Green v. Supermarket Operations Inc.

• Decision Date: 02 November 2021
• Docket Number: NO. 2020-CA-00912-COA,2020-CA-00912-COA
• Parties: Cassandra Jackson GREEN, Appellant v. SUPERMARKET OPERATIONS INC. d/b/a McComb Market, Appellee
• Court: Mississippi Court of Appeals

330 So.3d 434

Cassandra Jackson GREEN, Appellant

v.SUPERMARKET OPERATIONS INC. d/b/a McComb Market, Appellee

NO. 2020-CA-00912-COA

Court of Appeals of Mississippi.

November 2, 2021

ATTORNEY FOR APPELLANT: ROBERT C. BOYD, Clinton

ATTORNEY FOR APPELLEE: JASON RICHARD BUSH, Ridgeland

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

BARNES, C.J., FOR THE COURT:

¶1. Cassandra Jackson Green filed a premises-liability suit against Supermarket Operations Inc. d/b/a McComb Market (the Market), claiming she suffered a serious injury after slipping and falling in some liquid while on the store's premises. After discovery, the Pike County Circuit Court granted summary judgment in favor of the Market, finding Green had failed to establish that the Market was negligent. Finding no error on appeal, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On May 23, 2015, Green and her daughter were shopping at the Market. Located near the cash registers at the front of the store was "an ice machine with prepackaged bags of ice." On her way to check out, Green slipped and fell in front of the ice machine. The store's manager on duty, Gene Moak, was summoned, and he had Green fill out an accident report. For "location of accident," Green wrote: "by ice machine in front of register"; for "detailed description of the accident," she wrote: "white slime on floor. Slipped on it. Fell down on side." The time of incident was 3:10 p.m.

¶3. Green filed a complaint with the circuit court on May 18, 2018, contending she had "sustained serious injuries" as a result of the fall and asserting claims for negligence, vicarious liability, and gross negligence against the Market and other unnamed defendants. Green requested damages for past, present, and future medical expenses; past, present, and future physical disability; past, present, and future pain and suffering; mental anguish; punitive damages; and attorney's fees. The Market denied Green's claims of negligence, and the parties conducted discovery over the next two years, which included deposing Green, her daughter, and store employees.

¶4. In her deposition, Green said that she and her daughter entered the store to purchase a couple of items. Green was wearing flip flops. While walking to check out at the cash registers, Green claimed she "heard somebody yell, ‘Look out,’ and [she] slipped and fell." She did not see anything on the floor before she fell, but afterward she saw a "little puddle" of "a slimy, clear liquid." Falling on her right hip, Green stated that she "was hurting, but not – I didn't believe severely at the time." She also claimed that Moak had "told [her] that the refrigerator and all that was going to be changed out[;] they were fixing all that." Her daughter also averred that "there was water on the floor, and it was coming from a trail that was behind the ice freezer."

¶5. Moak acknowledged in his deposition that there would normally be a rug in front of the ice machine, but "a couple of months before [the incident], somebody had tripped over the rug, and so we put the wet floor signs out there."

Q. Okay. And why — why were wet floor signs kept near the ice machine essentially at all times?

A. It's just — it's just for safety. Safety precautions that people know that.

Moak did not remember telling Green that the ice machine needed to be fixed and denied that the ice machine had any issues or problems with leaks in May 2015. Moak also stated that the machine was typically only stocked at night between the hours of 9:00 and 10:00 p.m. ¶6. Store employee Jennifer Jones attested that wet-floor signs were put out only when the machine was being stocked. She could not recall if the signs were out when Green fell. Like Moak, she was not aware of any issues or problems with ice machine. Nor was Glen Weathersby, another store employee, who testified that "[i]t was usually just because of the ice falling out of the machine."

¶7. Moak subsequently attested in a January 2020 affidavit that he "diligently" checked the aisles in the store every hour while at work, "includ[ing] the front aisle that runs in between the ice machine and the cash registers." Approximately ten minutes before Green's accident, he stated that he would have checked the area and "did not see any water, liquid or anything on the floors." Had he seen any liquid, he "would have cleaned it up." Moak had initialed the store's Hourly Aisle Maintenance form that day, showing that he had checked the store's aisles, including the perimeter, at 3:00 p.m. The maintenance form also indicated that one of the store's assistant managers, Gary Beard, had checked the aisles each hour from 6:00 a.m. to 2:03 p.m. that day.

