Evans v. Shucker's Piano & Oyster Bar, Inc.

• Citation: 281 So.3d 302
• Decision Date: 09 April 2019
• Docket Number: NO. 2018-CA-00119-COA,2018-CA-00119-COA
• Parties: Derrick EVANS, Appellant v. SHUCKER'S PIANO & OYSTER BAR, INC. and Ryan Cobb, Appellees
• Court: Court of Appeals of Mississippi

281 So.3d 302

Derrick EVANS, Appellant

v.SHUCKER'S PIANO & OYSTER BAR, INC. and Ryan Cobb, Appellees

NO. 2018-CA-00119-COA

Court of Appeals of Mississippi.

April 9, 2019

ATTORNEY FOR APPELLANT: CHRISTOPHER JACKSON WELDY

ATTORNEYS FOR APPELLEES: DONNA MARIE MEEHAN, ANSELM J. McLAURIN

EN BANC.

J. WILSON, P.J., FOR THE COURT:

¶1. Around 2:40 a.m. on January 1, 2012, Derrick Evans and Ryan Cobb got into a fight in the parking lot just outside of Shucker's Oyster and Piano Bar in Ridgeland. Cobb punched Evans in the face, breaking his nose. Evans sued Cobb and Shucker's in county court. The court granted summary judgment in favor of Cobb based on the one-year statute of limitations for assault and battery claims. The court also granted summary judgment in favor of Shucker's, holding that there was no genuine issue of material fact and that Shucker's was entitled to judgment as a matter of law on Evans's premises liability claim. The circuit court affirmed both rulings. We also affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Around 6 p.m. on December 31, 2011, Derrick Evans and his friends Jennifer and Leah went to Shucker's to ring in the new year. Shortly before midnight, a woman stumbled into Leah, causing Leah to spill her drink. According to Evans, a "little shuffle" ensued, but in "a matter of seconds" security removed the woman from the premises without any further disturbance. As it turns out, the woman was with Ryan Cobb and a group of his friends. Cobb denied that security required the woman to leave the bar. He testified that he and his fiancée called her a cab, and she left voluntarily.

¶3. Around 2 a.m., it was closing time,¹ time to go out into the world. Shucker's turned the lights up over every boy and every girl. It was time for the few customers still at the bar to finish their whiskey or beer. They didn't have to go home, but they couldn't stay at Shucker's.

¶4. Evans knew who he wanted to take him home. Jennifer's husband, Fred, was going to pick up Evans, Jennifer, and Leah when he got off of work around 2 a.m. Fred would take them back to the places they were from. So Evans moved it to the exits and found his friends.

¶5. Evans and his friends walked out to the parking lot, near the entrance to Shucker's, to wait on Fred. Cobb was also outside waiting for his ride, along with his fiancée, his sister, and his brother-in-law. Both parties were still waiting for their rides at 2:40 a.m., about forty minutes after Shucker's had closed. According to Cobb, at some point while they were waiting, his fiancée and his sister apologized to Leah about the earlier incident with their friend, and Leah said it was "fine" and "no problem." Cobb testified, however, that after his sister and his fiancée walked back inside to use the restroom, Leah began calling them "whores, Jackson trash, this that and the other." This led to a heated argument between Leah and Cobb and his brother-in-law. According to Cobb, Evans interjected and told him and his brother-in-law to "shut their f*****g mouths."

¶6. Surveillance video of the parking lot captured what transpired next. Fred arrived to pick up Evans, Jennifer, and Leah. Fred's car stopped a few feet away from the group, but Evans says he did not know that Fred had arrived. Cobb walked over to Evans and kicked the back of Evans's chair. In response, Evans immediately stood up and threw the chair at Cobb, hitting both Cobb and his brother-in-law. In his deposition, Evans claimed that he just "randomly tossed the chair" and "wasn't intending to hit anybody." He said he threw the chair to "let[ ] them know to leave [him] alone."

¶7. Leah and Jennifer then attempted to pull Evans to Fred's waiting car, but Cobb and his brother-in-law followed them, and their argument continued. Cobb's brother-in-law grabbed Evans's hat off his head, and Leah attempted to strike Cobb. Suddenly, Cobb punched Evans once in the face, and Evans fell to the ground. The punch was thrown about twenty-four seconds after Cobb first kicked Evans's chair. About ten seconds later, three Shucker's security guards ran out of the bar to break up the fight. Shucker's had four security personnel on duty that evening. All were off-duty law enforcement officers.

¶8. The police were called to the scene. Evans refused medical attention, and the responding officer observed that "Evans appeared to be heavily intoxicated." In his deposition, Evans did not dispute the officer's assessment. The officer told Evans that if he wanted to press charges, he should make a statement later when he was not intoxicated. The officer gave the same instructions to Cobb, who also appeared to be intoxicated. Evans went to the hospital the next day. He had a broken nose and multiple broken facial bones.

¶9. Evans provided a written statement to police on January 4, 2012. He alleged that Cobb assaulted him without provocation. Cobb was charged with simple assault and pled guilty on July 23, 2013.

