Peter J. Patricola v. Imperial Palace of Mississippi, LLC , 235 So. 3d 214 ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-CA-01043-COA
PETER J. PATRICOLA, ADMINISTRATOR OF APPELLANT
THE ESTATE OF LANITIA PATRICOLA
v.
IMPERIAL PALACE OF MISSISSIPPI, LLC APPELLEE
D/B/A IMPERIAL PALACE CASINO, RESORT &
SPA
DATE OF JUDGMENT: 06/24/2016
TRIAL JUDGE: HON. LAWRENCE PAUL BOURGEOIS JR.
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT,
SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: CATHERINE H. JACOBS
ATTORNEY FOR APPELLEE: PATRICK R. BUCHANAN
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: REVERSED AND REMANDED: 08/08/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., FAIR AND GREENLEE, JJ.
FAIR, J., FOR THE COURT:
¶1. Lanitia Patricola slipped and fell on a small puddle in the lobby of the Imperial Palace
Casino in Biloxi, Mississippi. Patricola alleged that the puddle was created by condensation
dripping from an air conditioning vent overhead; she testified that the ceiling around it was
stained and that there were drops of water still hanging from the vent immediately after her
fall. The trial court granted summary judgment against her based on its conclusions that
Patricola1 had failed to show condensation created the puddle or that Imperial Palace had
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Patricola died from unrelated causes during the pendency of the suit, and her estate
was substituted as a party. For convenience, we will refer to the estate as “Patricola.”
notice of the puddle’s existence. But, on summary judgment, Patricola must be given the
benefit of every inference that can reasonably be drawn from the evidence. After our de
novo review of the record, we disagree with the circuit court on both points. We reverse the
grant of summary judgment and remand the case for trial.
DISCUSSION
¶2. The record evidence consists of the depositions of Patricola, her husband, two
employees of Imperial Palace, an incident report created the day of the accident, and several
photographs of the vent in question taken by Patricola and her husband several weeks after
her fall.
¶3. Patricola and her husband essentially testified to the same things – that, on September
14, 2007, they ate breakfast at the casino. As they were leaving, Patricola slipped on a small
puddle of water. The puddle was located at the junction between the casino itself, which was
a barge, and the land-based entrance. At the junction, the floor transitioned from carpet to
marble tile; the puddle was on the marble. Patricola slipped and fell as she was stepping
from the carpet to the tile.
¶4. Above the puddle was a long, narrow vent,2 which at the time was carrying cold air
from the air conditioning system. The vent had visible condensation on it, and the ceiling
around the vent was stained by water damage. The Patricolas admitted that they did not
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Patricola herself thought this was the seam between the building and the barge, but
other testimony established that it was a “linear diffuser,” a long, narrow vent from which
chilled or heated air flowed into the room.
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actually see drops of water falling from the vent onto the floor. Both testified that they
returned to the lobby several weeks later and photographed the vent, where they again found
visible condensation.3 Patricola’s husband testified that he also saw water on the floor on
that second visit.
¶5. Employees of the Imperial Palace admitted that condensation sometimes formed on
the vents in the lobby, though they had no specific recollection of the particular vent in
question. One employee admitted that condensation formed on the vents “every now and
then” and that he cleaned it from the floor and vents, apparently routinely. He had a specific
tool he used for cleaning condensation from the vents, which were about twelve feet above
the floor. The employee added that cleaning condensation from the floor alone would not
fix the problem, as it would continue to drip from the vents if it was not removed. Another
employee admitted that water condensed on the air vents in the lobby when outdoor
temperatures and humidity were high, because of the influx of air from outside, though he
denied that it was a regular problem.
¶6. An incident report prepared by Imperial Palace employees on the day of Patricola’s
fall stated that one of the employees “observed a small amount of condensation leaking from
the ceiling onto the carpet.”
¶7. Turning to the law of premises liability, there is no dispute that Patricola was a
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As they appear in the record, the photographs are of rather poor quality, and there
is a dispute as to whether they support the Patricolas’ description of the vent. Regardless,
their testimony must be taken as true for summary judgment purposes.
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business invitee. See Grammar v. Dollar, 911 So. 2d 619, 624 (¶12) (Miss. Ct. App. 2005)
(defining business invitee as “someone who enters onto another’s premises at the invitation
of the owner for the purpose of benefitting both parties”). The owner of a business is not
required to insure against all injuries, even for an invitee; instead, he “owes a duty to an
invitee to exercise reasonable or ordinary care to keep the premises in a reasonably safe
condition or [to] warn of dangerous conditions not readily apparent, which the owner or
occupant knows of, or should know of, in the exercise of reasonable care.” Robinson v.
Ratliff, 757 So. 2d 1098, 1101-02 (¶12) (Miss. Ct. App. 2000). The owner has no duty to
warn of a defect or danger that is as well known to the invitee as to the owner, of dangers that
are known to the invitee, or of dangers that are obvious or should be obvious to the invitee
in the exercise of ordinary care. Grammar, 911 So. 2d at 624 (¶12).
¶8. “We employ a de novo standard of review of a trial court’s grant or denial of summary
judgment and examine all the evidentiary matters before it . . . .” Davis v. Hoss, 869 So. 2d
397, 401 (¶10) (Miss. 2004). Summary judgment is proper when “the pleadings, depositions,
answers to interrogatories and admissions on file, together with the affidavits, if any, show
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” M.R.C.P. 56(c).
