Thomas v. Shed 53, LLC

• Decision Date: 14 December 2021
• Docket Number: 2020-CA-01213-COA
• Citation: 331 So.3d 66
• Parties: Melinda THOMAS, Appellant v. The SHED 53, LLC, Appellee
• Court: Mississippi Court of Appeals

331 So.3d 66

Melinda THOMAS, Appellant

v.The SHED 53, LLC, Appellee

NO. 2020-CA-01213-COA

Court of Appeals of Mississippi.

December 14, 2021

ATTORNEY FOR APPELLANT: CHARLES MARSHALL THOMAS

ATTORNEYS FOR APPELLEE: R. LANE DOSSETT, L. CLARK HICKS JR., Hattiesburg

EN BANC.

BARNES, C.J., FOR THE COURT:

¶1. Melinda Thomas filed a premises liability action against The Shed 53 LLC in Gulfport, Mississippi, for injuries she sustained at The Shed restaurant¹ when a picnic bench Thomas had been sitting on collapsed, and she fell to the ground. Ultimately, The Shed moved for summary judgment, and in response, Thomas submitted two expert witness opinions that The Shed provided substandard furniture for its customers. The Shed then moved to strike the experts' opinions. The Harrison County Circuit Court granted The Shed's motion to strike and granted summary judgment in favor of The Shed. Thomas appealed both rulings. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On the afternoon of September 19, 2015, Thomas and her family were having an early dinner at The Shed, a barbecue restaurant. They sat outside at one of the restaurant's wooden picnic tables with attached wooden benches. After Thomas finished her meal, she heard two loud consecutive popping sounds. The bench collapsed, and she fell to the ground. Upon inspection, the wooden seat boards on which Thomas had been sitting had cracked in half. The Shed's staff responded quickly to determine if Thomas needed medical assistance, but she declined an ambulance and drove home. The Shed's management contacted Thomas a few days later to see how she was. Thomas later claimed she sustained injuries to her back, wrist, and ankle from the incident.

¶3. The Shed was the first franchise of The Shed Barbecue, opening in Gulfport in 2008 and closing in May 2016. During this time period, Dean Holleman, Clay Easterling, and Allyson Brewer were the owners of the Gulfport franchise. When The Shed opened, the owners purchased outdoor seating for its guests, which consisted of wooden picnic tables with attached wooden benches. These tables were used for seating outside in the restaurant's courtyard.

¶4. Joe Mullinax, a manager of The Shed, testified that the picnic tables were purchased from Lowe's or Home Depot and that The Shed routinely inspected them thoroughly for safety. There had never been a problem with the benches or a defect detected with the bench at issue. Easterling confirmed that inspections were performed often on the benches, and water sealant was applied frequently to them. When walking through the restaurant on a daily basis, Easterling further testified, he never saw a problem with the bench that would make him believe it was subject to failure or might collapse. Further, no customer, staff member, or employee had ever reported a defect with the bench before it broke, and The Shed had not modified it in any way.

¶5. Beth Burdeshaw, the general manager of The Shed from 2011 to 2015, testified that occasionally a picnic table would need repairs, and Easterling would direct an individual to repair it. However, if the tables could not be repaired, they were discarded. At one point, Burdeshaw decided additional tables were needed to replace discarded ones; so in the spring of 2014 she purchased seven to ten similar, new wooden picnic tables from Lowe's on sale for $99 each. The tables were rotated in the courtyard, and the employees were to tell her if they detected a problem with them. Burdeshaw testified that the tables were "constantly" monitored, and she was shocked the bench at issue collapsed.

¶6. Thomas testified that on the day of the incident, when she sat down, she did not notice anything unusual about the bench or any defect; the seat boards appeared solid, sturdy, and not rotten. Thomas stated she had no explanation or evidence as to why the bench collapsed. Further, the seat boards did not break until after Thomas had finished her meal and was waiting on her family to finish their meals.

¶7. In September 2017, Thomas filed a personal injury lawsuit seeking damages caused by her fall. After discovery, The Shed moved for summary judgment, arguing that the picnic table at issue was not in a dangerous condition. Further, The Shed maintained it had no actual or constructive knowledge of any dangerous condition with the bench to cause Thomas's injury; The Shed reasonably inspected and maintained the restaurant, including its picnic benches. Therefore, The Shed argued it did not breach any duty owed to Thomas and, thus, was not negligent. In support, The Shed relied on the deposition testimony of Mullinax, Burdeshaw, and Easterling.