¶10. On February 24, 2014, Evans sued Cobb and Shucker's in county court. Evans sued Cobb for assault, battery, and negligence. Evans asserted a negligence/premises liability claim against Shucker's. Following discovery, Cobb and Shucker's filed separate motions for summary judgment, which the court granted. The court held that Cobb was entitled to summary judgment based on the one-year statute of limitations for assault and battery claims. The court held that Shucker's was entitled to judgment as a matter of law based on the undisputed facts material to Evans's premises liability claim. On appeal, the circuit court affirmed, and Evans again appealed.

¶11. Evans argues that summary judgment should not have been granted in favor of either Cobb or Shucker's. However, for the reasons that follow, we affirm.

ANALYSIS

¶12. We review an order granting summary judgment de novo.

Pigg v. Express Hotel Partners LLC , 991 So.2d 1197, 1199 (¶ 4) (Miss. 2008). The evidence is viewed in the light most favorable to the non-movant. Davis v. Hoss , 869 So.2d 397, 401 (¶ 10) (Miss. 2004). But the non-movant "may not rest upon mere allegations or denials in the pleadings but must set forth specific facts showing that there are genuine issues for trial." Pigg , 991 So.2d at 1199 (¶ 4) (quoting Massey v. Tingle , 867 So.2d 235, 238 (¶ 6) (Miss. 2004) ). In other words, "the non-movant cannot just sit back and remain silent, but he must rebut by producing significant probative evidence showing that there are indeed genuine issues for trial." McMichael v. Nu-Way Steel & Supply Inc. , 563 So.2d 1371, 1375 (Miss. 1990) (quoting Newell v. Hinton , 556 So.2d 1037, 1041 (Miss. 1990) ). The movant is entitled to summary judgment if there is no genuine issue of material fact. Glover ex rel. Glover v. Jackson State Univ. , 968 So.2d 1267, 1275 (¶ 22) (Miss. 2007). Indeed, "the court must grant summary judgment unless ... the record demonstrates the minimum quantum of evidence sufficient to justify a determination in favor of the [non-movant] by a reasonable juror." Id. at 1274 (¶ 19) (footnotes omitted).

¶13. "The presence of fact issues in the record does not per se entitle a party to avoid summary judgment. The court must be convinced that the factual issue is a material one, one that matters in an outcome determinative sense." Simmons v. Thompson Mach. of Miss., Inc. , 631 So.2d 798, 801 (Miss. 1994) (emphasis omitted) (quoting Shaw v. Burchfield , 481 So.2d 247, 252 (Miss. 1985) ). "The existence of a hundred contested issues of fact will not thwart summary judgment where there is no genuine dispute regarding the material issues of fact." Sanders v. Advanced Neuromodulation Sys. Inc. , 44 So.3d 960, 965 (¶ 11) (Miss. 2010) (quoting Moss v. Batesville Casket Co. , 935 So.2d 393, 399 (¶ 17) (Miss. 2006) ); accord, e.g. , Glover , 968 So.2d 1267, 1274 n.5 ; Summers ex rel. Dawson v. St. Andrew's Episcopal Sch. Inc. , 759 So.2d 1203, 1208 (¶ 12) (Miss. 2000).

I. Cobb

¶14. Evans waited more than two years before he sued Cobb. Therefore, the circuit court properly granted summary judgment in favor of Cobb based on the one-year statute of limitations for assault and battery claims. See Miss. Code Ann. § 15-1-35 (Rev. 2012).

¶15. Evans argues that he has a viable "negligence" claim against Cobb that is not time-barred. Evans relies on Cobb's deposition testimony that he "felt bad for what happened" and "didn't mean to do any harm to [Evans]." However, both Cobb and Evans testified that Cobb intentionally punched Evans in the face. Evans testified as follows:

Q. Did Ryan Cobb intentionally hit you?

A. Absolutely.

Q. There's no doubt in your mind that he didn't accidentally fall into you?

A. No. He was after me.

Evans also signed a misdemeanor affidavit charging that Cobb "purposefully, knowingly, and unlawfully cause[d] or attempt[ed] to cause bodily injury to [him] by striking [him] with [a] closed fist in the face." Likewise, Cobb testified that although he "felt bad" about it, he absolutely "meant to hit" Evans and hit Evans "on purpose." As noted above, Cobb pled guilty to simple assault.

¶16. Mississippi law does not recognize claims for "negligent assault." Sanderson Farms, Inc. v. McCullough , 212 So.3d 69, 80 (¶ 30) (Miss. 2017) ; accord Estate of Puckett v. Clement , 238 So.3d 1139, 1146 (¶ 17) (Miss. 2018) ("an intentional tort cannot be committed negligently"). Therefore, a plaintiff cannot avoid the one-year statute of limitations applicable to assault and battery claims by restyling an intentional assault as "negligence." Estate of Puckett , 238 So.3d at 1146 (¶¶ 17-18) ; McCullough , 212 So.3d at 75 (¶ 14). In McCullough , the Supreme Court held that the plaintiff's claim that the defendant purposefully struck him with a truck during an argument "described an intentional act" of assault and battery, not mere negligence. McCullough , 212 So.3d at 74-80 (¶¶ 13-29). Similarly, in Estate of Puckett , the Supreme Court held that the plaintiff's allegations that the defendant "intentionally...