IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2024-CA-00238-COA
JANE RODRIGUEZ APPELLANT
v.
DIAMONDHEAD COUNTRY CLUB AND APPELLEE PROPERTY OWNERS ASSOCIATION INC.
DATE OF JUDGMENT: 01/29/2024 TRIAL JUDGE: HON. RANDI PERESICH MUELLER COURT FROM WHICH APPEALED: HANCOCK COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: MICHAEL L. FONDREN ATTORNEY FOR APPELLEE: WADE G. MANOR NATURE OF THE CASE: CIVIL - TORTS-OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE DISPOSITION: AFFIRMED - 03/25/2025 MOTION FOR REHEARING FILED:
BEFORE CARLTON, P.J., WESTBROOKS AND EMFINGER, JJ.
CARLTON, P.J., FOR THE COURT:
¶1. Jane Rodriguez brought a premises liability case against Diamondhead Country Club
and Property Owners’ Association Inc. (Diamondhead), seeking recovery for injuries that she
alleged occurred when she “tripped and fell on the sidewalk where it [was] unlevel” as she
was leaving the Diamondhead pool area. The Hancock County Circuit Court granted
summary judgment in Diamondhead’s favor, finding that the approximately one-half-inch
height differential between the sidewalk slabs at issue was not a “dangerous condition” so
as to impose liability on Diamondhead for Rodriguez’s injuries. Rodriguez appealed.
Finding no error, we affirm summary judgment in Diamondhead’s favor.
STATEMENT OF FACTS AND PROCEDURAL HISTORY ¶2. Rodriguez was a resident of the Diamondhead, Mississippi community and a member
of the Diamondhead Property Owners’ Association. In the early afternoon of September 28,
2019, Rodriguez went to the community pool. The weather was “clear and sunny.” After
spending about twenty minutes at the pool, she decided to leave. According to Rodriguez,
as she was leaving the pool area, she tripped and fell from an “uneven crack” in the “seam
of the sidewalk.” Rodriguez said that as she was walking, she was holding her beach bag in
front of her, “[s]o I really wasn’t—I was looking towards my car. I wasn’t looking down at
the sidewalk.” As a result of her fall, Rodriguez broke her shoulder and “ended up losing a
tooth.” Rodriguez said that this had been the first time she used the sidewalk from the pool
to the parking lot. Usually, she would “always cut through the grass and go through the
gate.”
¶3. On January 25, 2022, Rodriguez filed a premises liability complaint against
Diamondhead as a result of her fall. She alleged that Diamondhead “was negligent in that
it failed to maintain a reasonably safe sidewalk. The sidewalk was not level and [Rodriguez]
tripped and fell on the sidewalk where it [was] unlevel.” Diamondhead filed its answer,
asserting, among other defenses, that Rodriguez’s complaint failed to state a claim upon
which relief may be granted. See M.R.C.P. 12(b)(6).
¶4. After conducting discovery, Diamondhead moved for summary judgment, arguing that
it was entitled to judgment as a matter of law because the “alleged unlevel sidewalk [did] not
constitute a dangerous condition,” so Diamondhead did not “breach its duty to [Rodriguez]
to keep its premises in a reasonably safe condition.” In the alternative, Diamondhead
2 asserted that “even if the condition were considered dangerous, the condition was open and
obvious and there is no duty to warn [Rodriguez] of an open and obvious condition.”
¶5. A month after Diamondhead filed its motion for summary judgment, Rodriguez filed
a “Designation of Expert.” Rodriguez designated Justin Cree, a registered professional
engineer, to offer his opinion “regarding the unreasonably hazardous vertical clearance issues
of the subject sidewalk.” His report is discussed in further detail below.
¶6. Rodriguez responded to Diamondhead’s summary judgment motion a month later,
asserting that whether the uneven sidewalk was a dangerous condition was a question of fact
in this case, and, in any event, Diamondhead was negligent per se because the condition of
the sidewalk violated certain building code provisions. Rodriguez attached as exhibits to
her response photographs of the portion of the sidewalk where she fell, her affidavit
describing how she fell, and the affidavit of her expert, Cree.
