IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI. No.2016-CA COA

Transcription

1 E-Filed Document Aug :42: CA COA Pages: 13 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI No.2016-CA COA PETER J. PATRICOLA, Administrator for the ESTATE OF LANITIA PATRICOLA APPELLANT v. IMPERIAL PALACE OF MISSISSIPPI, L.L.C. d/b/a cl/b/a IMPERIAL PALACE CASINO, RESORT & SPA; JOHN DOE; JAMES ROE; CORP.; DEF CORP.; AND OTHER DEFENDANTS KNOWN AND lor /OR UNKNOWN APPELLEES IMPERIAL PALACE OF MISSISSIPPI, L.L.C. d/b/a cl/b/a IMPERIAL PALACE CASINO RESORT & SPA'S MOTION FOR REHEARING Patrick R. Buchanan BROWN BUCHANAN P.A. Post Office Box 1377 Biloxi, Mississippi Telephone: Attorneys Attorlleys for Appel/ee Appellee

2 NOW COMES the Appellee, Imperial Palace of Mississippi, LLC, and pursuant to Rule 40 of the Mississippi Rules of Appellate Procedure, moves this Court for a rehearing because this Court's rnling is based on en-ors of law and a misapprehension of the facts. In support of its motion, Appellee would state as follows. I. BACKGROUND This appeal arises from a slip and fall incident that occurred on Appellee's premises. Appellant' alleges that on September 14, 2007, while attempting to exit Appellee's premises, she slipped and fell in water that was on Appellee's floor. The trial court held that Appellant failed to provide any proof that Appellee had notice regarding water on the floor and granted summary judgment. HT at 15. In its decision, this Court stated that the two issues presented for review on appeal were whether there was sufficient proof regarding the source of the water on the floor and whether the water was on the floor long enough to create constructive knowledge. Patrica/av. Imperial Palace of Mississippi, LLC, 5 (~ 10) (Miss. Ct. App. 2017). Relying on Wal-Mart Stores Inc. v. Tinsley, 988 S.W. 2d 664,669 (Tx. Ct. App. 1999), and a misapprehension of critical facts, this Court reversed the trial court and held there existed a genuine issue of material fact regarding the issue of constructive notice. Patrica/a v. Imperial Palace of Mississippi, LLC, at 7 (~ 16) (Miss. Ct. App. 2017). 1 The original Plaintiff was Lanitia Patricola. Ms. Patricola died from unrelated causes during the pendency of this lawsuit. Her estate was substituted as a patty. For convenience, we refer to Ms. Patricola as the Appellant. l

3 Because Tinsley was rejected by Coward v. HE.B., Inc., 2014 Tex. App. LEXIS 7637 (Tx. Ct. App. 2014), and because this Court misapprehended key facts upon which it relied to reach its decision, this Court should withdraw its opinion and issue an opinion affirming the decision of the trial court granting summaiy judgment. II. WAL-MART STORES INC. V. TINSLEY In holding that the Appellee had constructive notice of the water on the floor, this Court cited and relied on Wal-Mart Stores Inc. V Tinsley, 988 S.W. 2d 664, 669 (Tx. Ct. App. 1999), but did not address Coward v. HE.B., Inc., 2014 Tex. App. LEXIS 7637 (Tx. Ct. App. 2014). Patricola v. Imperial Palace of Mississippi, LLC, at 7 (~ 16) (Miss. Ct. App.20l7). Tinsley was rejected by Coward v. HE.B., Inc., 2014 Tex. App. LEXIS 7637 (Tx. Ct. App. 2014). In Coward, the trial court granted the defendant summaiy judgment and the Texas Court of Appeals affhmed the trial court's decision. Coward, 2014 Tex. App. LEXIS 7637 at 1. The Coward plaintiff slipped and fell in a puddle of water covering a large area. Id. After she fell, plaintiff saw water trickling from the ceiling, hitting nearby shelves and products, dripping onto the floor and forming a puddle. Id. The Coward plaintiff never saw any large quantity of water coming from the ceiling or water pouring downward. Id One of the defendant's employees testified that the store had previously experienced water leaks during heavy rains. Coward 2014, Tex. App. LEXIS 7637 at 2. 2

