Man who fell in hole at dealership while walking dog can pursue lawsuit, appeals court rules

The Mississippi Court of Appeals has reinstated a negligence suit by a service customer who fell into a hole while walking his dog on the grass alongside a Toyota store's driveway.

On the day of the March 2019 accident, Michael Fox's wife drove him to J. Allen Toyota in Gulfport for work on his 2016 4Runner. His lawyer, Andrew McCullough, of Ridgeland, said the store performed "multiple repairs over the course of a few days, originally to replace a couple of tires and then due to an airbag recall."

Fox's wife let him out on the driveway to walk his Queensland heeler, Kate, the decision said.

Allen stepped into a hole that was several feet deep, although its opening was only 8 inches by 8 inches. His leg went into the hole almost to his groin, causing serious injury, the suit alleged, and McCullough said Fox underwent several surgeries.

The suit contended the dealership breached its duty to keep the premises reasonably safe and to warn invitees of any dangerous conditions.

The dealership denied liability, arguing Fox was a trespasser when he ventured without permission to a "remote" part of the property about 100 feet beyond the store's swivel gate, which is kept open during the day. J. Allen Toyota said it didn't conduct any business or display vehicles in the area where the accident occurred.

But Fox countered the store didn't prohibit customers from walking on the strip of grass where he fell and that the dealer principal, Jonathan Allen, had testified that "animals are welcome" on store property. Fox also offered expert testimony from an engineer that the hole would have been visible for several months before the accident.

A Harrison County Circuit judge sided with the dealership and dismissed the case.

But in a unanimous Sept. 17 decision, the appeals court said a trial is necessary to decide whether the dealership should have reasonably known about the dangerous condition.

"The dealership had no rule or posted sign that prohibited customers from walking in the grass where Fox fell," the court said.