REVISED UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
____________________
No. 95-60668 ____________________
ANDRES HILL, ET AL.,
Plaintiffs,
ANDRES HILL,
Plaintiff-Appellee-Cross-Appellant,
versus
INTERNATIONAL PAPER COMPANY,
Defendant-Appellant-Cross-Appellee.
_________________________________________________________________
Appeals from the United States District Court for the Southern District of Mississippi
_________________________________________________________________ August 21, 1997
Before HIGGINBOTHAM, DAVIS, and BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge: Primarily at issue is the duty owed, under Mississippi law, by
a premises owner to an independent contractor for a dangerous
condition on the premises. Plaintiff-appellee Andres Hill contends
that the duty, in regards to all invitees, is singular: to maintain
reasonably safe premises. Based on this theory, as enunciated in
Tharp v. Bunge Corp., 641 So. 2d 20 (Miss. 1994) (en banc), a jury
rendered a verdict for Hill in the amount of $1.5 million against
International Paper for negligence. Post-verdict, International Paper moved for, inter alia, judgment as a matter of law and
remittitur. In part pursuant to Tharp, the district court denied
the motion for judgment or new trial. It did reduce the award,
however, to approximately $850,000. In the light of the quite
recent decision of the Mississippi Supreme Court in Jones v. James
Reeves Contractors, Inc., No. 93-CA-01139-SCT, 1997 WL 137395
(Miss. March 27, 1997) (en banc), we are compelled to VACATE the
judgment and REMAND for further proceedings, including a new trial
if Hill can present triable issues.
I.
International Paper (IP) operates a paper mill at Moss Point,
Mississippi. BE&K Construction Company operates nationally at
paper mills, among other sites; and, since July 1989, it has
performed repair and maintenance services at the Moss Point mill
under a long-term contract with IP. BE&K maintains a large and
continuing presence there — between 50 to 700 employees, depending
on the work being conducted.
In the contract, BE&K represented that it was “familiar with
the conditions existing on the site at which the work will be
performed and affirms that there have been no representations by
[IP] beyond those set forth in this Agreement”. In addition, BE&K
agreed to “keep the area in which [it], its employees and agents
are working in a safe and reasonably clean condition during the
performance of the work”. Finally, it agreed “to provide all
supervision, labor, equipment and tools” necessary to perform work
at the mill and to “furnish its best skill and judgment in the performance of its obligations ... performing all work ... in a
safe, good and first class workmanlike manner”.
In the mill’s sheet finishing room, large rolls of paper are
cut into sheets by cutter machines. Because the rolls weigh
several thousand pounds, they are moved into place at the machines
via floor trolleys — flat steel plates on metal wheels that slide
along tracks built into the floor. There are ten trolleys in the
sheet finishing room; each weighs approximately 128 pounds,
measures 36 inches by 12 inches, and sits approximately 5/8 inches
above the floor. Each trolley track is approximately 16 feet long.
The trolleys and tracks are painted yellow; the surrounding floor,
green.
In February 1992, there were approximately 130 BE&K employees
on site. One was Andres Hill, a structural welder. Along with
other BE&K employees, he was working in the sheet finishing room,
upgrading metal structures on the paper cutting machines.
Hill and the rest of the BE&K crew worked a night shift,
shutting down IP’s production while they fabricated metal in an
area separate from the sheet finishing room, then welded it to the
paper cutters in that room. While carrying several items and
walking through the sheet finishing room, Hill stepped on a
trolley, fell, and was injured.
Hill claimed negligence by IP in the “location, placement, use
and condition of the floor trolley”. Summary judgment was denied
IP; at trial in early 1995, it moved unsuccessfully for judgment as
a matter of law at the close of Hill’s case-in-chief and at the
- 3 - close of all the evidence. In denying these motions, the district
court relied in part on Tharp. In addition, the court gave
instructions to the jury that tracked a premises owner’s duty as
Tharp appeared to define it. The jury found Hill 40%, and IP 60%,
at fault, and awarded Hill $1.5 million in damages.
