Walker v. Cellular S. Inc.

• Decision Date: 23 June 2020
• Docket Number: NO. 2019-CA-00276-COA,2019-CA-00276-COA
• Parties: Pete WALKER, Appellant v. CELLULAR SOUTH INC. d/b/a C Spire, Appellee
• Court: Mississippi Court of Appeals

309 So.3d 16

Pete WALKER, Appellant

v.CELLULAR SOUTH INC. d/b/a C Spire, Appellee

NO. 2019-CA-00276-COA

Court of Appeals of Mississippi.

June 23, 2020

Rehearing Denied October 20, 2020

ATTORNEYS FOR APPELLANT: EDWARD D. LAMAR, FRANK J. DANTONE JR., Greenville

ATTORNEYS FOR APPELLEE: SHELDON G. ALSTON, ROBERT LANE BOBO, Jackson

BEFORE CARLTON, P.J., GREENLEE AND McCARTY, JJ.

CARLTON, P.J., FOR THE COURT:

¶1. Pete Walker brought a premises liability action against Cellular South Inc. in the Bolivar County Circuit Court seeking damages for injuries he allegedly suffered when he fell as he was attempting to sit in a tall (bar-height) chair at the C Spire store. After discovery, Cellular South moved to exclude the opinions of Walker's safety expert as irrelevant and improper under Rule 702 of the Mississippi Rules of Evidence and moved for summary judgment, claiming that Walker failed to raise any disputed issues of material, genuine fact in support of his premises liability claim. Walker moved for sanctions against Cellular South, alleging spoliation of evidence because Cellular South did not retain the store surveillance videotape from the day of Walker's fall. The circuit court granted Cellular South's motion to exclude Walker's liability expert and granted summary judgment in Cellular South's favor. In the same order, the circuit court denied Walker's motion for sanctions. Walker appeals. For the reasons addressed below, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2. The record reflects that on June 4, 2014, Walker, who was seventy-one at the time, went to Cellular South's C Spire store in Cleveland, Mississippi, to have his cell phone's voicemail fixed. According to Walker's complaint and his deposition testimony, when it was his turn at the counter to meet with a Cellular South representative, he tried to sit on a tall (bar-height) chair when it suddenly slipped from underneath him, causing him to fall to the floor. Walker alleges that he was injured as a result of the fall.

¶3. Cellular South employee Steadman Hunter completed an incident report later that day and reviewed the store surveillance videotape as part of providing a description of the accident for the report. In describing the fall, Hunter indicated in the report that "[w]hile in the chair, [Walker] had the chair tilted forward the entire time leading up to the fall at 5:18 p.m. The fall happened quickly and he made a loud sound as he fell slightly to the floor." Hunter reported that at 5:20 p.m. Walker got back up on his feet with the help of a customer and a Cellular South representative, Zach Stallings. Stallings then took Walker's phone-bill payment and fixed his voicemail issues. According to the incident report, Walker was asked several times if he needed medical assistance, and he declined; so Stallings called Walker's daughter, Lara, and she came and got her father. When she got there, she said that Walker was "known for having sudden seizures and blacking out." The incident report reflects that Lara then "collected business cards from the representatives that witnessed the accident. She said this [was] only to get a list of names of witnesses to see how severe the accident was that took place today." The record reflects that after three weeks, the video cameras at the C Spire store record over themselves.

¶4. Approximately two months after the incident, a medical bill for Walker, dated July 23, 2014, was delivered to the Cleveland, Mississippi C Spire store. In a letter dated January 22, 2015, Walker's counsel notified Cellular South that Walker had retained the Dantone P.A. law firm with respect to the June 4, 2014 incident and in that letter counsel requested "a copy of any incident reports, written or taped statements regarding the incident, photographs and the surveillance videotape of the incident." The record also includes correspondence dated March 13, 2015, from the claims specialist for Cellular South's insurer informing Walker's counsel that there was "no video surveillance nor taped statements to provide."

¶5. On July 19, 2016, Walker filed his complaint, claiming as follows:

[Cellular South] breached its duty when it allowed customers and invitees to sit in chairs with legs that did not properly grip the floors when customers and invitees attempted to sit in them. [Cellular South] breached its duty when it failed to remedy said dangerous condition by failing to make the premises safe by removing the chairs with poor grips, installing flooring with more slip resistance and/or failing to warn [Walker] of the known hazardous condition then and there existing on the premises, which was known or should have been known to [Cellular South].

