Lascola v. Barden Mississippi Gaming LLC , 349 F. App'x 878 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 5, 2009
No. 08-61029 Charles R. Fulbruge III
Summary Calendar Clerk
LAURA LASCOLA, Individually, and as Sole Heir and Next of Kin to Norma
Dale Massa, deceased
Plaintiff - Appellant
v.
BARDEN MISSISSIPPI GAMING LLC dba Fitzgeralds Casino Hotel-Tunica;
TUNICA COUNTY MISSISSIPPI; TUNICA COUNTY SHERIFF’S
DEPARTMENT, A division of Tunica County, MS
Defendants - Appellees
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 2:06-CV-080
Before KING, STEWART and HAYNES, Circuit Judges.
PER CURIAM:*
This appeal concerns the tragic disappearance and eventual death of
Norma Massa, a sixty-five year-old woman who suffered from dementia. Massa
disappeared during a trip with her assisted-living facility to Fitzgerald’s Casino
in Tunica, Mississippi. Her body was discovered approximately one year later
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-61029
in a wooded area some two miles from the casino. Laura Lascola, the daughter
and sole heir of Massa, brought suit against Barden Mississippi Gaming, LLC
d/b/a Fitzgerald’s Casino Hotel-Tunica (Fitzgerald’s) and Tunica County,
Mississippi (Tunica County).1 She asserted claims of negligence, gross
negligence, and intentional infliction of emotional distress against Fitzgerald’s.
Against Tunica County, Lascola alleged reckless disregard under the Mississippi
Tort Claims Act, intentional infliction of emotional distress, and violation of
Massa’s constitutional rights under 42 U.S.C. § 1983. The district court granted
summary judgment in favor of Fitzgerald’s and Tunica County. Lascola appeals
the denial of her reckless-disregard claim against Tunica County and her simple-
negligence and gross-negligence claims against Fitzgerald’s. For the following
reasons, we AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
Norma Massa resided at St. Peter Manor, an assisted-living facility in
Memphis, Tennessee, until her death. On December 13, 2004, Massa embarked
on a bus trip to Fitzgerald’s Casino in Tunica, Mississippi with seventeen other
residents. The bus arrived at Fitzgerald’s at approximately 11:00 a.m.
According to video surveillance from Fitzgerald’s security cameras, Massa left
the casino around 12:26 p.m. and wandered around the rear parking lot by
herself. The surveillance video shows a security vehicle owned by Fitzgerald’s
approaching Massa but, because of a glitch in the tape, it is unclear whether the
security guard spoke to her.2 At around 1:00 p.m., Massa walked toward the
1
Lascola initially sued several members of the Tunica County Sheriff’s Department in
their individual capacities. The district court dismissed her claims against those individuals,
and Lascola has not appealed that ruling. Lascola also named the Tunica County Sheriff’s
Department as a defendant. She conceded to the trial court that the Sheriff’s Department is
not a separate governmental entity, making Tunica County, Mississippi the proper defendant.
2
Eleven seconds of the security tape were omitted due to what defendant has
characterized as a recording error. Lascola’s expert was unable to find any basis to conclude
that the loss of the eleven seconds was intentional. Lascola has abandoned her argument that
2
No. 08-61029
Tunica River Park Museum and disappeared from the casino and surveillance
video.
At 3:30 p.m., the remaining St. Peter Manor residents boarded the bus to
return home. When Massa did not appear, the bus driver had the casino page
her. She did not respond. At 3:45 p.m., the bus departed for Memphis without
Massa. St. Peter Manor then notified Laura Lascola, Massa’s daughter, that
her mother had failed to board the bus or respond to the page. Lascola
immediately left her home in Memphis and drove to Tunica. Along the way,
Lascola called Fitzgerald’s security department to alert them that her mother
was missing and suffered from a form of dementia. Lascola also called the
Tunica County Sheriff’s Department and informed them of her mother’s
disappearance, her disability, and the fact that she had previously wandered
away from a fair only to reappear seven miles from her original location.