IP moved for judgment as a matter of law, a new trial, or
remittitur. Although the motion for judgment or for new trial was
denied — again, in part pursuant to Tharp — the court found the
damages excessive and conditionally remitted them. Upon Hill’s
acceptance of the remittitur, an amended judgment was entered for
approximately $850,000. Thus, Hill’s total recovery, reduced by
his 40% negligence, was approximately $500,000.
II.
IP presents three issues: that it was entitled to judgment as
a matter of law because it satisfied its duty as a premises owner
to an independent contractor and its employee, Hill; similarly,
that the jury instructions misstated this element of Mississippi
premises liability law; and, finally, that Hill’s damages, even
post-remittitur, are excessive. Hill cross-appeals, claiming error
in the exclusion of certain evidence concerning liability. Because
of our disposition of the district court’s denial of IP’s motion
for judgment, we need not address the other issues presented.
For this diversity action, we, of course, apply Mississippi
substantive law. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
The interplay between Tharp and Jones makes our task most
challenging; indeed, quite “Erie”.
- 4 - And, we review de novo the denial of judgment as a matter of
law, according to the same standards used by the district court.
E.g., Conkling v. Turner, 18 F.3d 1285, 1300-01 (5th Cir. 1994).
Such judgment is appropriate if, after viewing the trial record in
the light most favorable to the non-movant, there is no “legally
sufficient evidentiary basis” for a reasonable jury to have found
for the prevailing party. Id. (quoting FED. R. CIV. P. 50(a)); see
also Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969)
(en banc).
A.
The primary question before us is the duty owed by a
Mississippi premises owner to an independent contractor. It
springs from some inconsistency in Mississippi case law, at least
as we read it, in defining that duty. Compare Jackson Ready-Mix
Concrete v. Sexton, 235 So. 2d 267, 269 (Miss. 1970) (“no duty to
protect [an independent contractor] against risks arising from or
intimately connected with defects of the premises, or of machinery
or appliances located thereon, which the contractor has undertaken
to repair”) (quoting 41 AM. JUR. 2d Independent Contractors § 28
(1968)), with Ingalls Shipbuilding Corp. v. McDougald, 228 So. 2d
365, 367 (Miss. 1969) (“duty ... to turn over ... a reasonably safe
place to work or to give warning of danger”), and General Tire &
Rubber Co. v. Darnell, 221 So. 2d 104, 107 (Miss. 1969) (“duty to
exercise ... ordinary care to keep the premises in a reasonably
safe condition”).
1.
- 5 - Adding to the mix are the two earlier-referenced decisions by
the Mississippi Supreme Court: Tharp v. Bunge Corp., 641 So. 2d 20,
22, 25 (Miss. 1994) (en banc), which appeared to abolish the “open
and obvious” bar to liability in all premises liability cases; and
Jones v. James Reeves Contractors, Inc., No. 93-CA-01139-SCT, 1997
WL 137395 (Miss. Mar. 27, 1997), which appears to have resurrected
that bar, at least where independent contractors are concerned.
Jones was decided not only after the trial and post-judgment
motions, but also after the initial briefing and argument of this
appeal. In the new light of Jones, we called for supplemental
briefs. Although the position of the Mississippi Supreme Court on
this issue is not entirely clear, at least to us, our best “Erie-
guess” is that Jones did effect a change in Tharp. As hereinafter
discussed, given the district court’s strong (and understandable)
adherence to the Tharp rule throughout the trial, and in fairness
to it and the parties, we must vacate and remand for further
proceedings, to possibly include a new trial. To assist the
district court on remand, and in the interest of judicial economy,
our interpretation of Jones’ effect on Tharp follows.
2.
Mississippi followed the traditional rule that an owner owed
an invitee the duty to use “ordinary care to have his premises in
a reasonably safe condition for use in a manner consistent with the
purposes of the invitation”. Mississippi Winn-Dixie Supermarkets
v. Hughes, 156 So. 2d 734, 735 (Miss. 1963); see also Caruso v.
