Floyd Parson, Jr. v. Go Knightrider, LLC ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-CA-01382-COA
FLOYD PARSON JR. APPELLANT
v.
GO KNIGHTRIDER LLC APPELLEE
DATE OF JUDGMENT: 09/25/2017
TRIAL JUDGE: HON. ALBERT B. SMITH III
COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT,
SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: STEPHANIE NICOLE MORRIS
ATTORNEYS FOR APPELLEE: ROBERT P. THOMPSON
PAUL PACIFIC BLAKE
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED - 07/16/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
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
1
Parson claims that as a result of his fall he suffered phantom leg pains and injured
his back, necessitating two back surgeries.
2
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
3
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
4
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
2
See M.R.C.P. 30(b)(6).
5
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
3
Parson had also filed a motion for summary judgment as to liability for alleged
discovery abuses by GK, which the circuit court denied. Parson does not appeal this
decision.
4
As noted above, because we affirm the circuit court’s summary judgment in GK’s
favor, we do not address Parson’s challenge to the circuit court’s alternative ruling
dismissing his lawsuit, with prejudice, for discovery abuse.
6
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 89 (¶11).
DISCUSSION
¶15. “[T]o prevail on a negligence claim, the plaintiff must prove by a preponderance of
the evidence each element of negligence: duty, breach of duty, proximate cause, and
damages.” Patterson v. T. L. Wallace Const. Inc., 133 So. 3d 325, 331 (¶18) (Miss. 2013).
It is undisputed in this case that Parson was a customer of GK’s on the day that he fell, and
is therefore considered a “business invitee” under Mississippi premises law. Grammar v.
Dollar, 911 So. 2d 619, 624 (¶12) (Miss. Ct. App. 2005) (“A business invitee is defined as
someone who enters onto another’s premises at the invitation of the owner for the purpose
of benefitting both parties.”).
¶16. “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.” Karpinsky, 109
So. 3d at 89 (¶12). “Because the store owner is not an insurer of business invitees’ injuries,
mere proof that the invitee fell and was injured while on the premises is insufficient to
7
establish liability.” Jones v. Wal-Mart Stores E. LP, 187 So. 3d 1100, 1104 (¶12) (Miss. Ct.
App. 2016) (internal quotation marks omitted). Rather, “[t]he owner of the business
premises has a duty to warn invitees of dangerous conditions which are not apparent to the
invitee, of which the owner or occupier knows or through the exercise of reasonable care
should know.” Treadwell v. Circus Circus Mississippi Inc., 942 So. 2d 221, 222 (¶6) (Miss.
Ct. App. 2006).
¶17. To prove that a business owner was negligent, “the plaintiff must show either (1) the
operator caused the dangerous condition, or (2) where a third person unconnected with the
store’s operation caused the condition, that the operator had actual or constructive knowledge
of the condition.” Almond v. Flying J Gas Co., 957 So. 2d 437, 439 (¶8) (Miss. Ct. App.
2007).
¶18. Parson asserts that the oil/mud/water substance on GK’s premises was a dangerous
condition and that he presented sufficient evidence that GK had constructive notice of the
substance on its property to avoid summary judgment in GK’s favor. Parson does not assert
that GK caused the substance to be on its premises; nor does Parson assert that GK had actual
notice of the substance on its premises.
¶19. In granting summary judgment in GK’s favor, the circuit court made no specific
finding whether Parson showed that the “oil/mud/water” substance on GK’s premises was
a “dangerous condition.” Rather, even assuming that the substance was a dangerous
condition, the circuit court found that “Parson has failed to offer sufficient evidence to
demonstrate constructive knowledge on the part of GK [of the substance on its premises].”
8
We agree and affirm summary judgment in GK’s favor on this basis.5
¶20. “Constructive knowledge is established where the condition is shown to have existed
for such a length of time that the operator, through the exercise of reasonable care, should
have known of . . . its existence.” Almond, 957 So. 2d at 439 (¶8). “In constructive-
knowledge cases, a plaintiff opposing summary judgment must produce admissible evidence
of the length of time that the hazard existed, and the court will indulge no presumptions to
compensate for any deficiencies in the plaintiff’s evidence as to the time period.” Cotton v.
Fred’s Stores of Tenn. Inc., 122 So. 3d 140, 143 (¶7) (Miss. Ct. App. 2013) (internal
quotation mark omitted). “The plaintiff must present specific proof as to the relevant actual
length of time.” Almond, 957 So. 2d at 439 (¶8).
