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Burns v. Gray

Court of Appeals of Mississippi

October 9, 2018

DEBRA DARLENE BURNS AND WILLIAM DALE BURNS APPELLANTS
v.
MATTHEW GRAY AND JODY GRAY APPELLEES

          DATE OF JUDGMENT: 07/19/2017

          LAUDERDALE COUNTY CIRCUIT COURT HON. LESTER F. WILLIAMSON JR. JUDGE.

          ATTORNEYS FOR APPELLANTS: FRANK H. SHAW JR. F. GREGORY MALTA

          ATTORNEYS FOR APPELLEES: EDWARD C. TAYLOR NANCY SIPLES BRUMBELOE

          BEFORE GRIFFIS, P.J., FAIR AND TINDELL, JJ.

          GRIFFIS, P.J.

         ¶1. 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.

         FACTS AND PROCEDURAL HISTORY

         ¶2. 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.

         ¶3. 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.

         ¶4. 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.

         ¶5. 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 something."

         ¶6. 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.

         ¶7. 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 no handhold."

         ¶8. 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."

         ¶9. Ramsey was subsequently deposed.[1] 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.

         ¶10. 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 court stated:

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.

         ¶11. 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] fall."

         ¶12. The Burnses now appeal and argue the circuit court erred in granting summary judgment and striking their expert witness.

         ANALYSIS

         I. Whether the circuit court erred in granting summary judgment.

         ¶13. 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).

         ¶14. "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 mark omitted).

         ¶15. 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.

         ¶16. 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.[2] 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.

         ¶17. 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 ...

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