The opinion of the court was delivered by: Smith, Justice
92-CA-00645-SCT, __ So. 2d __
ANDREA D. LITTLE, BY MOTHER AND NEXT FRIEND, REGENIA W. LITTLE v. LARRY BELL AND KAREN BELL
DATE OF JUDGMENT: 05/15/92
TRIAL JUDGE: HON. THOMAS J. GARDNER, III
COURT FROM WHICH APPEALED: ALCORN COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION AFFIRMED - 8/6/98
MOTION FOR REHEARING FILED: 10/5/95
¶1. Motion for rehearing is denied and these opinions are issued by the Court.
¶2. This case comes to this Court for the purpose of addressing whether the lower court's granting of a directed verdict on the grounds that Andrea Little was a licensee was correct. On November 19, 1990, Andrea Little's mother, Regenia W. Little, filed a Complaint in the Circuit Court of Alcorn County, Mississippi, as Andrea's mother and next friend, naming Larry and Karen Bell as Defendants. The Complaint alleged that on June 18, 1990, while a guest at the Bells' home, Andrea was allowed to play on the Bell's trampoline, and while either mounting or dismounting the trampoline, Andrea stepped on a milk crate located below the trampoline, resulting in a fall and concomitant injury. The Complaint further alleged that $9,318,84 in medical costs had been accumulated, and, inter alia , that Andrea had experienced loss of kindergarten attendance, pain and suffering, and disability. Additionally, the Complaint alleged that the sole proximate cause, or a contributing cause of the accident was the negligence of the Bells by providing an unstable and dangerous method of mounting and dismounting the trampoline, failing to supervise the use of the trampoline, failing to instruct Andrea on the use of the trampoline, failing to warn Andrea of the dangers of the use of the trampoline, setting up and maintaining the trampoline in an improper place and in a dangerous condition, and negligently moving Andrea without professional help after she had fallen and injured herself.
¶3. The Bells answered and admitted that Andrea was at the Bells' residence, and fell while attempting to mount or dismount the trampoline, but denied the substantive allegations of negligence and proximate causation contained in the complaint. The Answer also asserted numerous defenses including failure to state a claim, superseding negligence of others, and § immunity from suit pursuant to Miss. Code Ann. 73-25-37 (1972).
¶4. On May 24, 1991, the Plaintiff/Appellant (Littles) amended their Complaint, adding an allegation that, if it was determined that Andrea was a trespasser, then the trampoline constituted an inherently dangerous "attractive nuisance." The Complaint was also amended to seek compensation for mental distress suffered by Andrea. The Defendants/Appellees (Bells) answered the Amended Complaint, denying that the "attractive nuisance" doctrine applied to the facts of the case.
¶5. Thereafter, on May 7, 1992, a trial on the merits was held in the Circuit Court of Alcorn County, Mississippi, Honorable Thomas J. Gardner III, presiding. After presentation of the Plaintiff's case-in-chief, the Plaintiff rested, whereupon the Defendants moved the lower court for a directed verdict and/or judgment on the pleadings. The lower court sustained the Defendant's motion for directed verdict, concluding that Andrea Little was a licensee, and entered judgment for the Defendants on May 19, 1992.
¶6. Aggrieved by the lower court's decision, the Littles, by and through their attorney, Honorable Charles R. Wilbanks, appealed to this Court and raised the following issues: I. THE TRIAL COURT ERRED IN DETERMINING THAT THE STANDARD OF CARE OWED BY MR. AND MRS. BELL TO ANDREA LITTLE WAS NOT TO WILLFULLY OR BY GROSS NEGLIGENCE INJURE THE PLAINTIFF.
II. THE TRIAL COURT ERRED IN ITS INTERPRETATION OF ACTIVE AND PASSIVE NEGLIGENCE.
III. THE TRIAL COURT ERRED IN HOLDING THAT ANDREA LITTLE FAILED TO MAKE OUT A PRIMA FACIE CASE AND ERRED IN DIRECTING A VERDICT AGAINST ANDREA LITTLE AND IN FAVOR OF MR. AND MRS. BELL.
IV. THE TRIAL COURT ERRED IN DETERMINING THAT THE PLAINTIFF'S CAUSE OF ACTION SOLELY AROSE UNDER THE PREMISES LIABILITY THEORY.
V. THE TRIAL COURT ERRED IN ADHERING SOLELY TO THE THEORIES OF PREMISES LIABILITY.
VI. THE TRIAL COURT ERRED IN EXCLUDING THE EVIDENCE OF FORESEEABILITY AS TO THE DANGERS OF THE TRAMPOLINE THAT ANDREA LITTLE WAS PLAYING ON AT THE TIME SHE WAS INJURED.
¶7. On September 28, 1995, this Court affirmed the Circuit Court's ruling per curiam. Thereafter, on October 5, 1995, the Littles filed a Petition for Rehearing, maintaining that Andrea made out a prima facie case in the trial court and her case should be decided by a jury.
¶8. In June of 1990, Linda Smith and her daughter, Richelle, traveled from their home in South Carolina to Corinth, Mississippi, to visit Andrea and her mother, Regenia. While Linda and her daughter were visiting at Andrea's house, Larry Bell came by to take Linda and Richelle to the Bells' house. At that time, Larry commented to Andrea about having a trampoline at his house and that she would enjoy playing on it.
¶9. Thereafter, on June 17, 1990, Linda suggested to Andrea's parents that she take Andrea over to the Bells' home to let her play on their trampoline. Andrea's mother agreed and on June 18, 1990, Andrea accompanied Linda and Richelle to the Bells' home.
¶10. The Bells kept a trampoline in their back yard. Andrea and Richelle used an eleven-inch-high milk crate to aid them in mounting and dismounting the trampoline. After playing on the trampoline, Andrea and Richelle dismounted it and went back into the Bells' kitchen to get some water. Soon after, Andrea and Richelle asked Karen Bell if they could go back outside to play on the trampoline again. Karen Bell said yes, but told them to wait until she went outside with them before they resumed jumping on the trampoline. However, when Karen Bell went to finish picking up dishes in the kitchen, Andrea and Richelle returned to the trampoline. ...