¶21. Parson asserts that (1) his deposition testimony about the consistency of the substance
and (2) the deposition testimony of Martha Walt, his mother, that he had “gook” on his pants
after his fall, constitute sufficient proof of GK’s constructive notice to overcome summary
judgment. Parson relies on Evans v. Aydha, 189 So. 3d 1225 (Miss. Ct. App. 2016), in
support of his position. In Evans, Janet Evans slipped and fell on a “black spot” at JB’s
convenience store/gas station. 189 So. 3d at 1228 (¶8). In her deposition, Evans could not
5
In one sentence in the summary of the argument section of his brief, Parson asserts
that the “trial court erred in granting summary judgment in a situation where there was
spoliation of key evidence (namely, by Appellee owner conveniently claiming the outside
cameras did not work on the day of Appellant’s fall).” There is no citation to authorities
supporting this assertion or any other meaningful discussion about it in Parson’s briefs. We
therefore do not consider it. Price v. Clark, 21 So. 3d 509, 528 (¶50) (Miss. 2009) (court
will not consider arguments not briefed on appeal); Tupelo Redevelopment Agency v. Gray
Corp., 972 So. 2d 495, 517 (¶66) (Miss. 2007) (failure to cite authority in support of claims
of error precludes appellate review of those claims).
9
describe the spot or how long it had been there. Id. JB moved for summary judgment
arguing, among other grounds, that Evans could not show that JB had constructive notice of
the alleged hazardous condition. Id. at 1229 (¶11). In response, Evans offered the affidavit
of her daughter, Loyd, in which Loyd explained that she had gone to JB’s convenience
store/gas station after her mother’s fall and observed a black spot on the premises that she
described as “‘sludge,’ ‘dirty,’ and, in her judgment, at least a few days old.” Id. at 1230
(¶16). This Court held it was “satisfied that from the daughter’s description of the spot, a
reasonable inference can be made that it existed long enough to place JB’s on constructive
notice of its existence.” Id.
¶22. Parson argues that his deposition testimony “mirrored that of the daughter in Evans”
and therefore this Court should find that a reasonable inference can be made that GK had
constructive notice of the substance on its premises based upon his testimony coupled with
his mother’s description of the “gook” on his pants. We disagree. Based upon our de novo
review of the record and applicable precedent, we find that this evidence does not constitute
sufficient proof to create a genuine issue of fact that GK had constructive notice of the
substance on its premises, and therefore we affirm summary judgment in GK’s favor.
¶23. We find Cotton v. Fred’s, 122 So. 3d at 143 (¶8), instructive. In that case, Cotton
slipped on spilled liquid in a Fred’s store and contended that statements she made in her
deposition were sufficient evidence that Fred’s had constructive knowledge of the spill. Id.
In rejecting this argument, this Court observed the inconsistencies between Cotton’s
deposition testimony and other statements she made in her deposition and arguments she
10
made in opposing summary judgment or on appeal. For example, Cotton testified in her
deposition that the substance from the cooler “was spreading down the aisle,” but she also
testified “that it had already dried in certain parts, leaving behind a black residue.” Id. We
observed that “[t]he latter statement would support a finding that the spill had been there for
a longer period of time; whereas, the former statement supports a finding that the spill was
ongoing and much more recent.” Id. Cotton also argued “that the spill had been on the floor
so long that it was dirty because other customers had tracked dirt and debris though the spill,”
but in her deposition Cotton testified that “the substance was already dirty or black as it
leaked out from under the cooler.” Id.
¶24. This Court found that Cotton had failed to meet the constructive notice element of her
negligence claim, stating: “[Cotton’s] own inconsistent statements about the incident,
particularly the length of time the hazardous condition had been present, do not support a
finding that the summary-judgment motion should have been denied.” Id. In concluding our
opinion, we held that “the evidence submitted by Cotton [is] insufficient to create a genuine
issue of material fact . . . [because] Cotton did not provide any consistent evidence that
Fred’s had constructive knowledge of the hazardous condition before the incident occurred.”
Id. at 144 (¶10).
