CLINTON HEALTHCARE, LLC v. MARY MAC ATKINSON
NO. 2017-IA-00946-SCT
IN THE SUPREME COURT OF MISSISSIPPI
01/10/2019
DATE OF JUDGMENT: 06/20/2017
HON. LARITA M. COOPER-STOKES
TRIAL COURT ATTORNEYS: WARREN LOUIS MARTIN, JR. KELLY HOLLINGSWORTH STRINGER S. MARK WANN JASON RICHARD BUSH JOSEPH SPENCER YOUNG, JR.
COURT FROM WHICH APPEALED: HINDS COUNTY COUNTY COURT
ATTORNEYS FOR APPELLANT: KELLY HOLLINGSWORTH STRINGER S. MARK WANN
ATTORNEY FOR APPELLEE: WARREN LOUIS MARTIN, JR.
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART, AND REMANDED - 01/10/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
KING, JUSTICE, FOR
¶1. Mary Mac Atkinson alleges that she slipped on a liquid substance at Clinton Healthcare and injured her knee as a result. After the parties conducted significant amounts of discovery, Atkinson moved for a spoliation determination, requesting a spoliation jury instruction regarding a missing video, and moved for partial summary judgment as to liability; and Clinton Healthcare moved for summary judgment. The trial court granted the motion for spoliation, granted Atkinson‘s motion for partial summary judgment, and denied Clintоn Healthcare‘s motion for summary judgment. Because genuine issues of material fact exist, the trial court erred by granting Atkinson‘s motion for partial summary judgment, and correctly denied Clinton Healthcare‘s motion for summary judgment. Additionally, the trial court‘s order regarding spoliation and the entitlement to a spoliation jury instruction was premature. Therefore, this Court affirms the trial court‘s judgment in part, reverses it in part, vacates the spoliation order, and remands the case for furthеr proceedings.
FACTS AND PROCEDURAL HISTORY
¶2. Atkinson was visiting her mother in the nursing home facility at Clinton Healthcare on December 24, 2015. At about 10:55 a.m., Atkinson fell in the hallway of Clinton Healthcare. Clinton Healthcare contracted with Felder Services (Felder) for its housekeeping and janitorial services.1 Several employees of both Clinton Healthcare and Felder were in the vicinity of Atkinson‘s fall and responded.
¶3. Atkinson testified in her deposition that some dampness was underneath her after she fell, but that she was not sure what the substance was. She did not know how long the substance had been on the floor or how it got there. Betty Thomas, a housekeeper working at Clinton Healthcare through Felder, testified in her deposition that she saw Atkinson fall. She stated that she put a sheet under Atkinson and noticed a clear liquid that she assumed
Shedrick Jordan, then an employee of Felder working at Clinton Healthcare as a floor tech, sаw Atkinson fall out of the “corner of his eye.” He did not approach her after the fall, because several others were attending her. He testified that nothing wet was on the floor. He stated that the shower room door was approximately ten feet from where Atkinson fell. He also testified that a “wet floor” sign was out, despite testifying that the floor was not wet.
¶4. Fears testified that she reviewed video of the North Hall where the fall occurred, but that the fall was not visible on any video. Terrell also testified that she viewed a video with the administrator and that the video did not show Atkinson‘s fall. Dannie Barlow, the Administrator at Clinton Healthcare, testified that he was out of town the day Atkinson‘s fall occurred. He was unsure of the date he returned to work, but believed it to be January 1, 2016, or after. Barlow viewed the North Hall video, queuing it from the time Fears informed him the fall occurred. Barlow testified that the video did not show the area of the fall, but it did show McGee walking towаrd that area to provide Atkinson aid. Clinton Healthcare‘s video surveillance automatically erased once storage was full, after approximately ten days.2 Clinton Healthcare received the summons in this case on January 21, 2016. During discovery, Atkinson requested video “which shows any part of the evidence leading up to, during, or after the accident at issue,” as well as video showing the floors before, during, or after Atkinson‘s fall. Clinton Healthcare did not preserve thе video after
fall from Fears. Fears denied her request.
¶5. Atkinson filed a motion for spoliation of evidence and a request for the spoliation inference regarding the video. She also filed a motion for partial summary judgment as to liability. Clinton Healthcare also filed a motion for summary judgment. The trial court granted Atkinsоn‘s motion for spoliation and found that “the appropriate inference instruction shall be submitted at the trial,” denied Clinton Healthcare‘s motion for summary judgment, and granted Atkinson‘s motion for partial summary judgment as to liability. A panel of this Court granted Clinton Healthcare permission to bring this interlocutory appeal. See
ANALYSIS
1. Preliminary Issues
¶6. Atkinson argues that this appeal violates
¶7. In its reply brief, Clinton Healthcare takes issue with the fact that Atkinson‘s appellee‘s brief was due on Thursday April 26, 2018, but was not filed until Monday April 30, 2018. Clinton Healthcare states that, because the brief was untimely, it should not be considered by this Court. First, Clinton Healthcare does not cite any authority for the proposition that this Court should not consider Atkinson‘s brief because it is untimely, thus this Court need not consider the argument. See
2. Motions for Summary Judgment
¶8. This Court rеviews grants and denials of motions for summary judgment de novo. Hardy ex rel. Hardy v. K Mart Corp., 669 So. 2d 34, 37 (Miss. 1996). The Court views the evidence in the light most favorable to the nonmoving party. Id. Summary judgment should only be granted when no genuine issue exists as to any material fact such that the moving party is entitled to a judgment as a matter of law.
where there is more than one reasonable interpretation of undisputed testimony, where materially different but reasonable inferences may be drawn from uncontradicted evidentiary facts, or when the purported establishment of the facts has been sufficiently incomplete or inadequate that the trial judge cannot say
with reasonable confidence that the full facts of the matter have been disclosed.
Id. at 304-05.
¶9. In a negligence action, the plaintiff must show duty, breach, causation, and damages.
Hardy, 669 So. 2d at 37-38. A business owner owes a duty to an invitee3 to keep its premises in a reasonably safe condition and to warn the invitee of dangerous conditions that are not readily apparent. Drennan v. Kroger Co., 672 So. 2d 1168, 1170 (Miss. 1996). However, “[n]o proof of the operator‘s knowledge of the condition is necessary where the condition is created by his negligence or the negligence of someone under his authority.” Id. Otherwise, the plaintiff must prove actual or constructive knowledge. Id.
¶10. Atkinson relies on the theory that Clinton Healthcare negligently created the condition by showering residents in wheelchairs and leaving standing water outside the shower room door, thus she need not show knowledge of the condition. She does not make any argument of consequence that Clinton Healthcare had actual or constructive knowledge of the substance‘s presence. Clinton Healthcare argues that Atkinson did not meet her burden, claiming that “no evidence” exists regarding what the substance was or how it came to be present on the floor. It concedes for purposes of summary judgment only that a substance was on the floor.
¶11. In examining Clinton Healthcare‘s motion for summary judgment, all evidence must be viewed in the light most favorable to Atkinson. Atkinson need not definitively prove what the substance on the floor was, as Clinton Healthcare argues. Such a holding would lead to absurd results, practically requiring a potential plaintiff to take a sampling of the substance and have it analyzed. Moreover, testimony exists that the substance was clear, and that it was likely water. Clinton Healthcare also alleges that Atkinson provides no evidence regarding
how the substance got on the floor. However, testimony existed that at least one resident was showered shortly before the fall, that the fall occurred in front of or very near to the shower room door, and that water may drip from wheelchairs after the showеrs. In Mumford, Inc. v. Fleming, Fleming slipped on a puddle of water that had leaked from a bottle of water. Mumford, Inc. v. Fleming, 597 So. 2d 1282, 1283 (Miss. 1992). An employee testified that she customarily adjusted the bottles on the shelves, and that several customers had been in the store between the last time she checked the aisle and the time of the accident. Id. She denied ever having handled the bottles in a way that would open them. Id. at 1285. The trial court denied Mumford‘s motion for a judgment notwithstanding the verdict, which claimed that the evidencе was insufficient to show that Mumford breached a duty to Fleming. Id. at 1283. This Court reversed the denial as to Mumford‘s actual or constructive knowledge, but upheld it on the issue of whether the puddle was created by Mumford‘s negligent acts. Id. at 1284-85. The Court noted that, based on the employee‘s testimony, “the jury could have found one of the customers caused the bottle to leak, [but] it was also possible that the jury-having heard Ford-Cuevas‘s testimony and viewed her credibility-found she either failed to see thе puddle or she adjusted the water bottles and accidentally caused one of them to leak.” Id. at 1285. It noted that
been cut or gouged and that the store‘s employees unpacked boxes of merchandise using case cutters. Id. at 737. It also showed that, shortly before the fall, several children had run out of the store with loose pasta in their hands. Id. The Court found that, considering this evidence and the reasonable inferences that flow from it, the trial court properly submitted the issue of liability to the jury because the children causing the spill and the employees causing the spill were both reasonable interpretations of the evidence. Id.