4 The Coward plaintiff relied on Tinsley to support her argument regarding constructive notice. Coward, 2014 Tex. App. LEXIS 7637 at 12. The Texas Court of Appeals rejected this argument - the size of thc puddle meant it formed gradually over time - holding that the size of the puddle was not sufficient proof to support constructive notice. Coward, 2014 Tex. App. LEXIS 7637 at 15. In addition, the Coward court held that the plaintiff failed to produce evidence that the defendant had actual knowledge of the puddle because plaintiff failed to show the prior leaks - about which the defendant knew - were above the area where plaintiff fell. Coward, 2014 Tex. App. LEXIS 7637 at 13. A leaky roof was not proof of a dangerous condition but it could cause a dangerous condition. Coward, 2014 Tex. App. LEXIS 7637 at 10. In the case at bar, Appellant offered no proof regarding how long the puddle was on the floor before she fell. Mere speculation regarding the relationship of its size and the dripping of condensation is not sufficient to establish constructive knowledge. Coward, 2014 Tex. App. LEXIS 7637 at 15. In addition, Appellant offered no proof that the Appellee knew the diffuser over the area where Appellant fell dripped onto the floor. Proof that other diffusers dripped is not proof of actual notice of a dangerous condition. Coward, 2014 Tex. App. LEXIS 7637 at 10. III. NO EVIDENCE OF NOTICE Consistent with the reasoning in Coward, this Court held that the dangerous 3

5 condition at issue was the wet floor, not the vent. 2 Patrica/av. Imperial Palace of Mississippi, LLC, NO CA COA at 6 (~ 15) (Miss. Ct. App. August 8, 2017). This Court said the wet floor was the dangerous condition because the wet floor - not the vent - caused Appellant's injuries. Patrica/av. Imperial Palace of Mississippi, LLC, NO CA COA at 6 (~ 15) (Miss. Ct. App. August 8, 2017). Then- as to notice - this Court said the issue was the extent to which the vent regularly put condensation on the floor. Patrica/av. Imperial Palace of Mississippi, LLC, NO CA COA at 6 (~ 15) (Miss. Ct. App. August 8, 2017). In analyzing what proof existed to sustain a claim that the vent regularly dripped condensation, this Court misapprehended the facts presented in the record. A. This Court said the evidence in the record showed that condensation on the vents was tied to outside weather conditions; it would occur when hot, humid air from the outside met the cold vent. Patrica/av. Imperial Palace of Mississippi, LLC, NO CA COA at 7 (~ 15) (Miss. Ct. App. August 8, 2017). However, no evidence was presented to support this conclusion. There is no evidence in the record regarding why condensation would form on a diffoser. R. at 153. The proof in the record is that Appellee's employee Rodney Felps, in response to a series of questions regarding the origin of condensation on the diffosers, 2 The term vent and linear diffuser are used interchangeably. When Appellant refers to a vent, she is referring to the linear diffuser located above where she fell. Patrica/a v. Imperial Palace of Mississippi, LLC, NO CA COA at 2 (fn 2) (Miss. Ct. App. August 8, 2017). 4

6 offered only speculation. R. at When asked what he knew specifically about the cause of condensation on diffusers, Mr. Felps said: R. at 153. Q. Now, do you know what causes condensation to form on those diffusers? A. Well, sometimes I like to think I do. But honestly, no. I've asked engineers and they said no. This Court relied on Mr. Felps' speculation - even though he said he did not know what caused condensation to form on diffusers - and held that this speculative testimony created a genuine issue of material fact regarding notice that obviated the need for Appellant to show Appellee had actual notice. Patricola v. Imperial Palace of Mississippi, LLe, NO CA-Ol043-COA at 7 ('1]15) (Miss. Ct. App. August 8, 2017). This Court's reliance on speculation regarding the cause of condensation is contrary to the established law. Appellant is required to offer significant, probative evidence on the issues that she will bear the burden at trial, demonstrating the existence of a triable issue of fact. KG/pinsky v. American National Insurance Company, 109 So. 3d 84,88-89 ('1]13) (Miss. Sup. Ct. 2013); Byrne v. Wed-Mart Stores, Inc., 877 So.2d 462, 465 ('1]3) (Miss. Ct. App. 2003) (quoting Young v. Wendy's Int'!, Inc., 840 So.2d 782,784) (Miss. Ct. App. 2003). Here, Appellant offered no evidence, only speculation as to the cause of the condensation on the diffusers. B. After its discussion regarding the origin of condensation on the diffusers, this COUli - assuming Appellant would have to show constructive knowledge of the puddle- 5

