Anita Cox v. Coast 132 LLC d/b/a Adventures Pub & Spirits

• Court: Court of Appeals of Mississippi
• Decided: April 22, 2025
• Docket: 2023-CA-01290-COA
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2023-CA-01290-COA

ANITA COX APPELLANT

v.

COAST 132 LLC D/B/A ADVENTURES PUB & APPELLEE SPIRITS

DATE OF JUDGMENT: 10/25/2023 TRIAL JUDGE: HON. CHRISTOPHER LOUIS SCHMIDT COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: JESSICA MARIE LENNARD ATTORNEY FOR APPELLEE: ROBERT ELLIOTT BRIGGS III NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: AFFIRMED - 04/22/2025 MOTION FOR REHEARING FILED:

BEFORE WILSON, P.J., McDONALD AND LAWRENCE, JJ.

LAWRENCE, J., FOR THE COURT:

¶1. Anita Cox filed a premises-liability complaint against Coast 132 LLC after slipping

and falling in one of the company’s restaurants, Adventures Pub & Spirits (“Adventures”).

Adventures filed a motion for summary judgment. Following a hearing, the circuit court

granted summary judgment in favor of Adventures. Aggrieved, Cox appeals. Finding no

error, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2. On August 17, 2020, Cox visited Adventures in Biloxi, Mississippi. Approximately

fifteen minutes after arriving, Cox stood from her chair at a high-top table and slipped and

fell to the ground. Her husband helped her up, and she stayed at Adventures until an ambulance was called because the pain became too unbearable. The restaurant allegedly

informed her that the hospital could send the company a bill for her medical visit, but the

hospital refused to do so because it did not accept payments from third parties. Cox claimed

that her pain continued without much relief after she arrived home in Georgia.

¶3. On January 26, 2022, Cox filed a complaint in the Harrison County Circuit Court

against Coast 132 LLC (doing business as Adventures) and fictitious defendants. The

complaint alleged negligence and wantonness and requested all damages, court costs, and

attorney’s fees to which Cox was entitled, as well as “all compensatory damages that it will

take to make [her] fully whole[.]” On May 5, 2022, Adventures filed an answer to the

complaint, asserting that Cox’s fall was caused by her own negligence and not through any

fault of the business.

¶4. Cox’s deposition was taken on July 29, 2022. She testified that she was a resident of

Georgia and visited Biloxi, Mississippi, a couple of times a year with her husband. She and

her husband had visited Adventures “maybe a couple times before.” They usually sat at the

bar, but on this occasion, they chose a high-top table right next to a large window. Cox was

seated closest to the window on the left side of the table. Approximately fifteen minutes

after sitting down, Cox attempted to stand to retrieve a different plate. When she rose, she

“stepped down from her stool to the left onto what she believed was the floor, but was

actually the window sill.” Cox slipped and fell, stating that “it felt like when [she] stepped

down that maybe [her] foot was on the ledge and [she] couldn’t catch [her] balance.”

¶5. Cox stated that she hit her back, backside, neck, shoulder, and arm in the fall. Her

2 husband helped her up, and she sat back down in her chair. “[W]ithin two or three minutes

[her] arm started hurting really bad, started turning black,” and she started “feeling really

stiff.” Approximately fifteen minutes later, the pain “had gotten to the point to where [she]

couldn’t deal with it anymore.” Cox’s husband called an ambulance, and the manager gave

them a business card, instructing that “when [they] get over to the emergency room, tell them

to bill us.” After being examined, the hospital informed Cox they “don’t do third party

billing”; so she filed the bill with her insurance, and her husband immediately called an

attorney. At the time of the deposition, Cox testified that she continued to have problems

with her back, hip, leg, neck, and shoulder. She explained that she was seeing a pain

management doctor but did not feel it was helping. She also went to physical therapy but

believed surgery was going to have to be performed. Cox eventually stopped visiting these

doctors because her “insurance visits ran out.”

¶6. Both Cox and Adventures had their own experts who performed investigations and

prepared detailed reports on their findings. Kevin Vanderbrook, a professional engineer,

conducted an inspection of the area of Cox’s fall in behalf of Adventures. He found that the

windowsill at issue “measured approximately 87 inches wide and 21.5 inches deep” and had

a “2 inch metal pipe mounted to the walls across the window to prevent persons from

bumping into the large window opening.” He concluded “that the area of the fall does not

constitute an unreasonable risk of harm or hazard,” and the windowsill was “an open and

obvious transition between the floor[.]” Vanderbrook further concluded, after watching

video footage of Cox in Adventures the day of her fall, that Cox “obviously stepped up on

3 the windowsill at some point” because the recording showed Cox “was standing on the sill

prior to her fall.”