¶8. Thomas filed a responsive motion in opposition to summary judgment, arguing The Shed provided substandard furniture for its guests that was not intended for commercial use. In support, Thomas submitted affidavit testimony and opinions of two expert witnesses, Dr. Eric Nusbaum (a professor) and Andrew Cherepon (an engineer). Dr. Nusbaum provides consulting and training for businesses in the hospitality and service industries, having earned degrees in hotel administration, hospitality design, and a Ph.D. in industrial engineering and operations research. Cherepon is a licensed professional engineer specializing in accident reconstruction and forensic engineering. Generally, their opinions were that The Shed should have used higher quality picnic tables. Dr. Nusbaum, who has been involved in restaurant and hotel operations for over thirty years, opined that the industry standard for restaurants is to provide commercial-grade products, and the picnic table failed to meet these requirements. Cherepon inspected an "exemplar" picnic table he claimed was substantially similar to the picnic table at issue. He determined that the subject table was rated for residential use and therefore was made of an inferior grade of lumber with more knots, which contributed to its failure. The Shed responded by filing a motion to strike the expert opinions of Dr. Nusbaum and Cherepon, arguing that the opinions were impermissible under Daubert² because they had no objective scientific basis.

¶9. After a hearing, the trial court granted both The Shed's motion to strike and motion for summary judgment. Regarding the motion to strike, the trial court found the opinions were not relevant because they did not address whether The Shed had actual or constructive notice of a defect with the bench; further, the opinions were not scientifically reliable. In granting summary judgment in favor of The Shed, the trial court found "nothing inherently dangerous about a wooden picnic bench." Even though the bench broke, the court found "a mechanical malfunction alone does not cause an ordinary item to become a dangerous condition." Moreover, the trial court found that even if the stricken opinions of Thomas's experts were considered, they did not create a genuine issue of material fact that The Shed had any notice of a defect.

STANDARD OF REVIEW

¶10. The appellate court reviews the trial court's grant or denial of summary judgment de novo. Karpinsky v. Am. Nat'l Ins. Co. , 109 So. 3d 84, 88 (¶9) (Miss. 2013). The evidence is viewed in the light most favorable to the nonmoving party. Id. 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. at (¶10) (quoting M.R.C.P. 56(c) ). The defendant carries the initial burden of persuading the trial court that no genuine issue of material fact exists and judgment as a matter of law is proper. Id. at (¶11). The party opposing summary judgment "may not rest upon the mere allegations or denials of his pleadings, but his response ... must set forth specific facts showing there is a genuine issue for trial." Id. at (¶10) (quoting M.R.C.P. 56(e) ).

¶11. The standard of review for the admission or exclusion of evidence, including expert testimony, is an abuse of discretion. Tunica County v. Matthews , 926 So. 2d 209, 212 (¶5) (Miss. 2006).

ANALYSIS

¶12. Thomas argues that summary judgment was improper because she presented evidence creating a genuine issue of material fact on the following: (1) The Shed knew or should have known of the bench's dangerous condition that caused her injuries; (2) The Shed created the dangerous condition by purchasing inexpensive, residential-grade wooden picnic benches that routinely failed; and (3) The Shed performed substandard inspections that failed to detect any issues with the subject bench. Thomas also asserts that her expert witnesses' opinions were improperly stricken because they proved The Shed used substandard furniture.

¶13. Mississippi utilizes a three-step analysis for premises liability cases: "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." Walker v. Cellular S. Inc. , 309 So. 3d 16, 24 (¶27) (Miss. Ct. App. 2020) (quoting Haggard v. Wal-Mart Stores Inc. , 75 So. 3d 1120, 1124 (¶9) (Miss. Ct. App. 2011) ). Regarding the duty element, "the owner or operator of business premises owes a duty to an invitee to exercise reasonable care to keep the premises in a reasonably safe condition." Jones v. Wal-Mart Stores E. LP , 187 So. 3d 1100, 1103 (¶12) (Miss. Ct. App. 2016) (quoting Jerry Lee's Grocery Inc. v. Thompson , 528 So. 2d 293, 295 (Miss. 1988) ). However, a business owner "is not an insurer of business invitees' injuries." Id. (quoting Byrne v. Wal-Mart Stores Inc. , 877 So. 2d 462, 465 (¶6) (Miss. Ct. App. 2003) ). "Under Mississippi law proof of an injury is not the basis for premises liability, rather negligence of the business owner...