Picayune Pizza Hut, Inc., 598 So. 2d 770, 773 (Miss. 1992);
- 6 - McGovern v. Scarborough, 566 So. 2d 1225, 1228 (Miss. 1990); Lucas
v. Buddy Jones Ford Lincoln Mercury, Inc., 518 So. 2d 646, 648
(Miss. 1988); Mercy Reg’l Med. Ctr. v. Doiron, 348 So. 2d 243, 245
(Miss. 1977); General Tire & Rubber, 221 So. 2d at 107; First Nat’l
Bank of Vicksburg v. Cutrer, 214 So. 2d 465, 466 (Miss. 1968);
Stanley v. Morgan & Lindsey, Inc., 203 So. 2d 473, 475-76 (Miss.
1967). As the Mississippi Supreme Court explained 30 years ago,
“[T]his is the general rule throughout the United States ... and it
is also the rule in this state.” Stanley, 203 So. 2d at 475.
Needless to say, the key to reasonable safety was
foreseeability of harm. As the Mississippi Supreme Court noted
almost 60 years ago, “Requisite care remains always that degree of
care commensurate with appreciable danger appraised in terms of
ordinary prudence and interpreted in the light of the attendant
circumstances.” Supreme Instruments Corp. v. Lehr, 1 So. 2d 242,
244 (Miss. 1941) (emphasis added).
In other words, whether premises were reasonably safe depended
on whether the owner could reasonably anticipate that an injury
would occur on his property. See Stanley, 203 So. 2d at 476 (“not
required to anticipate an unusual and improbable result”).
Although this question was usually for the jury, see Caruso, 598
So. 2d at 773; Supreme Instruments, 1 So. 2d at 246, some premises
(conditions) were of such a nature that reasonable minds could not
differ that an injury was unforeseeable; therefore, as a matter of
law, the premises were reasonably safe. See McGovern, 566 So. 2d
at 1228 (raised threshold in doorway); Kroger, Inc. v. Ware, 512
- 7 - So. 2d 1281, 1282 (Miss. 1987) (orange parking curb in parking
lot); Mercy Reg’l Med. Ctr., 348 So. 2d at 246 (flight of steps
with no handrail); General Tire & Rubber, 221 So. 2d at 107
(failure to show that owner maintained elevator in “such a
defective condition that it could reasonably foresee that some
injury would probably result from its use”).
For latent dangers, a number of pre-Tharp cases contain
language suggesting that, as urged by IP, the duty owed an invitee
is disjunctive; that is, either provide reasonably safe premises or
warn of those latent dangers. See Ware, 512 So. 2d at 1282
(“exercise ordinary care, keeping the premises in a reasonably safe
condition or warning of dangerous conditions not readily
apparent”); see also Wilson v. Allday, 487 So. 2d 793, 798 (Miss.
1986); Buford v. Jitney Jungle Stores of America, Inc., 388 So. 2d
146, 149 (Miss. 1980); Downs v. Corder, 377 So. 2d 603, 605 (Miss.
1979); Mississippi Chem. Corp. v. Rogers, 368 So. 2d 220, 222
(Miss. 1979); Mississippi Power Co. v. Brooks, 309 So. 2d 863, 866
(Miss. 1975); Braswell v. Economy Supply Co., 281 So. 2d 669, 677
(Miss. 1973); McDougald, 228 So. 2d at 367; Nowell v. Harris, 68
So. 2d 464, 467 (Miss. 1953). In fact, some of the cases that
state the duty in the singular also contain this “alternative”
formulation. See Mercy Reg’l Med. Ctr., 348 So. 2d at 245;
Stanley, 203 So. 2d at 476; Hughes, 156 So. 2d at 735-36.
In the light of Tharp, these cases appeared to hold that a
duty to warn arose if, despite his efforts, an owner could not make
the premises reasonably safe. Therefore, an owner did not have an
- 8 - “either-or” choice between, on the one hand, providing reasonably
safe premises and, on the other, warning of dangers. Rather, he
first had a duty to remove or alleviate the danger; if that could
not be achieved with reasonable efforts, then a warning of the
latent defect was required.