¶7. Richard Hughes, the engineering expert retained by Cox, found that Adventures’

building was in violation of the International Building Code (IBC). He also stated that

“[p]eople watch where they are going[,] not where they are walking[,]” and concluded the

windowsill “did not have sufficient color or contrast to draw Ms. Cox’s primary field of view

toward her peripheral” vision. Hughes did not explicitly conclude that the windowsill was

a dangerous condition.

¶8. Vanderbrook reviewed Hughes’s report and sent a letter of commentary to

Adventures, stating that the provision of the IBC allegedly violated referred to “means of

egress” in the sense of providing “safe circumstances for persons exiting buildings during

emergency conditions” and included things like stairs or “tripping hazards.” In other words,

the window did not count as a “means of egress” here; further, even if it did qualify as such,

Vanderbrook stated the window “does not provide access to the exterior of the building,” so

the IBC would remain inapplicable. Vanderbrook wholly stated that Hughes’s opinion was

“a complete misinterpretation and misapplication” of the IBC.

¶9. On June 21, 2023, Adventures filed a motion for summary judgment with nine

exhibits attached, including photographs, Cox’s deposition, investigative reports, and an

affidavit from the owner. Adventures asserted in its motion that Cox failed to prove a

dangerous condition existed, and even if a dangerous condition existed, Adventures neither

created the condition nor had actual or constructive knowledge of it. On June 30, 2023, Cox

4 filed a response opposing Adventures’ motion for summary judgment, attaching the same

exhibits in addition to Adventures’ discovery responses. On July 6, 2023, Adventures filed

a reply to Cox’s response.

¶10. On July 27, 2023, the circuit court conducted a hearing on the motion for summary

judgment. Adventures argued that the windowsill did not constitute a dangerous condition,

Cox had not been paying attention at the time of her fall, and Hughes “never looked at the

place” or “took any photographs or measurements” in performing his assessment. Further,

Adventures stated the IBC was not applicable to a building constructed before 1960. Cox,

on the other hand, largely contended this dispute was a battle of the experts and, accordingly,

should be presented before a jury.

¶11. On October 25, 2023, the circuit court granted Adventures’ motion for summary

judgment and filed an accompanying opinion. The court held that Hughes’s report stating

there was an IBC violation was insufficient to prove a dangerous condition, and “[i]n any

event, the IBC does not apply to this structure because it was built in the 1950s.” The court

found Vanderbrook’s report declaring the condition was not unreasonably dangerous was in

line with Mississippi law. The court also found that the windowsill could not be the

proximate cause of Cox’s injuries because she did not “pay a reasonable amount of care and

attention while traversing an area.” Finally, the court found no proof that Adventures had

actual or constructive knowledge of the allegedly dangerous condition because the “building

was constructed in the 1950s,” and Adventures had “occupied the building for seven years

prior to Cox’s fall.” Namely, the court noted that “thousands of customers sat at the table

5 located next to the window/windowsill at issue in the years that Adventures had been open

and operating.” The court further noted that the order should not be construed as

“prefer[ring] one expert over another” but, rather, as concluding Hughes simply did not

“establish a genuine issue of material fact under Mississippi law.” On November 27, 2023,

Cox appealed.

STANDARD OF REVIEW

¶12. “When we review a trial court’s grant of summary judgment, our standard of review

is de novo[.]” Miller v. R.B. Wall Oil Co., 970 So. 2d 127, 130 (¶6) (Miss. 2007) (citing

Moss v. Batesville Casket Co., 935 So. 2d 393, 398 (Miss. 2006)). “[W]e must confine our

review to what appears in the record.” Id. (quoting Pulphus v. State, 782 So. 2d 1220, 1224

(Miss. 2001)).

ANALYSIS

¶13. In a negligence action, this Court must first determine what, if any, duty was owed by

the business to the injured party. Here, neither party disputes that Cox was an invitee, a

person who “enters the premises of another in answer to the express or implied invitation of

the owner or occupant for their mutual advantage.” Cheeks v. AutoZone Inc., 154 So. 3d 817,

822 (¶20) (Miss. 2014) (quoting Thomas v. Columbia Group LLC, 969 So. 2d 849, 852

(Miss. 2007)). “An owner or operator of a business still owes a duty to an invitee to exercise

reasonable or ordinary care to keep the premises in a reasonably safe condition or 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 (¶8)

6 (Miss. Ct. App. 2000) (quoting Fulton v. Robinson Ind., 664 So. 2d 170, 175 (Miss. 1995)).

¶14. “To succeed in a premises-liability claim, the plaintiff must show: (1) a negligent act

by the defendant caused the plaintiff’s injury; or, (2) that the defendant had actual knowledge

of a dangerous condition, but failed to warn the plaintiff of the danger; or, (3) the dangerous

condition remained long enough to impute constructive knowledge to the defendant.” Walz

v. HWCC-Tunica Inc., 186 So. 3d 375, 377 (¶9) (Miss. Ct. App. 2016) (quoting Byrne v.