¶25. The same principle applies in this case. Parson’s deposition testimony about the
consistency of the substance, its location, and its size, is inconsistent with statements and
descriptions of the substance found in his complaint and sworn interrogatory responses, as
illustrated in the chart below:
11
Statement Consistency Location Size
May 5, 2015 “liquid substance” “located between the
Complaint gas pumps and the
“puddle of water, gas, front door [of the
oil[,] and/or greasy like store]”
substance”
“[T]he liquid substance
was located in the front
near the door.”
September “[T]he puddle was . . . “[T]he size of
24, 2015 some sort of motor oil due the puddle was
sworn to the rainbow effect of approximately 3
interrogatory the colors, and was very to 4 foot long
responses slick and thick.” and 2 feet
wide.”
May 3, 2016 “this listing [in the Location description in The substance
deposition complaint] as it [the the complaint was was about “10
substance] being a puddle “inaccurate.” to 12 inches
is incorrect;” “I wasn’t in wide, 3 or 4 foot
anything wet . . . when I “I would have to long.”
landed.” disagree with that
statement [in the
“[T]he oil, gasoline, complaint about the
whatever it was mixed in substance] being
with the dirt and whatever. between the gas pumps
Evidently, it was there and and the front door,
had been there for quite a because it wasn’t.”
while. It wasn't something
that had just been applied. The substance was
It had been there for a few located between two
days at least.” gas pumps, “on the
inner side of the front
The substance was pump,” and “down the
“caked” on Parson’s pants inside of [the] pump
after he fell. island.”
¶27. As the chart shows, Parson’s descriptions of the consistency of the substance varied
significantly throughout this litigation. In his complaint, Parson described the substance as
12
a “liquid substance” and a “puddle of water, gas, oil[,] and/or greasy like substance.”6 In his
deposition, taken two years after the incident, Parson contradicted these prior statements,
testifying that “[he] wasn’t in anything wet . . . when [he] landed,” and “the oil, gasoline,
whatever . . . 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’s description of the substance in his complaint would support
a recent spill. In comparison, his description of the substance in his deposition would
support a finding that the spill had been there for a longer period of time.7
¶28. As we found in Cotton, we likewise find here that “[Parson’s] own inconsistent
statements about the incident, particularly the length of time the hazardous condition had
been present, do not support a finding that the summary-judgment motion should have been
denied.” Cotton, 122 So. 3d at 143 (¶8). Parson’s failure to offer any consistent evidence
of the length of time the substance was on GK’s premises distinguishes this case from Evans
v. Aydha, where we found that the length of time the black spot had existed on JB’s premises
could be reasonably inferred from the description of this spot in the affidavit submitted by
6
In his sworn interrogatory responses, Parson described the substance as a “puddle”
of “some sort of motor oil” that was “very slick” and “thick.” We find that it cannot
reasonably be inferred from this description that the substance had been on the premises for
any appreciable length of time.
7
Parson’s statements about the location and size of the substance were also
inconsistent, ranging from a “liquid substance located in the front near the door [of the
store],” as stated in Parson’s complaint, to a substance between two gas pumps, “on the inner
side of the front pump,” and “down the inside of [the] pump island,” as Parson described in
his deposition. Parson’s description of the width of the substance varied from two feet wide,
as described in his interrogatory responses, to ten to twelve inches wide, as he described in
his deposition.
13
the plaintiff’s daughter, Loyd. Evans, 189 So. 3d at 1230 (¶16). The Court found that the
description of the black spot in Loyd’s affidavit was not inconsistent with other evidence of
record. Id. at 1228-29 (¶¶8-13). The plaintiff, Janet Evans, testified that she did not know
how long the black spot had been there, id. at 1228 (¶8), and the few pages from Loyd’s
deposition in the record did not establish that there were any inconsistencies between her
affidavit and her deposition testimony. Id. at 1229 (¶12). In this case, because Parson failed
to “provide any consistent evidence that [GK] had constructive knowledge of the hazardous
condition before the incident occurred,” Cotton, 122 So. 3d at 144 (¶10) (emphasis added),
Parson has failed to submit sufficient evidence to create a genuine issue of material fact on
this issue.
¶29. We recognize that “[c]ircumstantial evidence may be used to prove the length of time
a dangerous condition has existed.” Evans, 189 So. 3d at 1230 (¶16). The “circumstantial
evidence [, however,] must be such that it creates a legitimate inference that places it beyond
conjecture.” Herrington v. Leaf River Forest Prod. Inc., 733 So. 2d 774, 777 (¶8) (Miss.