¶7. In preparing his report and affidavit, Cree did not visit the site but relied on
photographs taken by Rodriguez’s lawyer. Based on these photographs, Cree opined that
“the concrete joint, where the fall occurred, had unreasonable hazardous vertical clearance
issues.” According to the photographs taken by Rodriguez’s lawyer, Cree said that “[t]he
exact concrete joint that was the cause of the injury was measured to have a vertical
difference of 0.5" in the center slab and 0.625" on the western edge.”1 As support for his
opinion that the uneven slab was unreasonably dangerous, Cree stated that “[t]he City of
1 Cree also described several ways the raised concrete slab could be repaired, including creating a beveled edge along the uneven slab, replacing the concrete slab entirely, or spraying foam through holes drilled in the slab to raise it and make it level with the adjacent area.
3 Diamondhead has adopted the [IBC], version 2018.” Cree then acknowledged, however, that
for the most part, the IBC does not apply to this case: “The IBC was developed for ground
up construction, which does not really apply to the accident site. The sidewalk slab is
considered more of a civil site item.”
¶8. But Cree also offered the specific opinion that with respect to the pool entrance,
“[International Building Code (IBC)] section 1110, Recreational Facilities, subsection 4.14,
Swimming pools, wading pools, hot tubs and spas . . . does pertain to the accident site.”
Section 1110.4.14 provides, “[s]wimming pools . . . shall be accessible and be on an
accessible route.” Cree explained that an “accessible route” is one that meets the
requirements of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.
§§ 12101–12213 (2018). To avoid repetition, we address Cree’s specific opinion and these
provisions in further detail in our discussion of Rodriguez’s negligence per se theory of
liability below.
¶9. In its reply, Diamondhead addressed Rodriguez’s negligence per se argument, arguing
that this doctrine did not apply because Rodriguez is not disabled, and therefore she is not
within the class of persons protected by the IBC and ADA provisions relied upon by Cree.
Further, Diamondhead asserted that Rodriguez did not suffer the type of harm contemplated
by these provisions—that is, Rodriguez does not allege that she was discriminated against
and prevented from pool access based on a disability.
¶10. Following a hearing, the circuit court granted Diamondhead’s motion for summary
judgment. The circuit court found that the approximately one-half-an-inch height differential
4 between the two sidewalk slabs at issue did not constitute a dangerous condition, and
therefore “[i]t cannot be said that [Diamondhead] breached its duty to [Rodriguez] to keep
its premises in a reasonably safe condition or failed to warn Plaintiff of such non-dangerous
condition.” Rodriguez appealed, asserting that she presented a genuine issue of material fact
whether the “elevated sidewalk that tripped [her] is an unreasonably dangerous condition.”
STANDARD OF REVIEW
¶11. “An appeal from summary judgment is reviewed de novo, and we view the evidence
in the light most favorable to the non-movant.” Walker v. Cellular S. Inc., 309 So. 3d 16, 24
(¶26) (Miss. Ct. App. 2020). Summary judgment “shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c).
¶12. The party opposing summary judgment “may not rest upon the mere allegations or
denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule,
must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e).
“If [the non-moving party] does not so respond, summary judgment, if appropriate, shall be
entered against him.” Id.
¶13. “[S]ummary judgment is appropriate when the non-moving party has failed to make
a showing sufficient to establish the existence of an element essential to the party’s case, and
on which that party will bear the burden of proof at trial.” Karpinsky v. Am. Nat. Ins. Co.,
109 So. 3d 84, 89 (¶11) (Miss. 2013) (internal quotation marks omitted).
5 DISCUSSION
¶14. In any negligence action, “the plaintiff must show duty, breach, causation, and
damages.” Clinton Healthcare LLC v. Atkinson, 294 So. 3d 66, 71 (¶9) (Miss. 2019). With
respect to a premises liability case, as here, the duty owed to the injured party depends on
“whether the injured party was an invitee, licensee, or a trespasser at the time of the injury.”