Lascola arrived at Fitzgerald’s at 5:00 p.m. and met with members of the
casino’s security team, as well as Katie Johnson, a deputy sheriff from the
Tunica County Sheriff’s Department. They searched Fitzgerald’s property for
Massa but did not locate her. Lascola asked the Sheriff’s Department to conduct
a full-scale search of the surrounding area using dogs and helicopters. Deputy
Sheriff Johnson declined to do so for twenty-four hours, incorrectly citing a
department policy regarding missing adults.3 A full-scale search was conducted
the following day at 1:00 p.m. Massa was not located. Another search was
Fitzgerald’s tampered with the security tape and that she is entitled to a spoliation inference.
On appeal, she argues instead that the gap in the recording demonstrates that the security
guard likely spoke with Massa and observed that she was disoriented and in need of
assistance.
3
The parties do not dispute that the Sheriff’s Department policy requiring twenty-four
hours to elapse before searching for a missing adult does not apply to individuals with a
mental disability. The policy states that if a person with a mental disability is reported
missing, a missing-persons report should be created and forwarded to the appropriate officials
at that time. The primary investigator, with the Sheriff’s approval, may then initiate a full-
scale search effort.
3
No. 08-61029
performed by the Sheriff’s Department on December 18, 2004, but without
success.4
On January 1, 2006, a hunter discovered Massa’s remains in a wooded
area approximately two miles from Fitzgerald’s.5 An autopsy was performed, but
the doctor was unable to determine the cause of death and indicated only that
Massa’s death was “unusual/suspicious.”
On May 4, 2006, Lascola, individually and as the sole heir and next of kin
to Norma Massa, filed suit against Fitzgerald’s and Tunica County in federal
district court. Lascola alleged that Fitzgerald’s was negligent and grossly
negligent by failing to assist Massa when she wandered into the casino parking
lot. Lascola argued that Tunica County recklessly disregarded Massa’s safety
by refusing to initiate an immediate full-scale search for Massa after she
disappeared. Lascola also asserted claims against Tunica County for deprivation
of Massa’s constitutional rights under 42 U.S.C. § 1983 and for intentional
infliction of emotional distress.
The defendants moved for summary judgment on all counts. The district
court found that no genuine issue of material fact remained on Lascola’s
negligence, other tort, and § 1983 claims and granted the defendants’ motions
for summary judgment. The district court also concluded that Lascola’s reckless-
disregard claim against Tunica County was barred by the statute of limitations.
4
In her deposition, Lascola stated that a woman that she believed was her mother
called and left a message several days after she disappeared. There is also evidence that
Massa may have boarded another bus to different area casinos and even traveled back to
Memphis at some point prior to her death. In reviewing the district court’s grant of summary
judgment, we do not rely on this evidence but note that it calls into question whether Massa
exhibited any visible signs of dementia or that any negligence by Fitzgerald’s or Tunica County
caused Massa’s death.
5
Because of the time that had elapsed since Massa’s disappearance, her body was not
easily identified. It was not until January 12, 2006, when Massa’s dental records were
processed, that the body located in the woods was positively identified as Massa’s.
4
No. 08-61029
Lascola now appeals only the district court’s grant of summary judgment
on her simple and gross-negligence claims against Fitzgerald’s and her reckless-
disregard claim against Tunica County.
II. STANDARD OF REVIEW
In reviewing the district court’s ruling in this diversity action, this court
applies Mississippi substantive law. Foradori v. Harris, 523 F.3d 477, 486 (5th
Cir. 2008) (citing Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)). We review a
grant of summary judgment de novo. N. Am. Specialty Ins. Co. v. Royal Surplus
Lines Ins. Co., 541 F.3d 552, 555 (5th Cir. 2008). Summary judgment is proper
“if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.” F ED. R. C IV. P. 56(c). A
genuine issue of material fact exists when the evidence is such that a reasonable
jury could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). When reviewing a grant of summary judgment, we
view all facts and evidence in the light most favorable to the non-moving party.
United Fire & Cas. Co. v. Hixson Bros., 453 F.3d 283, 285 (5th Cir. 2006).
