Parson v. Go Knightrider LLC

• Decision Date: 16 July 2019
• Docket Number: NO. 2017-CA-01382-COA,2017-CA-01382-COA
• Citation: 282 So.3d 609
• Parties: Floyd PARSON Jr., Appellant v. GO KNIGHTRIDER LLC, Appellee
• Court: Mississippi Court of Appeals

282 So.3d 609

Floyd PARSON Jr., Appellant

v.GO KNIGHTRIDER LLC, Appellee

NO. 2017-CA-01382-COA

Court of Appeals of Mississippi.

July 16, 2019

ATTORNEY FOR APPELLANT: STEPHANIE NICOLE MORRIS,

ATTORNEYS FOR APPELLEE: ROBERT P. THOMPSON, PAUL PACIFIC BLAKE, RIDGELAND

BEFORE CARLTON, P.J., LAWRENCE AND C. WILSON, JJ.

CARLTON, P.J., FOR THE COURT:

¶1. Floyd Parson Jr. filed a negligence action against Go Knightrider LLC (GK) in Bolivar County Circuit Court, alleging he was injured when he slipped and fell on a slippery substance at GK's convenience store/gas station. GK moved for summary judgment, asserting, among other grounds, that Parson lacked sufficient evidence to support his negligence claim because even if a dangerous condition existed on its premises, Parson failed to show GK had constructive notice of it. GK also moved to dismiss Parson's lawsuit, with prejudice, for discovery abuse. The circuit court granted GK's summary judgment motion, finding that Parson failed to offer sufficient evidence to overcome summary judgment that GK had constructive knowledge of the allegedly dangerous condition on its premises. In the alternative, the circuit court granted GK's motion to dismiss Parson's lawsuit, with prejudice, for discovery abuse.

¶2. Parson appeals, asserting that the circuit court erred in granting both motions. Finding no error in the circuit court's decision to grant summary judgment in GK's favor, we affirm the circuit court's judgment on this basis. Our resolution of Parson's appeal (affirming summary judgment in GK's favor) renders a discussion of Parson's challenge to the circuit court's alternative decision to dismiss his lawsuit for discovery abuse unnecessary.

FACTS AND PROCEDURAL HISTORY

¶3. The record reflects that on June 9, 2014, Parson purchased gas and several items at GK, a convenience store and gas station in Cleveland, Mississippi. Parson slipped and fell in a slippery substance as he left the store. On May 15, 2015, Parson filed a negligence lawsuit against GK in the Second Judicial District of Bolivar County Circuit Court seeking damages for injuries he allegedly incurred when he fell.¹

¶4. In his complaint, Parson described a "liquid substance" on the GK premises, and alleged that he slipped and fell in a "puddle of water, gas, oil[,] and/or greasy like substance" that was located between the gas pumps and the front door of the store. In his sworn, written discovery responses served September 24, 2015, Parson described this "puddle" as follows: "[T]he size of the puddle was approximately 3 to 4 foot long and 2 feet wide. Mr. Parson knows he was in some sort of motor oil due to the rainbow effect of the colors, and [it] was very slick and thick."

¶5. Parson was deposed on May 3, 2016, nearly two years after his fall. In his deposition, Parson was asked about the "puddle" he described in his complaint. During this questioning, Parson said that the description of the substance in his complaint as a "puddle" was "incorrect." He testified that "if I said that, I said that [in the complaint, but] ... [i]t was not a puddle." When asked about the "liquid substance" he described in his complaint, he said, "I wasn't in anything wet ... when I landed." Parson testified that it was "the oil, gasoline, whatever it was mixed in with the dirt and whatever. Evidently, it was there and had been there for quite a while. It wasn't something that had just been applied. It had been there for a few days at least." Parson further testified that after he fell the substance was "caked" on his pants, and he testified that he was relying on "his personal opinion" that the substance "wasn't [anything] that just happened that day or that morning or the day before. It had been there a while." He admitted that other than his personal opinion, he had no other independent knowledge about how long the substance had been there.

¶6. Parson also testified that the description of the substance's location in his complaint was "inaccurate." He testified that the substance was located between two gas pumps, "on the inner side of the front pump," and "down the inside of [the] pump island," rather than between the front door and the gas pumps, or "in front near the door," as described in his complaint. Parson also testified that the area of the substance was about "10 to 12 inches wide," not two feet wide, as described in his sworn interrogatory responses.

