Wilbur M. Washington, Jr. and Hazel M. Washington v. West Quality Food Services, Inc.

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-CA-01532-COA
WILBUR M. WASHINGTON, JR. AND HAZEL APPELLANTS
M. WASHINGTON
v.
WEST QUALITY FOOD SERVICES, INC. APPELLEE
DATE OF JUDGMENT: 09/29/2017
TRIAL JUDGE: HON. DAL WILLIAMSON
COURT FROM WHICH APPEALED: JONES COUNTY CIRCUIT COURT,
SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANTS: WAYNE E. FERRELL JR.
ATTORNEY FOR APPELLEE: JOHN D. BRADY
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED - 12/03/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE J. WILSON, P.J., TINDELL AND LAWRENCE, JJ.
J. WILSON, P.J., FOR THE COURT:
¶1. Wilbur Washington was injured when he slipped and fell in a restroom at a gas station
convenience store. He later sued various entities that owned the property or that operated or
were affiliated with the gas station or the convenience store. He also sued West Quality Food
Services Inc. (West), a Kentucky Fried Chicken (KFC) franchisee that operated a restaurant
as a tenant in another part of the same building as the convenience store. Washington
eventually settled with and/or voluntarily dismissed all defendants other than West.
¶2. Washington alleged that West failed to exercise reasonable care to keep the restroom
in a reasonably safe condition. West moved for summary judgment, arguing that it did not
exercise control over the restroom, which was in a common area of the building. The circuit
court granted West’s motion, and Washington appealed. We agree with the circuit court that
there is no genuine issue of material fact or evidence that West exercised control over the
restroom. Therefore, West is entitled to judgment as a matter of law, and we affirm.
FACTS AND PROCEDURAL HISTORY
¶3. Tugwell Oil Company built the “Casino Center Exxon II” in Robinsonville in 1996.
The property consisted of a gas station and a convenience store with a restaurant on either
end of the convenience store. A Subway sandwich shop was at one end of the building.
Tugwell leased the other end to West to operate a KFC franchise. There were no restrooms
in the part of the building that Tugwell leased to West. Restrooms were located off a foyer
between the convenience store and the KFC.
¶4. West’s lease with Tugwell required Tugwell to maintain the restrooms and other
“common areas” of the building. West was required to pay Tugwell part of the cost of
maintaining the common areas, including the restrooms. West agreed to pay Tugwell $500
per month for such costs.
¶5. In 2003, Tugwell sold the Casino Center Exxon II to Tunica Properties LLC. West
and Tunica Properties continued to operate under the original Tugwell-West lease, and West
continued to pay Tunica Properties $500 per month for maintenance costs.1
¶6. In May 2009, Washington was driving from Memphis to Tunica. He and his family
1
Tunica Properties was originally a defendant in the case. The court entered an
agreed order dismissing Tunica Properties without prejudice in 2012. Four years later, at
a hearing on West’s motion for summary judgment, Washington’s counsel indicated that
perhaps he should not have agreed to dismiss Tunica Properties.
2
had been to Memphis for the day while in Tunica for a convention. On their way back to
Tunica, they stopped at the Casino Center Exxon II to use the restroom and to get something
to eat at the KFC.
¶7. The restrooms were off a foyer just inside the entrance to the convenience store.
Washington and his son went in the men’s restroom. While in the restroom, Washington
slipped and fell in “water and urine” that had collected around a “big drain . . . in the floor.”
He tried to get up, but he slipped and fell again. Washington immediately experienced pain
in his shoulders. He reported his fall to a cashier named Casey at the convenience store. The
Washingtons then bought some chicken from the KFC and went back to their hotel.
¶8. Washington returned to the convenience store the next day. He asked Casey if he
could fill out an incident report, but Casey said, “No—we don’t do incident reports.”
Washington then left the store. He never reported his fall to any employee in the KFC
because he did not think the restrooms were part of the KFC.
¶9. In February 2011, Washington sued West and various entities that owned the property
or that operated or were affiliated with the gas station or the convenience store.2 Washington
eventually settled with and/or voluntarily dismissed all defendants other than West. In 2015,
West moved for summary judgment on the ground that it did not own or exercise control over
the convenience store’s restrooms. The circuit court initially reserved ruling on West’s
motion and ordered West to produce additional documents. After additional discovery, the
court granted West’s motion on the ground that Washington had not produced any evidence
2
The Casino Center Exxon II and the KFC restaurant subsequently closed in
November or December 2011.
3
that West exercised control over the restrooms. Washington appealed.
¶10. On appeal, Washington argues (1) that whether West exercised control over the
restroom is a disputed issue of fact; (2) that “West had partial control over the men’s
restroom,” improperly “delegated a nondelegable duty to maintain a safe premises,” and
improperly “delegated a duty that involves a dangerous hazard”; and (3) that he is entitled
to a “negative inference” due to West’s failure to produce documents in response to a court
order. We address these issues below. We agree with the circuit court that there is no
genuine issue of material fact and that West did not exercise control over the restroom.
Washington’s remaining arguments are without merit. Therefore, we affirm.
ANALYSIS
¶11. “We review the grant or denial of a motion for summary judgment de novo, viewing
the evidence in the light most favorable to the [non-moving] party . . . .” Karpinsky v. Am.
Nat’l Ins., 109 So. 3d 84, 88 (¶9) (Miss. 2013) (quotation marks omitted). Summary
judgment “shall be rendered” if the record evidence shows “that 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). Thus, “summary judgment is appropriate when the non-moving party has
failed to make a showing sufficient to establish the existence of an element essential to the
party’s case, and on which that party will bear the burden of proof at trial.” Karpinsky, 109
So. 3d at 89 (¶11) (quotation marks omitted). The non-moving “party may not rest upon the
mere allegations or denials of his pleadings, but his response, by affidavits or [deposition
testimony, answers to interrogatories, or admissions], must set forth specific facts showing
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that there is a genuine issue for trial.” M.R.C.P. 56(e).
I. West did not exercise control over the restrooms.
¶12. “Generally speaking, under Mississippi law, a tenant may be liable for injuries
occurring on those parts of the premises which are . . . actually leased by the tenant.” Doe
v. Cloverleaf Mall, 829 F. Supp. 866, 870 (S.D. Miss. 1993). As discussed above, the
restroom at issue in this case was not part of the premises actually leased by West. West’s
lease provided in relevant part:
Lessee, at the expense of Lessee, shall maintain the demised premises
and appurtenances to the demised premises in good repair and in at least as
good condition as that in which they were delivered, allowing for ordinary
wear and tear.
Lessee agrees to pay Lessor, in addition to the rentals specified in this
Lease Agreement, a proportion of the Lessor’s operating cost for the common
facilities in the building leased, based upon the ratio of the square footage of
the demised premises to the total square feet of all the building space leased.
The term “operating cost” shall mean the cost and expense incurred in
operating and maintaining the common facilities actually used or available for
use by Lessee and its employees, agents, customers, and other invitees
including but not limited to, painting, lighting, removal of snow or garbage,
security sanitation, repairs, and public liability and property damage insurance
premiums. The term “common facilities” shall mean all areas, equipment and
services provided by Lessor for the common or joint use and benefit of Lessee
and its employees, agents, customers, and other invitees, more specifically, but
not limited to, common areas, parking lots and rest rooms.
(Emphasis added). Pursuant to the latter provision, West paid the lessor $500 per month for
maintenance of the common facilities, including the restrooms.3 Thus, the restrooms were
not part of the “demised premises” that West leased and had a contractual obligation to
3
We note that such a payment by a tenant “does not demonstrate [that the tenant has]
possession and control of the common areas. It is merely a financial undertaking.” Doe, 829
F. Supp. 2d at 873.
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maintain. Rather, they were part of the “common facilities” that the lessor was required by
contract to maintain.
¶13. When, as in this case, “the lessor reserves control over a designated area for common
use of tenants,” the lessor has a duty to exercise reasonable care to keep the common area in
a reasonably safe condition, and the lessor will be liable for any injuries that result from a
breach of that duty. Wilson v. Allday, 487 So. 2d 793, 796 (Miss. 1986).4 A lessee has a
“concurrent” duty to maintain such an un-leased common area only if its use of the common
area is “tantamount to possession and control.” Id. at 797-98. “Conversely, if the lessee’s
use of the [common area did] not constitute control, there would be no duty owed and
therefore no cause of action” against the lessee. Id. at 797.
¶14. Washington argues that there is a triable issue of fact in this case as to whether West’s
use of the restroom was “tantamount to possession and control.” Washington specifically
argues that language in the lease’s insurance and indemnity provisions and certain standards
for KFC franchisees create a triable issue of fact. We disagree.
¶15. To start with, there is no evidence that West or any of its employees ever had or
exercised any actual control over the restrooms. West’s on-site manager, Marva Gardner,
stated that West’s employees never cleaned, maintained, or otherwise exercised any control
over the restrooms. If a customer ever raised an issue with the restrooms, West’s employees
would tell the customer to tell an employee in the convenience store. Avit Varma, who
4
Wilson was later overruled in part but only as it relates to a landowner’s duty with
respect to “open and obvious” dangers. See Mayfield v. The Hairbender, 903 So. 2d 733,
736 n.1 (Miss. 2005).
6
operated the gas station and convenience store, testified that his employees cleaned the
restrooms.5 Varma testified that his employees would “go and take care of” any issues with
the restrooms. Varma also stated that he had a part-time worker who would service and clean
the restrooms daily. Varma testified that West’s employees did not “check the restrooms on
a regular basis,” and he never saw any West employees clean the restrooms.
¶16. Washington also argues that the insurance and indemnity clauses in West’s lease are
evidence that it controlled the restrooms. However, the insurance clause simply required
West to maintain a “liability policy for accidents or damages on or about the demised
premises, common areas and areas appurtenant to the demised premises and common areas.”
The mere fact that the lease required West to obtain a liability policy that extended to the
common areas does not show that West exercised control over the common areas. West’s
employees could have caused insurable accidents or damages in un-leased areas of the
property over which they had absolutely no control or authority. The same is true of the
indemnity clause, which only required West to indemnify the lessor for accidents, injuries,
or damages that occurred “on or about the demised premises.” The clause does not reference
common areas or restrooms, but even assuming that it applies to the common areas, it does
not show that West exercised control over those areas. In short, nothing in the lease itself
shows that West exercised control over the restrooms. Rather, as discussed above, the lease
5
Varma operated the gas station and convenience store pursuant to a lease with
Tunica Properties LLC. Varma apparently took on the cost and responsibility of cleaning
the restrooms in the common area, although it appears that Tunica Properties kept for itself
the $500 per month that it received from West for maintenance. Washington named Varma
as a defendant but eventually settled with him.
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indicates just the opposite.
¶17. Washington also argues that certain provisions of KFC’s “standards” applicable to its
franchisees’ operations show that West exercised control over the restroom. KFC’s standards
require franchisees to make regular inspections of the restrooms in their restaurants.
However, West’s employees testified that those particular standards only apply to standalone
locations or other locations that have restrooms inside the restaurant. They testified that the
standards did not require West’s employees at locations such as the Casino Center Exxon II
to inspect restrooms that were not under West’s control. Washington produced nothing to
contradict West’s evidence on this issue. Washington’s reliance on the KFC standards
simply begs the question. There is no evidence that the standards apply to the restroom at
issue in this case.
¶18. This case is distinguishable from Wilson, supra, which involved a claim against a
lessee/grocery store for an injury to a customer caused by a pothole in the parking lot in front
of the store. Wilson, 487 So. 2d at 794-95. The parking lot in Wilson was not part of the
leased premises, and the landlord was responsible for maintaining it; but the grocery store
“had erected a cart corral there and its employees went onto the lot at least twelve times each
day to gather its carts.” Id. at 797. In addition, the store “invited customers to park in the
lot in front of the store and instructed its employees to park in other designated areas on the
lot.” Id. The Supreme Court held that the grocery store’s presence and activities in the
parking lot were sufficient for a jury to find that it “occupied and controlled” the lot. Id. at
797-98.