However, to avoid summary judgment, the non-movant must go beyond the
pleadings and come forward with specific facts indicating a genuine issue for
trial. Piazza’s Seafood World, LLC v. Odom, 448 F.3d 744, 752 (5th Cir. 2006).
We may “affirm a grant of summary judgment on any grounds supported by the
record and presented to the court below.” Hernandez v. Velasquez, 522 F.3d 556,
560 (5th Cir. 2008).
III. DISCUSSION
On appeal, Lascola argues that we must reverse the grant of summary
judgment in favor of Fitzgerald’s and Tunica County. She contends that she
produced evidence sufficient to create a genuine issue of material fact about
whether Fitzgerald’s was negligent. She also argues that the district court erred
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No. 08-61029
in dismissing her claim for reckless disregard against Tunica County as barred
by the applicable statute of limitations.
A. Whether the district court erred by granting summary judgment
in favor of Fitzgerald’s
Lascola maintains that the district court erred by granting summary
judgment to Fitzgerald’s based on its finding that Lascola could not establish (1)
that Fitzgerald’s had knowledge of Massa’s dementia, or (2) that Fitzgerald’s
owed Massa a special duty of care because she was disabled and living in an
assisted-living facility. She claims that a genuine issue of material fact exists
about whether Fitzgerald’s owed Massa a duty of care as a premises owner and
breached that duty. She also alleges a separate general negligence claim—that
Fitzgerald’s is liable for the alleged breach of the security guard’s alleged duty
to assist confused people in the Fitzgerald’s parking lot.
1. Premises Liability
A premises owner has a duty of care to all people who come upon its land,
but Mississippi law creates a distinction in the standard of care owed to such
people based upon their status as either invitees, licensees, or trespassers.
Hudson v. Courtesy Motors, Inc., 794 So. 2d 999 (Miss. 2001); see also Massey v.
Tingle, 867 So. 2d 235, 239 (Miss. 2004) (noting that Mississippi premises-
liability law requires a determination of the legal status of the injured person,
the relevant duty of care, and the defendant’s compliance with that duty).
Because Fitzgerald’s invited the residents of St. Peter Manor to the casino,
Massa is properly considered an invitee. Corley v. Evans, 835 So. 2d 30, 37
(Miss. 2003) (“[A]n invitee is a person who goes upon the premises of another in
answer to the express or implied invitation of the owner or occupant for their
mutual advantage.”). A premises owner owes an invitee a duty to “keep the
premises reasonably safe, and when not reasonably safe, to warn only where
there is hidden danger or peril that is not in plain and open view.” Id. at 37-38;
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No. 08-61029
see Wood v. RIH Acquisitions MS II LLC, 556 F.3d 274, 275 (5th Cir. 2009)(“The
premises encountered by a business invitee must be reasonably safe, and when
they are not, the invitee is to be warned of perils that are not in plain view.”).
But a premises owner does not insure the safety of persons invited onto the
property. Pigg v. Express Hotel Partners, LLC, 991 So. 2d 1197, 1199 (Miss.
2008).
Lascola asserts that Fitzgerald’s had a duty to warn Massa of any hazards
existing on or around its property. She claims that, in this case, the security
guard had a duty to warn Massa about “the swollen river stage and upon which
the River Museum was located.” But neither the River Museum nor the wooded
area where Massa was found was located on Fitzgerald’s property. Lascola cites
no authority for the proposition that Fitzgerald’s had a duty to warn invitees of
hazardous conditions located on another’s property. See, e.g., Int’l Paper Co. v.
Townsend, 961 So.2d 741, 751 (Miss. Ct. App. 2007) (finding no duty to warn
invitee of a hazard that does not exist on the premises); Higginbotham v. Hill
Bros. Constr. Co., Inc., 962 So. 2d 46, 56-57 (Miss. Ct. App. 2006) (holding that
a premises owner has no duty to warn of or remedy dangerous condition that it
has no responsibility or control over).
