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Bradley v. Diamondhead Country Club

Court of Appeals of Mississippi

April 30, 2019

OWEN J. BRADLEY AND MARGARET M. BRADLEY APPELLANTS
v.
DIAMONDHEAD COUNTRY CLUB AND PROPERTY OWNERS ASSOCIATION INC. APPELLEE

          DATE OF JUDGMENT: 09/13/2017

          HANCOCK COUNTY CIRCUIT COURT TRIAL JUDGE: HON. LAWRENCE PAUL BOURGEOIS JR.

          ATTORNEY FOR APPELLANTS: OWEN J. BRADLEY

          ATTORNEYS FOR APPELLEE: RICHARD B. TUBERTINI, DAVID W. CRANE

          BEFORE BARNES, C.J., WESTBROOKS AND LAWRENCE, JJ.

          WESTBROOKS, J.

         ¶1. 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.

         FACTS

         ¶2. 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.[1] Six weeks prior to the accident, the walkway had been resurfaced and overlaid with asphalt creating the drop-off.

         ¶3. 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.

         ¶4. 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.

         ¶5. 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.

         STANDARD OF REVIEW

         ¶6. "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 ...


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