To begin with, we have found only two cases that actually
described a landowner’s duty as “alternative”. Buford, 388 So. 2d
at 149 (“alternative duty of (a) providing a reasonably safe place
to work or (b) giving warning”) (quoting McDougald, 228 So. 2d at
367). In addition, some of the cases characterize the duty in such
a way as to imply that warnings come into play as a premises
owner’s last resort: “[A]n owner ... owes ... a duty to use
ordinary care to have his premises in a reasonably safe condition
... or at least not to lead them into a dangerous trap or to expose
them to an unreasonable risk, but to give them adequate and timely
notice and warning of latent [dangers]....” Nowell, 68 So. 2d at
467 (quoting 38 Am. Jur. § 96) (emphasis added); see also Mercy
Reg’l Med. Ctr., 348 So. 2d at 245; Braswell, 281 So. 2d at 677;
Stanley, 203 So. 2d at 476.
In other words, if an owner could not satisfy his duty of
providing reasonably safe premises by eliminating all foreseeable
risks, he had to “at least” warn of latent dangers so as not to let
invitees be injured on dangerous conditions the owner should have
corrected, or made reasonable efforts to correct, in the first
place. However, other cases state the duty in the alternative
without this “at least” language. See Wilson, 487 So. 2d at 798;
- 9 - Downs, 377 So. 2d at 605; Rogers, 368 So. 2d at 222; Brooks, 309
So. 2d at 866; McDougald, 228 So. 2d at 367.
But, the more recent pre-Tharp cases made clear that the duty
to warn was not an independent choice for premises owners; instead,
it was a “corresponding duty” to the duty to make premises
reasonably safe. Brooks, 309 So. 2d at 867. These cases stated
the duty as follows:
[T]he owner of premises: (1) is not an insurer of the invitee’s safety, (2) has only a duty to keep the premises reasonably safe, and (3) when not reasonably safe to warn only where there is hidden danger or peril that is not in plain and open view.
Caruso, 598 So. 2d at 773 (emphasis added); see also McGovern, 566
So. 2d at 1228. Therefore, an owner had to make reasonable,
affirmative efforts to eliminate or alleviate the danger — to make
the premises reasonably safe. See Millers of Jackson, Meadowbrook
Rd., Inc. v. Newell, 341 So. 2d 101, 103 (Miss. 1976) (“[O]ur law
requires that [a landowner] must remove those hazards of which he
has actual or constructive notice”); see also McDougald, 228 So. 2d
at 367. Only when conditions could not be corrected or removed to
make the premises reasonably safe did a duty to warn arise.
Pre-Tharp, however, the failure to satisfy any part of the
duty (as described above) did not lead automatically to the owner
being liable. The “open and obvious” bar provided that, if a
dangerous condition was in plain view and clearly apparent to an
invitee, the owner was not liable for injuries caused by the
condition. See Diamond Int’l Corp. v. May, 445 So. 2d 832, 835-36
(Miss. 1984); Buford, 388 So. 2d at 149-50; Jackson Ready-Mix
- 10 - Concrete, 235 So. 2d at 271-72; United Roofing and Siding Co. v.
Seefeld, 222 So. 2d 406, 407-08 (Miss. 1969); Stanley, 203 So. 2d
at 476.
This rule was not an application of common-law contributory
negligence; by statute, Mississippi has been a pure comparative
fault state since 1910. See MISS. CODE ANN. § 11-7-15 (1972).
Rather, the “open and obvious” bar was a form of common-law
assumption of risk: when a plaintiff voluntarily and knowingly
engages in a particular activity despite risks involved, a
defendant owes that plaintiff no duty of care with respect to those
risks. See W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS, §
68, at 480-81 (5th ed. 1984). Restated, pursuant to contributory
negligence, where the defendant is negligent, the plaintiff’s
negligence bars his recovery; however, when a plaintiff “assumes
the risk”, a defendant is simply “not negligent” because he owes no
duty. See id. § 65, at 451-52, § 68, at 480-81.
In the premises liability context, with respect to open and
obvious conditions, the owner owed an invitee no duty — to make
reasonably safe, remove, or warn. Although Mississippi did not
unconditionally equate the open and obvious bar with assumption of
the risk, both defenses are essentially grounded on the “no duty”
principle. See Jackson Ready-Mix Concrete, 235 So. 2d at 270;
United Roofing and Siding, 222 So. 2d at 408.
