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Mayfield v. Hairbender6/2/2005
ON MOTION FOR REHEARING
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN PART - 06/02/2005
MOTION FOR REHEARING FILED: 04/07/2005
EN BANC.
. The motion for rehearing is denied. The original opinion is withdrawn, and this opinion is substituted therefor.
. In this trip and fall case, we are asked to clarify whether a plaintiff may pursue a claim of negligent failure to repair a dangerous condition that is open and obvious.
BACKGROUND FACTS AND PROCEEDINGS
. While descending the stairs from The Hairbender salon after making a delivery, Anita Mayfield tripped on pavement she described as "broken, unlevel pavement" which was "pushed up, probably jutted up two inches over the bottom step." Mayfield filed suit against The Hairbender in the Circuit Court of Calhoun County, Mississippi, claiming that The Hairbender was negligent both by failing to repair the pavement where she tripped and in failing to adequately warn her of the broken, raised pavement.
. The Hairbender filed a motion for summary judgment, claiming that the broken portion of pavement was in "plain view" and that, in any case, Mayfield was aware of it. The Hairbender further claimed its only duty was to warn of dangers not in plain view and that under Mississippi law an owner or occupier of premises is not liable for injuries resulting from a dangerous condition which was open and obvious and of which the invitee was aware.
. The trial court granted The Hairbender's motion for summary judgment, and Mayfield now appeals.
ANALYSIS
. This Court reviews summary judgments de novo. Massey v. Tingle, 867 So.2d 235, 238 (Miss. 2004) (citingHardy v. Brock, 826 So.2d 71, 74 (Miss. 2002); Heirs & Wrongful Death Beneficiaries of Branning ex rel. Tucker v. Hinds Cmty. Coll. Dist., 743 So.2d 311, 314 (Miss. 1999)). The facts are viewed in light most favorable to the nonmoving party. Id. (citingRobinson v. Singing River Hosp. Sys., 732 So.2d 204, 207 (Miss. 1999)). The existence of a genuine issue of material fact will preclude summary judgment. Id. The non-moving party may not rest upon allegations or denials in the pleadings but must set forth specific facts showing that there are genuine issues of fact for trial. Id. (citingRichmond v. Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss. 1997)).
. Mayfield claims that The Hairbender was negligent in two way; first, in failing to properly maintain and repair the pavement, and second, in failing to warn her of the danger.
. The Hairbender asserts that, as a matter of law, "an open and obvious hazard is not 'unreasonably dangerous'." The Hairbender further argues that this Court recognize two separate "causes of action," one for negligence and the other for failure to warn, would be a "significant change in Mississippi Law as to the duties and obligations of landowners." The Hairbender predicts a "minor revolution in the jurisprudence of this State which [would place] additional burdens on its business owners."
. After careful review of The Hairbender's argument and the relevant law, we conclude The Hairbender's unfounded alarm springs from two sources. First, as we explain infra, The Hairbenders is of the mistaken impression that a Court of Appeals decision can preempt or overrule a prior decision of this Court. Second, The Hairbender mistakenly concludes that Mayfield's two theories of negligence are considered two separate causes of action. We note that, even if The Hairbender were correct on this point, it would make little difference in the terminol
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