232 So.3d 748
Miss. Ct. App.2017Background
- On Sept. 16, 2013, Richard Coll slipped and fell while exiting a Coca‑Cola pallet display in a Biloxi Wal‑Mart and fractured his hip; a display sign was found on the floor nearby.
- Coll testified he did not see anything on the floor when he entered the display and was unsure what caused the fall but believed it was the sign.
- Stephen Irby, a Coca‑Cola merchandiser who built/restocked the display, testified Coll accidentally kicked the sign as he exited and did not slip on the sign; Irby continued restocking after the fall.
- Two Wal‑Mart employees who arrived after the fall reported the display corner had no drinks on it; an assistant manager photographed the area ~30 minutes later but pictures were not probative at trial.
- Wal‑Mart moved for summary judgment arguing it had no role in constructing the Coca‑Cola display and had no actual or constructive notice of any hazardous condition; the trial court granted summary judgment for Wal‑Mart.
- The Court of Appeals affirmed, finding no evidence Wal‑Mart was negligent or had actual/constructive knowledge of the condition that caused Coll’s fall.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Wal‑Mart negligent in creating/maintaining the display? | Coll: display was defectively designed and caused the fall (relying on Hardy). | Wal‑Mart: Coca‑Cola employee designed/buildt and maintained the display; Wal‑Mart had no role. | No genuine issue of fact; Coll did not show Wal‑Mart created the condition. |
| Did Wal‑Mart have actual knowledge of the dangerous condition? | Coll: sign was on floor after he fell; Wal‑Mart employees knew dangers associated with the display. | Wal‑Mart: no employee saw or reported the sign before the fall; Irby (Coca‑Cola) testified the sign fell when Coll exited. | No evidence any Wal‑Mart employee knew the sign had fallen. |
| Did Wal‑Mart have constructive notice (condition existed long enough for Wal‑Mart to discover it)? | Coll: argued Wal‑Mart should have known of risks from the display. | Wal‑Mart: fall and Coll’s arrival occurred within seconds; no time for employees to discover condition. | DVD showed 17 seconds between entry and fall; no constructive notice. |
| Does Hardy v. K‑Mart control to impose store liability for display design? | Coll: Hardy decisions support liability where display instability caused harm. | Wal‑Mart: Hardy is distinguishable — there store manager controlled display; here Coca‑Cola controlled display. | Hardy is distinguishable; summary judgment nonetheless proper for Wal‑Mart. |
Key Cases Cited
- Hardy ex rel. Hardy v. K Mart Corp., 669 So. 2d 34 (Miss. 1996) (discussed negligent display causing customer injury)
- Hardy ex rel. Hardy v. K Mart Corp., 735 So. 2d 975 (Miss. 1999) (affirming jury verdict finding store negligent for unstable display)
- Galloway v. Travelers Ins., 515 So. 2d 678 (Miss. 1987) (summary judgment rule where plaintiff bears burden of proof)