¶6. Walker served discovery, and in Cellular South's supplemental response to Walker's request for any video of the incident, Cellular South informed Walker that the cameras at the C Spire store "record over themselves after three weeks. Cellular South did not know of a claim, and therefore did not retain the videos."

¶7. In December 2017, Walker filed his expert designation, identifying Russell J. Kendzior as his expert witness and attaching Kendzior's expert report. Kendzior opined that Walker fell because of insufficient traction between the chair legs and the store's Vinyl Composite Tile (VCT) floor. He further opined that Cellular South "failed to provide a safe walking or seating surface which was in direct violation of [The American Society of Testing and Materials (ASTM)] F-1637-13 and [ASTM] D-2047-04." To avoid repetition, we will discuss additional details relating to these opinions below.

¶8. One month later, Cellular South filed its expert designation, identifying Dan Roig of Packer Engineering Group as its expert and attached Roig's report to its expert designation.

¶9. In June 2018, after conducting written discovery and taking fact- and expert-witness depositions, Cellular South filed a motion to exclude Kendzior, Walker's expert witness. Cellular South asserted that Kendzior's opinions should be excluded as irrelevant under Mississippi Rule of Evidence 702 because Kendzior was inappropriately attempting to use walking standards as the basis for his opinions, which did not apply to a stool or chair slipping on a floor. Walker opposed Cellular South's motion to exclude Kendzior's opinions, arguing that Kendzior was qualified to offer the opinions given in his report and that these opinions would be helpful to the jury in determining whether a dangerous condition existed within the store.

¶10. In September 2018, Walker filed a motion for sanctions, asserting that Cellular South had engaged in spoliation of evidence because the surveillance videotape from the C Spire store on the day of Walker's fall had not been retained. Walker argued that this conduct warranted an instruction to the jury "that whatever the videotape would have revealed would have been adverse to [Cellular South's] contention that it was not negligent." In response, Cellular South asserted that sanctions were not warranted because it did not intentionally destroy or lose the video surveillance through means of gross negligence. Cellular South further argued that in any event the spoliation issue was irrelevant because Walker could not prove his theory of negligence against Cellular South.

¶11. Cellular South also moved for summary judgment in September 2018, asserting that Walker, as an undisputed business invitee, could not set forth specific, disputed, and material facts that would establish his premises liability claims against Cellular South. In response, Walker asserted that summary judgment was precluded because Kendzior's opinions established that an allegedly dangerous condition existed in the store and that "[b]y failing to put forth any proof that it had tested the floor's coefficient of friction[,] ... [Cellular South] certainly concedes that it had constructive knowledge, if not actual knowledge[,] of the slipperiness of its floor."

¶12. Cellular South's motion to exclude Kendzior was heard by the circuit court on October 17, 2018. The court announced at the end of the hearing that it was taking the motion under advisement. A month later, the circuit court heard Cellular South's summary judgment motion and Walker's motion for sanctions.

¶13. On November 27, 2018, the circuit court entered its final judgment excluding Kendzior's opinions, denying Walker's motion for sanctions, and granting Cellular South's summary judgment motion. Walker filed a motion to alter or amend the judgment, which the circuit court denied. Walker appeals.

DISCUSSION

I. Exclusion of Walker's Expert, Kendzior

¶14. "The standard of review for the admission or exclusion of evidence, such as expert testimony, is an abuse of discretion." Inv'r Res. Servs. Inc. v. Cato , 15 So. 3d 412, 416 (¶2) (Miss. 2009). "[T]he decision of a trial judge will stand unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion." Miss. Transp. Comm'n v. McLemore , 863 So. 2d 31, 34 (¶4) (Miss. 2003) ; Townsend v. Doosan Infracore Am. Corp ., 3 So. 3d 150, 154 (¶7) (Miss. Ct. App. 2009) ("Absent an abuse of discretion, a judge's determination as to the qualifications of an expert witness will remain undisturbed on appeal.").

¶15. The test for the admissibility of expert testimony is set forth in Mississippi Rule of Evidence 702, as follows:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

M.R.E. 702 ; see McLemore , 863 So. 2d at 35 (¶6).

¶16. I...