Walker, 309 So. 3d at 24 (¶27). As a Diamondhead homeowner and member of the
Diamondhead Property Owners’ Association, Rodriguez was an “invitee” at the time she was
injured. Green v. Dalewood Prop. Owners’ Ass’n Inc., 919 So. 2d 1000, 1007 (¶18) (Miss.
Ct. App. 2005) (finding property association members were invitees on association’s
premises). Diamondhead therefore owed Rodriguez the “duty to . . . exercise reasonable care
to keep the premises in a reasonably safe condition.” Jones v. Wal-Mart Stores E. LP, 187
So. 3d 1100, 1103 (¶12) (Miss. Ct. App. 2016) (quoting Jerry Lee’s Grocery Inc. v.
Thompson, 528 So. 2d 293, 295 (Miss. 1988)).
¶15. But a business owner “is not an insurer of the customers using the parking lot and
sidewalks, and is not liable for injuries caused by conditions which are not dangerous or
which are or should be known or obvious to the customer.” Stanley v. Morgan & Lindsey
Inc., 203 So. 2d 473, 476 (Miss. 1967). The business owner “is not required to keep the
premises absolutely safe, or in such a condition that no accident could possibly happen to a
customer.” Id. As such, “regardless of the invitee’s precise theory of premises liability,
proof that her injury was caused by a ‘dangerous condition’ is an essential element of her
claim.” Jones, 187 So. 3d at 1104 (¶12).
6 I. Dangerous Condition
¶16. Rodriguez asserts that she showed that a genuine issue of material fact exists whether
the approximately one-half-inch height differential between the sidewalk slabs was a
dangerous condition because (1) the uneven walkway was not in a condition “normally
encountered” by an invitee at the Diamondhead community; and (2) “[a] sudden vertical
elevation change of about one-half of an inch is not allowed under the Diamondhead building
code.” We are not persuaded by either argument.
¶17. “Mississippi has long recognized that normally encountered dangers such as curves,
sidewalks, and steps are not hazardous conditions. Often such pathways contain cracks and
changes in elevation; and, as such, they do not become hazardous conditions simply because
they contain minor imperfections or defects.” Carroll v. Singing River LLC, 309 So. 3d 567,
571 (¶9) (Miss. Ct. App. 2020). This understanding is particularly relevant in this case,
where “no . . . property owner can be expected to maintain its sidewalks in a perfectly level
condition, and where the defect consists of some slight variation between two adjoining
paving blocks, no liability is imposed.” Bond v. City of Long Beach, 908 So. 2d 879, 881-82
(¶7) (Miss. Ct. App. 2005) (citing City of Biloxi v. Schambach, 247 Miss. 644, 655-56, 157
So. 2d 386, 391 (1963)). In short, “the existence of a slight height difference on a walkway
does not constitute an unreasonable dangerous condition.” Penton v. Boss Hoggs Catfish
Cabin LLC, 42 So. 3d 1208, 1210 (¶11) (Miss. Ct. App. 2010).
¶18. In numerous cases, the supreme court and this Court have found that elevation
differences in walkways ranging from one-half of an inch to four inches are not inherently
7 dangerous. In Schambach, for example, the plaintiff sought to recover for the injuries she
incurred when she tripped and fell over an uneven portion of one of the City’s sidewalks.
