Renner v. Retzer Res., Inc.

• Decision Date: 07 December 2017
• Docket Number: NO. 2016–CA–01255–SCT,2016–CA–01255–SCT
• Citation: 236 So.3d 810
• Parties: John RENNER v. RETZER RESOURCES, INC. and Velencia Hubbard, Individually and in Her Capacity as Manager of McDonald's
• Court: Mississippi Supreme Court

236 So.3d 810

John RENNER

v.RETZER RESOURCES, INC. and Velencia Hubbard, Individually and in Her Capacity as Manager of McDonald's

NO. 2016–CA–01255–SCT

Supreme Court of Mississippi.

December 7, 2017

Rehearing Denied February 15, 2018

Certiorari Denied March 15, 2018

ATTORNEYS FOR APPELLANT: DAVID NEIL McCARTY, ROBERT ALLEN SMITH, JR.

ATTORNEY FOR APPELLEE: ROBERT F. STACY, JR.

BEFORE RANDOLPH, P.J., COLEMAN AND MAXWELL, JJ.

RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶ 1. The instant case arises from a trip-and-fall at a McDonald's restaurant in Winona, Mississippi. The circuit court granted summary judgment in favor of defendants. The plaintiff appeals, arguing that summary judgment was not proper because (1) he established each element of a premises-liability claim, and (2) the defendants lost or destroyed key video evidence, which he argues forecloses the grant of summary judgment. The plaintiff has established several triable issues of fact. Accordingly, summary judgment was inappropriate, and the Court reverses and remands.

FACTS AND PROCEDURAL HISTORY

¶ 2. According to the plaintiff, on August 13, 2012, seventy-six-year-old John Renner ("Renner") was traveling from Jackson, Mississippi, to his home in St. Louis, Missouri. He, his wife, and two other family members stopped at a McDonald's in Winona around 9:30 a.m. After he received his order, Renner set his food down at a table and walked to the condiment station. Renner picked up some condiments. Before returning to his table, he thought one of the McDonald's employees spoke to him. Renner turned and faced the counter before realizing the employee was speaking to another customer. As Renner turned back around to return to his table, his left foot struck a protruding leg of a highchair, causing him to fall and suffer injury to his face and left shoulder. After the fall, Renner heard one of the McDonald's employees ask another what the highchair was doing there, and to move it.

¶ 3. Two and a half years later, Renner filed suit against McDonald's; Retzer Resources, Inc., the owner and operator of the Winona McDonald's; and Velencia Hubbard, the manager of the Winona McDonald's. During discovery, the defendants claimed that video footage of the fall no longer existed.

¶ 4. The defendants, Hubbard and Retzer, moved for summary judgment, arguing that Renner could not demonstrate the existence of any genuine issue of material fact that: (1) the highchair was a dangerous condition; (2) any alleged danger was hidden; or (3) defendants had actual or constructive knowledge of the alleged dangerous condition. Attached to the defendants' motion and the plaintiff's response were the depositions of Greta Siegel, John Renner, Renner's wife Sherlyn, Velencia Hubbard, and Hugh Ballard, an Information Technology (IT) employee of Retzer Resources.

¶ 5. Greta Siegel was an eyewitness to the fall. Siegel, originally from Winona and a former Dean of Students at a college in California, was a frequent patron of the Winona McDonald's. Siegel visited McDonald's often in order to use its Wi–Fi connection. On the morning of the fall, Siegel was seated in a booth catty-corner to the location of the accident. Siegel's attention was directed that way when she heard a loud noise. She saw Renner fall and land on the floor. She also saw Renner's left foot tangled in the leg of a highchair. Siegel then heard a McDonald's employee immediately instruct other McDonald's employees to move the highchairs away from that area.

¶ 6. Siegel testified that she was not surprised that Renner had tripped at the condiment station, because the highchairs are obscured from view behind a "half wall," and because the legs of the highchairs protrude out farther than the tops of the highchairs. When questioned about the visibility of the highchairs, Siegel testified that, "[w]hat is hidden is the way that bottom juts out, because as you walk up to the chairs, obviously, they are there, but what you wouldn't expect is for a ... piece of it to be sticking out." When asked about the particular morning of Renner's fall and whether the highchairs were sticking out into the aisle, Siegel confirmed that they were and described the placement of the chairs as a "big hazard."