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¶19. In contrast, there is no evidence in this case that West or its employees exercised any
control over the restroom at issue. The restroom was not part of the restaurant’s operations,
and West’s employees were not assigned any duties or responsibilities with respect to the
restroom. Further, there is no evidence that West placed any advertising materials or other
property in the restroom. The restroom was available for use by West’s employees and
customers—just as it was for the employees and customers of the gas station/convenience
store and the adjoining Subway. But “mere use” of the restroom, “even though this use
resulted in economic benefit to [West], is not tantamount to possession and control.” Doe,
829 F. Supp. 2d at 872 (emphasis added) (distinguishing Wilson and holding that there was
no evidence that mall tenants exercised control over the mall’s parking lot).
¶20. In summary, Washington presented no evidence that West exercised any degree of
control over the restroom at issue. Therefore, the circuit court correctly ruled that there was
no genuine issue of material fact and that West was entitled to judgment as a matter of law.
II. West did not attempt to delegate a “nondelegable duty.”
¶21. Citing American National Insurance Co. v. Hogue, 749 So. 2d 1254, 1258 (¶12)
(Miss. Ct. App. 2000), Washington next argues that a “property owner” cannot “delegate”
its duty to keep its premises reasonably safe for invitees. He argues that West has violated
this principle by taking the position that its landlord was responsible for maintaining the
common areas of the property. However, as explained above, West is not a property owner
or even a lessee with respect to the restroom at issue, and there is no evidence that West was
in charge of or exercised any control over the restroom. As such, West did not “delegate”
9
any duty. West did not have a duty to begin with.
III. Washington is not entitled to any “negative inference.”
¶22. In 2016, the circuit court ordered West to produce any files concerning audits of the
subject restaurant by Steritech, a third-party auditor that inspected KFC restaurants on behalf
of KFC. West subsequently informed Washington that it no longer had any such files. West
acknowledged that Steritech conducted audits of the subject restaurant in 2008 and 2009, but
“West did not maintain those audits as it was not required or needed to do so.” West did
produce Steritech reports from restaurants in Laurel and Collins as exemplars. The Laurel
location had restrooms within the restaurant, and the Steritech reports included comments on
the condition and cleanliness of those restrooms. In contrast, there were no restrooms within
the Collins restaurant, which, like the Robinsonville restaurant, shared its location with a
convenience store. Thus, the Steritech reports for the Collins restaurant noted that the
restrooms were not inspected because West was “not responsible for the . . . restrooms.”
West stated that audit reports for the subject restaurant “would have contained similar
comments, because West employees had no responsibility for the restrooms” at that location
either. Washington then filed a motion to compel West to produce documents or, in the
alternative, for a ruling that he was entitled to a “negative inference” based on West’s failure
to produce the documents. On appeal, Washington argues that the circuit court erred by not
granting him such an inference when ruling on West’s motion for summary judgment.
¶23. Washington was not entitled to any negative inference. A negative inference may
arise if a party deliberately or negligently destroyed relevant evidence. DeLaughter v.
10
Lawrence Cty. Hosp., 601 So. 2d 818, 821-22 (Miss. 1992). But in this case, there is no
evidence that West’s disposal of Steritech reports was deliberate or negligent. As noted
above, Washington did not notify any of West’s employees of his fall when it occurred, he
did not file suit against West until February 2011, and there is no evidence that there would
have been any independent reason or necessity for West to have retained Steritech reports for
any period of time. Accordingly, there was no evidence of negligence on West’s part and no
basis for a negative inference.
CONCLUSION
¶24. There is no evidence showing that West possessed or exercised control over the
subject restroom. Therefore, West was entitled to judgment as a matter of law, and the
circuit court properly granted summary judgment.
¶25. AFFIRMED.
CARLTON, P.J., GREENLEE, WESTBROOKS, TINDELL, LAWRENCE,
McCARTY AND C. WILSON, JJ., CONCUR. McDONALD, J., DISSENTS
WITHOUT SEPARATE WRITTEN OPINION. BARNES, C.J., NOT
PARTICIPATING.
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