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Coll v. Wal-Mart Stores East, L.P.

Court of Appeals of Mississippi

May 30, 2017

RICHARD COLL APPELLANT
v.
WAL-MART STORES EAST, L.P. APPELLEE

          DATE OF JUDGMENT: 02/26/2016

         HARRISON COUNTY CIRCUIT COURT, HON. LISA P. DODSON, Judge

          ATTORNEYS FOR APPELLANT: ROBERT ELLIOTT BRIGGS III MYLES ETHAN SHARP

          ATTORNEYS FOR APPELLEE: WILBUR PEMBLE DELASHMET ASHLEY POWELL GRIFFIN MIGNON MESTAYER DELASHMET CHAD CHRISTOPHER MARCHAND

          BEFORE IRVING, P.J., FAIR AND WILSON, JJ.

          FAIR, J.

         ¶1. Richard Coll brought a slip-and-fall claim against Wal-Mart Stores, East L.P. and Coca-Cola Bottling Company United Inc. after allegedly falling on a Coca-Cola display.[1]Wal-Mart moved for summary judgment, arguing that there was no evidence that Wal-Mart was negligent in creating a dangerous condition or that Wal-Mart had any actual or constructive knowledge of a dangerous condition. The circuit court granted Wal-Mart's motion.[2] Finding no error, we affirm.

         FACTS

         ¶2. On September 16, 2013, Coll went shopping at a Wal-Mart in Biloxi, Mississippi. In the main "action alley, " there was a Coca-Cola display with Coca-Cola products stacked on pallets. Coll stepped into the display to grab some drinks. As he exited the display, he slipped and fell on his left side, fracturing his hip. One of the display signs was near him on the floor. Coll stated in his deposition that he did not see anything on the floor when he entered the display. He admitted he was not sure what caused him to fall, but concluded it was the sign because he "had to slip on something."

         ¶3. Stephen Irby, a senior merchandiser for Coca-Cola, testified that he was responsible for designing and building the display. He was restocking the display when Coll approached. Irby said he stepped away from the display to let Coll grab some drinks. He further stated that Coll accidentally kicked the sign when he was exiting the display, causing the sign to fall. Irby testified that Coll did not slip on the sign. He also testified that there were still at least two cases of drinks on that corner of the display (where Coll fell). After Coll's fall, Irby continued restocking the display.

         ¶4. Two Wal-Mart employees - Amanda Campisi and Zena Mullins - testified by deposition, although neither witnessed Coll's fall. Mullins was the first Wal-Mart employee to arrive after Coll's fall. Coll was still on the floor. Contrary to Coll and Irby's testimony, Mullins stated that the corner of the display had no drinks on it when she arrived. When asked whether that was the way it was supposed to be, she said no. Mullins also stated that it was not her responsibility to determine what happened.

         ¶5. Campisi was an assistant store manager at the time of Coll's fall and was assigned to investigate the incident. She stated, like Mullins, that the corner of the display had no drinks on it when she arrived. Campisi recalled that Irby and Mullins were there. She saw Coll on the floor and noticed some cardboard sitting near him. About thirty minutes after Coll was taken away in an ambulance, Campisi took pictures of the area. Since Irby had continued restocking the display, the pictures were not helpful for trial.

         ¶6. Wal-Mart provided a DVD recording of the incident, but, due to technical difficulties, the court was unable to review the DVD. At the summary judgment hearing, both parties agreed that viewing the video was unnecessary.

         STANDARD ...


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