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Clinton Healthcare, LLC v. Atkinson

Supreme Court of Mississippi

January 10, 2019

CLINTON HEALTHCARE, LLC
v.
MARY MAC ATKINSON

          DATE OF JUDGMENT: 06/20/2017

          TRIAL JUDGE: HON. LARITA M. COOPER-STOKES HINDS COUNTY COUNTY COURT

          TRIAL COURT ATTORNEYS: WARREN LOUIS MARTIN, JR. KELLY HOLLINGSWORTH STRINGER S. MARK WANN JASON RICHARD BUSH JOSEPH SPENCER YOUNG, JR.

          ATTORNEYS FOR APPELLANT: KELLY HOLLINGSWORTH STRINGER S. MARK WANN

          ATTORNEY FOR APPELLEE: WARREN LOUIS MARTIN, JR.

         EN BANC.

          KING, JUSTICE, FOR THE COURT:

         ¶1. Mary Mac Atkinson alleges that she slipped on a liquid substance at Clinton Healthcare and injured her knee as a result. After the parties conducted significant amounts of discovery, Atkinson moved for a spoliation determination, requesting a spoliation jury instruction regarding a missing video, and moved for partial summary judgment as to liability; and Clinton Healthcare moved for summary judgment. The trial court granted the motion for spoliation, granted Atkinson's motion for partial summary judgment, and denied Clinton Healthcare's motion for summary judgment. Because genuine issues of material fact exist, the trial court erred by granting Atkinson's motion for partial summary judgment, and correctly denied Clinton Healthcare's motion for summary judgment. Additionally, the trial court's order regarding spoliation and the entitlement to a spoliation jury instruction was premature. Therefore, this Court affirms the trial court's judgment in part, reverses it in part, vacates the spoliation order, and remands the case for further proceedings.

         FACTS AND PROCEDURAL HISTORY

         ¶2. Atkinson was visiting her mother in the nursing home facility at Clinton Healthcare on December 24, 2015. At about 10:55 a.m., Atkinson fell in the hallway of Clinton Healthcare. Clinton Healthcare contracted with Felder Services (Felder) for its housekeeping and janitorial services.[1] Several employees of both Clinton Healthcare and Felder were in the vicinity of Atkinson's fall and responded.

         ¶3. Atkinson testified in her deposition that some dampness was underneath her after she fell, but that she was not sure what the substance was. She did not know how long the substance had been on the floor or how it got there. Betty Thomas, a housekeeper working at Clinton Healthcare through Felder, testified in her deposition that she saw Atkinson fall. She stated that she put a sheet under Atkinson and noticed a clear liquid that she assumed was water on the floor. The sheet she placed under Atkinson got damp. Thomas saw water near the door of the shower room, and had seen patients go in and out of the shower room to be showered prior to the fall. One resident had come out of the shower room about fifteen minutes before the fall. She stated that Atkinson fell "in front of" the shower room door. Lisa Fears, the director of nursing employed by Clinton Healthcare, was paged to come to the scene of Atkinson's fall. Fears testified that when she arrived shortly after the fall the sheet underneath Atkinson was damp and that Atkinson had wetness on the bottom of her shoe. She was unable to identify the substance. She testified that Atkinson was located "[r]ight near" the shower room door. Barbara McGee, an activity assistant employed by Clinton Healthcare, witnessed Atkinson's fall. She testified in her deposition that she did not see any liquid on the floor. She placed the sheet under Atkinson and did not observe any dampness on the sheet. She further testified that earlier that morning, she had showered more than one wheelchair-bound patient in the shower room in the hall where the fall occurred. McGee agreed that it was possible that residual water was present on the wheelchairs after the showers, and that she could not definitively state that no water was on the floor from those wheelchairs. She noted that they only used towels to dry the residents and that no other drying mechanism for the residents, their wheelchairs, or the floors existed. McGee also testified that she had walked down the same hall fifteen minutes before the fall and had not seen any liquid on the floor, although she was not looking for liquid on the floor. Gloria Terrell, a supervisor employed by Felder, was the Felder supervisor on duty on December 24, 2015. Terrell arrived at the site of the fall approximately one hour after the fall, after Atkinson had departed. At that time, Terrell did not observe any water on the floor. Shedrick Jordan, then an employee of Felder working at Clinton Healthcare as a floor tech, saw Atkinson fall out of the "corner of his eye." He did not approach her after the fall, because several others were attending her. He testified that nothing wet was on the floor. He stated that the shower room door was approximately ten feet from where Atkinson fell. He also testified that a "wet floor" sign was out, despite testifying that the floor was not wet.

         ¶4. Fears testified that she reviewed video of the North Hall where the fall occurred, but that the fall was not visible on any video. Terrell also testified that she viewed a video with the administrator and that the video did not show Atkinson's fall. Dannie Barlow, the Administrator at Clinton Healthcare, testified that he was out of town the day Atkinson's fall occurred. He was unsure of the date he returned to work, but believed it to be January 1, 2016, or after. Barlow viewed the North Hall video, queuing it from the time Fears informed him the fall occurred. Barlow testified that the video did not show the area of the fall, but it did show McGee walking toward that area to provide Atkinson aid. Clinton Healthcare's video surveillance automatically erased once storage was full, after approximately ten days.[2]Clinton Healthcare received the summons in this case on January 21, 2016. During discovery, Atkinson requested video "which shows any part of the evidence leading up to, during, or after the accident at issue," as well as video showing the floors before, during, or after Atkinson's fall. Clinton Healthcare did not preserve the video after viewing it several times, and maintained that the video was automatically erased prior to being served with the complaint. Additionally, on the day of the fall, Atkinson requested a statement regarding the fall from Fears. Fears denied her request.

         ¶5. Atkinson filed a motion for spoliation of evidence and a request for the spoliation inference regarding the video. She also filed a motion for partial summary judgment as to liability. Clinton Healthcare also filed a motion for summary judgment. The trial court granted Atkinson's motion for spoliation and found that "the appropriate inference instruction shall be submitted at the trial," denied Clinton Healthcare's motion for summary judgment, and granted Atkinson's motion for partial summary judgment as to liability. A panel of this Court granted Clinton Healthcare permission to bring this interlocutory appeal. See Miss. R. App. P. 5; Unif. Cir. & Cty. Ct. R. 4.05.

         ANALYSIS

         1. Preliminary Issues

         ¶6. Atkinson argues that this appeal violates Mississippi Code Section 11-51-79, which provides that interlocutory appeals may not be taken from county court decisions and that certain appeals from county court must be made to the circuit court. This Court has found that its Court rules regarding appeals from county court take precedence over Section 11-51-79. Brown v. Collections, Inc., 188 So.3d 1171, ...


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