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Keckley v. Estes Equipment Co., Inc.

Court of Appeals of Mississippi

December 11, 2018

TERI KECKLEY APPELLANT
v.
ESTES EQUIPMENT COMPANY, INC. AND PILOT TRAVEL CENTERS, LLC APPELLEES

          DATE OF JUDGMENT: 05/30/2017

          RANKIN COUNTY CIRCUIT COURT, HON. WILLIAM E. CHAPMAN III JUDGE.

          ATTORNEYS FOR APPELLANT: CHARLES M. MERKEL JR. EDWARD P. CONNELL JR.

          ATTORNEYS FOR APPELLEES: JOHN E. WADE JR. JOSEPH A. SCLAFANI DAN W. WEBB PAUL N. JENKINS JR.

          BEFORE LEE, C.J., FAIR AND WILSON, JJ.

          WILSON, J.

         ¶1. Teri Keckley was injured when she tripped and fell outside of the "Flying J" convenience store in Pearl. Keckley alleges that she tripped on a piece of yellow caution tape that was lying flat on the ground across a sidewalk. She claims that as she stepped over the tape, a sudden "gust of wind" blew the tape off the ground, creating a "tripwire." Keckley testified that after her fall she realized that the tape was tied to a pole on one side of the sidewalk and a brick pillar on the other. Prior to her fall, she did not perceive that the tape was attached to anything.

         ¶2. Keckley sued the Flying J's owner, Pilot Travel Centers LLC (Pilot), and Estes Equipment Company (Estes), which had recently completed a construction project outside the convenience store. She alleged that Pilot and Estes failed to maintain the premises in a reasonably safe condition and failed to warn her of a dangerous condition. The circuit court held as a matter of law that the caution tape was not an unreasonably dangerous condition. Therefore, the circuit court granted summary judgment in favor of Pilot and Estes.

         ¶3. For the reasons discussed below, we hold that genuine issues of material fact remain and that neither Pilot nor Estes is entitled to judgment as a matter of law. Therefore, we reverse and remand for further proceedings consistent with this opinion.

         FACTS AND PROCEDURAL HISTORY

         ¶4. Pilot hired Estes to install an underground storage tank at Pilot's Flying J gas station and convenience store on Highway 80 in Pearl. Estes broke concrete near the diesel island closest to the store and dug a large hole for the storage tank. Estes also broke concrete to create an "electrical conduit" or "trench" to run electrical lines to the tank. Estes installed the tank underground and its electrical subcontractor installed the electrical lines on or before April 1, 2011. On or around April 1, Estes set up a barricade of orange barrels and yellow caution tape around the construction area. On April 2, the concrete subcontractor, Denco LLC, poured concrete over certain areas of the excavation and finished construction, including the electrical conduit. Denco finished its work and left the site on April 2, leaving the barrels and caution tape as it had found them. The barrels and tape were to remain in place for some period of time to allow the concrete to cure.

         ¶5. On April 15, Keckley, a truck driver, stopped at the Flying J. She was on her way to Ruston, Louisiana, to deliver a load. She parked outside the fuel islands, exited her truck, and walked toward the convenience store. As she approached the store, two entrances were ahead of her. A concrete sidewalk led to the front of the building, and a "breezeway" to her right led into the store. Keckley saw "seven or more" people coming out through the breezeway, and "they were all carrying stuff like oil, hot dogs, drinks," etc. Keckley thought that if she tried to enter through the breezeway, she would have had to wait for all those people "to clear before [she] could get in." Keckley "was in a very big hurry," so she decided to take the sidewalk to the front of the building rather than the breezeway.

         ¶6. As Keckley approached the sidewalk, she noticed an approximately thirty-foot piece of yellow caution tape "laying flat on the ground" all the way across the sidewalk. The tape appeared to be "loose" and did not appear to be attached to anything. Keckley thought it was "confusing that it would be laying flat on the ground like that, so [she] made an extra wide step [over the tape] to be extra cautious." When she did, a sudden "gust of wind just kind of blew up." The wind blew the tape off the ground, and it "functioned like" a "tripwire," catching Keckley's right foot and causing her to fall forward onto her knees. After she fell, Keckley realized that the tape was tied to a pole on one side of the sidewalk and was also tied to a brick pillar on the other side of the sidewalk.

