309 So.3d 16
Miss. Ct. App.2020Background
- On June 4, 2014, Pete Walker (age 71) fell while attempting to sit on a bar‑height chair in a C Spire (Cellular South) store and alleged injury from the chair slipping.
- A store employee completed an incident report the same day after reviewing store surveillance video; the video was automatically recorded over three weeks later.
- Walker sued for premises liability (claiming unsafe seating/insufficient traction), disclosed expert Russell Kendzior (measured coefficients of friction and relied on ASTM walking‑surface standards), and Defendant disclosed expert Dan Roig.
- Cellular South moved to exclude Kendzior under M.R.E. 702 and moved for summary judgment; Walker moved for spoliation sanctions for failure to preserve the surveillance video.
- The trial court excluded Kendzior’s opinions (finding ASTM walking‑surface COF standards inapplicable to chair‑foot vs. floor interaction), denied sanctions, and granted summary judgment for Cellular South; Walker’s post‑judgment motion was denied.
- The Court of Appeals affirmed: Kendzior’s opinions were irrelevant under Rule 702, Walker lacked evidence of a dangerous condition or notice, and spoliation sanctions were not warranted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of expert testimony under M.R.E. 702 / Daubert | Kendzior was qualified; his COF testing showed inadequate traction and would assist the jury | Kendzior relied on walking‑surface standards not intended for chair‑foot/floor interaction; methodology unreliable/applicable | Excluded: standards were inapplicable; testimony would not assist the trier of fact (no abuse of discretion) |
| Existence of a "dangerous condition" for premises liability | Floor/ chair interaction was slippery (Kendzior’s COF results); failure to test/ warn shows negligence | No evidence of hazardous condition apart from plaintiff’s fall; floor dry, no debris, no prior similar incidents | Summary judgment: plaintiff failed to prove a dangerous condition once expert excluded; no genuine issue of material fact |
| Notice (actual or constructive) of dangerous condition | Failure to measure COF and remove chairs gave rise to constructive/actual notice | No prior incidents, no reports, immediate incident report but no follow‑up; no notice or reason to expect hazard | Held against plaintiff: no evidence of actual or constructive notice; theories fail |
| Spoliation sanction for recorded‑over surveillance video | Video was integral; loss warrants negative‑inference jury instruction or denial of summary judgment | Video was overwritten per routine retention policy before claim asserted; not grossly negligent or intentional; video not outcome‑determinative | Denied: pretrial negative‑inference premature; loss not shown to be intentional/grossly negligent and video would not have prevented summary judgment |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (U.S. 1993) (framework for admissibility of expert testimony)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (U.S. 1999) (Daubert principles apply to all expert testimony)
- Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31 (Miss. 2003) (Mississippi adopted Daubert/Kumho analytical framework)
- Haggard v. Wal‑Mart Stores Inc., 75 So. 3d 1120 (Miss. Ct. App. 2011) (three‑step premises‑liability analysis)
- Anderson v. B. H. Acquisition Inc., 771 So. 2d 914 (Miss. 2000) (duty owed invitees to keep premises reasonably safe or warn)
- DeLaughter v. Lawrence County Hosp., 601 So. 2d 818 (Miss. 1992) (lost medical records can support adverse inference where record was integral)
- Thomas v. Isle of Capri Casino, 781 So. 2d 125 (Miss. 2001) (spoliation may yield adverse inference where lost evidence was conclusive and mishandling was grossly negligent)
- Page v. Biloxi Reg’l Med. Ctr., 91 So. 3d 642 (Miss. Ct. App. 2012) (lost physical evidence irrelevant when it would not have prevented summary judgment)