¶8. On April 20, 2020, the Market filed a motion for summary judgment, asserting that Green had presented "no evidence that [the Market] actually caused any liquid to be on the floor" or that its "employees knew about the liquid or that it had been there long enough that they should have known about it." Responding to the motion, Green noted that in the Market's responses to requests for production, the Market indicated that the store's surveillance video could no longer be accessed because a new camera system had since been installed. Green argued that because the store's policy was to send the video to its home office after an incident, other copies should be available; thus, it became a "spoliation issue" for a jury to determine. A hearing on the summary judgment motion was held on June 29, 2020, wherein Green's attorney reasserted the argument that it was "troublesome" that surveillance video of the incident was not available.

¶9. On July 22, 2020, the circuit court entered a final order granting the Market's motion for summary judgment. The court found that Green, an invitee, had provided "no evidence that the [M]arket caused a wet spot on the floor or acted in any way that fell below the standard of care." The court further determined that the Market had no knowledge, either actual or constructive, of the "wet condition." The court did not address the spoliation issue.

¶10. Green appeals from the court's judgment, arguing that (I) "[t]he grant of summary judgment was improper [because] there was sufficient direct and circumstantial evidence of negligence," and (II) the spoliation of the store's surveillance video evidence precluded summary judgment.

STANDARD OF REVIEW

¶11. A trial court's grant of summary judgment is reviewed de novo. Est. of Ellis v. MMC Materials Inc. , 311 So. 3d 691, 695 (¶16) (Miss. Ct. App. 2021) (citing Burns v. Gray , 270 So. 3d 1084, 1088 (¶13) (Miss. Ct. App. 2018) ). "Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Id . ; see also M.R.C.P. 56(c).

This Court must view the evidence in the light most favorable to the party against whom the motion has been made. However, the party opposing summary judgment may not rest upon mere allegations or denials of his pleadings, but his response must set forth specific facts showing that there is a genuine issue for trial. The non-moving party's claim must be supported by more than a mere scintilla of colorable evidence; it must be evidence upon which a fair-minded jury could return a favorable verdict.

Burns , 270 So. 3d at 1088 (¶13).

DISCUSSION

I. Whether direct or circumstantial evidence created a genuine issue of material fact precluding summary judgment.

¶12. The circuit court found that Green was "a business invitee of the [M]arket at the time of the incident," and the Market does not challenge this finding on appeal. "An invitee is a person who goes upon the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual advantage." Page v. Biloxi Reg'l Med. Ctr. , 91 So. 3d 642, 644 (¶10) (Miss. Ct. App. 2012) (quoting Corley v. Evans , 835 So. 2d 30, 37 (¶21) (Miss. 2003) ). "A landowner owes a business invitee a duty of reasonable care for the invitee's safety." Id . (quoting Hudson v. Courtesy Motors Inc. , 794 So. 2d 999, 1003 (¶9) (Miss. 2001) ). The landowner "must keep [the] premises in a reasonably safe condition" and has "a duty to warn of known dangerous conditions ... not readily apparent but ... discover[able] by reasonable inspection of the premises." Id . However, "[m]ere proof of the occurrence of a fall on a floor within the business premises is insufficient to show negligence on the part of the proprietor." Hearn v. Square Prop. Invs. Inc. , 297 So. 3d 292, 295 (¶10) (Miss. Ct. App. 2020) (internal quotation marks and citation omitted).

¶13. In a premises-liability action, "the plaintiff ‘must prove one of the following to recover: (1) a negligent act of the defendant caused her injury; (2) the defendant had actual knowledge of the dangerous condition and failed to warn her; or (3) ... the dangerous condition existed for a sufficient amount of time to impute constructive knowledge to the defendant.’ " Id . at 295 (¶11) (quoting Rod v. Home Depot USA Inc ., 931 So. 2d 692, 694-95 (¶10) (Miss. Ct. App. 2006) ). In granting summary judgment, the circuit court concluded that Green had failed to demonstrate the Market either "caused a wet spot on the floor" or had actual or constructive knowledge "of a wet condition." Green argues the court's ruling was in error, as she provided both direct and circumstantial proof that there was a known dangerous condition "due to the acts/omissions of the [Market]." Thus, she contends that she did not have to prove the Market had prior notice or how long the water was on the floor.

¶14. One of the cases Green relies on is Anderson v. Wal-Mart Stores E. L.P. , No. 2:11-cv-223-KS-MTP, 2013 WL 1363702, at **1-3 (S.D. Miss. Apr. 3, 2013), in which a plaintiff alleged that she slipped and fell over a piece of metal placed on Wal-Mart's...