Prior to Tharp, all this law was the same for independent
contractors as for other invitees. An owner had a duty to make his
premises reasonably safe for an independent contractor. See United
- 11 - Roofing and Siding, 222 So. 2d at 408; General Tire & Rubber, 221
So. 2d at 107. That duty included taking affirmative efforts to
ensure safety; an owner could not simply rely on warnings to
satisfy his duty. See McDougald, 228 So. 2d at 367. (Although
some cases involving independent contractors contained language
suggesting that the duty was “alternative”, we read those cases in
the same light as we did supra (i.e., that the duty is not
alternative), especially in the light of Tharp.) But, there was no
duty to warn an independent contractor against “open and obvious”
conditions. See Diamond Int’l, 445 So. 2d at 835; Buford, 388 So.
2d at 149-50; Jackson Ready-Mix Concrete, 235 So. 2d at 270; United
Roofing and Siding, 222 So. 2d at 407-08; General Tire & Rubber,
221 So. 2d at 107.
There were, however, two exceptions to a premises owner’s duty
with regard to independent contractors. First, there was no duty
to “protect [a contractor] against risks arising from or intimately
connected with defects of the premises, or of machinery or
appliances located thereon, which the contractor has undertaken to
repair”. United Roofing and Siding, 222 So. 2d at 408 (quoting 41
AM. JUR. 2D Independent Contractors § 28); see Diamond Int’l, 445
So. 2d at 835-36; Downs, 377 So. 2d at 605; Jackson Ready-Mix
Concrete, 235 So. 2d at 271.
And second, the owner was “not liable for death or injury of
an independent contractor or one of his employees resulting from
dangers which the contractor, as an expert, has known, or as to
which he and his employees ‘assumed the risk’”. United Roofing and
- 12 - Siding, 222 So. 2d at 408 (quoting 41 AM. JUR. 2D Independent
Contractors § 28); see Diamond Int’l Corp., 445 So. 2d at 836;
Jackson Ready-Mix Concrete, 235 So. 2d at 271. In this context, we
read “has known” not to mean a warning by the owner but rather
knowledge of the hazards inherent in the work being performed by
the independent contractor. E.g., Jackson Ready-Mix Concrete, 235
So. 2d at 271-72 (holding that electrician injured by uninsulated
wire while installing electric line on utility pole had “assumed
the risk”). This exception was described as “[c]losely related” to
the “intimately connected” exception, see United Roofing and
Siding, 222 So. 2d at 408 (quoting 41 AM. JUR. 2D Independent
Contractors § 28).
In Tharp, the en banc Mississippi Supreme Court, in a five-
four split, effected a most dramatic change in Mississippi premises
liability law by abolishing the “open and obvious” bar, applying
instead “true comparative negligence”. Tharp, 641 So. 2d at 25.
As a result, a premises owner can no longer claim to have no duty
with respect to open and obvious conditions. Id. at 24. Instead,
he must take affirmative steps to alleviate or eliminate the
dangers, even if they are clearly visible to an invitee. Id. at
25. As Tharp explained, “The party in the best position to
eliminate a dangerous condition should be burdened with that
responsibility. If a dangerous condition is obvious to the
plaintiff, then surely it is obvious to the defendant as well. The
defendant, accordingly, should alleviate the danger.” Id. In sum,
Tharp reaffirms the duty under Mississippi law to remove or
- 13 - alleviate dangerous conditions that made premises not reasonably
safe. It also extends that duty to apply to all such conditions,
latent and patent.
Tharp therefore appeared to make it impossible to rely on
invitee knowledge of a dangerous condition in assessing an owner’s
foreseeability of harm (i.e., whether premises were “reasonably
safe”). Invitee knowledge (actual or constructive) would simply be
another way of saying that the condition was (or should have been)
“open and obvious” to the invitee. Tharp makes that knowledge
relevant in assessing the negligence vel non of the invitee, not
that of the owner. Making that knowledge a factor in determining
the negligence of the owner would simply be bringing the “open and
obvious” defense back into Mississippi law through the back door.
More importantly, the Tharp rule appeared to apply in all
premises liability cases, including those involving independent
contractors. As discussed supra, the open and obvious bar applied
equally to all invitees. Tharp’s abolition of that bar therefore
logically applied, for example, to independent contractors. The
Mississippi Supreme Court gave no indication that it intended to
limit its holding to a particular type of invitee. Id. at 22
(“Through our inherent powers we hereby abolish the so-called ‘open
and obvious’ defense to negligence actions.”).
