Pearlie Wright v. R.M.Smith Investments, L.P. ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2015-CA-00199-COA
PEARLIE WRIGHT APPELLANT
v.
R.M. SMITH INVESTMENTS, L.P. APPELLEE
DATE OF JUDGMENT: 05/27/2014
TRIAL JUDGE: HON. JEFF WEILL SR.
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST
JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANT: CRYSTAL WISE MARTIN
JAMES A. BOBO
SUZANNE GRIGGINS KEYS
ATTORNEY FOR APPELLEE: JOHN D. BRADY
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
TRIAL COURT DISPOSITION: SUMMARY JUDGMENT GRANTED TO
DEFENDANT/APPELLEE
DISPOSITION: AFFIRMED - 08/30/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., WILSON AND GREENLEE, JJ.
GREENLEE, J., FOR THE COURT:
¶1. This is an appeal from Hinds County Circuit Court of a grant of summary judgment
and strike of expert testimony after Pearlie Wright was injured when she attempted to retrieve
her stolen purse from a moving vehicle while in a parking lot owned by R.M. Smith
Investments L.P. (Smith). Finding no error, we affirm.
Facts and Proceedings Below
¶2. On October 18, 2012, Wright went to a store at 1129 West Capitol Street, Jackson,
Mississippi. The store is located on property owned and managed by Smith. Wright entered
the store, purchased some items, then exited and returned to her vehicle. While Wright was
inside her vehicle, an assailant drove onto the parking lot of the property and parked
immediately adjacent to Wright’s vehicle. As Wright started her vehicle, the assailant got out
of his vehicle, opened Wright’s passenger side door, and grabbed Wright’s purse. The
assailant then returned to his car and proceeded to leave the property. As the assailant was
leaving the property, Wright got out of her car and went to the assailant’s driver’s side front
window. Wright reached into the window in an attempt to retrieve her purse. The assailant
continued to drive, causing Wright to be dragged by the assailant’s vehicle. Wright was
injured in the process.
¶3. Wright filed suit against Smith based on premises liability, claiming that an
atmosphere of violence existed on the property, and that Smith’s failure to employ additional
security measures was the proximate cause of her damages. As evidence, Wright produced
affidavits of Gerald Jones (Wright’s safety and security expert), as well as incident reports
and records of “calls for service” from within a one-mile radius of Smith’s property for the
five years preceding the incident. The incident reports and calls for service demonstrated that
one incident of violent crime occurred on Smith’s property in the five years preceding the
incident.
¶4. In the affidavits, Jones stated that Smith should have taken the minimum security
measures to ensure safety on the property, including: “monitored security cameras covering
the parking lot and common areas, deterrent signage concerning the presence of security
cameras and security, [and] armed security guard(s) on patrol in the parking lot, during hours
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of operation of the stores on the property.” Jones stated that these measures are the minimum
standards based on state and national standards and studies. Jones did not cite any source for
the measures, standards, or studies referenced, nor did Jones indicate how the measures given
would have prevented the incident.
¶5. After discovery, Smith moved for summary judgment, asserting that Wright’s proof
did not support her claim that an atmosphere of violence existed on the property, and that the
proof failed to demonstrate how additional security measures would have prevented Wright
from being injured. Ultimately, the trial court granted Smith’s motion for summary judgment,
stating that Wright’s proof of a single violent crime on the property in the five years
preceding the incident was insufficient as a matter of law. Further, it stated that Jones’s
opinions were insufficient evidence of causation. Smith also moved to strike Jones’s opinions
on causation. The trial court granted Smith’s motion to strike Jones’s opinions, stating that
Jones’s opinions were speculative concerning causation and, thus, unreliable.1 After Wright’s
motion for reconsideration was denied by the trial court, Wright appealed to this Court.
