OWEN J. BRADLEY AND MARGARET M. BRADLEY APPELLANTS
DIAMONDHEAD COUNTRY CLUB AND PROPERTY OWNERS ASSOCIATION INC. APPELLEE
OF JUDGMENT: 09/13/2017
HANCOCK COUNTY CIRCUIT COURT TRIAL JUDGE: HON. LAWRENCE PAUL
ATTORNEY FOR APPELLANTS: OWEN J. BRADLEY
ATTORNEYS FOR APPELLEE: RICHARD B. TUBERTINI, DAVID W. CRANE
BARNES, C.J., WESTBROOKS AND LAWRENCE, JJ.
Owen and Margaret Bradley appeal a final judgment from the
Hancock County Circuit Court granting the Diamondhead Country
Club and Property Owners Association's motion for summary
judgment and alternative motion for partial summary judgment.
After review of the record, we affirm.
On February 9, 2013, around noon, Owen Bradley and his wife,
Margaret, were walking on a pathway leaving their Lanai
Village condominium headed toward the Diamondhead Country
Club swimming pool when Bradley stepped partially off the
path with his right foot, causing him to fall onto the edge
of the pathway. Margaret was walking slightly ahead of
Bradley and stated she did not see him fall. The drop-off on
the side of the walkway was approximately four
inches. Six weeks prior to the accident, the
walkway had been resurfaced and overlaid with asphalt
creating the drop-off.
After the fall, Bradley was taken by ambulance to Ochsner
Hospital in Slidell, Louisiana. At the hospital, it was
determined that Bradley had a comminuted
left-intertrochanteric femur fracture. As a result, Bradley
had an eighteen-inch metal rod surgically screwed into his
pelvis that ran through his femur extending to his knee. He
stayed in the hospital for seven days, and he also required
extensive physical therapy for months after the incident.
On June 23, 2014, Bradley filed a negligence complaint
against Diamondhead Country Club and Property Owners
Association (DPOA) and Warren Paving Co., requesting $1, 500,
000 in damages. Additionally, Bradley filed, on behalf of
Margaret, a loss of consortium claim attached to his lawsuit.
Soon after, Bradley voluntarily dismissed Warren Paving Co.,
agreeing that they held no contractual obligation to ensure
that the pathway was level. In response to the complaint,
DPOA filed a motion for summary judgment or alternatively a
motion for partial summary judgment. Bradley countered by
submitting two affidavits: an initial affidavit and a
supplemental affidavit provided by his expert witness,
Charles Turnbow. The court struck Turnbow's affidavits,
stating they would not be admissible at trial under
Mississippi Rules of Evidence 702 and 403 and subsequently
granted DPOA's motion for summary judgment. From that
judgment, Bradley appeals.
"Our well-established standard of review for the trial
court's admission or suppression of evidence, including
expert testimony, is abuse of discretion." Tunica
County v. Matthews, 926 So.2d 209, 212-13 (¶5)
(Miss. 2006). "We give great deference to the discretion
of the trial judge." Id. "Unless we
conclude that the discretion was arbitrary and clearly
erroneous, amounting to an abuse of discretion, that decision
will stand." Id. "It is well-settled that
appellate review of the trial court's grant or denial of
a motion for summary judgment requires ...