Lascola further argues that Fitzgerald’s “failed to be proactive” and that
it had a duty to render assistance to Massa to prevent her from wandering off
and disappearing. While Mississippi law recognizes a duty of the premises
owner to render aid to an invitee injured on its premises, this duty arises only
when the premises owner learns of the invitee’s injury and only in the face of an
actual injury. See Spotlite Skating Rink, Inc. v. Barnes, 988 So. 2d 364, 369-70
(Miss. 2008). Lascola points to no Mississippi law imposing a general “duty to
be proactive” on a land owner. She cites no evidence showing that Massa was
injured on Fitzgerald’s premises. Thus, this is not a case of “failure to render
first aid.” Cf. Grisham v. John O. Long V.F.W. Post, No. 4057, Inc., 519 So. 2d
7No. 08-61029
413, 417 (Miss. 1988)(imposing a duty on a premises owner to aid a person “once
they learned she had been injured on [their] premises.”). The mere fact that
Massa was walking around the casino parking lot in cold weather does not
establish that Fitzgerald’s had the requisite knowledge of Massa’s condition to
trigger a duty to render assistance.6 Nor is her allegedly disoriented condition
an “injury” that occurred on Fitzgerald’s premises.7
Finally, Lascola claims that Fitzgerald’s had a duty not to subject Massa
to increased danger or hazard under Hoffman v. Planters Gin Co., 358 So. 2d
1008, 1013 (Miss. 1978). In Hoffman, a fourteen year-old boy accompanied his
father to work transporting cottonseed from the defendant company’s gin to an
oil mill. The boy, while assisting his father, slipped and fell into a revolving
auger, causing him to lose his leg. The Mississippi Supreme Court held that the
trial court erred in granting a peremptory instruction based on intentional or
wanton negligence. Id. at 1013. The court stated: “We think the premises owner
is liable for injury proximately caused by his affirmative or active negligence in
the operation or control of a business which subjects either licensee or invitee to
unusual danger, or increases the hazard to him, when his presence is known and
that the standard of ordinary and reasonable care has application.” Id. But
Lascola has not asserted a factual basis for her claim that Fitzgerald’s subjected
6
Lascola relies entirely on the fact that Tunica County was experiencing cold weather
on December 13, and the security tape does not reveal whether Massa was wearing a winter
coat at the time she disappeared. Fitzgerald’s introduced evidence that the mean temperature
on December 13, 2004 was 44 degrees Fahrenheit. Lascola does not dispute this evidence but
asserts that the cold temperature contributed to Massa’s disappearance and death. But
Lascola has presented no evidence that a temperature of 44 degrees Fahrenheit constitutes
a dangerous condition or that Massa’s presence outside without a winter coat put Fitzgerald’s
on notice that she was in distress.
7
According to Lascola, Fitzgerald’s had a duty to render aid to Massa that arose “when
Fitzgerald’s security guard became aware of Ms. Massa’s presence outdoors in the casino’s
restricted area under the unusually inclement weather conditions existing on December 13,
2004.” Walking around in cold weather is not an “injury.”
8
No. 08-61029
Massa to any danger—or increased danger—by inviting her to the casino.
Lascola has failed to point to a single act of affirmative negligence by
Fitzgerald’s that caused Massa’s death. See Newell v. S. Jitney Jungle Co., 830
So. 2d 621, 623 (Miss. 2002) (“[N]egligence which merely furnishes the condition
or occasion upon which injuries are received, but does not put in motion the
agency by or through which the injuries are inflicted, is not the proximate cause
thereof.”) (citation and quotations omitted). In sum, Lascola has not alleged a
factual basis from which we can conclude that Fitzgerald’s had a duty to warn
or render assistance to Massa.
2. General Negligence Based Upon Breach of a “Security Officer Duty of
Care”
To prevail on a negligence claim under Mississippi law, a plaintiff must
establish (1) duty, (2) breach of that duty, (3) causation, and (4) injury.
