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Estate of Luster ex rel. Gusman v. Mardi Gras Casino Corp.

Court of Appeals of Mississippi

September 17, 2013

The ESTATE OF Elsie LUSTER through its Administrator, Larry GUSMAN, Appellant
v.
MARDI GRAS CASINO CORP., Appellee.

Page 963

J. Richard Kanuch, attorney for appellant.

Page 964

David W. Stewart, Biloxi, Matthew Jason Sumrall, attorneys for appellee.

Before IRVING, P.J., ISHEE and MAXWELL, JJ.

ISHEE, J.

¶ 1. This is a personal-injury action arising from a fall that occurred on property owned by Mardi Gras Casino Corp. (Mardi Gras). The original action was filed in the Hancock County Circuit Court in August 1998; however, that action was dismissed by the trial court in May 2009. A second complaint was filed immediately on behalf of the estate of Elsie Luster through its administrator, Larry Gusman. Mardi Gras subsequently filed a motion for summary judgment, which was granted in its favor. Gusman now appeals that decision, arguing the trial court erred by granting summary judgment because genuine issues of material fact existed. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On June 18, 1997, Luster visited Casino Magic, a property owned by Mardi Gras, in Bay Saint Louis, Mississippi. She was visiting the casino with a senior-citizen bus group sponsored by the New Orleans Recreational Department. Upon her arrival at the casino, Luster entered the gaming area. As Luster was exiting the gaming area headed to lunch, she fell on a carpeted area. Luster sustained various injuries. Luster has since passed away; however, there is no suggestion that her death is related to this incident.

¶ 3. On May 14, 2009, a complaint was filed on behalf of the estate of Luster through its administrator, Gusman.[1] The complaint alleged that Luster fell due to a dangerous condition on the property that was not open and obvious. Luster allegedly sustained various mental and bodily injuries. The complaint sought $250,000 in damages.

¶ 4. On July 13, 2011, Mardi Gras sought summary judgment. Mardi Gras argued there was no evidence or testimony to establish that Luster's fall was due to a dangerous condition on the premises. In fact, in Luster's own deposition, she had said on multiple occasions that there was nothing to trip on and that she did not know how she fell. Therefore, Mardi Gras asserted no genuine issues of material fact existed.

¶ 5. On December 5, 2012, Gusman filed a memorandum in opposition to the motion for summary judgment. Attached to the memorandum were black-and-white copies of photographs with handwritten notations in the margins allegedly showing the dangerous condition. The photographs also purported to show a sign reading " Please watch your step— Uneven floor." However, the sign was not present on the day Luster fell. Gusman alleged the photographs were taken and annotated by Luster's daughter, Dorothy Gusman.

¶ 6. On July 2, 2012, after a hearing on the matter, the trial court granted summary judgment in favor of Mardi Gras. The trial court further declined to admit the photographs as evidence. The trial court found the photographs to be " unsupported by any deposition testimony, affidavit testimony, answers to interrogatories, or admissions in this case." While Gusman argued the photographs were admissible under an exception to the hearsay

Page 965

rule, the trial court held they were not properly authenticated. The trial court stated: " There is no indication who took the photographs, when they were taken, or why they were taken." At the hearing, Gusman requested additional time under Mississippi Rule of Civil Procedure 56(f) to seek affidavits proving the authenticity of the photographs. The trial ...


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