OF JUDGMENT: 07/19/2017
LAUDERDALE COUNTY CIRCUIT COURT HON. LESTER F. WILLIAMSON JR.
ATTORNEYS FOR APPELLANTS: FRANK H. SHAW JR. F. GREGORY MALTA
ATTORNEYS FOR APPELLEES: EDWARD C. TAYLOR NANCY SIPLES
GRIFFIS, P.J., FAIR AND TINDELL, JJ.
Debra Darlene Burns and her husband William Dale Burns filed
a complaint against their landlords, Matthew and Jody Gray,
and alleged injuries related to a fall they claim was
"as a result of the irregular pattern of the basement
stairs." The circuit court found the Burnses' expert
witness's testimony and opinions regarding causation were
based on speculation and, therefore, struck his testimony and
entered summary judgment in favor of the Grays. The Burnses
timely appealed. We find no error and affirm.
AND PROCEDURAL HISTORY
From July 2008 to February 2015, the Burnses lived in a
rental house owned by the Grays. Prior to renting the house,
the Burnses inspected the house with the Grays' rental
agent. Shortly after they moved in, the Burnses advised the
Grays of their concerns about the basement stairs, including
the steepness of the stairs.
On January 21, 2012, Mrs. Burns fell while walking down the
stairs from the first floor of the residence to the basement.
On January 15, 2015, the Burnses filed a complaint, alleging
breach of contract, premises liability, and negligence per
se. The Burnses claimed the Grays were negligent in
"fail[ing] to use reasonable care in the design,
structure, and maintenance of the steps and railing leading
to the basement of the residence on their premises, causing
Mrs. Burns to fall and thereby sustain severe bodily
injury." The Burnses contend that Mrs. Burns incurred
physical injuries and that Mr. Burns incurred a loss of
consortium and services as a result of the fall.
Neither Mr. or Mrs. Burns have personal knowledge of how or
why Mrs. Burns fell. Mrs. Burns has no memory of the day of
the incident, and Mr. Burns was not at home when Mrs. Burns
fell. The only person who was with Mrs. Burns at the time of
her fall was her nephew, Michael Faulkner.
Faulkner, who was thirteen or fourteen years old at the time
of the fall, testified that he saw Mrs. Burns begin to walk
down the basement stairs from the first floor. According to
Faulkner, Mrs. Burns "started down the stairs" and
"made it to about the third step . . . and . . . pretty
much face plant[ed] down the rest of the stairs."
Faulkner was behind Mrs. Burns at the top of the stairs and
did not see her feet when she fell. Faulkner explained that
at the time of her fall, Mrs. Burns was carrying cigarettes
and possibly a cup in one hand. Faulkner "think[s] [Mrs.
Burns] tried to" grab the handrail, but he did not see
her touch it. Faulkner testified that he did not know why
Mrs. Burns fell but "assume[d] she lost her footing or
The Burnses' expert witness, Daniel Jason Ramsey,
conducted a safety analysis related to the injuries sustained
by Mrs. Burns. As part of his analysis, Ramsey inspected and
took measurements of the stairway and reviewed applicable
building codes. He further interviewed Faulkner and obtained
information from the Burnses' attorney.
On August 31, 2016, Ramsey submitted an affidavit wherein he
explained that as a result of his investigation, he
"determined that the pitch of the subject stairway was
constructed at an angle of 47.11 degrees, classifying it as a
'steep stair type.'" Ramsey found "that the
construction did not comply with the standards set out in the
governing building code." Ramsey further found
"that the handrails installed as a component of the
stairway failed to comply with applicable industry standards,
in that they were constructed flush against the adjoining
walls, offering no graspable surface and permitting the user
Ramsey opined that "[b]ased upon [his] interview of . .
. Faulkner, who observed Mrs. Burns start to descend the
stairs, then stumble and fall, . . . the steep pitch of the
stairway and the narrow width of the steps were the proximate
cause of or a substantial contributing factor causing the
accident, making Mrs. Burns overbalance and fall
forward." He further opined that "the absence of a
proper handrail" was also a substantial contributing
factor causing the accident."
Ramsey was subsequently deposed. During his deposition,
Ramsey testified that he "d[id]n't really know why
[Mrs. Burns] fell exactly and at what step, but she lost her
balance and she fell." When asked what evidence he had
that the stairs caused Mrs. Burns to fall, Ramsey explained
that the stairs were "out of compliance." Ramsey
acknowledged he could not rule out other causes.
The Grays filed a motion for summary judgment and a motion to
strike Ramsey's testimony. Following a hearing, the
circuit court granted both motions. Specifically, the circuit
the opinions of Mr. Ramsey are mere speculation as to the
element of proximate cause and do not prove causation. Mr.
Ramsey did not testify that any action or inaction of [the
Grays] was the proximate cause of Mrs. Burns['s] fall;
instead, Mr. Ramsey opined that the fact that the stairs were
steep and narrow means they must have caused or contributed
to Mrs. Burns['s] fall. However, Mr. Ramsey specifically
stated that he did not know what caused Mrs. Burns to fall
and acknowledged that he could not rule out all other
variables. This testimony is insufficient to show causation.