The facts of Tharp reinforced this conclusion. The plaintiff
in Tharp was an inspector with the Mississippi Department of
Agriculture, sampling grain to be shipped in order to certify its
quality for the buyer. Id. As such, he was not an invitee with no
- 14 - expertise, such as a customer in a store. See Hardy v. K Mart
Corp., 669 So. 2d 34, 36 (Miss. 1996); Tate v. Southern Jitney
Jungle Co., 650 So. 2d 1347, 1348 (Miss. 1995). On the other hand,
because Tharp addressed the “open and obvious” bar, and not the two
above-described exceptions for independent contractors, it probably
left those exceptions intact. Jones settles the issue; it is not
necessary for us to determine whether Tharp abolished these
exceptions. Jones either scaled back or clarified the rule in
Tharp, by carving out an exception for independent contractors. A
detailed discussion of Jones is in order.
In Jones, the premises lessee (Howard Industries) was
expanding its plant. Jones, 1997 WL 137395, at *1. McCaskill
Brothers Plumbing Co. was the contractor for, among other things,
the plumbing work, including installation of a sewer lift station.
Id. The lift station required excavating a hole approximately 15
feet deep. Id. Because McCaskill’s supervisor noticed water in
the soil, he had a system installed to “dewater” the soil prior to
the excavation. Id.
McCaskill then contracted with James Reeves Contractor, Inc.,
for equipment and an operator to excavate the hole. Id. at *2.
Reeves testified that, while digging, he discovered a subsurface
flowing stratum of “watersand”, a very dangerous condition, and
that he notified McCaskill’s supervisor; the supervisor denied
having the conversation. Id. Soon after, three McCaskill
employees were killed when the walls of the excavation caved in.
Id.
- 15 - A wrongful death action was brought against Howard, James
Reeves, and the project architects. Id. at *1. The trial court
awarded summary judgment to the defendants. Id. It held, inter
alia, that Howard, the premises lessee, breached no duty to the
workers. Id. The Mississippi Supreme Court affirmed. In regard
to Howard, the court gave three independently viable reasons for
its holding.
The first basis, which is not relevant to the issue at hand,
concerned the fact that Jones County, Mississippi, “owned the site
and was responsible for constructing the building. Howard[, the
premises lessee,] was the authorized agent of Jones County for the
purpose of completing the construction project.” Id. The
Mississippi Supreme Court agreed with the trial court that, under
this scenario, Howard had no liability for accidents occurring on
the premises. Id. at *9.
Next, the court stated that, “even if this avenue of recovery
were not closed”, Howard would still not be liable. Id. at *10.
Citing Jackson Ready-Mix Concrete, 235 So. 2d at 270, and seeming,
without saying so, to retreat from Tharp, the court stated: “The
owner/occupier is not an insurer of the invitee’s safety, and he is
not liable for injuries [arising out of conditions] which are not
dangerous or which are, or should be[,] known to the business
invitee.” Id. at *10 (emphasis added).
Therefore, for a second no-liability basis, and under the
“intimately connected” exception for independent contractors,
discussed supra, the court held that Howard did not owe McCaskill’s
- 16 - employees any duty with respect to “defects of the premises ...
which the contractor has undertaken to repair”. Id. (quoting
Jackson Ready-Mix Concrete, 235 So. 2d at 271). The court noted
that, arguably, McCaskill’s installation of the dewatering system
was a repair mechanism necessary for excavation of the hole (which
in turn was necessary for installation of the lift station, the
work for which Howard hired McCaskill), bringing the case “squarely
within” this exception. Id.
Along this line, the Jones plaintiffs countered that McCaskill
was on site to perform contract plumbing work, not to repair a
defect in the soil, meaning that the risks arising from the
“watersand” were not intimately connected with the work for which
McCaskill was hired. To deal with this alternative interpretation,
the Mississippi Supreme Court invoked a variation of the
“intimately connected” exception, set forth in Magee v.
Transcontinental Gas Pipe Line Corp., 551 So. 2d 182, 185 (Miss.
