Torts - Premises Liability - The Open and Obvious Defense is No Longer a Complete Bar to Plaintiff Recovery
![handle is hein.journals/mislj64 and id is 255 raw text is: TORTS-PREMISES LIABILITY-THE OPEN AND OBVIOUS
DEFENSE IS No LONGER A COMPLETE BAR
TO PLAINTIFF RECOVERY
Tony Tharp examined grain at the Bunge Corporation's
[hereinafter Bunge] grain storage facility in Greenville, Mis-
sissippi as a business invitee.1 Sometime prior to his arrival,
an employee of Bunge placed a tarpaulin under the catwalk
leading from the storage building to the levee barge loading
facility.2 Tharp, while exiting the catwalk, chose to jump rath-
er than step down from the doorway leading from the catwalk
to the ground below, caught his foot in the tarpaulin, and fell
and injured his knee.3 Tharp, along with his workers' compen-
sation carrier,4 sued Bunge and the employee for negligence
in not providing an adequate exit from the catwalk.5 Bunge
denied any liability for itself or the employee and filed a coun-
terclaim alleging that Bunge and three others conspired to
convert and defraud.6
Tharp v. Bunge Corp., 641 So. 2d 20, 22 (Miss. 1994).
2 Tharp, 641 So. 2d at 22. Tharp and Aubra Moody were employees of the
Mississippi Department of Agriculture and routinely sampled or graded grain at
Bunge's facility as independent entities to assure quality for buyers. Id. Bunge
placed the tarpaulin under the catwalk to catch soybeans that fell off the convey-
or. Id. The exact arrangement of the tarpaulin varied, but generally Bunge em-
ployees placed it under the catwalk in the morning and periodically emptied it
during the day. Id. The height of the tarpaulin on September 17, 1984, the day
of Tharp's accident, was in dispute. Id.
Id. Bunge provided no steps or ladders to assist the grain samplers from
getting from the catwalk door to the levee beneath. Id. The ground below the
door sloped sharply and the drop varied from 29 to 39 inches depending on the
side of the door exited. Id.
4 Id. Tharp's workers' compensation carrier, United States Fidelity & Guaran-
ty Company, intervened after it paid $39,758.20 in medical benefits. Id.
I Id. Tharp sued Bunge for negligently failing to provide a ladder or step to
get from the levee to the catwalk and for placing a tarpaulin across the doorway.
Id. Tharp also sued Bunge's employee, Poole Chapman. Id.
6 Id. at 25-26. Bunge counterclaimed against Tharp and three others for
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Torts - Premises Liability - The Open and Obvious Defense is No Longer a Complete Bar to Plaintiff Recovery
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