1999). Parson’s inconsistent descriptions of the size, location, and, particularly, the
consistency of the substance in this case fail to “remove the case from the realm of conjecture
and place it within the field of legitimate inference” with respect to the time the substance
existed in the GK premises. Mississippi Valley Gas Co. v. Estate of Walker, 725 So. 2d 139,
145 (Miss. 1998) (explaining that circumstantial evidence “must be sufficient to make
plaintiff's asserted theory reasonably probable, not merely possible, and more probable than
any other theory based on such evidence”), overruled on other grounds by Adams v. U.S.
14
Homecrafters Inc., 744 So. 2d 736, 742-43 (¶¶18-21) (Miss. 1999); Walz v. HWCC-Tunica
Inc., 186 So. 3d 375, 378 (¶13) (Miss. Ct. App. 2016) (explaining that “circumstantial
evidence that still leaves many inferences available is not sufficient as proof for necessary
elements of a claim”).
¶30. We also find that Walt’s testimony that Parson had “gook” on his pants does not
constitute the “specific proof” of the actual length of time the substance was on the premises
that is required to show constructive notice on GK’s part. Almond, 957 So. 2d at 439 (¶8).
First, Walt’s observation was limited to what she saw on Parson’s pants. She did not observe
the actual substance on the ground:
Q. Did you have a chance to observe the substance your son fell in?
A. Uh, no, I didn’t.
Q. All right. So sitting here today, you can’t offer any testimony about the
substance?
A. That was on the ground, no, I can’t. I just saw it on his clothes.
¶31. Second, even with respect to her observations about the substance on Parson’s pants,
Walt testified that she remained sitting in the driver’s seat of her car when Parson came over
and showed her his pants. From this vantage point she observed that Parson had “gook all
over his . . . pants,” which she “assum[ed] . . . was oil because it was at a service station.”
Walt ultimately admitted in her deposition that “I can’t exactly tell you what it looked like
. . . . I didn’t get out of the car and investigate it.” Given these circumstances, we cannot
reasonably infer from Walt’s testimony the length of time that the substance existed on the
GK premises. See Evans, 189 So. 3d at 1230 (¶16) (explaining that circumstantial evidence
15
may be used to show constructive notice only if it “creates a legitimate inference that places
it beyond conjecture” on that issue).
¶32. Further, Stanley Gaines, the GK store owner, testified in his deposition that he had not
seen anything of concern on the premises when he walked the property earlier that morning
before Parson’s fall. Gaines also returned to the store about an hour after Parson’s fall and
testified that he did not see anything in the area where Parson had fallen. Store employees
Candy Clifton and Jo Ann Terry also testified that they looked on the ground where Parson
claimed he had fallen, and neither of them saw anything there.
¶33. In sum, based upon our de novo review of the record, we find that the evidence
submitted by Parson was insufficient to create a genuine issue of material fact as to whether
GK had constructive notice of the substance on its premises. We therefore affirm the circuit
court’s grant of summary judgment in GK’s favor.
¶34. AFFIRMED.
BARNES, C.J., J. WILSON, P.J., GREENLEE, WESTBROOKS, TINDELL,
LAWRENCE AND C. WILSON, JJ., CONCUR. McCARTY, J., DISSENTS WITH
SEPARATE WRITTEN OPINION. McDONALD, J., NOT PARTICIPATING.
McCARTY, J., DISSENTING:
¶35. Because I believe summary judgment was premature, I dissent. This case presents a
classic split in testimony, and only a jury can resolve it. We must remember that summary
judgment should not be used to decide cases that we think are weak or that we just do not
like. Instead, summary judgment is reserved exclusively for those cases where there is not
a genuine dispute about a material fact.
16
¶36. There are plenty of disputes in this case—not the least of which is that the plaintiff
has sworn he fell into some old gunk that made him slip. The fact that he fell was
uncontested. There is another witness who has sworn that he also had something all over his
pants. So we have two witnesses who have sworn to this fact. We also have a witness who
has sworn there was nothing there and one who has apparently never seen oil spilled on the
ground at a gas station. This type of testimony is standard in a trial.
¶37. This case is also almost exactly like one that this Court reversed just two years ago.
Evans v. Aydha, 189 So. 3d 1225, 1227 (¶1) (Miss. Ct. App. 2016). It also involved a fall,
a gas station, and an oily spot. Id. Critically, it also involved testimony that shifted over
time. Id. at 1229 (¶10). The Court explained that “[the gas station] also seems to argue that
[the plaintiff’s] testimony should be disregarded because she testified that she had been
looking where she was going, yet she did not see the black spot until after she fell.” Id.
