OF JUDGMENT: 06/20/2017
JUDGE: HON. LARITA M. COOPER-STOKES HINDS COUNTY COUNTY COURT
COURT ATTORNEYS: WARREN LOUIS MARTIN, JR. KELLY HOLLINGSWORTH
STRINGER S. MARK WANN JASON RICHARD BUSH JOSEPH SPENCER
ATTORNEYS FOR APPELLANT: KELLY HOLLINGSWORTH STRINGER S. MARK
ATTORNEY FOR APPELLEE: WARREN LOUIS MARTIN, JR.
JUSTICE, FOR THE COURT:
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.
AND PROCEDURAL HISTORY
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. Several employees
of both Clinton Healthcare and Felder were in the vicinity of
Atkinson's fall and responded.
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.
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.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.
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.
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.
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