IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

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No. 02-60531 Summary Calendar

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FRANCES F. McNAMEE, Plaintiff-Appellant,

versus

JACKSON SIMON LIMITED PARTNERSHIP and M.S. MANAGEMENT ASSOCIATES, INC., Defendants-Appellees.

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Appeal from the United States District Court For the Southern District of Mississippi (01-CV-370) ___________________________________________________

December 3, 2002

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Frances McNamee tripped and fell over a concrete parking

bumper in the parking lot of a Service Merchandise. The premises

on which the Service Merchandise is located are owned and leased by

Jackson Simon L.P. and managed by M.S. Management Associates, Inc.

The district court properly found no negligence on the part of

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1 appellees. We therefore AFFIRM the district court’s grant of

summary judgment in favor of Jackson Simon L.P. and M.S. Management

Associates, Inc.

I. Facts

McNamee drove into the Service Merchandise parking lot around

7 p.m. and parked in a handicap parking space. McNamee testified

that she had her headlights on when pulling into the space but did

not notice that the spot had a parking bumper. She bought some

presents in the store and returned to her car approximately half an

hour later. After placing some packages on the passenger’s seat,

she began walking around the front of the car to the driver’s side.

She testified that she was in a hurry when walking around the car

because she had to pick up the remainder of her purchases at the

customer loading dock. While turning the corner of the car, she

tripped and fell over the concrete parking bumper, which is painted

a bright “handicap blue.”

The Service Merchandise lot only has bumpers in handicap

spots. The purpose of the bumpers is to protect handicap parking

signs. McNamee stated that prior to the accident she parked in the

lot on several occasions during daylight hours though not in a

handicap spot. She admitted that she “probably saw [the bumpers]

from time to time driving through [the lot]” but did not pay them

significant attention. At her deposition, she admitted that if one

looks for the parking bumper it is noticeable. She stated, “If

you’re looking for it, yes, you can [see it]. But when you’re in

2 a hurry to get back to pick up a package because they had it at the

door for you, and I did not see it. [sic]”

The district court found that McNamee did not create a genuine

issue of material fact as to the question of appellees’ negligence.

Finding appellees entitled to judgment as a matter of law, the

court granted summary judgment in their favor.

II. Analysis

We have diversity jurisdiction under

.

Missippi law applies. We review summary judgment rulings de novo,

Potomac Ins. Co. v. Jayhawk Med. Acceptance Corp.,

(5th Cir. 2000), and apply the same standard as the district

court. Wyatt v. Hunt Plywood Co., Inc.,

(5th

Cir. 2002). Summary judgment is appropriate when there is no

genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. FED. R. CIV. P. 56(c). We view all

evidence and factual inferences in the light most favorable to the

party opposing the motion. Price v. Federal Exp. Corp.,

(5th Cir. 2002). We review de novo the district court’s

determination of state law. Salve Regina College v. Russell,

(1991).

It is undisputed that McNamee was a business invitee. “Under

Mississippi law, an invitor . . . or an operator of a business

premises, owes a duty to an invitee to exercise reasonable care to

keep the premises in a reasonably safe condition. The invitor also

3 must warn invitees of any dangerous condition which is not readily

apparent, if the invitor knows of or should know of the condition

in question by exercising reasonable care. However, the invitor or

operator of a business is not an insurer against all injuries which

may occur on a premises.” Andrews v. United States,

(S.D. Miss. 2000) (internal citations omitted). Merely

establishing the occurrence of an accident on the premises is

insufficient to establish liability. Robinson v. Ratliff,

(Miss. Ct. App. 2000). Plaintiff must prove

negligence on the part of the business or landowner.

As with

any other negligence case, plaintiff must establish (1) the

existence of a duty, (2) the breach of that duty, (3) proximate

cause, and (4) damages. Robinson v. Miss. Valley Gas Co.,

(Miss. Ct. App. 2000).

McNamee alleges that shadows cast on the parking bumper from

nearby cars prevented her from seeing it. She claims that the

deposition testimony of her expert witness, which the district

court did not consider, creates a genuine issue of material fact as

to whether the blue parking bumper is a dangerous condition.

William A. Springer, P.E., testified that (1) safer alternative

means of protecting a handicap sign exist, such as a concrete

filled steel post or moving the sign to the corner of the parking

spot; (2) the bumpers should have been painted yellow instead of

the blue that matched the sign and parking lines; (3) the lighting

inadequately illuminated the bumpers; and (4) reflective material

4 should have been placed on the bumpers to increase visibility at

night.

Even if the district court had considered Springer’s

testimony, it would not have affected the determination that

McNamee’s “negligence was the sole proximate cause of her

injuries.” The blue parking bumpers meet the reasonably safe

premises standard. They are conditions normally encountered on

business premises, see Ware v. Frantz,

(S.D. Miss. 1999) (“Conditions ‘normally encountered’ on business

premises are generally not unreasonably dangerous.”) (citing Tate

v. Southern Jitney Jungle Co.,

(Miss. 1995)),

and are readily noticeable if one is paying attention, as McNamee

admitted in her deposition. If McNamee had not been in a hurry,

she would have seen the bumper and avoided the accident.

The district court properly compared the facts here to other

cases decided under Mississippi law in which the owner or manager

was not found negligent. See, e.g., Ware,

(display stand that protruded into aisle reasonably safe); McGovern

v. Scarborough,

(Miss. 1990)(raised doorway

threshold not a dangerous condition); First Nat’l Bank of

Vicksburg,

(Miss. 1968) (cracked concrete riser on

which customer had to step to enter bank reasonably safe).

McNamee’s attempt to use the district court’s references to

the “open and obvious” doctrine, which Tharp v. Bungee Corp.,

(Miss. 1994), changed from a complete defense in slip-

5 and-fall cases to an issue to be considered under a comparative

negligence standard, also fails. “The ‘open and obvious’ standard

is simply a comparative negligence defense used to compare the

negligence of the plaintiff to the negligence of the defendant. If

the defendant was not negligent, it makes no difference if the

dangerous condition was open and obvious to the plaintiff since the

plaintiff must prove some negligence on part of the defendant

before recovery may be had.” Tharp,

. The

district court clearly stated that appellees were not negligent.

Its references to the “open and obvious” doctrine do not affect

that decision. See

(“In McGovern, however, we actually

found that there was no negligence attributable to the defendant in

raising a doorway three-quarters of an inch (3/4"). This Court

went into great detail to say that the defendant was not negligent

and merely threw in the phrase ‘open and obvious’ at the end.”)

(citing McGovern v. Scarborough,

(Miss. 1990)).

III. Conclusion

For the reasons stated above, we AFFIRM the district court’s

grant of summary judgment in favor of appellees.

6