Thomas J. Lowe Jr., Brandon, T. Mark Sledge, attorneys for appellant.
Edward C. Taylor, Stephanie Gee Beaver, Gulfport, attorneys for appellee.
Before GRIFFIS, P.J., BARNES and JAMES, JJ.
¶ 1. Rebecca Chandler, on behalf of her minor child, Pearson " Dutch" Chandler, filed suit against Mary Mahoney's Inc., a restaurant located in Biloxi, Mississippi, alleging that Mary Mahoney's breached its duty to keep its premises in a reasonably safe condition after Dutch sustained severe second-and third-degree burns from contact with a landscape light maintained on the premises. The Harrison County Circuit Court granted Mary Mahoney's motion for summary judgment. Chandler appeals to this Court from that judgment. Upon review, we find that summary judgment was prematurely granted. Accordingly, we reverse and remand.
FACTS AND PROCEDURAL HISTORY
¶ 2. On May 18, 2009, Dutch, a minor child, accompanied his family to Mary Mahoney's. As they waited for their meal to be served, Chandler along with Dona Pomian, Chandler's mother, took Dutch and his sister to play in a courtyard located on the restaurant property. Dutch, who was three years old and his sister, who was two years old, left the sidewalk to play in a garden area located approximately eight to nine feet from the walkway. The garden area contained a sculpture lighted by a landscape light set on the ground at its base. Dutch lost his balance and fell, sustaining severe second- and third-degree burns to his left leg caused by contact with the landscape light.
¶ 3. On September 15, 2010, Chandler filed a premises-liability action as mother and next friend of Dutch in the Circuit Court of Harrison County, Mississippi. Chandler's complaint alleged that Mary Mahoney's was negligent in maintaining " super hot lighting" and in failing to warn of the presence of a dangerous condition.
¶ 4. Mary Mahoney's moved for summary judgment arguing that there was no genuine issue of material fact in dispute as a matter of law because the condition that Chandler complained had caused the alleged injury, a landscape light set in a flower bed eight feet from the sidewalk, did not amount to a dangerous condition.
¶ 5. On March 2, 2012, a hearing on Mary Mahoney's motion for summary judgment was held. At the hearing, the trial court excluded from its consideration Chandler's previously filed expert report prepared by E.J. Lacoste, an " Architect-Planner," because the report was unsworn. The trial court also excluded a sworn affidavit executed by Lacoste because it was not filed until the morning of the hearing and was therefore untimely. On April 5, 2012, the trial court entered an order granting summary judgment in favor of Mary Mahoney's, finding that Chandler failed to establish in the record that a dangerous condition existed. From this order, Chandler appeals raising the following issues: did the trial court err in finding no genuine issue of material fact as to the presence of a dangerous condition and was expert testimony essential to prove that a dangerous condition existed?
STANDARD OF REVIEW
¶ 6. " We conduct a de novo review of a trial court's grant or denial of a motion for summary judgment." Parmenter v. J & B Enterprises, Inc., 99 So.3d 207, 213 (¶ 7) (Miss.Ct.App.2012). Under Rule 56(c) of the Mississippi Rules of Civil Procedure, summary judgment is proper " 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." Rule 56(e) further provides:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matter stated therein.... When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials in his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing ...