171 So. 3d 518
Miss. Ct. App.2014Background
- On July 9, 2011, Peggy Trull (age 70) tripped and fell exiting Riverwalk Casino at the threshold where casino carpeting met tile; a mat was nearby.
- Trull sued Riverwalk alleging the mat was buckled and/or the threshold created a dangerous condition that caused her fall.
- Surveillance video showed the mat lying flat and Trull tripping near the threshold; Trull abandoned the mat theory and alleged the threshold was dangerous.
- Riverwalk designated Dr. Jerry Householder, a professional engineer, who inspected the threshold and attested it measured 0.25" high by ~1.25–1.5" wide and complied with ADA standards.
- Trull did not designate an expert; records showed Trull had used the same entrance many times (player card showed 134 visits) without incident.
- The Warren County Circuit Court granted Riverwalk summary judgment; Trull appealed and the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the threshold or mat constituted a "dangerous condition" causing the fall | Threshold (and initially mat) created a hazardous deviation; threshold was a "concealed danger" | Surveillance and expert evidence show mat was flat; threshold dimensions are slight and compliant with ADA, not dangerous | No genuine issue of material fact that a dangerous condition existed; summary judgment for Riverwalk affirmed |
| Whether Riverwalk had actual or constructive knowledge (or created) the alleged dangerous condition | Riverwalk should be liable if condition existed causing fall | No evidence Riverwalk knew of or created any hazardous condition; many patrons crossed without incident | Plaintiff failed to show actual or constructive knowledge or creation by defendant; summary judgment proper |
| Sufficiency of plaintiff's evidence to survive summary judgment | Plaintiff’s testimony and occurrence are sufficient to create triable issue | Plaintiff’s testimony alone insufficient; must produce probative evidence (expert or other) | Plaintiff’s unsupported assertions insufficient under M.R.C.P. 56(e); summary judgment affirmed |
| Applicability of precedent that slight variations do not create liability | Threshold is a deviation from normal, therefore distinguishable | Precedent holds slight height/variation (even up to 1.75") not dangerous; similar here | Court applied precedent; slight threshold variation not a dangerous condition in absence of additional proof |
Key Cases Cited
- Copiah County v. Oliver, 51 So. 3d 205 (Miss. 2011) (standard of review for summary judgment is de novo)
- Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So. 2d 790 (Miss. 1995) (summary-judgment standard under M.R.C.P. 56)
- Munford, Inc. v. Fleming, 597 So. 2d 1282 (Miss. 1992) (plaintiff must show proprietor’s actual or constructive knowledge or proprietor’s creation of dangerous condition)
- McGovern v. Scarborough, 566 So. 2d 1225 (Miss. 1990) (slight threshold elevation not a dangerous condition)
- Rowe v. City of Winona, 159 So. 2d 282 (Miss. 1964) (irregularity in sidewalk that caught shoe heel not a dangerous condition)
- Bond v. City of Long Beach, 908 So. 2d 879 (Miss. Ct. App. 2005) (one-inch sidewalk variation not a dangerous condition)
- Penton v. Boss Hoggs Catfish Cabin LLC, 42 So. 3d 1208 (Miss. Ct. App. 2010) (accident alone insufficient to show dangerous condition; regular prior use without incident negates claim)