Haggard v. Wal–Mart Stores, Inc., 2010–CA–01499–COA.

• Decision Date: 29 November 2011
• Docket Number: No. 2010–CA–01499–COA.,2010–CA–01499–COA.
• Citation: 75 So.3d 1120
• Court: Mississippi Court of Appeals
• Parties: Dorothy HAGGARD, Appellant v. WAL–MART STORES, INC., Appellee.

75 So.3d 1120

Dorothy HAGGARD, Appellant

v.WAL–MART STORES, INC., Appellee.

No. 2010–CA–01499–COA.

Court of Appeals of Mississippi.

Nov. 29, 2011.

Yancy B. Burns, attorney for appellant.

R. Brittain Virden, Greenville, attorney for appellee.

Before GRIFFIS, P.J., MAXWELL and RUSSELL, JJ.

RUSSELL, J., for the Court:

¶ 1. Dorothy Haggard appeals the judgment of the Circuit Court of Washington County, Mississippi, affirming the order of the County Court of Washington County, Mississippi, which granted Wal–Mart Stores, Inc.'s motion for summary judgment. Haggard asserts on appeal there are genuine issues of material fact, and summary judgment was improper. Upon review, we find summary judgment was properly granted in favor of Wal–Mart. Therefore, we affirm the judgment of the Washington County Circuit Court.

FACTS AND PROCEDURAL HISTORY

¶ 2. This appeal stems from Haggard's fall in a Wal–Mart store in Greenville, Mississippi, on July 3, 2007. Haggard alleges she was shopping at Wal–Mart when she slipped and fell on a clear, unknown substance on the floor and sustained injuries. Haggard filed a complaint against Wal–Mart in the county court alleging negligence and premises liability. Subsequently, Wal–Mart filed its motion for summary judgment, and several hearings were held on that motion.

¶ 3. Haggard submitted three identical affidavits from three different customers, all of whom were acquaintances of Haggard. These affidavits read as follows:

I, [affiant's name], being duly sworn and deposed, says that:

I am an adult resident citizen of Washington County, Mississippi, and I am competent to testify to the facts stated herein. This statement is made according to the best of my knowledge, and is not based on speculation, surmise [,] or conjecture.

On July, 2007, [sic], I was shopping at the Wal–Mart Super–Center, Greenville, MS, near the grocery section. At that time, around 10:00 p.m. on the evening of July 3, 2007, I saw Mrs. Dorothy Haggard loose her footing and fall in a clear substance on the tile floor near the apparel section.

Based on my personal observation of the area of her fall before she fell, the employees of Wal–Mart either knew or should have known of the hazardous condition before Mrs. Haggard fell because they were: (1) within close proximity to the hazardous condition before Mrs. Haggard fell; (2) the employees walked by the hazardous condition and failed to clean it up before she fell; and/or (3) otherwise failed to maintain the area in a reasonably safe condition prior to the [sic] Mrs. Haggard's fall.

¶ 4. Fred Turner, Wal–Mart's manager on the night in question, also submitted an affidavit, which reads, in pertinent part, as follows:

As the manager on duty[,] I responded to the call that a customer, Dorothy Haggard, reported an incident whereby she slipped and fell at approximately 11:00 p.m. on July 3, 2007.

I do not know the identity of the substance on the floor that was beside Ms. Haggard which I observed only after responding to the incident.

I do not know how the unknown substance came to be on the floor and did not see any damaged or empty containers/bottles around the area of the incident. The merchandise display adjacent to the area of the alleged incident did not display any liquid or gel-type products[,] as this area of the alleged incident was in the clothing department.

I did not see any footprints, smear marks, skid marks, wheel tracks from shopping carts[,] or other indications in the spilled substance that was beside Ms. Haggard to indicate the substance had been on the floor for any period of time before the alleged incident with Ms. Haggard.

Prior to the subject incident with Ms. Haggard[,] I ha[d] no personal knowledge that there was a spilled substance in that location. Further, I walked past the same area approximately 20 minutes before responding to the call that Ms. Haggard slipped and fell. When I walked by this area prior to the incident[,] there was no spill or liquid of any kind on the floor.

Turner was also deposed. He confirmed again that he walked by the area where Haggard fell twenty minutes prior to her fall and did not see anything on the floor. He further confirmed he was not aware of any substance on the floor until after Haggard fell, and he did not know who was responsible for the spill. Turner also noted he did not personally witness the fall.

¶ 5. Patricia Lewis, a Wal–Mart employee, was also deposed. She stated she knew Haggard personally and spoke with Haggard in a different area of the store prior to Haggard's fall. She further stated she was not aware of any substance on the floor and only became aware of the substance after Haggard fell. Lewis went to the area of the store where Haggard had fallen after being informed of the incident and spoke with Haggard at the scene. Lewis observed the clear substance but did not know what it was or how it ended up on the floor. According to Lewis, there was a smear mark through the substance from Haggard's shoe, but there were no other markings to indicate how long the substance had remained on the floor. She also stated that there were no spilled or empty containers in the area. Lastly, Lewis stated that she had no information or knowledge that any other Wal–Mart employee knew about the substance on the floor.

