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Dulin v. Sowell7/19/2005
p v. Bunge Corp., 641 So. 2d 20, 23 (Miss. 1994). In the Tharp decision, the court applied the comparative negligence standard codified by Mississippi Code Annotated ยง 11-7-15 (Rev. 2004) which states as follows:
In all actions hereafter brought for personal injuries, or where such injuries have resulted in death, or for injury to property, the fact that the person injured, or the owner of the property, or person having control over the property may have been guilty of contributory negligence shall not bar a recovery, but damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person injured, or the owner of the property, or the person having control over the property.
In the case sub judice, Dulin's negligence is clear. Dulin contends that she "very seldom traveled that little area;" yet, in order for her to access her laundry room, she was required to traverse this area. Furthermore, Dulin testified at her deposition that the portion of the carport closest to the utility door was "slicky," while the remaining portion was not. This testimony indicates some degree of familiarity with the presence of the alleged danger and thus, some amount of contributory negligence by Dulin. Though Dulin was able to testify about the "slicky" surface of the carport, which was presumably due to the concrete's sweating, Sowell testified that he was completely unaware of this condition. It cannot be stated that Sowell was contributorily negligent for an alleged condition of which he was completely unaware and had no reason to know of. It is well established in our jurisprudence that the owner of property is not an insurer against all injuries. As stated in the Houston decision:
This is not to say that a landlord is an insurer of safety. A landlord is not. Making a landlord subject to tort liability merely requires him to act as a reasonable landlord under the circumstances of the case. The tenant would still be required to show duty, breach, causation, and damages, and the landlord would be entitled to raise the standard tort defenses, such as contributory negligence, unforeseeability or intervening cause.
Houston, 755 So. 2d at 501 ( ) (citing O'Cain, 603 So. 2d at 833).
. The record before this Court simply does not illustrate any negligence on the part of Sowell. With the holdings of our caselaw in mind, we must next turn to the Mississippi Rules of Civil Procedure. Rule 56(c) of the Mississippi Rules of Civil Procedures states in pertinent part that:
The judgment sought 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.
As discussed above, it is clear from the record before this Court that Sowell was unaware of the alleged defective condition of the carport and that Dulin did not provide notice of the carport's damp condition. Further, the record does not indicate any degree of negligence on the part of Sowell. Therefore, summary judgment was proper as to Dulin's claims.
. THE JUDGMENT OF THE CIRCUIT COURT OF PANOLA COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., BRIDGES AND LEE, P.JJ., CHANDLER, GRIFFIS, BARNES AND ISHEE, CONCUR.
IRVING, J., CONCURS IN RESULT ONLY.
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