7 held that there was a genuine issue of material fact on this issue as well. Patricola v. Imperial Palace of Mississippi, LLC, NO CA-OI043-COA at 7 (,-r 16) (Miss. Ct. App. August 8, 2017). To reach this conclusion, this Court relied on an absence of proof. This Court stated that because there was no proof that the condensation would rapidly fall and produce this puddle, it was reasonable to assume - based upon Wal-Mart Stores Inc. V Tinsley, 988 S.W. 2d 664, 669 (Tx. Ct. App. 1999) - that the puddle folmed from the gradual accumulation of condensation. Patricola v. Imperial Palace of Mississippi, LLC, NO CA-OI043-COA at 7 (,-r 16) (Miss. Ct. App. August 8, 2017). As stated above, Appellant is required to offer significant, probative evidence on the issues that she will bear the burden at trial, demonstrating the existence of a triable issue of fact. Karpinsky, 109 So. 3d at (,-r 13). She has not done this in the case at bar. This established rule oflaw aside, this Court's reliance on Tinsley is misplaced. In Coward v. HE.B., Inc., 2014 Tex. App. LEXIS 7637 (Tx. Ct. App. 2014), the Texas Court of Appeals rejected this same argument - the size of the puddle meant it formed gradually over time - holding that the size of the puddle was not sufficient proof to support constructive notice. Coward, 2014 Tex. App. LEXIS 7637 at 15. In the case sub judice, without proof on the issue regarding how long the puddle was on the floor before she fell, Appellant has failed to sustain her burden. Coward v. HE.B., Inc., 2014 Tex. App. LEXIS 7637 at 15 (Tx. Ct. App. 2014), In addressing constructive notice, this Court said that the evidence regarding the dripping of condensation from the diffuser was mixed. Patricola v. Imperial Palace of 6 C.

8 Mississippi, LLC, NO CA-Ol 043-COA at 6-7 ("1)15) (Miss. Ct. App. August 8, 2017). To reach this conclusion, this Court said Appellee's employees admitted condensation formed on the vent and dripped on the floor with some regularity. Patricala v. Imperial Palace a/mississippi, LLC, NO CA COA at 6-7 ("1)15) (Miss. Ct. App. August 8, 2017). However, the record does not contain this proof. The proof in the record is that the Appellee had no knowledge of there being a problem with condensation forming on the diffuser above the area where Appellant fell. R. at 153. Futiher, when addressing the global issue of whether condensation occurring on diffusers was a recurring issue, Appellee's employee said: "It's not a recutting problem, though, I mean not in my opinion, I don't get enough of that to call it a recurring problem." R. at 155. The record does not contain any evidence that Appellee's employees admitted condensation formed on the vents and dripped on the floor with some regularity. D. This Court found that Appellees' employees denied that the vent dripping was a problem "but they also admitted it occurred with some regularity." Patricala v. Imperial Palace a/mississippi, LLC, NO CA-OI043-COA at 6-7 ("1)15) (Miss. ct. App. August 8, 2017). As set forth above, the proof in the record is that the Appellee had no knowledge of there being a problem with condensation forming on the diffuser above the area where Appellant fell. R. at 153. When addressing whether condensation occurring on diffusers was a recurring issue, Mr. Felps said: "It's not a recutting problem, though, I mean not in 7

9 my opinion, I don't get enough of that to call it a recurring problem." R. at 155. As to water on the floor, Mr. Briggs testified that did not happen often. R. at 70. IV. MISAPPREHENDED FACTS In reaching its decision, this Court has misapprehended key facts upon which it relied to reverse the trial court. A. In its recitation of the facts, this Court stated that Appellee's employee admitted condensation formed on the vents "every now and then." Patricala v. Imperial Palace a/ Mississippi, LLC, NO CA-OI043-COA at 3 (~ 5) (Miss. Ct. App. August 8, 2017). The testimony of Appellee's employee on this issue was that he did not even recall vents being in the area where Appellant fell at the time of Appellant's fall. R. at 139. That aside, Appellee's employee speculated that ifthere was condensation on a vent he would clean it off: R. at 139 (emphasis added). Q. All right. And do you specifically remember doing that? A. Well, it might happen now and then. B. This Court said that Appellee's employee admitted cleaning condensation from the floor alone would not fix the problem, as it would continue to drip from the vents if not removed. Patricala v. Imperial Palace a/mississippi, LLC, NO CA-OI043-COA at 3 (~ 5) (Miss. Ct. App. August 8, 2017) 8

