Karpinsky v. Am. Nat'l Ins. Co.

• Court: Mississippi Supreme Court
• Writing for the Court: WALLER
• Citation: Karpinsky v. Am. Nat'l Ins. Co., 109 So. 3d 84 (Miss. 2013)
• Decision Date: 07 March 2013
• Docket Number: No. 2010–CT–02084–SCT.,2010–CT–02084–SCT.
• Parties: Laura KARPINSKY v. AMERICAN NATIONAL INSURANCE COMPANY and OraClean, Inc.

109 So.3d 84

Laura KARPINSKY

v.AMERICAN NATIONAL INSURANCE COMPANY and OraClean, Inc.

No. 2010–CT–02084–SCT.

Supreme Court of Mississippi.

March 7, 2013.

William C. Miller, Biloxi, attorney for appellant.

Scott D. Smith, Mark Norton, Hattiesburg, V.K. Smith, III, attorneys for appellees.

EN BANC.

ON WRIT OF CERTIORARI

LAMAR, Justice, for the Court:

¶ 1. In this slip-and-fall case, Laura Karpinsky alleges that she sustained injuries when she fell in a puddle in a shopping mall. The Circuit Court for the First Judicial District of Harrison County found that Karpinsky had failed to offer any evidence that her fall was caused by negligence attributable to the Defendants, and entered summary judgment against her. The Court of Appeals found that the circuit court had erred and reversed the summary-judgment order. We granted certiorari and, finding that the circuit court properly granted summary judgment in this case, we reverse the Court of Appeals and reinstate and affirm the order of the circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 2. Karpinsky slipped and fell in a puddle of water outside Lane Bryant, a store in Edgewater Mall. Gail Clark, who had been shopping at Lane Bryant, witnessed Karpinsky's fall. Clark testified during her deposition that there had been no water on the floor when she entered the store, but that when she exited after shopping for “about five minutes,” she saw a cup with ice in it on the floor.¹ Clark did not see how the spill occurred. Approximatelyten seconds later, Clark saw Karpinsky slip and fall. Clark and her husband helped Karpinsky up and encouraged her to report the incident. Karpinsky testified during her deposition that she had slipped on a liquid, but she did not know what the liquid was, how it got on the floor, or how long it had been there.

¶ 3. Karpinsky filed suit against American National Insurance Company (ANIC), which owns the mall, and OraClean, which provides housekeeping services for the mall,² alleging that she was seriously injured when she slipped and fell, and that her fall was a result of Defendants' negligence. Specifically, Karpinsky alleged that Defendants had knowledge of the water on the floor and had failed to take reasonable steps to ensure the floor was dry or to warn her adequately of the water on the floor.

¶ 4. After discovery progressed, Defendants filed a motion for summary judgment, arguing that Karpinsky could not carry her burden of proof at trial because she could not show how long the water had been on the floor or that any negligence attributable to Defendants had caused her fall. Defendants further argued that, based upon Clark's testimony, the water could not have been on the floor for more than five minutes, which was not long enough to reasonably expect Defendants to clean up the spill.

¶ 5. Karpinsky did not file a response to Defendants' motion. Instead, the day before the hearing on Defendants' motion, Karpinsky filed an affidavit executed by her former attorney, Dempsey M. Levi. Levi averred that, in connection with representing Karpinsky, he had taken a recorded statement from Clark, and that Clark had told him that the spill had been there for “quite a while” and that there were “tracks, etc.” in the spill. Levi further averred that he had reviewed an “Incident Report” that indicated the mall's guest services had been notified of the spill prior to Karpinsky's fall. A transcript of Clark's recorded statement and the incident report were attached to Levi's affidavit. Defendants argued that the affidavit and attached documents were not competent summary-judgment evidence because they were hearsay and did not comply with the requirements of Rule 56(e) of the Mississippi Rules of Civil Procedure.

¶ 6. The circuit court recognized that mere proof that a plaintiff fell on a floor located within a business owner's premises is not enough to prove that the owner was negligent. The circuit court found, without discussing Levi's affidavit, that Karpinsky had failed to offer any proof that her fall was caused by a negligent act of either Defendant or that Defendants had knowledge of a dangerous condition on the mall floor, and the court granted Defendants' motion for summary judgment. Karpinsky appealed, and we assigned the case to the Court of Appeals.

