United States District Court, S.D. Mississippi, Southern Division
SHARON M. SPANGLER PLAINTIFF
BEAU RIVAGE RESORTS, INC. DEFENDANT
MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR
GUIROLA, JR. CHIEF U.S. DISTRICT JUDGE.
THE COURT is the Motion  for Summary Judgment filed by
Defendant Beau Rivage Resorts, Inc. The plaintiff has not
responded, and the time for doing so has expired.
See L.U.Civ.R. 7(b)(4). After due consideration of
Defendant's submissions and the relevant law, it is the
Court's opinion that there is no question of material
fact for the jury. Accordingly, the summary judgment motion
will be granted and this case dismissed.
Sharon Spangler filed this lawsuit alleging that she slipped
and fell while in the high limits women's restroom of the
Beau Rivage casino on October 15, 2014. Spangler alleges that
she slipped in “pooling water in the bathroom, causing
her to suffer contusions to her arm and a blunt trauma to her
head.” (Compl. 2 (¶7), ECF No. 1). She alleges
that an unreasonably dangerous condition existed within the
single restroom in the high limits area and that Beau Rivage
was negligent in failing to inspect and maintain its premises
in question. (Id. (¶9)). Spangler further
alleges that Beau Rivage failed to take reasonable
preventative measures to insure that plumbing fixtures did
not leak on the floor, and as a result, she suffered injury
and damages. (Id.) Beau Rivage seeks summary
judgment on the basis that Spangler has failed to produce
evidence that Beau Rivage is liable for her injuries under
Mississippi premises liability law.
judgment is mandated against the party who fails to make a
showing sufficient to establish the existence of an element
essential to that party's case and on which that party
has the burden of proof at trial. Fed.R.Civ.P. 56(e);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Factual controversies are resolved in favor of the nonmoving
party, but only when there is an actual controversy; that is,
when both parties have submitted evidence of contradictory
facts. Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994). Spangler has not submitted any argument
or evidence in opposition to Beau Rivage's motion.
Nevertheless, Beau Rivage has the burden of establishing the
absence of a genuine issue of material fact and, unless it
has done so, the Court may not grant the motion, regardless
of whether any response was filed. Hibernia Nat. Bank v.
Administracion Cent. Sociedad Anonima, 776 F.2d 1277,
1279 (5th Cir. 1985).
Rivage concedes for summary judgment purposes that Spangler
was a business invitee on its premises at the time of her
alleged injury. “An invitee is a person who goes upon
the premises of another in answer to the express or implied
invitation of the owner or occupant for their mutual
advantage.” Little by Little v. Bell, 719
So.2d 757, 760 (Miss. 1998). Under Mississippi law the duty
owed by a premises owner to a business invitee is the duty
“to exercise reasonable or ordinary care to keep the
premises in a reasonably safe condition or to warn of
dangerous conditions not readily apparent, which the owner
knows of, or should know of, in the exercise of reasonable
care.” Hartford v. Beau Rivage Resorts, Inc.,
179 So.3d 89, 91 (Miss. Ct. App. 2015) (citation omitted).
However, “the owner/occupier is not an insurer of the
invitee's safety, and he is not liable for injuries which
are not dangerous or which are, or should be known to the
business invitee.” McSwain v. Sys. Energy Res.,
Inc., 97 So.3d 102, 107 (Miss. Ct. App. 2012) (citation
omitted). Mere proof of an injury by a business invitee
“is not the basis for premises liability, rather
negligence of the business owner must be shown.”
Almond v. Flying J Gas Co., 957 So.2d 437, 439
(Miss. Ct. App. 2007) (citation omitted). To succeed on a
premises liability claim, the plaintiff must show: (1) a
negligent act by the defendant caused the plaintiff's
injury; or, (2) the defendant had actual knowledge of a
dangerous condition, but failed to warn the plaintiff of the
danger; or, (3) the dangerous condition remained long enough
to impute constructive knowledge to the defendant. Garson
v. Circus Circus Miss., Inc., 135 So.3d 932, 934 (Miss.
Ct. App. 2014) (citations and quotation marks omitted). Beau
Rivage argues that Spangler has not provided evidence of any
of the three liability alternatives.
testified by deposition that when she entered the private
single-person restroom, it was well lit, and she did not
notice anything out of the ordinary. It was only when she
moved to use the toilet that she slipped on a “big huge
puddle under the commode, around the commode where your feet
are supposed to go.” (Def. Ex. 12 at 75, ECF No.
35-12). The liquid appeared to be clear water. (Id.
at 80). Spangler testified that she did not know how the
water came to be on the floor, how long it had been there, or
if any Beau Rivage employee or any other person knew it was
there before the incident. (Id. at 74, 84, 131-32).
security officers responded to the scene, and Assistant
Security Supervisor Richard Donegan's inspection of the
restroom did not reveal any water on the floor. (Def. Ex. 15
at 23, 28, ECF No. 35-15). Beau Rivage business records
showed that the restroom had been checked once an hour on the
day of the incident. (Def. Ex. 9, ECF No. 35-9). A Beau
Rivage employee who had used the restroom approximately five
minutes before Spangler testified that she did not recall
seeing any water on the floor. (Def. Ex. 13 at 30-31, ECF No.
35-13). A Beau Rivage engineering employee checked the
plumbing fixtures in the restroom after the incident, but did
not find leaks from the toilet or sink. (Def. Ex. 8, ECF No.
35-8). An engineering expert retained by Beau Rivage opined
that the restroom had no design, configuration or condition
problems. It had been in the same condition for ten years
with no prior reported slip and fall incidents. The floor
material met slip resistant criteria. (Def. Ex. 7, ECF No.
disputed, for purposes of this Motion the Court accepts as
fact that Splanger slipped and fell due to standing water on
the restroom floor. However, Splanger has provided no
evidence from which a jury could find that the water was on
the restroom floor because Beau Rivage personnel
committed some negligent act, or that Beau Rivage personnel
had actual knowledge of water on the restroom floor, or that
the water had been on the restroom floor long enough that
Beau Rivage personnel should have known it was there.
THEREFORE ORDERED AND ADJUDGED that the Motion  for
Summary Judgment filed by Defendant Beau Rivage Resorts, Inc.
is GRANTED. Plaintiff's claims are DISMISSED.