Discussion
¶6. A trial court’s grant of summary judgment is reviewed de novo. Thrash v. Deutsch,
Kerrigan & Stiles LLP, 183 So. 3d 838, 841 (¶10) (Miss. 2016). “Summary judgment is
proper if there is no genuine issue of material fact and the moving party is entitled to [a]
judgment as a matter of law.” Id. at 842 (¶10) (citing M.R.C.P. 56(c)). The moving party
bears the burden to show that no genuine issue of material fact exists, and the evidence must
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The trial court found that if Jones’s affidavits had been accepted, summary judgment
for Smith was still proper.
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be viewed in the light most favorable to the nonmovant. Id. (citing Monsanto Co. v. Hall, 912
So. 2d 134, 136 (¶5) (Miss. 2005)). Our standard of review for the admission or suppression
of evidence is abuse of discretion. Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31, 34
(¶4) (Miss. 2003). The admission or suppression of expert testimony is within the sound
discretion of the trial judge, whose decision will stand unless the decision was arbitrary and
clearly erroneous, amounting to an abuse of discretion. Id.
¶7. On appeal, Wright argues that Jones’s opinions should not have been stricken and that
granting summary judgment for Smith was improper.
I. Expert Testimony
¶8. The Mississippi Rules of Evidence state that expert-opinion testimony is allowable
if the testimony is based upon sufficient facts and data, if it is the product of reliable
principles and methods, and if the witness has applied the principles and methods reliably to
the facts of the case. M.R.E. 702. “The facts upon which the expert bases his opinion or
conclusion must permit reasonably accurate conclusions as distinguished from mere guess
or conjecture.” McLemore, 863 So. 2d at 36 (¶8). The proponent of the expert’s testimony
must demonstrate that such testimony is not based merely on his subjective beliefs or
unsupported speculation. Id. at (¶11) (citing Daubert v. Merrel Dow Pharm. Inc., 509 U.S.
579, 590 (1993)). The court is not required to “admit opinion evidence connected to existing
data only by the ipse dixit of the expert, as self-proclaimed accuracy by an expert [is] an
insufficient measure of reliability.” Id. at 37 (¶13) (quoting Kumho Tire Co. v. Carmichael,
526 U.S. 137, 157 (1999)). The reliability of expert testimony is analyzed under the
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nonexhaustive factors adopted from Daubert v. Merrel Dow Pharmaceuticals Inc., which
include (1) whether the expert’s theory can be or has been tested, (2) whether the theory has
been subjected to peer review and publication, (3) the known or potential rate of error of a
technique or theory when applied, (4) the existence and maintenance of standards and
control, and (5) the degree to which the technique or theory has been generally accepted in
the scientific community. Inn By the Sea Homeowners’ Ass’n Inc. v. Seainn LLC, 170 So. 3d
496, 503 (¶17) (Miss 2015) (citing McLemore, 863 So. 2d at 37 (¶13)).
¶9. Wright asserts that Jones’s expert testimony establishes an atmosphere of violence,
that the security measures in place the day of the incident were below the “minimum
standard,” and that had Smith had at least the “minimum standard[s]” in place, then the
incident would not have occurred.
¶10. Jones stated in his affidavit that the standard of care he referenced is the “national
standard,” that the National Standard and the “Mississippi standard” are the same, that
anything not meeting that standard is negligent, and that his opinions are to a “reasonable
degree of probability, and consistent with [the] prevailing opinion in [his] field.” Further,
Jones stated that “[his] opinion testimony set forth herein is based upon sufficient facts or
data, is the product of reliable principles and methods[,] and [that he] has applied the reliable
principles and methods to the facts of the case.” That is the extent to which Jones established
the admissibility of his affidavit as an expert witness.
¶11. Jones failed to articulate what the national or Mississippi standards for property
security were, where they came from, or who had established them. He only stated that they
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were the same. He stated that his opinion was consistent with the prevailing opinion in his
field, but failed to identify in any way how that opinion could be established or verified. He
stated that his opinion was the product of reliable principles and methods, but failed to
articulate what those principles and methods were, how they had been established, or who
had established them. He offered no indication that any theory upon which he based his
opinions could or had been tested, that a theory had been subjected to peer review and
publication, any known or potential rate of error of a related technique or the theory when
applied, any existence or maintenance of standards and control, or the extent to which his
supposed theory or technique had been accepted in his field. Jones’s affidavit fails to meet
the requirements of Daubert and Rule 702, thus making it unreliable. Therefore, we find no
merit to Wright’s claim.