Schambach, 247 Miss. at 647, 157 So. 2d at 387. The Mississippi Supreme Court held that
the three- to four-inch height disparity between the concrete sidewalk blocks was not a
dangerous condition, and therefore it was insufficient to impose liability on the City. Id. at
658, 157 So. 2d at 392. Similarly, in Carroll, this Court affirmed summary judgment in the
mall owner’s favor, concluding that a three-inch raised “seam” between a concrete handicap
walkway and the sidewalk was not an inherently dangerous condition. Carroll, 309 So. 3d
at 571 (¶11). Likewise, in Penton, the plaintiff alleged she tripped and fell on an uneven
concrete pad leading from the parking lot to a handicap ramp that was the only entrance into
the restaurant. Penton, 42 So. 3d at 1209 (¶2). We held that “[w]hile the height of the
concrete pad may not have been uniform in relation to the parking lot, there is nothing in the
record to create a genuine issue of material fact that the concrete pad created a dangerous
condition.” Id. at 1211 (¶12). As such, we affirmed the circuit court’s grant of summary
judgment. Id.; see also Bond, 908 So. 2d at 881-82 (¶¶7-10) (affirming trial court’s ruling
finding no breach of duty where the plaintiff “tripped on an irregularity in the pavement of
approximately one inch”).2
2 In the same way, Mississippi courts in the following cases found no dangerous condition as a matter of law with respect to the alleged walkway defects. McGovern v. Scarborough, 566 So. 2d 1225, 1228 (Miss. 1990) (threshold rising 0.75" above the surrounding floor); City of Greenville v. Laury, 172 Miss. 118, 159 So. 121, 122 (1935) (crevice in street measuring 0.5" wide, 3" deep, and 18-24" inches long); Bradley v. Diamondhead Country Club & Prop. Owners Ass’n Inc., 363 So. 3d 719, 723-24 (¶15) (Miss. Ct. App. 2019) (4" drop-off along edge of neighborhood asphalt pathway); Jones, 187 So. 3d at 1105-06 (¶17) (crack in asphalt alleged to be 4" deep, 4" wide, and 12" long).
8 ¶19. Federal courts applying Mississippi common law have also concluded that height
differentials in sidewalks or walkways alone—including differentials greater than the one-
half-inch differential here—do not constitute a dangerous condition. See, e.g., Parker v.
Wal-Mart Stores Inc., 261 F. App’x 724, 727-28 (5th Cir. 2008) (crack in curb expansion
joint 3.5" wide and 2" deep); Chance v. Wal-Mart E. L.P., No. 3:14-CV-363, 2015 WL
4496442, at *2 (S.D. Miss. July 23, 2015) (pothole in asphalt parking lot approximately 1.5"
to 2" deep); Quick v. Strategic Rests. Acquisition Co., No. 3:12-CV-301, 2013 WL 1305583,
at *2 (S.D. Miss. Mar. 28, 2013) (a 10" wide and 1.5" deep pothole in parking lot); McCain
v. Lehman Bros. Inc., No. 3:06-CV-327, 2008 WL 872431, at *3 (S.D. Miss. Mar. 27, 2008)
(“slight height differential” between sidewalk blocks); Mack v. Waffle House Inc., No. 1:06-
CV-559, 2007 WL 1153116, at *1-2 (S.D. Miss. Apr. 18, 2007) (crack in sidewalk where a
handicap ramp meets the asphalt parking lot measuring approximately 2" wide, 4 and 3/4"
long, and 3/4" deep). Although these decisions are not binding on this Court, we find them
persuasive. See, e.g., Jones, 187 So. 3d at 1105 (¶15).
A. Not Normally Encountered
¶20. Rodriguez, however, asserts that her case is distinguishable from these cases. She
contends that the uneven sidewalk she encountered was not a condition an invitee would
“normally encounter[]” because the uneven surface “is too low to be a step, but high enough
to catch the toe of your foot or shoe and cause a trip and a serious injury. Further, it is also
low enough where it is a hidden danger. The concrete is the same color and same texture on
both sides of the elevation changes.” In support of her assertions, Rodriguez cites Green v.
