was a cow grazing nearby. Payne drove his pickup truck to a parking area near the building housing the office of the nursery. After having inspected the plants in four or five of the greenhouses, Payne and his group had yet to encounter any employees of the nursery.

 After approximately forty minutes had elapsed, Payne had his unfortunate encounter with the heater. While standing in one of the aisles of the greenhouse, Payne reached up and put his hand on a metal pipe. He stated that he did not apply any lateral pressure against the pipe. As he stood in the aisle he heard a noise that he described as the" sliding of steel against steel ". When he looked up to observe the source of the noise, a gas-fired heater (approximately three feet square) fell striking him in the side of the face. The blow

 rendered him unconscious for a few minutes and caused the personal injuries for which he has brought this suit.

 Suzanne Nieman, co-owner of Rain Forest, testified that on the day in question, after completing her work at the office portion of the Rain Forest facilities, she left at around 4:30 p.m. As is her habit, she closed the chain link gate at the entrance to the property. Because her husband was still making deliveries and would be returning to the facility to retrieve his car, Suzanne looped the securing chain around the gate but did not latch the lock. Later that afternoon as Suzanne happened to drive past the entrance, she observed that the gate was standing open so she stopped and re-secured it.

 At the close of trial the jury returned a verdict in favor of the defendant nursery and Payne has perfected this appeal.

 III.

 Payne maintains that, because the jury was allowed to consider his status on the property to be that of a trespasser or licensee, when in fact he was an invitee, the jury verdict must be set aside. Payne points to the undisputed evidence that retail sales in fact occurred in the Rain Forest green-houses and claims that the jury should have been instructed that his status at the time of the accident was that of an invitee, thus dictating Rain Forest's standard of care.

 Rain Forest responds that since it does not hold the greenhouses open to the public as a general matter or advertise for retail sales, together with the evidence that Payne and his group were on the property after hours, the defense created a jury question as to his status at the time of the accident.

 In cases such as that before the Court today, where a litigant seeks to attack a jury verdict, our scope of review is as familiar as it is limited.

 . . . [W]hen a trial court, or the Supreme Court . . considers such a motion [for directed verdict or judgment notwithstanding the verdict] it must do so `in the light most favorable to the party opposed to the motion.' . . . The non-movant must also be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. If the facts and inferences so considered point so ...


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