¶9. Patricola must prove either (1) that Imperial Palace’s negligence injured her, (2) that
it had knowledge of the dangerous condition and failed to warn her, or (3) that the condition
existed for a sufficient amount of time so that Imperial Palace should have had knowledge
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or notice of the condition (constructive knowledge). See Anderson v. B.H. Acquisition Inc.,
771 So. 2d 914, 918 (¶8) (Miss. 2000) (citation omitted).
¶10. Here, there are essentially two issues upon which it is argued that the proof is
insufficient to amount to a genuine issue of material fact – the source of the water on the
floor and whether there was evidence that it was there long enough for Imperial Palace to
have constructive knowledge of its existence.
¶11. “The evidence is viewed in the light most favorable to the party opposing the motion.”
Davis, 869 So. 2d at 401 (¶10). “Summary judgment is improper when the plaintiff has
advanced enough circumstantial evidence to take [her] claims out of the realm of ‘mere
conjecture’ and plant them in the solid ground of ‘reasonable inference.’” Buckel v. Chaney,
47 So. 3d 148, 156 (¶26) (Miss. 2010) (citation omitted).
¶12. As to where the water came from, the Patricolas both testified that they saw water on
the vent directly above the floor, but that during the time they observed it after Patricola’s
fall, they did not actually see water falling from the duct. Imperial Palace’s incident report
states that water had fallen from the duct, but onto the nearby carpet rather than the marble
floor where Patricola slipped. Imperial Palace’s employees also admitted that condensation
sometimes fell to the floor from the ducts in the lobby. There was no evidence of any other
source for the water.
¶13. Imperial Palace offers a curious argument on this point – that Patricola was required
to produce expert testimony to explain the physical process that would allow condensation,
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which was present along the length of the long, narrow vent, to have dripped down onto the
floor in only one or two places. This assertion, although presented as self-evident, seems to
fly in the face of common experience with dripping water. We certainly cannot say that the
testimony was so improbable as to be unbelievable without expert testimony in support.
¶14. Given that the Patricolas are entitled to the benefit of every reasonable inference, this
evidence was more than sufficient to create a genuine issue of material fact on Patricola’s
contention that the water on the floor came from the vent overhead.
¶15. As to whether Imperial Palace had notice of the dangerous condition, the first question
we must answer is what, exactly, is alleged to be the dangerous condition. The Patricolas
seem to contend that the vent itself was the dangerous condition because it was regularly
subject to condensation. On that point, we disagree – the dangerous condition of the property
here was the wet floor; the vent itself did not cause Patricola injury. Still, to the extent that
the vent was shown to regularly put water on the floor, our supreme court has held:
[W]hen plaintiff has shown that the circumstances were such as to create a
reasonable probability that the dangerous condition would occur, he need not
also prove actual or constructive notice of the specific condition, in this
instance a specific puddle of water.
F.W. Woolworth Co. v. Stokes, 191 So. 2d 411, 416-17 (Miss. 1966) (citations omitted); see
also Lockwood v. Isle of Capri Corp., 962 So. 2d 645, 649 (¶13) (Miss. Ct. App. 2007). The
evidence here as to the regularity of the dripping condensation problem was mixed –
Patricola’s husband testified to seeing water on the floor on the two occasions he visited and
looked for it. Imperial Palace’s employees denied that it was a problem, but they also
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admitted it occurred with some regularity. Condensation was said to be tied to outside
weather conditions; it would occur when hot, humid air from outside met the cold vent. And
it was conceded that hot and humid weather was a regular occurrence in Biloxi where the
casino was located. Given our summary judgment standard, that we must view this evidence
in the light most favorable to Patricola and give her the benefit of all reasonable inferences
from the evidence, this was sufficient evidence to create a genuine issue of material fact as
to whether there was a reasonable probability that the dangerous condition would occur,
obviating the need for Patricola to show that Imperial Palace had knowledge of the particular
puddle that injured her.
¶16. Moreover, even assuming that the Patricolas would have to show constructive
knowledge of the puddle itself, there is a genuine issue of material fact on that point as well.
The inference from the evidence is that the puddle came from water dripping from the vent.
Condensation was seen hanging from the vent but not actually falling during the time it was
observed. There was no evidence that the condensation would or could have quickly
produced a puddle like the one described here, which was approximately twelve inches in
diameter. A reasonable inference from these facts is that the puddle accumulated gradually,
and thus that sufficient time elapsed to put Imperial Palace on constructive notice of its
existence. See Wal-Mart Stores Inc. v. Tinsley, 998 S.W.2d 664, 669 (Tx. Ct. App. 1999).
¶17. Finally, we address Patricola’s contention that Imperial Palace is subject to liability
based on the fact that the various employees who testified admitted the casino had no policy
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in place to report condensation, which would have led to the condensation issue being fixed.
Essentially, this is a contention that Imperial Palace created the dangerous condition by
negligently installing or failing to maintain the air conditioner. We agree that if it was shown
that the dangerous condition was caused by Imperial Palace’s negligence, there would be no
need to show that it knew of the existence of the puddle. See, e.g., Jerry Lee’s Grocery Inc.
v. Thompson, 528 So. 2d 293, 295 (Miss. 1988). But Patricola just begs the question of
whether the condensation issue could have been fixed; she has offered no evidence that the
air conditioner, vent, or some other aspect of the property was negligently constructed or
maintained.
CONCLUSION
¶18. Viewing the evidence in the light most favorable to Patricola and giving her the
benefit of all reasonable inferences from that evidence, there are genuine issues of material
fact that preclude summary judgment on her claim.
¶19. REVERSED AND REMANDED.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, WILSON,
GREENLEE AND WESTBROOKS, JJ., CONCUR. CARLTON, J., DISSENTS
WITHOUT SEPARATE WRITTEN OPINION.
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