¶38. Despite this issue of credibility, the Court ruled that “[t]his is, at best, a subject for
cross-examination.” Id. The following precedent quoted by Judge Fair, writing for the
majority, is directly applicable to this case:
“[E]ven when the statements [of the plaintiff] are conflicting it is a jury
question to determine which, in fact, is true.” Seymour v. Gulf Coast Buick
Inc., 246 Miss. 805, 809, 152 So. 2d 706, 708 (1963) (citations omitted).
“Contradictory statements by a witness go to the weight and credibility of that
[witness’s] testimony, not its sufficiency.” Jamison v. Barnes, 8 So. 3d 238,
245 (¶17) (Miss. Ct. App. 2008). “[A] summary judgment motion does not
place the trial court in the role of weighing testimony and determining the
credibility of witnesses.” Id.
Id. The majority here casts aside Evans, although it is directly on point, and trains its sights
on the integrity and weight of the plaintiff’s testimony—since testimonies differed a time or
17
three. The majority finds the testimony inconsistent and even makes a chart about the
changes.
¶39. This chart would be great for a jury to see in closing argument. It would also be
rocket fuel for a wild cross-examination. It is not just Evans in 2016 that stands for the
proposition that credibility of a witness is for a jury to resolve. Since before anyone in our
State was born, we have reserved questions about the credibility of a witness for a jury to
resolve. For “the credibility, weight, and effect of the testimony in the one case, and the
proper inferences and conclusions to be drawn from it on the other, belong exclusively to the
province of the jury.” Fortner v. Parham, 10 Miss. 151, 158 (2 S. & M. 1844). The way we
say it now is that “[t]he jury determines the weight and credibility to give witness testimony
and other evidence.” Gillett v. State, 56 So. 3d 469, 505 (¶102) (Miss. 2010).
¶40. It is simply not for a judge (or a panel of judges) to weigh a witness’s credibility.8
There is no rule that allows it, and the better route is the one we have ridden down since at
least 1844. A jury may ultimately believe the plaintiff in this case, or it may not. That is
nothing we should guess at with a cold record, at a preliminary stage, and without the aid of
a group of properly empaneled fact finders.
¶41. Nor is this “discovery abuse.” First off, that is not a ground for summary judgment.
8
Not long after our State’s founding, an early incarnation of our Supreme Court
rejected the idea that an appellate court could resolve a split in testimony on appeal:
“Unaccustomed as I am to determine facts, the weight of evidence, to decide upon the
credibility of apparently interested witnesses, and to reconcile inconsistencies, I cannot
undertake to pronounce a final decree, conclusive on the rights of the parties, with
satisfaction to myself, without the intervention of a jury.” Hoggatt v. Hunt, 1 Miss. 216,
217-18 (1 Walker 1826).
18
It is grounds for sanction under Mississippi Rule of Civil Procedure 37, although lesser
sanctions must be considered first. For instance, when a plaintiff lied about who witnessed
her injury during both her deposition and trial, the Supreme Court affirmed the “death
penalty” of dismissing her complaint because no lesser sanction would cure perjury. Pierce
v. Heritage Properties Inc., 688 So. 2d 1385, 1387 (Miss. 1997); accord Illinois Cent. Gulf
R. Co. v. McLain, 174 So. 3d 1279, 1281 (¶1) (Miss. 2015) (finding the plaintiff’s failed
attempt to get a witness to commit perjury could not be cured by a lesser sanction of $10,000
and requiring dismissal of case).
¶42. To say this was “discovery abuse” gives lawyers a reason to cry and squeal anytime
a witness’s testimony shifts and demand dismissal. The real way to deal with it is zealous
cross-examination. We permit wide-open cross in Mississippi, and all wide latitude to show
bias, motive, and attack credibility. 4 David Neil McCarty, Encyclopedia of Mississippi Law,
Evidence §33:57, at 832 (2016). This lets the jury determine what the real story is—and rule
as it sees fit in accord with our Constitution and Code.
¶43. To cast aside the plaintiff’s claims at summary judgment invades the province of the
jury and deprives a litigant of his day in court. Because I believe cases with facts in dispute
should be resolved by a jury, including this one, I respectfully dissent.
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