¶ 7. The Court of Appeals majority found that, while Defendants had shown the water had not been on the floor longer than five minutes and that Karpinsky did not know who had caused the spill, Defendants had not offered any evidence that they lacked knowledge of the spill.³ The Court of Appeals further found that “whatever evidence Karpinsky could or could not produce at trial was not an issue until [Defendants] produced credible evidence at the summary-judgment stage that there were no genuine material issues for trial.”⁴ The Court of Appeals additionally found that, although “Levi's affidavit was objectionable because it did not comport with the requirements of Rule 56(e),” Defendants had waived their objection because they did not move to strike the affidavit, and the circuit court should have considered it. ⁵

¶ 8. The Court of Appeals concluded that the recorded statement and incident report attached to the affidavit created a genuine issue of fact as to how long the water had been on the floor and proved that Defendants had notice of the spill; therefore, the Court of Appeals reversed the circuit court's order and remanded the case for further proceedings.⁶ We granted certiorari to clarify the summary-judgment standard and to address whether an affidavit that does not comply with the requirements of Rule 56(e) of the Mississippi Rules of Civil Procedure is sufficient to meet a party's evidentiary burden at the summary-judgment stage.

DISCUSSION

I. Standard of Review

¶ 9. We review the grant or denial of a motion for summary judgment de novo, viewing the evidence “in the light most favorable to the party against whom the motion has been made.” ⁷

II. The Summary–Judgment Standard

¶ 10. Summary judgment is appropriate and “shall be rendered” 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 judgment as a matter of law.” ⁸ Importantly, the party opposing summary judgment “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, will be entered against him.” ⁹

¶ 11. This Court has explained that “in a summary judgment hearing, ‘[t]he burden of producing evidence in support of, or in opposition to, [the] motion ... is a function of [Mississippi] rules regarding the burden of proof at trial on the issues in question.’ ” ¹⁰ “The movant bears the burden of persuading the trial judge that: (1) no genuine issue of material fact exists, and (2) on the basis of the facts established, he is entitled to judgment as a matter of law.” ¹¹ “The movant bears the burden of production if, at trial, he ‘would [bear] the burden of proof on th[e] issue’ raised.” ¹² In other words, “the movant only bears the burden of production where they would bear the burden of proof at trial.” ¹³ Furthermore, “summary judgment ‘is appropriate when the non-moving party has failed to “make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial.” ’ ” ¹⁴

¶ 12. In this case, it is uncontested that Karpinsky was a business invitee on the day of the accident. The duty of a business owner to an invitee is well-settled under Mississippi law and requires that the owner keep his premises in a reasonably safe condition.¹⁵ Mississippi law further requires that when a dangerous condition exists that was “created by someone not associated with the business, the plaintiff must produce evidence that the owner or operator had actual or constructive knowledge of the dangerous condition as well as a sufficient opportunity to correct it.” ¹⁶ Therefore, in order to recover, Karpinsky would be required to produce evidence at trial that Defendants (1) had knowledge of the spill, either actual or constructive, and (2) they had a sufficient opportunity to correct it.

¶ 13. We reiterate and clarify that, while Defendants carry the initial burden of persuading the trial judge that no issue of material fact exists and that they are entitled to summary judgment based upon the established facts, Karpinsky carries the burden of producing sufficient evidence of the essential elements of her claim at the summary-judgment stage, as she would carry the burden of production at trial. Conversely, because Defendants do not carry any burden of production at trial, they also do not carry any burden of production at the summary-judgment stage.

¶ 14. With these principles in mind, we turn to the central issue—whether the circuit court properly granted Defendants summary judgment based upon the facts established in this case.

III. Whether Defendants are entitled to judgment as a matter of law.

¶ 15. We have held that a business owner is not “an insurer” of his patrons' safety, but must use reasonable care in maintaining his business in a safe condition.¹⁷ In other words, Defendants were required only to “eradicate the known dangerous condition within a reasonable time or to exercise reasonable diligence in warning those who were likely to be injured because of the danger. In either case, however, defendants were entitled to a reasonable time in which to attempt to perform the duty imposed by law.” ¹⁸

¶ 16. At the summary-judgment stage, Defendants carried the initial burden of persuading the circuit court that no issues of material fact existed in this case and that they...