Aundrea Robinson v. Martin Food Stores, Inc. , 231 So. 3d 1060 ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2014-CA-01457-COA
AUNDREA ROBINSON APPELLANT
v.
MARTIN FOOD STORES, INC. D/B/A APPELLEE
SUNFLOWER FOOD STORES OF MAGNOLIA
DATE OF JUDGMENT: 09/09/2014
TRIAL JUDGE: HON. DAVID H. STRONG JR.
COURT FROM WHICH APPEALED: PIKE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: JONATHAN C. TABOR
DAVID NEIL MCCARTY
LEIGH-ANN TABOR
ATTORNEYS FOR APPELLEE: PATRICK M. TATUM
WILLIAM LOCK MORTON III
STEVEN CAVITT COOKSTON
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
TRIAL COURT DISPOSITION: SUMMARY JUDGMENT GRANTED IN
FAVOR OF APPELLEE
DISPOSITION: AFFIRMED: 07/19/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
FAIR, J., FOR THE COURT:
¶1. Aundrea Robinson was shopping in a Sunflower1 grocery store when he slipped and
fell on a puddle of clear liquid. The circuit court granted summary judgment to Sunflower
after finding that Robinson failed to produce evidence the spill had been created by
Sunflower or that it had been there long enough to impart constructive knowledge of its
1
Martin Food Stores Inc. was the operator of the store, but we will refer to it as
“Sunflower” for convenience.
existence to the store. On appeal, Robinson contends that he was entitled to an adverse
inference against Sunflower based on its spoliation of evidence, losing a video recording of
the spill and the fall as well as a contemporaneous incident report. But even assuming
Robinson was entitled to the inference he seeks, under Mississippi law it is not a substitute
for a prima facie case, which Robinson failed to present. We affirm the summary judgment.
STANDARD OF REVIEW
¶2. “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).
¶3. “The evidence is viewed in the light most favorable to the party opposing the motion.”
Davis, 869 So. 2d at 401 (¶10). Still, “an adverse party may not rest upon the mere
allegations or denials of his pleadings, but his response . . . must set forth specific facts
showing that there is a genuine issue for trial.” M.R.C.P. 56(e). Furthermore:
[W]hen a party, opposing summary judgment on a claim or defense as to
which that party will bear the burden of proof at trial, fails to make a showing
sufficient to establish an essential element of the claim or defense, then all
other facts are immaterial, and the moving party is entitled to judgment as a
matter of law.
Galloway v. Travelers Ins., 515 So. 2d 678, 684 (Miss. 1987).
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DISCUSSION
¶4. For the purposes of summary judgment, the facts are largely uncontested. There is no
dispute that Robinson was a business invitee and that he slipped and fell on a puddle of clear
liquid while shopping in the store. 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 . . .”).
¶5. But 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). Therefore, the plaintiff must prove either (1) that the property owner’s negligence
injured him, (2) that the property owner had knowledge of the dangerous condition and failed
to warn him, or (3) that the condition existed for a sufficient amount of time that the owner
should have had knowledge or notice of the condition (constructive knowledge). Anderson
v. B.H. Acquisition Inc., 771 So. 2d 914, 918 (¶8) (Miss. 2000) (citation omitted).
¶6. Here, several witnesses testified about the puddle. Robinson himself admitted that the
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liquid was clear, did not have tracks or debris in it, and did not appear to have been there for
very long. A store employee, Chris Jackson, testified that he had passed the area of the spill
five or ten minutes before and that it was not there at that time. Jackson added that he had
watched a surveillance video of the area and that the puddle – which was in front of a beer
cooler – had appeared a few minutes before Robinson fell, after the “beer man,” who was not
an employee of the store, stocked the cooler. Both Jackson and Robinson testified to seeing
the beer man at the store around the time Robinson fell. For his part, the beer man, Clint
Nettles, denied that he could have left the puddle.2
¶7. Prior to the hearing on Sunflower’s motion for summary judgment, the word
“spoliation” did not appear in the record. The issue was not raised in Robinson’s response
to Sunflower’s motion or in any other pleading. The issue was first mentioned, almost as an
afterthought, at the hearing. Specifically, just before concluding her argument at the hearing,
Robinson’s counsel stated that there was “also a serious spoliation issue” with regard to
Sunflower’s failure to produce a video or accident report. However, no further argument was
made, and no relevant authority was ever cited. To be clear, the word “spoliation” appears
once in the entire circuit court record. Because the issue was mentioned so belatedly, the
record regarding the video and incident report is undeveloped. There is evidence that a video
and incident report existed on August 1, 2011, when Robinson fell, and apparently Sunflower
did not have it over eighteen months later, when Robinson served his discovery requests.
2
The beer distributor was initially a defendant, but it is no longer a party to this suit.
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The record reveals little else.
¶8. Yet on appeal, spoliation suddenly has become the only issue. Robinson argues
“spoliation . . . forbids summary judgment,” and he asserts that “the trial court disregarded
the spoliation of evidence in granting summary judgment.” We conclude that the trial judge
did not “disregard” anything; rather, Robinson waived the issue by raising it in such a belated
and offhand fashion. As this Court recently reiterated,
“It is a long-established rule in this state that a question not raised in the trial
court will not be considered on appeal.” Adams v. Bd. of Sup’rs of Union Cty.,
177 Miss. 403, 170 So. 684, 685 (1936). Moreover, it is not sufficient to
simply mention or “discuss” an issue at a hearing. The rule is that a “trial
judge cannot be put in error on a matter which was never presented to him for
decision.” Methodist Hosps. of Memphis v. Guardianship of Marsh, 518 So.