¶ 7. Siegel previously had seen other McDonald's customers bump into the highchairs at the same location where Renner fell. Siegel testified that she had seen approximately three customers stumble against the chairs and had seen other customers accidently kick the chairs. She described the customers' reactions to the chairs as being confused about what they had kicked, "because the top seems to be what you would hit first ... [b]ut with that bottom sticking out, it is something that people hit and they don't realize what they are kicking."

¶ 8. Siegel had complained several times about the location of the highchairs to a manager and to other McDonald's employees prior to this accident. Siegel testified that after complaining about the chairs, the employees would move them away from the corner, but still leave them on the same wall. However, Siegel also testified that, since the accident, the chairs remain in the same location.

¶ 9. Velencia Hubbard, the shift manager of McDonald's at the time of the accident, did not dispute any of Siegel's testimony. She opined that she thought the chairs were properly stored and did not believe they were out of place. Throughout her deposition testimony, Hubbard testified the she did not know or did not remember key facts. For example, Hubbard testified that she was not sure whether the legs of the highchairs protruded into the aisle at the time of the accident. Hubbard testified that she saw Renner fall and saw that his feet were caught in the highchair. She remembered speaking with the Renners, completing an incident report, and calling the insurance company, which was standard procedure after a slip and fall. Valencia testified that the placement of the chairs did not change after Renner's fall, and that they always remained in the same location. Valencia also testified that there was a video recording of Renner's fall, though she could not remember if she had ever seen it.

¶ 10. Sherlyn and Renner both provided affidavits relating events after the accident. Sherlyn and Renner testified that, two days after the fall, a risk management company for McDonald's called to check on Renner's condition. Sherlyn spoke with a woman from the company, who told Sherlyn that McDonald's had provided them with videotapes of the incident and that they would review the tapes to see what happened. Renner testified that about four to five weeks later, he called an "800 number" on a McDonald's incident form that he was provided. Renner spoke with a representative who told him that security tapes would have to be reviewed before they could speak about the accident with Renner. Another four to five weeks later, Renner called again. He was told the tapes had still not been reviewed. No video footage was produced per requests in discovery.

¶ 11. Hugh Ballard, the IT employee in charge of video surveillance at the Winona McDonald's, testified that a video camera faces the location where Renner fell. The video camera is motion-activated and does not record constantly. Ballard testified that the recordings are kept temporarily on a computer hard drive for approximately sixty-three to sixty-four days, depending on how quickly the hard drive fills up. The recordings are then recorded over. Ballard testified that he received a request from another Retzer Resources employee on October 17, 2013—sixty-five days after the accident—to preserve the video footage of Renner's fall. Ballard testified that he "imagined" that he tried to retrieve the footage, though he could not remember. Ballard testified that the video was gone. He had no way of knowing whether the footage was recorded over or whether it ever existed, although there was no indication that the camera was not operational on the day of Renner's fall.

¶ 12. Renner responded to the defendant's motion for summary judgment, arguing that the testimony of each of the five witnesses established that McDonald's was either directly negligent in causing his fall, or McDonald's had actual or constructive knowledge of the alleged dangerous condition. Further, Renner argued that, because of the unfavorable presumption that attaches to evidence spoliation, summary judgment would be inappropriate.

¶ 13. On August 2, 2016, the trial court issued its opinion and final judgment granting summary judgment in favor of the defendants, Hubbard and Retzer. The trial court found that Renner was an invitee of McDonald's, and therefore, McDonald's owed a duty to keep the premises reasonably safe and to warn only when there was hidden danger, not in plain and open view. The trial court found that "[t]he presence of a high chair in a restaurant like McDonald's is clearly a ‘normal’ and ‘usual’ condition that an invitee could ‘expect to encounter.’ Therefore, McDonald's cannot be held liable for Mr. Renner's injuries in this case." The trial court found that Renner had failed to produce any evidence that any McDonald's employee had placed the high chair in Renner's path or had any actual or constructive knowledge that the highchair posed a danger to Renner. The trial court's opinion made no reference to the missing video evidence. Renner timely appealed and raises two issues: (1) whether summary judgment was granted erroneously because Renner had proved each element of his premises-liability claim, and (2) whether the defendants' loss or destruction of key video evidence prohibited the grant of summary judgment.

DISCUSSION

¶ 14. "Summary judgment 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.’ " Miss. R. Civ....