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Cotton v. Fred's Stores of Tennessee, Inc.

Court of Appeals of Mississippi

September 24, 2013

Bernadine COTTON, Appellant
v.
FRED'S STORES OF TENNESSEE, INC., Appellee.

Page 141

Yancy B. Burns, Jackson, attorney for appellant.

John Ernest Wade Jr., Lane Williamson Staines, Jackson, attorneys for appellee.

Before LEE, C.J., ROBERTS and CARLTON, JJ.

ROBERTS, J.

¶ 1. On January 12, 2009, Bernadine Cotton filed a complaint in the Hinds County Circuit Court against Fred's Dollar Store Inc., Fred's Stores of Tennessee Inc., XYZ Corporation, and John Doe, individually (collectively Fred's), alleging injuries from a slip and fall in a Fred's store in Hinds County.[1] On February 16, 2010, Fred's filed a motion for summary judgment, and the circuit court granted that motion on June 23, 2010. Aggrieved by the circuit court's grant of summary judgment, Cotton filed the present appeal asking this Court to determine if Fred's had constructive knowledge of the existence of a hazardous condition on the floor yet failed to warn of or remedy that condition. Finding that no genuine issue of material fact exists, we affirm the circuit court's grant of summary judgment in favor of Fred's.

Page 142

FACTS AND PROCEDURAL HISTORY

¶ 2. On January 14, 2006, Cotton was shopping at a Fred's store in Clinton, Mississippi, when she allegedly slipped and fell. According to Cotton's deposition, the cause of her fall was a " black liquid substance" that looked like " dirty water" coming from underneath a cooler and spreading down the store aisle. She also explained that the liquid " was like it was drying out, ... [and] it would run but it would turn black[.]" Almost three years later, Cotton filed a complaint in the circuit court alleging that Fred's was negligent for failing to " maintain the premises in a reasonably safe condition, ... [ and failing] to warn of this unsafe condition [.]" Additionally, she claimed that Fred's failed to properly train and supervise its employees to ensure that the premises were maintained in a reasonably safe condition.

¶ 3. On February 16, 2010, Fred's filed its motion for summary judgment. In its motion, Fred's argued that Cotton had failed to prove that it caused the allegedly hazardous condition, that it had actual knowledge of the allegedly hazardous condition and failed to warn about or remedy the condition, or that it had constructive knowledge of the allegedly hazardous condition. Cotton filed her response opposing the motion for summary judgment. The circuit court ultimately granted the motion on June 23, 2010. In granting the motion, the circuit court found that Cotton had " failed to bring forth any evidence that creates a genuine issue of material fact as to the alleged negligence of Fred's." According to the circuit court, in Cotton's response to the motion for summary judgment, she " simply speculates that the ‘ hazardous substance’ could have been a leaking cooler or leaking roof, and speculation as to what may have happened does not suffice as evidence of negligence."

¶ 4. Cotton filed the current appeal on October 21, 2011. Her sole argument on appeal is: " Whether the [circuit court] ... erred in granting the [m]otion for [s]ummary [j]udgment ... despite the fact that Fred's had constructive notice of a hazardous condition on its premises yet failed to correct and/or warn of the same."

ANALYSIS

¶ 5. The standard of review this Court utilizes when reviewing a circuit court's grant or denial of a motion for summary judgment is de novo and views the evidence in a light most favorable to the non-moving party. Karpinsky v. American Nat'l Ins. Co., 109 So.3d 84, 88 (¶ 9) (Miss.2013) (citation omitted). In its recent decision in Karpinsky, the Mississippi Supreme Court clarified the summary-judgment standard. According to the supreme court, " [s]ummary judgment is appropriate and shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on filed, together with the affidavits, if any, show that there is no genuine issue as to any material fact[.]" Id. at (¶ 10). It further explained that " [t]he movant bears the burden of persuading the trial judge that: (1) no genuine issue of material fact exists, and (2) on the basis of the facts established, he is entitled to judgment as a matter of law." Id. at (¶ 11) (citation omitted). Further, " [t]he movant bears the burden of production, if, at trial, he would bear the burden of proof on the issue raised. In other words, the movant only bears the burden of production where [he] would bear the burden of proof at trial." Id. at 88-89 (¶ 11) (citations omitted). Specifically, in premises liability cases, " Mississippi law further requires that when a dangerous condition exists that was ‘ created by someone not associated with the business, the plaintiff must produce evidence that the owner or operator

Page 143

had actual or constructive knowledge of the dangerous condition as well as a sufficient opportunity to correct it.’ " Id. at (¶ 12) (quoting Miller v. R.B. Wall Oil Co., 970 So.2d 127, 132 (¶ 17) (Miss.2007). The supreme court again clarified that " while [d]efendants carry the initial burden of persuading the trial judge that no issue of material fact exists and that they are entitled to summary judgment based upon the established facts, [the plaintiff] carries the burden of producing sufficient evidence of the ...


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