2d 1227, 1228 (Miss. 1988) (emphasis added).
City of Hattiesburg v. Precision Constr. LLC, No. 2014-CA-01671-COA, 2016 WL 2860742,
at *4 (¶18) (Miss. Ct. App. May 17, 2016). If spoliation were truly the reason for denying
summary judgment – as Robinson now contends on appeal – then he should have made that
argument clearly in the circuit court, not just mentioned the issue in passing. We conclude
that Robinson is barred from raising the issue on appeal because it was never properly
presented to the circuit judge for decision. Id.
¶9. Procedural bar notwithstanding, summary judgment would have been properly granted
even if Robinson had received the spoliation inference he requests on appeal. Robinson
points to Thomas v. Isle of Capri Casino, 781 So. 2d 125, 133 (¶37) (Miss. 2001), where the
Mississippi Supreme Court stated:
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When evidence is lost or destroyed by one party (the “spoliator”), thus
hindering the other party’s ability to prove his case, a presumption is raised
that the missing evidence would have been unfavorable to the party
responsible for its loss. According to Wigmore:
Spoliation and all similar conduct is receivable against him as an
indication of his consciousness that his case is a weak or
unfounded one; and from that consciousness may be inferred the
fact itself of the cause’s lack of truth and merit. The inference
thus does not necessarily apply to any specific fact in the cause,
but operates indefinitely though strongly against the whole mass
of alleged facts constituting his cause.
2 J. Wigmore, Evidence § 278, at 133 (J. Chadbourn rev.1979). Because the
presumption of unfavorability is not solely confined to the specific issue of
what information was contained in the missing evidence, the fact finder is free
to draw a general negative inference from the act of spoliation, regardless of
what the spoliator’s rebuttal evidence shows.
According to Robinson, this is a “burden shifter” that relieves him of the burden of proving
Sunflower’s negligence. It is true that the Thomas court quoted Wigmore approvingly for
the proposition that the “fact itself of the [spoliator’s] cause’s lack of truth and merit” may
be inferred from spoliation. And, in a summary judgment, the nonmoving party is entitled
to the benefit of every reasonable inference. Partin v. N. Miss. Med. Ctr. Inc., 929 So. 2d
924, 929 (¶16) (Miss. 2007). But the Thomas court was silent on the question of whether the
inference, drawn from a presumption, is strong enough to replace a prima facie case, i.e.,
whether inference alone amounts to sufficient evidence to prevent summary judgment.
¶10. This Court addressed that question directly in the recent cases of Cofield v. Imperial
Palace of Mississippi LLC, 147 So. 3d 364, 367 (¶11) (Miss. Ct. App. 2014), and Bolden v.
Murray, 97 So. 3d 710, 718 (¶31) (Miss. Ct. App. 2012), where we concluded: “[F]or
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purposes of summary judgment, [spoliation] of evidence, standing alone, is not enough to
allow a party who has produced no evidence – or utterly inadequate evidence – in support of
a given claim to survive summary judgment on that claim.” (quoting Kronisch v. United
States, 150 F. 3d 112, 128 (2d Cir. 1998)) (emphasis added; internal quotation marks
removed).
¶11. Robinson argues that these decisions were in disregard of prior Mississippi law, but
that is not the case. In fact, Mississippi has followed this rule since 1878. In Bott v. Wood,
56 Miss. 136, 140-41 (1878), a will contest where the will had allegedly been destroyed
intentionally, it was held:
The principle of the maxim Omnia proesumuntur in odium spoliatoris, as
applicable to the destruction or suppression of a written instrument, is that
such destruction or suppression raises a presumption that the document would,
if produced, militate against the party destroying or suppressing it, and that his
conduct is attributable to this circumstance, and, therefore, slight evidence of
the contents of the instrument will usually, in such a case, be sufficient. There
is great danger that the maxim may be carried too far. It cannot properly be
pushed to the extent of dispensing with the necessity of other evidence, and
should be regarded “as merely matter of inference, in weighing the effect of
evidence in its own nature applicable to the subject in dispute.”
(Citing 2 Best on Ev., § 412 et seq.). Bott has never been overruled; instead, it has been
repeatedly reaffirmed. In DeLaughter v. Lawrence County Hospital, 601 So. 2d 818, 822
(Miss. 1992), the court recited the above quote from Bott with approval. And in the 2002
case of Dowdle Butane Gas Co. v. Moore, 831 So. 2d 1124, 1127 (¶8) (Miss. 2002), the
supreme court cited Bott as the seminal Mississippi case on the spoliation inference, without
any caveat.
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¶12. Considering the authorities we have discussed, we can find no error in the trial court’s
grant of summary judgment to Sunflower.
¶13. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON AND
GREENLEE, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN
PART WITHOUT SEPARATE WRITTEN OPINION.
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