Patterson v. Liberty Assocs., L.P., 910 So. 2d 1014, 1019 (Miss. 2004); see also
Crain v. Cleveland Lodge 1532, Order of the Moose, Inc., 641 So. 2d 1186, 1189
(Miss. 1994) (holding that to demonstrate that the district court erred in
granting summary judgment, appellant must show a genuine issue of material
fact exists on each of these elements). Lascola suggests that security guards
have a special duty to “care for” casino patrons who live in assisted living. She
acknowledges that “[t]here is currently no law in Mississippi directly on point.”
Nonetheless, she argues for some generalized duty on security guards to “make
inquiry” of people wandering in the parking lot. We decline the apparent
invitation to create a new duty under Mississippi law.
Even if there were such a duty, Lascola failed to put forward any
competent evidence that the security guard knew or should have known that
Massa was experiencing an episode of disorientation.8 Instead Lascola relies on
8
In contrast, Fitzgerald’s has presented testimony from numerous witnesses that
Massa did not exhibit any abnormal symptoms on the day of her disappearance.
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No. 08-61029
the gap in the security tape to assert that the security guard spoke with Massa
and, during the eleven seconds of missing tape, learned that she suffered from
dementia. But Lascola has presented no witnesses or testimony to support her
claim that Massa was visibly disoriented, and the mere fact that Massa was not
wearing a winter coat outside 9 does not support such an inference. Neely v. N.
Miss. Med. Ctr., Inc., 996 So. 2d 726, 729 (Miss. 2008) (“It is elementary that the
plaintiff bears the burden of proving his claim and cannot simply rely on his or
her pleadings when responding to a motion for summary judgment.”); see also
Luvene v. Waldrup, 903 So.2d 745, 748 (Miss. 2005) (“The non-moving party’s
claim must be supported by more than a mere scintilla of colorable evidence; it
must be evidence upon which a fair-minded jury could return a favorable
verdict.”). Lascola has put forth no factual basis for her claim that Fitzgerald’s
security guard knew or should have known of Massa’s alleged state of distress.10
We conclude no special duty of care existed, and no competent evidence supports
a claim of breach of any such duty. We AFFIRM the district court’s summary
judgment in favor of Fitzgerald’s.11
9
The parties dispute whether the security tape shows Massa wearing a coat or
something less protective.
10
Lascola also asserts that the security guard failed to act as would a reasonable
person under the same or similar circumstances. Because we conclude that Lascola failed to
demonstrate that the security guard knew or should have known that Massa was disoriented
or disabled, we cannot say that the security guard acted unreasonably.
11
It is unclear whether Lascola intended to appeal the summary judgment on gross
negligence. In any event, there is no evidence in the record to support such a claim – that
Fitzgerald’s took actions that knowingly exposed Massa to injury. Absent such evidence,
Lascola cannot survive summary judgment on her gross-negligence claim. See, e.g., Moeller v.
Am. Guar. & Liab. Ins. Co., 707 So. 2d 1062, 1072 (Miss. 1996) (noting that a claim of gross
negligence requires a willful or malicious wrong).
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No. 08-61029
B. Whether the district court erred by granting summary judgment in
favor of Tunica County
Lascola contends that the district court erred in granting summary
judgment for Tunica County on the ground that the statute of limitations barred
her reckless-disregard claim. The district court based its ruling on Caves v.
Yarbrough, No. 2006-CA-01857, 2007 WL 3197504 (Miss. Nov. 1, 2007), which
held that the Mississippi Tort Claims Act (MTCA) did not contain a discovery
rule tolling the applicable statute of limitations. At the time the district court
made its decision, the Mississippi Supreme Court had granted rehearing of the
case. The Mississippi Supreme Court subsequently withdrew the earlier Caves
opinion as contrary to precedent and stare decisis. Caves v. Yarbrough, 991
So.2d 142 (Miss. 2008) (holding that the statute of limitations for claims brought
under the MTCA begins to run on the date that all elements of a tort exist and
recognizing a discovery rule for MTCA claims). On appeal, Tunica County
concedes that it misinterpreted the law but argues that the grant of summary
judgment should be affirmed because Lascola has failed to raise a genuine issue
of material fact on the merits of her reckless-disregard claim.12
Mississippi law provides:
A governmental entity and its employees acting within the course
and scope of their employment or duties shall not be liable for any
claim . . . arising out of any act or omission of an employee of a
governmental entity engaged in the performance or execution of
duties or activities relating to police or fire protection unless the
employee acted in reckless disregard of the safety and well-being of
any person not engaged in criminal activity at the time of the injury
...