1989). Magee held:
Where a party ... contracts with another ... to perform original construction or repair work ... and devolves upon the contractor the right and fact of control of the premises and the nature and details of the work, the owner has no liabilities for injuries experienced by the contractor’s workers where those injuries arose out of or were intimately connected with the work.
Thus, where the owner surrenders to the contractor all control
over the performance of that aspect of the work that gives rise to
the injury, there is also no liability. Id. at 186. Because
- 17 - McCaskill had, by contract, “unfettered control over that portion
of the work which gave rise to the injury” — namely, the excavation
of the hole — Howard was “absolved of responsibility”. Jones, 1997
WL 137395, at *10-11. As this analysis is simply a variant of the
“intimately connected” exception, we take this language to mean
that, here too, Howard owed no duty.
Had the court ceased its analysis at this point, we might have
concluded that Jones does not create an exception to the Tharp
rule, despite the earlier-referenced language by the Jones court
from Jackson Ready-Mix Concrete, which arguably touches on
conditions that are “open and obvious”. As support for such a
possible no-exception conclusion, we note, for starters, that the
Jones plaintiffs contended that the trial court had erroneously
based its decision on the “open and obvious” bar. The Mississippi
Supreme Court summarily rejected this contention:
The plaintiffs correctly note that this Court abandoned the “open and obvious” defense as a complete bar to recovery in premises liability cases in [Tharp]. However, ... it is apparent that the words “open and obvious” or any hint that such a defense might have been the basis for the trial court’s decision are strictly a figment of the plaintiffs’ attorney’s imagination. Accordingly, it is unnecessary to address this point.
Id. at *12.
In other words, although Tharp was raised in Jones, the
Mississippi Supreme Court did not find it relevant. Along this
line, we note that the author of the pertinent part of the en banc
- 18 - Jones opinion had joined the dissent in the earlier five-four Tharp
decision. See id. at *9; Tharp, 641 So. 2d at 27-29.
In addition, Tharp’s abolition of the “open and obvious” bar
and the “intimately connected” exception (including its variant in
Magee) could easily co-exist. Nevertheless, the Jones court went
on to explain what the duty of Howard would be and, in the process,
we conclude, carved out an exception to Tharp.
As a third basis for its holding, the court noted: “[E]ven if
there existed a duty on the part of Howard to make the premises
safe [for McCaskill’s employees], the only way in which that duty
would remain intact is if John McCaskill, Jr., as site supervisor,
did not know of the condition of the soil.” Jones, 1997 WL 137395
at *11 (emphasis added). Of course, knowledge by a contractor of
a condition is imputed to its employees. Id. (citing City of
Jackson v. Ball, 562 So. 2d 1267, 1270 (Miss. 1990)).
Looking at the record, the court concluded that McCaskill’s
supervisor had knowledge of the soil condition — possibly actual
(from Reeves’ warning and from being on site) and certainly
constructive (from the contract, in which McCaskill represented
that it “has visited the site [and] become familiar with local
conditions under which the Work is to be performed”). Id. Again
citing Jackson Ready-Mix Concrete, the court held that, because of
McCaskill’s supervisor’s knowledge of the condition, “Howard had no
duty to warn of a danger which McCaskill should reasonably have
appreciated before exposing himself (and by extension, his
employees) to it.” Id. In the words of the court, if there was a
- 19 - duty to make the premises reasonably safe, it no longer “remain[ed]
intact”. Id.
This last rationale for upholding the summary judgment in
Jones is the most troubling to our interpretation of Tharp and
other Mississippi cases. Tharp appeared to make it impossible to
rely on invitee knowledge of a dangerous condition in assessing an
owner’s negligence. After all, an owner’s negligence vel non turns
on the foreseeability of harm (i.e., whether premises are
“reasonably safe”). Invitee knowledge, actual or constructive,
would simply be another way of saying that the condition was, or
should have been, “open and obvious” to the invitee. Again, Tharp
seemed to make that knowledge relevant in assessing only the
negligence vel non of the invitee, not that of the owner; making
that knowledge a factor in determining the negligence of the owner
appears to bring the “open and obvious” bar back into Mississippi
law through the back door.