¶ 6. Finally, Haggard herself was deposed. The following exchange took place at Haggard's deposition:

Q: Did anybody from Wal–Mart that you talked to that day or since tell you anything about any information they had or knowledge they had that that white substance was on the floor before you slipped in it?

A: No.

Q: Is there any indication whatsoever that you know of that anybody from Wal–Mart accidentally put that substance on the floor?

A: No. Q: Okay. Do you have any information like that of how that substance got on the floor whatsoever?

A: No.

Q: Do you have any information whatsoever that anybody from Wal–Mart knew that that white substance was on the floor before you fell in it?

A: No.

Q: Nobody said—the manager didn't say or anybody didn't say, “Oh, yeah, we saw that was there and we were going to clean it up later,” nothing like that, did they?

A: No.

¶ 7. After the hearings were held on Wal–Mart's motion for summary judgment, the county court granted summary judgment in favor of Wal–Mart. Haggard appealed to the circuit court, which affirmed the judgment of the county court. Haggard timely filed her notice of appeal.

DISCUSSION

¶ 8. The issue presented before us is whether there is any genuine issue of material fact warranting reversal of summary judgment. We review a trial court's grant of summary judgment de novo. Pigg v. Express Hotel Partners, LLC, 991 So.2d 1197, 1199 (¶ 4) (Miss.2008) (citing Smith ex rel. Smith v. Clement, 983 So.2d 285, 288 (¶ 11) (Miss.2008)). Summary judgment is proper where “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.” M.R.C.P. 56(c). “The burden of demonstrating that there are no genuine issues of material fact is upon the movant, and the non-moving party must be given the benefit of every reasonable doubt.” Miller v. R.B. Wall Oil Co., 970 So.2d 127, 130 (¶ 5) (Miss.2007) (citing Moss v. Batesville Casket Co., 935 So.2d 393, 398 (¶ 16) (Miss.2006)). Further, “[t]he facts must be viewed in the light most favorable to the non-moving part[y].” Pigg, 991 So.2d at 1199 (¶ 4) (citing Massey v. Tingle, 867 So.2d 235, 238 (¶ 6) (Miss.2004)). “The non-moving party 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.” Id. “Issues of fact ... are present where one party swears to one version of the matter in issue and another says the opposite.” Moss, 935 So.2d at 398 (¶ 17) (citing Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990)). A material fact is one that “tends to resolve any of the issues properly raised by the parties.” Moss, 935 So.2d at 398 (¶ 16) (citing Palmer v. Anderson Infirmary Benevolent Ass'n, 656 So.2d 790, 794 (Miss.1995)). A fact is material if it is outcome determinative. Id. at 398–99 (¶ 17) (citing Simmons v. Thompson Mach. of Miss., Inc., 631 So.2d 798, 801 (Miss.1994)). Additionally, summary judgment is appropriate “where the non-movant fails to establish the existence of an essential element of that party's claim.” Pigg, 991 So.2d at 1199 (¶ 4) (citing Smith v. Gilmore Mem'l. Hosp., Inc., 952 So.2d 177, 180 (¶ 9) (Miss.2007)).

¶ 9. Mississippi uses a three-step process in determining premises liability: “First, we must determine whether the injured party was an invitee, licensee, or a trespasser at the time of the injury. Next, we must determine what duty was owed to the injured party by the business owner/operator. Finally, we must determine whether that duty was breached.” Rod v. Home Depot USA, Inc., 931 So.2d 692, 694 (¶ 9) (Miss.Ct.App.2006) (citing Leffler v. Sharp, 891 So.2d 152, 156 (¶ 10) (Miss.2004)).

¶ 10. In the instant case, it is undisputed that Haggard was a business invitee because she entered Wal–Mart “in answer to the express or implied invitation of the owner or occupant for their mutual advantage.” Id. at (¶ 10) (citing Hudson v. Courtesy Motors, Inc., 794 So.2d 999, 1003 (¶ 9) (Miss.2001)). “A business owner/operator owes to invitees the ‘duty to keep the premises reasonably safe, and when not reasonably safe, to warn only where there is hidden danger or peril that is not in plain and open view.’ ” Rod, 931 So.2d at 694 (¶ 10) (citing Leffler, 891 So.2d at 157 (¶ 12)). Stated somewhat differently:

In Mississippi, an owner, occupant, or person in charge of a premises owes to an invitee or business visitor a duty to exercise ordinary care to keep the premises in a reasonably safe condition or to warn the...