Foldes v. Hancock Bank

• Decision Date: 06 December 1989
• Docket Number: No. 07-CA-58946,07-CA-58946
• Citation: 554 So.2d 319
• Parties: Opal FOLDES v. HANCOCK BANK.
• Court: Mississippi Supreme Court

Page 319

554 So.2d 319

Opal FOLDES v. HANCOCK BANK.

No. 07-CA-58946.

Supreme Court of Mississippi.

Dec. 6, 1989.

Thomas D. Berry, Jr., Gulfport, for appellant.

Stanford E. Morse, Jr., White & Morse, Gulfport, for appellee.

Before ROY NOBLE LEE, C.J., and PRATHER and SULLIVAN, JJ.

ROY NOBLE LEE, Chief Justice, for the Court:

Opal Foldes filed suit in the Circuit Court of Harrison County, Mississippi, against the Hancock Bank (Bank) seeking damages for personal injuries alleged to have been sustained on the Bank's property when she tripped/slipped and fell while making a deposit in the night depository box. At the completion of discovery, the lower court sustained the Bank's motion for summary judgment, and Mrs. Foldes has appealed to this Court.

Facts

In April, 1984, appellant worked at the Holiday Inn in Biloxi as a night auditor. On April 12, she got off work at 7:00 a.m., and, having received her paycheck that morning, she stopped at the Mississippi City branch of the Hancock Bank to deposit her check in the night depository.

The night depository is situated on the side of the bank where customers can park directly in front of it, get out and make their deposits. Foldes parked, exited her car and walked toward the depository. There was a yellow curb several inches high which separates the parking lot and the area nearest the building. On the other side of the curb was a concrete slab which extends for about two (2) feet from the building towards the parking lot and was directly under the night depository. The concrete slab was about an inch and a half or two inches lower than the top of the curb. Between the curb and the concrete slab was about a two or three inch space where the slab did not quite meet the curb. Near the night deposit was a window unit air conditioner, which was running with water dripping onto the concrete slab. There was also "green stuff" or algae which had collected on the slab.

Appellant fell, claiming that the unsafe condition of the curb and walk caused her to trip/slip, and sustain personal injuries.

Issue

The sole error assigned on this appeal is that the lower court erred in sustaining appellee's motion for summary judgment.

The principle is now elementary that, on motion for summary judgment, the evidence is viewed in the light most favorable to the non-movant and that party is given the benefit of every reasonable doubt as to whether or not a genuine issue of fact exists. If such occurs, then the motion for summary judgment must be denied. Brown v. Credit Center, Inc., 444 So.2d 358 (Miss.1983).

In Clark v. Moore Memorial United Methodist Church, 538 So.2d 760 (Miss.1989), in discussing grants and denials of summary judgments, the Court said:

This Court conducts de novo review of a lower court's grant of summary judgment. Pearl River County Bd. of Supervisors v. South East Collections Agency, Inc., 459 So.2d 783, 785 (Miss.1984). "The general standard that an appellate court applies in reviewing the grant or denial of a summary judgment motion is the same as that employed by the trial court initially under Rule 56(c)." 10 Wright, Miller and Kane Federal Practice and Procedure Sec. 2716 (1983 and Supp.1988).

The law governing the grant or denial of a motion for summary judgment is familiar and well established. Fruchter v. Lynch Oil Co., 522 So.2d 195, 198 (Miss.1988). In Dennis v. Searle, 457 So.2d 941 (Miss.1984) we explained:

The trial court must review carefully all of the evidentiary matters before it-admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied. Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite.

457 So.2d at 944.

In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-movant should be given the benefit of every reasonable doubt. Smith v. Sanders, 485 So.2d 1051, 1054 (Miss.1986). Short v. Columbus Rubber and Gasket, 535 So.2d at 63 [ (Miss.1988) ].

538 So.2d at 762.

The record reflects interrogatories, depositions and answers thereto, and an affidavit executed by Foldes. The Bank contends that Foldes, in her affidavit in opposition to summary judgment, stated a different version of the facts, which contradicted that given in her deposition and argues that "where there is a discrepancy between facts in an affidavit and deposition testimony, the affidavit must explain such discrepancy." Miller v. A.H. Robbins Co., Inc., 766 F.2d 1102 (7th Cir.1985); Camfield Tires Inc. v. Michelin Tire Corp., 719 F.2d 1361 (8th Cir.1983). In Albertson v. T.J. Stevenson & Co., Inc., 749 F.2d 223 (5th Cir.1984) the Court of Appeals for the Fifth Circuit stated:

Although the court must resolve all factual inferences in favor of the nonmovant, the nonmovant cannot manufacture a disputed material fact where none exists. Russell v. Harrison, 736 F.2d 283, 287 (5th Cir.1984) Thus, the nonmovant cannot defeat a motion for summary judgment by submitting an affidavit which directly contradicts, without explanation, his previous testimony. Kennett-Murray Corp. v. Bone, 622 F.2d 887, 894 (5th Cir.1980) See also Van T. Junkins & Associates, Inc. v. U.S. Industries, Inc., 736 F.2d 656, 657 (11th Cir.1984); Vanlandingham v. Ford Motor Co., 99 F.R.D. 1, 3 (N.D.Ga.1983).

749 F.2d at 228.

The record reflects the following with reference to the issue:

(1) Interrogatory No. 2 submitted to Foldes and the answer dated June 21, 1985, follow:

2. Describe with particularity the defect which you allege caused you to trip and fall.

[Answer to No. 2]

2. As you approach the particular night deposit area there is an air conditioner that has dripped on the area forming algae which is slippery and also there is a...