12
Tunica County also asserts that Lascola waived her argument that the ninety-day
tolling provision of the MTCA applies to her claim. This is not so. Lascola presented the
argument to the district court and it was rejected based on the improper application of Caves.
Lascola properly raised the issue on appeal by asserting that the discovery rule tolls the
statute of limitations until Massa’s remains were discovered. Therefore, her reckless-
disregard claim is properly before this court.
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No. 08-61029
Miss. Code Ann. § 11-46-9(1)(c).
The parties agree that Deputy Johnson was lawfully engaged in the
performance of her duties as a law enforcement officer when she incorrectly
stated that Tunica County policy required twenty-four hours to elapse before a
full-scale search could be conducted. The parties also agree that Massa was not
engaged in criminal activity at the time of her injury. Thus, the only issue is
whether Deputy Johnson acted with reckless disregard.
The Mississippi Supreme Court has defined reckless disregard as “willful
or wanton conduct which requires knowingly and intentionally doing a thing or
wrongful act.” Turner v. City of Ruleville, 735 So. 2d 226, 230 (Miss. 1999).
Reckless disregard is generally “accompanied by a conscious indifference to
consequences, amounting almost to a willingness that harm should follow.” Maye
v. Pearl River County, 758 So. 2d 391, 394 (Miss. 1999). In assessing whether
a law enforcement officer acted with reckless disregard, this court must examine
the totality of the circumstances, judging the officer’s conduct by an objective
standard. Phillips v. Miss. Dep’t of Pub. Safety, 978 So. 2d 656, 661 (Miss. 2008).
Lascola asserts that Tunica County, through Deputy Johnson, acted with
reckless disregard to Massa’s well-being because Deputy Johnson failed to
conduct a full-scale search for Massa within twenty-four hours of her
disappearance in violation of Department policy. Lascola asserts that Deputy
Johnson was aware of Massa’s dementia and that she had wandered off before,
placing her at risk of injury. According to Lascola, these facts are sufficient to
create a genuine issue of material fact on her reckless-disregard claim.
But Lascola does not dispute Deputy Johnson’s sworn testimony that she
conducted an initial search of the area surrounding Fitzgerald’s immediately
after speaking with Lascola, issued a Be On the Look Out (BOLO) notice for an
individual matching Massa’s description, and drafted a police report. Tunica
County admits that Sheriff’s Department policy requires law enforcement to
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No. 08-61029
conduct a full-scale search for missing adults with mental disabilities and
acknowledges that Deputy Johnson incorrectly cited the general rule requiring
twenty-four hours to lapse before searching for a missing adult. But Deputy
Johnson’s failure to request a canine unit and the assistance of helicopters does
not amount to knowingly or intentionally doing a wrongful act. There is a
distinction between disregarding the department policy and disregarding the
risk to an individual. The evidence in the record shows that Deputy Johnson did
not disregard a known risk to Massa or act with indifference to the
consequences. Indeed, she took action to locate Massa and assist Lascola in her
efforts to do the same. Lascola’s allegations, taken in a light most favorable to
her, establish that Deputy Johnson may have been negligent in failing to
conduct a full-scale search but do not support a claim for reckless disregard. See,
e.g., City of Greenville v. Jones, 925 So. 2d 106, 118 (Miss. 2006) (finding that
inadequate investigation of bomb threat suspect or failure to take certain actions
during the course of an investigation amounts to a negligence claim, not reckless
disregard).
We conclude that no reasonable juror could find that Tunica County acted
with reckless disregard to Massa’s safety. Therefore, the district court did not
err in granting summary judgment on this claim.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment to Fitzgerald’s and Tunica County on Lascola’s negligence
and reckless-disregard claims.
AFFIRMED.
13