121 So. 3d 962
Miss. Ct. App.2013Background
- Luster, an invitee, fell on Mardi Gras property (Casino Magic) in 1997; death later occurred but not from the incident.
- Original action filed 1998 and dismissed in 2009; estate administrator Gusman later pursued a new claim.
- Complaint filed May 14, 2009 on behalf of Luster’s estate alleging a dangerous condition not open and obvious.
- Mardi Gras moved for summary judgment in 2011, arguing no evidence of a dangerous condition or notice.
- Gusman supplied photographs/notations in 2012 to show a dangerous condition, but they were not authenticated.
- Court granted summary judgment; photographs not admitted as evidence and notations deemed hearsay; appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Premises-liability: whether genuine issues exist on a dangerous condition and owner’s knowledge | Gusman argues evidence shows a dangerous condition and owner knew or should have knowledge. | Mardi Gras contends no evidence of a dangerous condition or notice; Luster’s deposition contradicts a condition-caused fall. | No genuine issue; lack of evidence of danger or notice; judgment for Mardi Gras affirmed. |
| Admissibility of photographs and notations showing the condition | Photographs/notations should be admitted to create a factual dispute. | Not properly authenticated/not admissible as hearsay. | Not admissible; photographs not authenticated; notations hearsay; issue resolved against Gusman. |
| Rule 56(f) request for additional time to obtain affidavits | Gusman needed time to procure authenticity affidavits for the photos/notations. | Gusman had sufficient time; discovery period elapsed without affidavits. | No error; 56(f) request properly denied; issue without merit. |
Key Cases Cited
- Almond v. Flying J Gas Co., 957 So.2d 437 (Miss.Ct.App.2007) (premises-liability proof focuses on negligence, not injury)
- Sutherland v. Estate of Ritter, 959 So.2d 1004 (Miss.2007) (de novo review of summary-judgment rulings)
- Thompson v. Chick-Fil-A, Inc., 923 So.2d 1049 (Miss.Ct.App.2006) (premises liability status and duty elements for invitees)
- Anderson v. B.H. Acquisition, Inc., 771 So.2d 914 (Miss.2000) (negligence proof elements for premises-liability)
- Ford v. State, 975 So.2d 859 (Miss.2008) (authentication requirement for photographs)
- Smith v. State, 792 So.2d 343 (Miss.Ct.App.2001) (photograph authentication considerations)
- Mississippi Transp. Comm’n v. McLemore, 863 So.2d 31 (Miss.2003) (standard for reviewing evidentiary rulings)
- Thompson v. Chick-Fil-A, Inc., 923 So.2d 1049 (Miss.Ct.App.2006) ((duplicate entry))