10 The testimony of Appellee's employee on this issue was: "1 clean the vent. Because it wouldn't do no good to clean it off the floor and leave the condensation on the vent." R. at 140. C. This Court said Appellee's employee cleaned condensation from the floor and vents on a routine basis. Patricola v.imperial Palace o/mississippi, LLC, NO CA-O 1043-COA at 3 (~ 5) (Miss. Ct. App. August 8, 2017). What Appellee's employee stated in his deposition was that he was responsible to keep the floor in the lobby clean and to do this, he walked it all the time. R. at When asked about people falling because of spills on the floor, Appellee's employee testified: R. at 70. Q: Okay. So do you specifically remember any instance where they called you and said, somebody just slipped on some water, you need to clean it up; or, you know, where somebody had slipped on a substance on the floor, do you have any specific recollection of that happening while you were working there? A. Oh, 1 mean that happens. It happens. Q. Okay. 1 mean, how often does that happen? A. Not often. D. As to the source of the water being condensation on the diffuser, this Court believed that Appellee presented a curious argument regarding Appellant's lack of proof 9

11 on this issue. Patrica/av. Imperial Palace of Mississippi, LLC, NO CA COA at 5 (~ 13) (Miss. Ct. App. August 8, 2017). This Court believed Appellee argued that Appellant was required to produce expert testimony. Patricola v. Imperial Palace of kfississippi, LLC, NO CA COA at 5 (~ 13) (Miss. Ct. App. August 8, 2017). Appellee did not argue Appellant was required to present expert testimony on this issue. Appellee's argument was and is that Appellant's theory defies common sense. Appellant asserts that there was condensation running along the length of a long diffuser. R. at This diffuser stretched across the entire entryway of Appellee's premises. R. at However, the only condensation on the diffuser that dripped onto the floor was the condensation directly above the area where Appellant fell. R. at 40. Appellant offered no proof as to why the only condensation that dripped was the condensation located above where Plaintiff fell. In response to Appellee's point, this Court held that Appellees' argument flies in the face of common experience with dripping water and that Appellant's testimony was not so improbable as to be unbelievable. 3 Patrica/av. Imperial Palace of Mississippi, LLC, NO CA COA at 6 (~ 13) (Miss. Ct. App. August 8, 2017). V. CONCLUSION In the case at bar, Appellant failed to offer significant, probative evidence on the issues that she will bear the burden at trial, demonstrating the existence of a triable issue 3 Miss. R. Ev. 201 provides that a court may judicially notice a fact that is not subject to reasonable dispute because it is generally known within the trial comi's territorial jurisdiction or it can accurately and readily be determined from sources whose accuracy cannot be reasonably questioned. "Mere probability, even of a ve1y high degree, does not justify the court in taking judicial notice." Varnell v. Green, 512 So. 2d 903, 904 (Miss. Sup. Ct. 1987). 10

12 of fact. Appellant failed to offer proof that the Appellee either created the water in which Appellant fell; or, that the Appellee knew or should have known there was water on the floor prior to Appellant falling. Based on this lack of proof, the trial court properly granted Appellee's Motion for Summary Judgment. Because this COUli's ruling is based on errors oflaw and a misapprehension of key facts upon which it relied to reach its decision, this Court should withdraw its opinion and issue an opinion affirming the decision of the trial court granting summary judgment. RESPECTFULLY SUBMITTED this the 17th day of August, IMPERIAL PALACE OF MISSISSIPPI, LLC Appellee By: lsi Patrick R. Buchanan Patrick R. Buchanan (MBN 8439) BROWN BUCHANAN P.A. Post Office Box 1377 Biloxi, MS Telephone: mailb@brownbuchanan.com 11

13 CERTIFICATE OF SERVICE I, the undersigned, do hereby certify that I have this day electronically filed a true and correct copy of the foregoing pleading with the Clerk of Court using the ECF system which sent notification of such filing to the following: Catherine H. Jacobs, Esquire 425 Porter Avenue Ocean Springs MS And I have this day mailed by United States mail, postage prepaid, a true and con-ect copy of the foregoing pleading to: Lawrence P. Bourgeois, Jr., Circuit Court Judge Harrison County Circuit Court Post Office Drawer 1461 Gulfport, MS This the 17th day of August, ls/patrick R. Buchanan PATRICK R. BUCHANAN 12