9 Highland Health Club Inc., No. 5:06-CV-152, 2008 WL 113855 (S.D. Miss. Jan. 9, 2008),
among other Mississippi federal district court decisions, in which these courts have
recognized that “a genuine issue of material fact can exist regarding how the condition was
normally encountered, as well as how it was encountered by the plaintiff.” Id. at *4; see
Tenhet v. Strategic Rest. Acquisition Co LLC, No. 1:17-CV-143, 2017 WL 6513351, at *4
(S.D. Miss. Dec. 20, 2017); Cook v. Payless Shoesource Inc., No. 5:05-CV-19, 2006 WL
1328895, at *8 (S.D. Miss. May 12, 2006).
¶21. While we agree that an alleged walkway defect can be a dangerous condition if it is
something not “normally encountered” by an invitee, we find that these circumstances do not
exist here. The photographs in the record show that the one-half-inch height difference in
the sidewalk slabs, though slight, was not concealed—there was no “hidden danger” as
Rodriguez contends. Nor does Diamondhead dispute how Rodriguez fell or the height
differential between the two sidewalk slabs.
¶22. The federal district court decisions Rodriguez relies upon to support her argument are
nonbinding on this Court and wholly distinguishable; thus, we do not find them persuasive.
In Green, for example, the federal district court found a material factual dispute existed
“concerning the presence of a dangerous condition” based upon the parties differing
contentions regarding the alleged fall. Green, 2008 WL 113855, at *4. The defendant
contended that the plaintiff simply tripped and fell on an uneven sidewalk when he was not
looking. Id. The plaintiff, on the other hand, testified in his deposition that the position of
the business’s entrance door relative to the uneven pavement prevented him from seeing the
10 alleged defect. Id. In the instant case, as noted, Diamondhead does not dispute the vertical
differential in the sidewalk slabs or their appearance.
¶23. In Tenhet, the defendant and plaintiff disputed the size of an uncovered meter hole in
the restaurant parking lot. Tenhet, 2017 WL 6513351, at *4. According to the defendant’s
expert, the hole was 11" wide and 5.75" deep; the plaintiff, however, testified in her
deposition that the hole was actually 12" to 18" wide and 12" or more deep. Id. The federal
district court found that the significant disparity between the measurements and the potential
size of the uncovered meter hole created a disputed material fact issue whether the hole
“constituted a dangerous condition under Mississippi law.” Id.
¶24. In Cook, the federal district court found a material fact issue whether the alleged
defect was a dangerous condition where the defendant contended that the plaintiff’s fall was
caused only due to a “slight rise in elevation from the parking lot to the sidewalk,” but the
plaintiff contended that a “washed away area” constituted “a defect in the sidewalk itself
apart from the change in elevation.” Cook, 2006 WL 1328895, at *8. No such factual
disputes exist in this case.
¶25. Rodriguez also cites Mayfield v. The Hairbender, 903 So. 2d 733 (Miss. 2005), to
support her argument that she has demonstrated a genuine issue of material fact whether the
uneven sidewalk was a dangerous condition in this case. But as this Court has already
recognized in Jones, “[t]he Mayfield opinion did not address the question whether the defect
at issue in that case—broken pavement that ‘jutted up’ over steps leading to the business, see
id. at 734 (¶3)—constituted a dangerous condition. Accordingly, Mayfield is not on point
11 in this case.” Jones, 187 So. 3d at 1106 (¶18). The same analysis applies here.
¶26. We also point out that regardless of any duty owed Rodriguez as an invitee, she was
“still required to use in the interest of [her] own safety that degree of care and prudence
which a person of ordinary intelligence would exercise under the same or similar
circumstance.” Stephens v. City of Gulfport, 379 So. 3d 399, 407 (¶27) (Miss. Ct. App.
2024). Here, Rodriguez admits that she was walking with her beach bag in front of her and
“was looking towards [her] car. [She] wasn’t looking down at the sidewalk.”