II. Summary Judgment
¶12. To recover on a negligence claim, a plaintiff must show that the defendant breached
a particular duty owed to the plaintiff, and that the breach of duty proximately caused
damages. Kroger v. Knox, 98 So. 3d 441, 443 (¶13) (Miss. 2012). Property owners have a
duty to remedy most dangerous conditions on their property and to warn of those they cannot
eliminate. Id. That duty to warn or make safe presupposes that the defendant knows, or
should know, of the dangerous condition. Id. When the alleged dangerous condition is the
threat of an assault, the plaintiff must prove the defendant had either (1) active or
constructive knowledge of the assailant’s violent nature, or (2) actual or constructive
knowledge that an atmosphere of violence existed on the premises. Id. at (¶14).
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A. Atmosphere of Violence
¶13. Wright asserts that Smith had or should have had actual knowledge of an atmosphere
of violence on his property, citing “calls for service” and “incident reports” for the past five
years covering a one-mile radius from the subject property. In that time, there was one
confirmed incident of violence, an armed robbery occurring inside the store more than a year
prior to the subject incident.
¶14. In Kroger v. Knox, a case similar to this one, the plaintiff, while in the defendant’s
parking lot, was told to hand over her purse by an assailant and, when she did not comply,
the assailant pushed her to the ground and proceeded to strike her repeatedly before fleeing
with the plaintiff’s purse. Kroger, 98 So. 3d at 442 (¶2). In Knox, as many as four incidents
had occurred prior to the one involving Knox’s plaintiff (three purse snatchings and one purse
stolen from a car). Id. at 444 (¶20). There, even with several more incidents occurring on the
premises prior to the subject incident, the court held that there was insufficient evidence of
an atmosphere of violence. Here, only one confirmed incident of violence occurred on the
property in the five years preceding the incident involving Wright. Further, the preceding
incident was an armed robbery occurring inside the store, while this incident was a purse
snatching occurring in the parking lot. We find that this one prior incident falls short of
putting Smith on notice that a parking-lot purse snatching upon an invitee was foreseeable.
Therefore, we find that Wright’s assertion is without merit.
B. Security Measures
¶15. Wright asserts that had certain minimum security measures been in place on the day
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of the incident, the incident would have been prevented. In particular, Wright asserts that,
had there been cameras covering the parking lot, signage indicating cameras, and armed
security, then the incident would have been prevented. As evidence of this assertion, Wright
proffers the sole opinion of Jones, which did not include any supporting studies, data,
theories, tests, or anything else to support his conclusion that the incident would have been
prevented if the measures would have been in place. Further, Jones failed to answer the
critical question of how the incident would have been prevented.
¶16. The Mississippi Supreme Court has stated that such evidence cannot be used to
establish causation. Bennett v. Highland Park Apartments LLC, 170 So. 3d 450, 454 (¶12)
(Miss. 2015) (“Our Lymas holding should be understood to hold that a plaintiff may not
prove that a premises owner’s failure to provide security measures proximately caused
injuries based on cursory and unsupported statements of causation by an expert witness.”
(citing Double Quick Inc. v. Lymas, 50 So. 3d 292 (Miss. 2010))). Therefore, we find
Wright’s claim is without merit.
Conclusion
¶17. We affirm the ruling of the Hinds County Circuit Court, striking Jones’s expert
testimony and granting Smith’s motion for summary judgment.
¶18. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY, FIRST
JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLANT.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR AND
WILSON, JJ., CONCUR. JAMES, J., DISSENTS WITHOUT SEPARATE WRITTEN
OPINION. BARNES, J., NOT PARTICIPATING.
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