¶12. Atkinson need not definitively prove the exact identity of the substance or how it came to be on the floor.4 Negligence “may be found from circumstantial evidence of adequate probative value.” Id. at 736. “[T]he plaintiff may prove circumstances from which the jury might conclude reasonably that the condition of the floor was one which was traceable to the proprietor‘s own act or omission, in which no proof of notice is necessary[.]” Id. Juries may reasonably infer the existence of one fact from the existencе of another fact or set of facts. Id. “Verdicts may rest upon reasonable probabilities.” Id. When viewing the evidence in the light most favorable to Atkinson, Atkinson produced evidence that residents in wheelchairs were showered shortly before her fall, that standing water was in front of the shower room door, that she slipped in front of the shower room door, and that no drying mechanism other than towels was used for drying residents after showers. For the purposes of summary judgment and viewing the evidence and its inferences in the light most favorablе to Atkinson, Atkinson produced sufficient evidence such that a jury could infer that Clinton Healthcare created the situation by failing to properly dry residents and/or their wheelchairs
after showering them. Atkinson “should be given the benefit of every reasonable doubt.” Renner v. Retzer Resources, Inc., 236 So. 3d 810, 815 (Miss. 2017). When doubt is present about whether any genuine issues of material fact exist, the trial court should deny the motion for summary judgment and permit a full trial. Id. That is exactly what the trial court did here. Therefore, the trial court did not err by denying Clinton Healthcare‘s motion for summary judgment.
¶13. When reviewing the trial court‘s grant of summary judgment on liability in favor of Atkinson, this Court reviews the evidence in the light most favorable to Clinton Healthcare. While several witnesses testified that a substance was on the floor where Atkinson fell, two witnesses testified that no substance was on the floor where Atkinson fell. “Issues of fact sufficient to require a denial of a motion for summary judgment are obviously present where one party swears to one version of the matter in issue and another says the opposite.” Miller, 762 So. 2d at 304. More than one witness swore that no substance, the presence of which is the heart of the lawsuit, was even present. This is clearly a case in which issues of fact sufficient to require a denial of summary judgment are present because some
3. Spoliation
¶14. Clinton Healthcare argues that the trial court‘s order finding that spoliation had occurred and ordering that an “appropriate” spoliation inference instruction be given at trial
was improper because it did not destroy evidence negligently or fraudulently. It also argues that this Court may provide guidance in the event this issue is premature.
¶15. “Jury instructions are to be granted only where evidence has been presented which supports the instruction.” DeLaughter v. Lawrence Cty. Hosp., 601 So. 2d 818, 824 (Miss. 1992). The jury must hear the evidence at trial for the jury instruction to be proper. “Therefore, evidence or argument from a pretrial hearing is not a basis for a spoliation instruction.” Teal v. Jones, 222 So. 3d 1052, 1059 (Miss. Ct. App. 2017). Evidence regarding the circumstances surrounding the missing evidence must be presented at trial so the jury may determine the significance. Id. This Court has also held that “the explanation for the original record‘s absence may be fully satisfying either that it was lost through no fault of the [party], that the [party] deliberately destroyed it, or as in most cases, somewhere in between, thereby making it a jury issue.” DeLaughter, 601 So. 2d at 821 (emphasis added). When the evidence falls within the “in between” range, “the instruction should require the jury to first determine whether reasonable explanation for the loss of the missing original [evidence] has been presented . . . .” Id. at 822. If the jury determines that no reasonable explanation for the loss has been presented, it may then infer that the evidence would have been unfavorable to the party responsible for the loss. Id.
