COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 02/23/2012. TRIAL JUDGE: HON. LAWRENCE PAUL BOURGEOIS JR. TRIAL COURT DISPOSITION: GRANTED APPELLEE'S MOTION FOR SUMMARY JUDGMENT.
FOR APPELLANT: YANCY B. BURNS.
FOR APPELLEE: RONALD GILES PERESICH JR., LAUREN REEDER MCCRORY.
BEFORE GRIFFIS, P.J., MAXWELL AND FAIR, J.J. LEE, C.J., ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. IRVING, P.J., AND BARNES, J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
[¶1] In this slip-and-fall case, Joseph Jones alleges that he sustained injuries when he tripped and fell on a misaligned " parking bumper" while he was a patron at the Imperial Palace Casino in Biloxi, Mississippi. The circuit court determined that Jones had failed to establish that a genuine issue of material fact existed and held that the premises owner, Imperial Palace of Mississippi LLC, was entitled to summary judgment. We reverse and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
[¶2] On September 3, 2006, Jones had finished playing blackjack on the first floor of the Imperial Palace Casino, and decided to go eat dinner at the restaurant on the second floor. As he walked toward the elevator, Jones noticed the elevators were very crowded. Jones decided to walk up the stairs into the parking garage to the second floor.
[¶3] When he entered the parking garage, he attempted to avoid the vehicular traffic and walked down a walkway that
was situated between a row of parked cars and the parking-garage wall. Approximately one-third to halfway down the walkway, Jones tripped and fell over a misaligned parking bumper. Jones was injured as a result of the fall.
[¶4] Employees of Imperial Palace completed an incident report and photographed the parking bumper after Jones's fall. There were no witnesses to the fall.
[¶5] On August 8, 2007, Jones filed a complaint against Imperial Palace. The complaint asserted a negligence or premises-liability claim. Imperial Palace filed its responsive pleading, and discovery ensued.
[¶6] On July 23, 2010, Imperial Palace filed a motion for summary judgment. The motion included an itemization of material facts relied upon and not genuinely disputed, the complaint, excerpts of Jones's deposition, and Jones's interrogatory responses. Imperial Palace offered no other testimony, including expert testimony, to support the motion. Imperial Palace's motion argued that Jones could not prove his premises-liability claim. Jones responded and offered excerpts from his deposition, the Imperial Palace incident report, photographs, excerpts of Paul Dillon's deposition, and excerpts of Imperial Palace's Mississippi Rule of Civil Procedure 30(b)(6) deposition, among other exhibits.
[¶7] On February 10, 2012, the circuit court heard arguments on the motion for summary judgment. On February 23, 2012, the circuit court entered an order that granted Imperial Palace's motion. The order was prepared and submitted by Imperial Palace's counsel. Jones now appeals from this judgment.
I. Standard of Review
[¶8] The grant of a motion for summary judgment is reviewed de novo. Karpinsky v. Am. Nat'' Ins. Co., 109 So.3d 84, 88 (¶ 9) (Miss. 2013). We view the evidence " in the light most favorable to the party against whom the motion has been made." Id.
II. The Summary-Judgment Standard
[¶9] The supreme court has held:
Summary judgment is appropriate and shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to [a] judgment as a matter of law. Importantly, the party opposing summary judgment may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in [Mississippi Rule of Civil Procedure 56], must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, will be entered against him.
This Court has explained that in a summary judgment hearing, the burden of producing evidence in support of, or in opposition to, the motion is a function of Mississippi rules regarding the burden of proof at trial on the issues in question. The 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 [a] judgment as a matter of law. The 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 [the movant] would bear the burden of proof at trial. Furthermore, summary judgment is appropriate when the non-moving
party has failed to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial.
Id. at 88-89 (¶ ¶ 10-11) (internal quotation marks and citations omitted).
[¶10] The court succinctly clarified this standard in a manner in which we can relate to the parties here:
[W]hile [Imperial Palace] carr[ies] the initial burden of persuading the trial judge that no issue of material fact exists and that [it is] entitled to summary judgment based upon the established facts, [Jones] carries the burden of producing sufficient evidence of the essential elements of [his] claim at the summary-judgment stage, as [he] would carry the burden of production at trial. Conversely, because [Imperial Palace does] not carry any burden of production at trial, [it] also do[es] not carry any burden of production at the summary-judgment stage.
Id. at 89 (¶ 13). In this appeal, we will consider whether Jones produced sufficient evidence of the essential elements of his premises-liability claim.
III. Premises Liability
[¶11] In Mississippi, a premises-liability claim is reviewed in three steps. Haggard v. Wal-Mart Stores, Inc., 75 So.3d 1120, 1124 (¶ 9) (Miss. Ct.App. 2011). First, the court " must determine whether the injured party was an invitee, licensee, or a trespasser at the time of the injury." Id. Second, the court " must determine what duty was owed to the injured party by the business owner/operator." Id. Third, the court " must determine whether that duty was breached." Id.
A. Whether Jones was an invitee.
[¶12] An invitee is a person who enters the premises of another in response to an " express or implied invitation of the owner or occupant for their mutual advantage." Leffler v. Sharp, 891 So.2d 152, 156 (¶ 11) (Miss. 2004). Jones was a business invitee of Imperial Palace.
[¶13] The premises owner " owes a duty to an invitee to exercise reasonable care to keep the premises in a reasonably safe condition . . . ." Jerry Lee's Grocery, Inc. v. Thompson, 528 So.2d 293, 295 (Miss. 1988). However, the operator of a business " is not an insurer against all injuries." Munford, Inc. v. Fleming, 597 So.2d 1282, 1284 (Miss. 1992). " Proof merely of the occurrence of a fall on a floor within a business is insufficient to show negligence on the part of the proprietor . . . ." Sears, Roebuck & Co. v. Tisdale, 185 So.2d 916, 917 (Miss. 1966).
[¶14] To prevail on his premises-liability claim, Jones must prove by a preponderance of the evidence one of the following: (1) Imperial Palace's own negligence created a dangerous condition that caused Jones's injury; (2) Imperial Palace had actual knowledge of a hazardous condition that it did not cause, but failed to adequately warn Jones of the danger he faced as an invitee; or (3) based upon the passage of time, Imperial Palace should have known of the dangerous condition caused by another party, i.e., ...