¶27. Rodriguez also complains that the concrete sidewalk slabs were the “same color and
texture.” But as we have detailed above, Mississippi courts have plainly held that analogous
height differentials in sidewalks or walkways—including situations without contrasting color
or texture between the uneven surfaces—are conditions “normally encountered” by invitees
and do not constitute dangerous conditions. Indeed, “[t]he principle derived from th[e]se
cases is that . . . because they are normally encountered by invitees[,]” the height differentials
at issue “are not dangerous conditions.” Jones, 187 So. 3d at 1106 (¶17) (emphasis added).
¶28. Lastly, Rodriguez asserts that the alleged defect in this case was “unexpected” because
it was “at a very exclusive pool area . . . where people would assume and reasonably expect
that . . . [an] uneven sidewalk would not be present.” But we find no binding or persuasive
case applying a heightened standard of care with respect to sidewalks in the common areas
of a subdivision, as compared to a city street, nor does Rodriguez cite such a case. On the
contrary, Bradley also involved a premises liability lawsuit against Diamondhead. Bradley,
363 So. 3d at 721 (¶¶2-4). The Bradleys sought recovery for damages Mr. Bradley suffered
12 when he fell off the edge of an asphalt walkway leading to the Diamondhead Country Club
pool. Id. Applying the same law as we do here, we found no error in the circuit court’s
finding that the four-inch drop-off along the edge of the neighborhood’s asphalt pathway
“was not a dangerous or unreasonable hazardous condition” as a matter of law. Id. at 724
(¶15). As such, we also find that this argument is without merit.
B. General Allegation that the “Uneven Sidewalk” Violates the Diamondhead “Building Code”
¶29. Separate from her negligence-per-se argument that we discuss below, Rodriguez also
asserts that “the uneven sidewalk is an unreasonably dangerous condition that[, according
to Cree,] violates the [Diamondhead] building code.” Rodriguez contends that this general
statement creates a material factual dispute whether the uneven sidewalk was a dangerous
condition.
¶30. We recognize that Cree notes in both his report and his affidavit that Diamondhead
“has adopted the [IBC], version 2018.” But Cree then explicitly acknowledges that “[t]he
IBC was developed for ground up construction, which does not really apply to the accident
site. The sidewalk slab is considered more of a civil site item.” (Emphasis added). Because
even Rodriguez’s expert acknowledges that the IBC “does not really apply” to the uneven
sidewalk slab, in general, we are unconvinced by Rodriguez’s assertion that Cree’s vague
reference to “the Diamondhead building code” creates a material fact issue whether the
uneven sidewalk was a dangerous condition.
II. Negligence Per Se
¶31. Rodriguez also asserts a negligence-per-se theory of liability based on the specific IBC
13 and ADA provisions that Cree relies on in opining that the uneven sidewalk was “an
unreasonable existing safety hazard for pedestrian and ADA traffic traveling to and from the
swimming pool entrance.”
¶32. “Negligence per se renders a defendant liable without proof of reasonable care when
the plaintiff proves the defendant violated an applicable statute.” Dooley v. Byrd, 64 So. 3d
951, 960 (¶33) (Miss. 2011). A party who asserts a negligence-per-se claim, however, must
demonstrate “(1) that the party belongs to the class of people the statute intends to protect,
(2) that the party suffered the type injuries the statute was designed to avoid, and (3) that the
offender’s violation of the statute proximately caused the party’s injuries.” Id. Because
Rodriguez cannot demonstrate the first two requirements, her negligence-per-se claim fails.
¶33. We begin our analysis with a summary of Cree’s opinion relating to the swimming
pool walkway and the IBC provisions he relies upon. After acknowledging that the IBC, in
general, did “not really apply to the accident site,” Cree then specifically addressed the route
to the swimming pool in his report and affidavit. Regarding the swimming pool entrance,
in particular, Cree stated that “[IBC] section 1110, Recreational Facilities, subsection 4.14,
Swimming pools, wading pools, hot tubs and spas does pertain to the accident site.”
(Emphasis added). That provision reads: “Swimming pools . . . shall be accessible and be
on an accessible route.” IBC § 1110.4.14 (2018). Cree explained that “an ‘accessible route’
is one that meets the requirements of the [ADA].”