The circuit court concluded that "[t]here [wa]s simply
not enough competent evidence that would allow a
determination of the cause of Mrs. Burns'[s] fall. As a
result, the circuit court found that "summary judgment
must be entered as a matter of law since [the Burnses] cannot
establish the proximate cause of Mrs. Burns'[s]
The Burnses now appeal and argue the circuit court erred in
granting summary judgment and striking their expert witness.
Whether the circuit court erred in granting summary
The Burnses first argue the circuit court erred in granting
the Grays' motion for summary judgment. "This Court
reviews a [circuit] court's grant or denial of a motion
for summary judgment de novo." Amfed Nat'l Ins.
Co. v. NTC Transp. Inc., 196 So.3d 947, 953 (¶18)
(Miss. 2016). "Summary judgment is appropriate 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." Id. (internal quotation mark
omitted). "This Court must view the evidence in the
light most favorable to the party against whom the motion has
been made." Id. (internal quotation mark
omitted). However, "the party opposing summary judgment
may not rest upon mere allegations or denials of his
pleadings, but his response . . . must set forth specific
facts showing that there is a genuine issue for trial."
Id. at 953-54 (internal quotation mark omitted).
"The non-moving party's claim must be supported by
more than a mere scintilla of colorable evidence; it must be
evidence upon which a fair-minded jury could return a
favorable verdict." Van v. Grand Casinos of Miss.
Inc., 767 So.2d 1014, 1018 (¶7) (Miss. 2000).
"A claim of negligence requires the plaintiff to prove
by a preponderance of the evidence (1) duty, (2) breach of
duty, (3) causation, and (4) injury." Rogers v.
Barlow Eddy Jenkins P.A., 22 So.3d 1219, 1222 (¶11)
(Miss. Ct. App. 2009) (internal quotation mark omitted).
"In order to survive a motion for summary judgment in a
negligence action, the plaintiff must put on evidence showing
that the defendant breached a duty of care and that the
breach proximately caused h[er] injury." Id.
"Proximate cause requires: (1) cause in fact; and (2)
foreseeablity." Ogburn v. City of Wiggins, 919
So.2d 85, 91 (¶21) (Miss. Ct. App. 2005). "Cause in
fact means that the act or omission was a substantial factor
in bringing about the injury, and without it the harm would
not have occurred." Id. (internal quotation
The Burnses claim they "affirmatively established that
the proximate cause of Mrs. Burns's injuries was the
dangerous stairway and defective railing." In support of
their claim, the Burnses rely on the testimony and opinions
of Faulkner and Ramsey. However, the record shows neither
Faulkner nor Ramsey know what caused Mrs. Burns to fall.
Although Faulkner "assume[d] she lost her footing,"
he admitted he did not see Mrs. Burns's feet at the time
of the fall and does not know why she fell. The Burnses
assert "Faulkner's eyewitness testimony and sworn
affidavit were presented to the [circuit] court in which he
swore that Mrs. Burns lost her footing and tumbled down the
stairs because of the 'steep, narrow construction of the
stairs.'" However, the affidavit upon which the
Burnses rely was executed by Faulkner five months after
Faulkner testified that he did not know why Mrs. Burns fell.
"[T]he nonmovant cannot defeat a motion for summary
judgment by submitting an affidavit which directly
contradicts, without explanation, his previous
testimony." Callicutt v. Prof'l Servs. of Potts
Camp Inc., 974 So.2d 216, 220 (¶16) (Miss. 2007).
Because Faulkner does not know why Mrs. Burns fell, he cannot
establish the proximate cause of her fall.
Additionally, in his affidavit, Ramsey opined that "the
steep pitch of the stairway and the improperly constructed
handrails . . . caused Mrs. Burns to fall." However,
during his subsequent deposition, he testified that he
"really d[id]n't know why she fell exactly and at
what step, but she lost her balance and she fell."
Ramsey's opinion that Mrs. Burns "lost her
balance" was based on his conversation with Faulkner and
Faulkner's assumption that Mrs. Burns "lost her
footing." Ramsey speculates that because she lost her
balance and fell, it must have been due to the stairway
configuration. He testified as follows:
[Defense Counsel] And looking at paragraph 7 [of your
affidavit], your interview of Mr. Faulkner who observed
M[r]s. Burns start to descend the stairs and then stumble and
fall, how do you know she stumbled?
[Ramsey] That's what he told me.
[Defense Counsel] Again, how could he say she stumbled when
he couldn't see her feet?
[Ramsey] I don't understand that. It's just what I
was told. He told me that she stumbled and fell.
. . . .
[Defense Counsel] But, I mean, you're taking it a step
further, saying, well, she stumbled. It had to be because of
the steepness of the stairs. There are a lot of reasons she
could have stumbled other than the ...