         ¶7. A customer exiting the store saw Keckley fall and helped her up. He then helped her sit down on the edge of a raised flower bed nearby. Keckley sat on the flower bed for twenty or thirty minutes. She called her supervisor to let him know that she had been injured and would be late getting to Ruston. Her supervisor told her to make sure that she was okay before she got back in her truck.

         ¶8. Keckley eventually went inside the store and spoke to the manager on duty, Mario Garcia. Keckley testified that Garcia "apologized multiple times about the construction stuff everywhere." According to Keckley, Garcia said that Pilot had "call[ed] the construction company several times trying to get them to come out [to the store] and clean this mess up," but the construction company would not return Pilot's calls or come back "to clean this mess up." Keckley filled out a form to report the accident, but she initially declined Garcia's offer to call an ambulance. After about an hour, she still did not feel well enough to drive, so she asked Garcia to call an ambulance.

         ¶9. Keckley testified that when the ambulance arrived, they could not provide any treatment or diagnosis without taking her to a hospital. She did not want to go to the hospital because she still needed to deliver her load in Ruston. Keckley declined to go to the hospital, returned to her truck, and continued on to Ruston. Keckley testified that she had to stop every thirty or forty minutes because of the pain in her knees, but she eventually made it to Ruston. When she arrived in Ruston, she was unable to help unload her truck. Keckley alleges that she suffered serious injuries to her knees, neck, back, hands and wrists as a result of her fall at the Pilot. She alleges that these injuries required several surgeries and caused severe mental and emotional stress.

         ¶10. In February 2014, Keckley filed suit against Pilot, Estes, and Denco in the Rankin County Circuit Court. She alleged that the caution tape she tripped over was a dangerous condition and that Pilot, Estes, and Denco breached their duty to keep the premises in a reasonably safe condition. She sought damages for, inter alia, past and future medical expenses, pain and suffering, mental and emotional stress, and lost wages. The defendants answered and denied liability, and Pilot filed a cross-claim against Estes for indemnification and/or contribution. Estes denied liability on Pilot's cross-claim.[1]

         ¶11. In March 2016, Denco filed a motion for summary judgment. In response, Keckley agreed that there was no evidence of fault on the part of Denco and that Denco was entitled to summary judgment. Accordingly, the circuit court granted summary judgment in favor of Denco and dismissed Keckley's claims against Denco with prejudice.

         ¶12. Estes and Pilot subsequently filed separate motions for summary judgment. Estes argued that the caution tape was not an "'unreasonably dangerous condition' that the [d]efendants knew or should have known about" and that Keckley's own decision to step over the tape, rather than walking around the tape and entering through the breezeway, was "the proximate cause of her injury." Pilot advanced similar arguments and also argued that Keckley became "a licensee, if not a trespasser," when she crossed over the caution tape; that Pilot had no "duty to warn" because the caution tape was in plain view; and that there was no evidence that Pilot caused or had actual constructive notice of the allegedly dangerous condition. In response, Keckley argued that she remained an invitee, not a licensee, at all times; that, apart from any duty to warn, Pilot had a duty to keep the premises reasonably safe; and that genuine issues of material fact precluded summary judgment on the remaining grounds raised by the defendants.

         ¶13. The circuit court granted summary judgment in favor of both Estes and Pilot, ruling as follows:

Keckley must establish that an unreasonably dangerous condition existed in order to maintain a premises liability action against Pilot and Estes. . . . [T]his [c]ourt finds that the open and obvious yellow caution tape at issue is not an unreasonably dangerous condition as a matter of law. Therefore, without the presence of an unreasonably dangerous condition, there can be no premises liability claim. Moreover, as this [c]ourt has held as a matter of law that the open and obvious condition complained [of] by ...

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