Nevertheless, this seems to be precisely what Jones does, at
least in the context of independent contractors. As quoted supra,
Jones explicitly states that an independent contractor’s knowledge
of a defect can absolve the owner of liability:
The owner/occupier is not an insurer of the invitee’s safety, and he is not liable for injuries [arising out of conditions] which are not dangerous or which are, or should be[,] known to the business invitee.
Id. at *10 (citing Jackson Ready-Mix Concrete, 235 So. 2d at 270)
(emphasis added).
- 20 - In this light, a premises owner could defend a negligence
action by the employee of an independent contractor by contending,
for example, that he warned the independent contractor of a defect.
If proven, the independent contractor’s knowledge would satisfy the
owner’s duty. Under IP’s formulation of Mississippi law (in its
initial brief), this knowledge makes the premises, as a matter of
law, “reasonably safe”; it is not foreseeable that a contractor (or
its employee) will be injured by a condition of which the
contractor has knowledge.
We see little difference, however, between IP’s formulation
and a contention that, because of the contractor’s knowledge, the
owner simply had “no duty” with respect to that defect because it
was, or should have been, “open and obvious” to the independent
contractor. After all, as previously quoted, the Mississippi
Supreme Court defined that bar, pre-Tharp, as follows: “There is no
duty to warn the invitee of a defect or danger ... which is obvious
or which should be observed by the invitee in the exercise of
ordinary care.” Jackson Ready-Mix Concrete, 235 So. 2d at 269-70
(quoting 65 C.J.S. Negligence § 63 (1966)) (emphasis added).
Translated, this reads: “There is no duty to warn an independent
contractor of a defect or danger of which it has actual knowledge
or of which it, in the exercise of reasonable care, should have
knowledge.” In Jones, Reeves’ possible warning to the contractor’s
supervisor and the contractor’s observations about the work-site
during the work are the “actual knowledge”, while the contract
provision about inspecting the site is the “constructive knowledge”
- 21 - — in sum, what the contractor should have known, or is deemed to
know.
B.
That being said, we apply Mississippi law as best we can to
the record before us. In the light of Jones, if an independent
contractor has actual or constructive knowledge of a dangerous
condition (via warning, contractual provision, etc.), its employees
cannot recover against the premises owner for negligence. Whether
this rule is characterized as a type of “open and obvious” bar (a
no duty rule) or as proof that a warning or knowledge satisfies an
owner’s duty is, for purposes of this opinion, irrelevant. The
owner is not liable.
But, our review of the record convinces us that Tharp was a
key issue, if not the key issue, throughout the trial. Hill relied
on it in opposing IP’s summary judgment motion. It was made an
issue of law in the pre-trial order. The meaning of Tharp was
contested at trial, particularly in IP’s Rule 50 motions and in the
district court’s rulings on them. Most importantly, the jury
instructions set out a premises owner’s duty in the light of Tharp:
make reasonably safe; take reasonable efforts to remove dangers if
not reasonably safe; and if danger cannot be removed, warn invitee.
See Tharp, 641 So. 2d at 25.
In sum, the district court was guided in large part, and
properly so, by “the law according to Tharp”. In our view, that
law has changed — rather dramatically. Accordingly, in the light
- 22 - of Jones, and based on our review of the record, we are not able to
determine whether a reasonable juror could have found for Hill.
In a sense, our inability to make this call is somewhat akin
to when we reverse and remand for a new trial because of an
erroneous jury instruction that affected the outcome of the case.
See, e.g., Davis v. Ector County, Tex., 40 F.3d 777, 786 (5th Cir.
1994); FDIC v. Mijalis, 15 F.3d 1314, 1318 (5th Cir. 1994). As
noted, IP raises an erroneous instruction issue. (Hill counters
that the issue was not preserved in district court; IP claims an
exception to the usual objection-requirement. We do not address
these points.)
However, in our view, the better procedure, on this record and
due to what we perceive as a mid-course change in Mississippi law,
is the variation we have utilized on judgment as a matter of law.
In any event, in fairness to the court and the parties, we must
vacate the judgment and remand for further proceedings, including
a new trial should Hill be able to present triable issues.
III.
For the foregoing reasons, the judgment is VACATED and the
case is REMANDED for further proceedings consistent with this
opinion.
VACATED AND REMANDED
- 23 -