¶16. Mandating that a spoliation instruction be given at trial before a trial even happens, as occurred in this case, was inappropriate, as the trial court does not know what evidence regarding spoliation will be presented to the jury, and thus cannot know whether the evidence at trial will support the instruction. If the evidence at trial “reveals that the video was lost
intentionally or negligently,” Atkinson would at that point bе entitled to a spoliation jury instruction. See Renner, 236 So. 3d at 816. If the evidence is, as in DeLaughter, not clear either way, then that issue would be a jury issue.
CONCLUSION
¶17. This Court affirms the trial court‘s denial of Clinton Healthcare‘s motion for summary judgment and reverses the trial court‘s grant of Atkinson‘s motion for partial summary judgment on liability. This Court vacates the trial court‘s order regarding spoliation as premature, as the trial court cannot grant a jury instruction without knowing what evidence is before a jury. We remand this case for further proceedings not incоnsistent with this opinion.
¶18. AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART, AND REMANDED.
WALLER, C.J., KITCHENS, P.J., MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J.
COLEMAN, JUSTICE, DISSENTING:
¶19. As was the case in Jackson HMA, LLC v. Harris, 242 So. 3d 1, 7-8 (¶¶ 14-19) (Miss. 2018) (Coleman, J., dissenting), I must, with respect, dissent. The Mississippi
appeals of matters such as the one sub judice be taken in cirсuit court when they are taken. Today, the majority runs roughshod over both directives, as the instant appeal is both an interlocutory appeal from county court and made directly to the Supreme Court.
I. The Legislature‘s Power to Set Appellate Jurisdiction
¶20. As ratified in 1890, Article 6, Section 146 of the Mississippi Constitution read, “The Supreme Court shall have such jurisdiction as properly belongs to a court of appeals.” In 1984, however, the people of Mississippi amended our constitution to read, “The Supreme Court shall hаve such jurisdiction as properly belongs to a court of appeals and shall exercise no jurisdiction on matters other than those specifically provided by this Constitution or by general law.”
power” over appellate court jurisdiction. Id. at 716-717 (¶ 8).
¶21. In addition, the Constitution without ambiguity or equivocation grants to the Legislature the authority to establish appellate jurisdiction in the circuit courts of the State.
II. The Statute Passed by the Legislature Pursuant to Its Constitutional Authority to Set Appellate Jurisdiction that Governs Appeals from County Courts
¶22. In
¶23. Brown v. Collections, Inc., 188 So. 3d 1171 (Miss. 2016), cited by the majority for its holding that
concurred,5 I would now overrule it.
¶24. Pursuant to the separation of the powers exercised by the three branches of Mississippi‘s government, and as held in Newell v. State, 308 So. 2d 71 (Miss. 1975), the courts have sole authority to set rules of court procedure. However, the power to set appellate jurisdiction in the circuit court and, pursuant to
¶25. The Brown holding, as applied today, gives the courts the power to set their own jurisdiction over appeals with rules of procedure, which runs directly contrary to the applicable constitutional provisions that give that exact authority. Moreover, it is worth noting that the Brown Court did not include any discussion of the above-quoted constitutional provisions that explicitly grant thе Legislature the power over appellate jurisdiction. Indeed, a review of the briefs of the parties in Brown shows that neither party cited them to the Court. We should now consider the impact of the explicit language of our constitution on the Brown Court‘s holding that the rules of procedure act to overrule a statute passed under an express grant of constitutional authority.
¶26. “[A]ppellate jurisdiction is solely a creature of statute and exists in no case unless сonferred by statute, and then only in the manner and to the extent so conferred. . . .” Drummond v. State, 184 Miss. 738, 185 So. 207, 208 (1938). The Drummond Court went
on to hold as follows:
It follows, therefore, inescapably, that since the legislature has plenary power over this subject of appeals, it could prescribe that an appeal from this inferior court in this class of cases, or in any other particular class of cases, might be direct to the Supreme Court. If the power of the legislature in this regard is to be restricted or limited, then some section оf the Constitution must be pointed to which so limits or restricts the power. As already mentioned, no such section of the Constitution can be found. It is, therefore, a matter solely for the legislature to decide, and the legislature having so decided, the Court is without power to avoid this said legislation.
Id. at 209. The Court has taken for itself the power to hear interlocutory appeals from Mississippi‘s county courts. It is nowhere granted to us by the Constitution of 1890 or general law. I would dismiss the instant aрpeal for lack of jurisdiction.
RANDOLPH, P.J., JOINS THIS OPINION.