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Dyse v. BKS, Inc.

Court of Appeals of Mississippi

September 10, 2013

MARION DYSE, APPELLANT
v.
BKS, INC. D/B/A KEITH'S SUPERSTORES, APPELLEE

COURT FROM WHICH APPEALED: LAMAR COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 06/06/2012. TRIAL JUDGE: HON. ANTHONY ALAN MOZINGO. TRIAL COURT GRANTED SUMMARY JUDGMENT IN FAVOR OF APPELLEE AND ASSESSED $2,500 IN SANCTIONS AGAINST APPELLANT.

FOR APPELLANT: GEORGE W. BYRNE JR.

FOR APPELLEE: JENNIFER INGRAM WILKINSON.

JAMES, J. IRVING AND GRIFFIS, P.JJ., ROBERTS, MAXWELL AND FAIR, JJ., CONCUR. LEE, C.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY BARNES AND ISHEE, JJ.; CARLTON, J. JOINS IN PART.

OPINION

Page 167

NATURE OF THE CASE: CIVIL - PERSONAL INJURY

EN BANC.

JAMES, J.

¶1. Marion Dyse filed a personal-injury action against BKS Inc. after she was sprayed with gasoline from a leaking gas-pump hose at a BKS-owned gas station, Keith's Superstore #155. Finding that Dyse failed to present a genuine issue of material fact as to damages, the trial court granted BKS summary judgment. The trial court sua sponte found the suit was frivolous and ordered Dyse to pay $2,500 in sanctions. As we find genuine issues of material fact were in dispute as to Dyse's claim, we reverse the trial court's grant of summary judgment, and remand this case for reinstatement on the trial court's docket. The award of sanctions is reversed and rendered.

FACTS AND PROCEDURAL HISTORY

¶2. On December 13, 2009, Dyse stopped at Keith's Superstore #155 in Oloh, Mississippi, to purchase gasoline for her car. After paying the store clerk in advance, Dyse returned to her car and picked up the pump handle. As Dyse pressed the handle, gasoline sprayed onto her face and clothes. Dyse immediately released the handle. Dyse reported the incident to the store clerk, who, after Dyse asked, told her where a sink was located so she could wash the gasoline off her skin. The store clerk assisted Dyse in completing an incident report. Dyse's husband met her at the gas station and took her to the Wesley Medical Center emergency room, where Dyse was treated and released. Dyse complained that after the gasoline exposure, she had a continued burning sensation in her eyes, nose, and throat, as well as anxiety and chest pain. She went to three follow-up appointments with her family doctor and one visit with an eye doctor.

¶3. On April 16, 2010, Dyse filed suit in the Lamar County Circuit Court against BKS. Dyse's complaint alleged that BKS negligently failed to warn her of the leaks or defects in the hose, failed to repair the leaks in the hose, failed to inspect the hose, and/or failed to close the hose until it could be repaired. Dyse sought $250,000

Page 168

in damages. On May 11, 2012, BKS filed a summary-judgment motion, which the trial court granted. Finding the action was frivolous, the trial court sua sponte assessed $2,500 in sanctions against Dyse. Dyse now appeals, asserting the trial court erred by (1) granting summary judgment in favor of BKS; (2) applying the incorrect legal standard in granting summary judgment; and (3) assessing sanctions against her. As we find genuine issues of material fact remain in dispute as to her claim, we reverse the trial court's grant ...


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