135 So. 3d 932
Miss. Ct. App.2014Background
- On March 24, 2007 Karen Garson rented a room at Gold Strike Casino Resort and struck her right ankle on a portion of a metal bed frame protruding but concealed by the bedspread.
- Karen reported the injury to hotel staff; employees photographed her ankle and the bed and maintenance repositioned the bed. She did not seek same-day medical care.
- She later was diagnosed with a fractured tibia or fibula, received a cast, a boot, and physical therapy, and alleges continuing pain and swelling.
- The Garsons sued Circus Circus (Gold Strike) for negligence (premises liability) and loss of consortium; they responded to defendant discovery but did not propound discovery themselves or designate a liability expert.
- Circus Circus moved for summary judgment, arguing plaintiffs lacked evidence of a hazardous condition or the defendant’s knowledge/causation; the circuit court granted summary judgment and this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a dangerous condition (bed frame) existed | Garson’s deposition and interrogatory answers describe a hidden protruding bed frame that caused the injury | No competent evidence showing the bed was a dangerous condition | Court: Plaintiff’s testimony/affidavit insufficient to establish a dangerous condition |
| Whether defendant caused or knew (actual/constructive) of condition | Implicit: condition was present and caused injury; defendant had opportunity to know | No evidence that Gold Strike created, knew of, or had constructive notice of the bed defect | Court: No proof of causation or actual/constructive knowledge; plaintiffs failed burden |
| Whether plaintiff’s testimony/affidavit can defeat summary judgment | Testimony and affidavit should create genuine issue of material fact | Defendant: testimony/affidavit are conclusory/self-serving and insufficient without corroboration | Court: Affidavit reiterates deposition and is insufficient under summary-judgment standards |
| Whether failure to conduct discovery or produce expert evidence bars claim | Plaintiffs contend their existing sworn statements suffice | Defendant notes plaintiffs had ample discovery opportunity and produced no additional proof or expert support | Court: Plaintiffs had opportunity but did not produce necessary evidence; summary judgment proper |
Key Cases Cited
- Estate of Luster ex rel. Gusman v. Mardi Gras Casino Corp., 121 So.3d 962 (Miss. Ct. App. 2013) (premises-liability proof requirements)
- Sutherland v. Estate of Ritter, 959 So.2d 1004 (Miss. 2007) (de novo review of summary judgment)
- Karpinsky v. American Nat'l Ins. Co., 109 So.3d 84 (Miss. 2013) (burden of production at summary-judgment stage)
- Stanley v. Boyd Tunica Inc., 29 So.3d 95 (Miss. Ct. App. 2010) (elements of premises-liability claim)
- Byrne v. Wal-Mart Stores Inc., 877 So.2d 462 (Miss. Ct. App. 2003) (premises-liability framework)
- Delmont v. Harrison Cnty. Sch. Dist., 944 So.2d 131 (Miss. Ct. App. 2006) (dangerous condition required for liability)
- Almond v. Flying J Gas Co., 957 So.2d 437 (Miss. Ct. App. 2007) (injury alone insufficient for premises liability)
- Sweet v. TCI MS, Inc., 47 So.3d 89 (Miss. 2010) (requirements for competent affidavits at summary judgment)