¶34. Continuing, Cree stated:
Chapter 3 (Changes in Level), Section 3.03 of the Mississippi Accessible & Usable Buildings and Facilities [C]ode states that vertical elevations
14 differences between 0.25" and 0.50" must have beveled edges with a 2:1 slope. Section 3.04 states that differences in level with greater than 0.50" must be accomplished by means of a sloped surface such as a ramp [R156-57] . . . . From the onsite measurements taken at the fall site, it is evident that the sidewalk was out of code compliance.
¶35. Based on these provisions and the measurements at the fall site, Cree opined:
“Therefore, it is my professional opinion, as a licensed Professional Civil Engineer, that the
concrete sidewalk [at issue] . . . is outside standard construction tolerances, and is an
unreasonable existing safety hazard for pedestrian and ADA traffic traveling to and from the
¶36. Thus, Rodriguez’s negligence-per-se claim is based on IBC section 1110.4.14,
pertaining to accessibility to swimming pools, which in turn is based upon the ADA’s
“accessible route” requirements as delineated in the Mississippi Accessible & Usable
Buildings and Facilities Code, as set forth above. Indeed, chapter 11 of the IBC is entitled
“Accessibility.” The “scope” of chapter 11 is described as follows: “The provisions of this
chapter shall control the design and construction of facilities for accessibility for individuals
with disabilities.” IBC § 1101.1. Further, as Cree himself explained in his report and
affidavit, an “accessible route” as that term is used in IBC section 1110.4.14 “is one that
meets the requirements of the [ADA].”
¶37. A plain reading of these provisions shows that they are intended to benefit or protect
individuals with disabilities; that is, such provisions are intended to “remedy widespread
discrimination against disabled individuals . . . and to integrate them into the economic and
social mainstream of American life.” PGA Tour Inc. v. Martin, 532 U.S. 661, 674-75 (2001)
15 (internal quotation mark omitted); see also 42 U.S.C. § 12101 (“It is the purpose of this
chapter . . . to provide a clear and comprehensive national mandate for the elimination of
discrimination against individuals with disabilities; [and] . . . to provide clear, strong,
consistent, enforceable standards addressing discrimination against [such] individuals.”).
¶38. Rodriguez has never claimed she is disabled or offered proof that she is disabled. She
simply does not “belong[] to the class of people” that these provisions are “intend[ed] to
protect.” Nor has Rodriguez demonstrated “that [she] . . . suffered the type injuries” that the
provisions she relies upon were designed to avoid. Namely, Rodriguez makes no claim that
she was discriminated against or denied pool access due to the alleged defect in the sidewalk
at issue here. As such, we find that the code provisions that Rodriguez relies upon do not
trigger a negligence-per-se claim. This claim fails as a matter of law.
CONCLUSION
¶39. In sum, for the reasons addressed above, we find no error in the circuit court’s ruling
that the approximately half-an-inch height differential between the two concrete sidewalk
slabs at issue did not constitute a dangerous condition. Thus, Rodriguez failed to meet an
essential element of her premises liability claim against Diamondhead. See Jones, 187 So.
3d at 1104 (¶12). We also find that Rodriguez’s negligence-per-se claim fails as a matter of
law for the reasons stated. Accordingly, we affirm the circuit court’s order granting summary
judgment in Diamondhead’s favor.3
3 Diamondhead also asserts, in the alternative, that the allegedly uneven sidewalk was “open and obvious[,] thus [also] barring [Rodriguez] from recovery.” Because we have affirmed the circuit court’s order granting summary judgment in Diamondhead’s favor for the above-stated reasons, we need not reach this alternative ground for summary judgment
16 ¶40. AFFIRMED.
BARNES, C.J., WILSON, P.J., WESTBROOKS, McDONALD, LAWRENCE, McCARTY, EMFINGER, WEDDLE AND ST. PÉ, JJ., CONCUR.
urged by Diamondhead, and we decline to do so.