189 So. 3d 1225
Miss. Ct. App.2016Background
- Janet Evans slipped and fell while pumping gas at JB’s Convenience Store, striking her head on the pavement near a pump.
- Evans alleged she slipped on a black, oily spot on the concrete and sued the store owner/manager, Mosleh Aydha, for premises liability.
- The trial court granted summary judgment for the defendant, finding no evidence about what the spot was, how or when it got there, or whether the defendant knew or should have known about it.
- Evans relied on her deposition (she saw the black spot only after falling and could not identify its composition or age) and an affidavit from her daughter who visited the scene after the fall and described a black, oily, dirty residue that appeared to have been there for several days.
- The majority reversed the summary judgment, finding genuine issues of material fact based on reasonable inferences from the daughter’s affidavit and Evans’s testimony; the dissent would have affirmed, finding insufficient proof of constructive knowledge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Evans prove she slipped on a dangerous condition (causation)? | Evans: testimony indicates she slipped on a black spot at the pump. | Aydha: Evans admitted she didn’t know what she slipped on; testimony is unreliable. | Court: Viewed in favor of Evans — testimony can be reasonably interpreted to show she slipped on the black spot; factual credibility is for the jury. |
| Was the defendant charged with constructive knowledge of the spot (notice)? | Evans: daughter’s affidavit describing an old, oily, dirty spot permits inference it existed long enough to impute constructive knowledge. | Aydha: no proof how long the spot existed; Evans can’t identify substance or timing. | Court: Daughter’s affidavit and reasonable inferences create a genuine issue on constructive knowledge; summary judgment improper. |
| Is the daughter’s affidavit admissible or a sham that contradicts her deposition? | Evans: affidavit describes what daughter personally observed at the scene; no material contradiction in available deposition pages. | Aydha: affidavit conflicts with deposition and is a sham (timing/logistics implausible). | Court: No material contradiction shown; affidavit stands to create a factual dispute. |
| Could the spot described by the daughter be different or created after the fall? | Evans: vehicle still at pump and confined location make it reasonable to infer same spot; daughter’s more detailed observation plausible. | Aydha: daughter didn’t witness fall; spot might not be same or might have been created after. | Court: Reasonable inference that the spot was the same and preexisted the fall is sufficient to defeat summary judgment. |
Key Cases Cited
- Davis v. Hoss, 869 So.2d 397 (Miss. 2004) (standard of de novo review and summary-judgment principles)
- Buckel v. Chaney, 47 So.3d 148 (Miss. 2010) (circumstantial evidence must create reasonable inference to defeat summary judgment)
- Galloway v. Travelers Ins., 515 So.2d 678 (Miss. 1987) (party bearing burden must show essential elements at summary judgment)
- Herrington v. Leaf River Forest Prods., Inc., 733 So.2d 774 (Miss. 1999) (circumstantial evidence can establish duration of condition)
- Ducksworth v. Wal-Mart Stores Inc., 832 So.2d 1260 (Miss. Ct. App. 2002) (dirty appearance of a spill supports inference it existed some time)
- Moore v. Winn-Dixie Stores Inc., 173 So.2d 603 (Miss. 1965) (evidence that a banana peel was soiled supported inference it had been on floor awhile)
- Byrne v. Wal-Mart Stores Inc., 877 So.2d 462 (Miss. Ct. App. 2003) (mere proof of a fall without evidence of notice insufficient)
- Almond v. Flying J. Gas Co., 957 So.2d 437 (Miss. Ct. App. 2007) (plaintiff must present admissible evidence of how long a hazard existed to show constructive knowledge)