¶7. Parson testified that when he fell, his prosthetic leg detached and his back struck the raised curb near the gas pump. He said he was "sitting in [the substance]" and that a man pulled up in his car, got Parson's crutches from his truck, and helped him up. Parson testified that he reattached his prosthetic leg, went into the gas station and said to the clerk, "You need to get somebody to clean up out there before somebody really gets hurt."

¶8. Plaintiff's mother, Martha Walt, was deposed on May 3, 2016. She testified that she stopped at the GK gas station for gas that morning and saw Parson "sitting on the ground ... and some man had come over and picked him up." She testified that she parked her car, but did not get out of her car. She said that after he was up, Parson came over to her car and showed her his pants. She testified that Parson had "gook all over his ... pants," and then she said, "I'm assuming that it was oil because it was at a service station. It was dark.... It was on his bluejeans. I can't exactly tell you what it looked like.... I didn't get out of the car and investigate it."

¶9. Store employee, Candy Clifton, was deposed on May 4, 2016, and testified "that if gas and oil [were] out there [on the lot], of course I'm going to clean it up," but she said she had not seen oil on the lot and "never had to clean up oil." Clifton also testified that Parson came to the store twice on the day that he fell—once at about 8:00 a.m., and again at about 10:45 a.m. She testified that when he came in to the store at 8:00 a.m. he smelled of beer, and bought beer at that time. Parson bought beer again when he returned to the store later that morning, then he walked out of the store. Clifton testified that she did not see Parson fall, but just as she was finishing checking out the next customer, she looked up and saw Parson sitting on the gas pump island "messing" with his leg, so she ran to the door, saying "did that man just fall?" She testified that she stood at the door and asked Parson if he was ok. Clifton testified that later that day she "went outside and looked to see if anything was on the ground where [Parson] claimed he fell ... [and saw] [n]othing." She confirmed she saw no "liquids, debris or anything else."

¶10. Another store employee, Jo Ann Terry, was also deposed on May 4. She testified that she went outside the store when Parson was still sitting on the gas pump island after his fall. She said that she did not see any substances in the area where Parson fell—"just the concrete."

¶11. Stanley Gaines testified as the corporate representative for GK's 30(b)(6)² deposition. He testified that he walked the GK premises twice on the day of the incident, once at 7:30 a.m., and the second time at about noon, after Betty Ray called him to say Parson had fallen. He said he did not see anything of concern either time. He specifically testified that when he returned to the store at noon, he saw "nothing" in the area where Parson fell.

¶12. GK moved for summary judgment in June 2017, asserting that Parson lacked sufficient proof of a dangerous condition on its premises or that GK had actual or constructive notice of the allegedly dangerous condition. In the same motion, GK also sought to dismiss Parson's lawsuit, with prejudice, for discovery abuse. In response, Parson argued that genuine issues of material fact existed with respect to the existence of a dangerous condition on GK's premises, and that GK had constructive notice of that condition. Parson acknowledged that there "was no proof of actual notice."³

¶13. After a hearing on August 8, 2017, the circuit court entered an order granting GK's motion for summary judgment and, alternatively, GK's motion to dismiss for discovery abuse, and entered its final judgment dismissing Parson's lawsuit on September 25, 2017.⁴ Parson appealed.

STANDARD OF REVIEW

¶14. An appeal from summary judgment is reviewed de novo and we view the evidence in the light most favorable to the non-movant. Karpinsky v. American National Ins. Co. , 109 So. 3d 84, 88 (¶9) (Miss. 2013) ; Garson v. Circus Circus Mississippi Inc ., 135 So. 3d 932, 934 (¶7) (Miss. Ct. App. 2014). Mississippi Rule of Civil Procedure 56 provides that "[t]he judgment sought shall be rendered forthwith 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." M.R.C.P. 56(c). The movant "carries the initial burden of persuading the trial judge that no issue of material fact exists and that he is entitled to summary judgment based upon the established facts." Garson , 135 So. 3d at 934 (¶7) ; Karpinsky , 109 So. 3d at 89 (¶13). The non-movant, however, "carries the burden of producing sufficient evidence of the essential elements of [his] claim at the summary-judgment stage, [just] as [he] would carry the burden of production at trial." Karpinsky , 109 So. 3d at 89 (¶13). In this regard, the non-movant "may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." M.R.C.P. 56(e). "Summary judgment is appropriate when the [non-movant] 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." Karpinsky , 109 So. 3d at...