Wal-Mart Stores Inc., 877 So. 2d 462, 465 (¶5) (Miss. Ct. App. 2003)). “Each of these

premises-liability claims requires that the party show a dangerous condition existed.” Id.

(emphasis added) (citing Garson v. Circus Circus Miss. Inc., 135 So. 3d 932, 934 (¶9) (Miss.

Ct. App. 2014)).

¶15. We first address whether this case involved a “dangerous condition.” In another case,

a plaintiff was injured while entering the defendant’s business and alleged that the raised

threshold in the entrance constituted a dangerous condition. Benson v. Rather, 211 So. 3d

748, 752 (¶12) (Miss. Ct. App. 2016). The trial court granted summary judgment, and this

Court affirmed, holding:

Mississippi has long recognized that normally encountered dangers such as curves, sidewalks, and steps are not hazardous conditions. Often such pathways contain crack[s] and changes in elevation; and, as such, they do not become hazardous conditions simply because they contain minor imperfections or defects. Furthermore, hazards that are similar to undamaged thresholds, curbs, and steps [such as a window], which are common architectural features for buildings and parking lots, may properly be found not to be unreasonably dangerous.

Id. at 755 (¶23) (emphasis added) (quoting Wood v. RIH Acquisitions MS II LLC, 556 F.3d

274, 282 (5th Cir. 2009)). Additionally, “[c]ommon architectural conditions for a building

7 are not considered unreasonably dangerous conditions.” Id. at 754 (¶22) (citing Dickinson

v. Vanderburg, 141 So. 3d 455, 458 (¶10) (Miss. Ct. App. 2014)).

¶16. In the instant case, Cox claims that the raised windowsill next to her table at

Adventures was an inherently dangerous condition. However, as the circuit court noted, Cox

failed to bring forth any proof that the condition had ever posed a danger in the past. In the

seven years Adventures had been in business at that location, no other customer had reported

a problem with the windowsill. The inspection Vanderbrook (Adventures’ expert) performed

did not show a dangerous condition, and Hughes (Cox’s expert) merely reported that the

windowsill was not in conformity with the IBC. Crucially, that opinion does nothing to

establish the presence of a dangerous condition, as Mississippi caselaw is clear that normally

encountered “architectural conditions,” such as the window at issue in this case, are not

dangerous conditions. Carroll v. Singing River LLC, 309 So. 3d 567, 571 (¶¶9-10) (Miss.

Ct. App. 2020) (recognizing that the supreme court has held that “even an elevation

difference as great as seven and one-half inches between a sidewalk and a parking lot failed

to constitute a condition that would cause the owner of the business to reasonably anticipate

that one would fall or trip over the curb to the sidewalk where the condition was not

inherently dangerous and was obvious, open, and apparent to persons going into the store”

(quoting Stanley v. Morgan & Lindsey Inc., 203 So. 2d 473, 477 (Miss. 1967) (“The

defendant, as the occupier of the premises in question, was not liable to plaintiff[-]invitee for

injuries resulting from an open and obvious condition of the premises as well known to the

plaintiff as to the defendant[,] . . . [and] if the plaintiff was aware of the condition, or it was

8 such that she must have been conscious of it and of the consequences of disregarding it, she

cannot recover.”))).

¶17. Further, the record supports that a violation of the IBC does not apply to “structures

built prior to 1960[,]” see supra ¶10, and, thus, does not apply to Adventures’ place of

business. Benson, 211 So. 3d at 756 (¶32). Regardless, Vanderbrook addressed the alleged

IBC violation and stated that even if Adventures’ building were subject to its provisions, the

provision Hughes alleged was violated was not applicable to a windowsill, see supra ¶8.

When we analyze the facts of the present case against the relevant Mississippi caselaw, it

clearly establishes that Adventures is entitled to summary judgment. Cox simply cannot

establish that the window at issue in this case constitutes a dangerous condition.

¶18. Even if the window could be considered a dangerous condition, Cox provided no

evidence that Adventures created the condition. Cox cites St. Dominic-Jackson Mem’l

Hospital v. Martin, 386 So. 3d 359, 366 (¶¶24-26) (Miss. 2024), to contend that “a genuine

issue of material fact exists as to the presence of a dangerous condition where there are

additional factors combined with the presence of commonly encountered features.” But Cox

puts forth no proof that there were any additional factors to consider concerning the

“dangerous” windowsill other than the placement of the table next to it. Further, the circuit

court pointed out in the order for summary judgment, “[I]t is undisputed that this building

was constructed in the 1950s and that Adventures moved into the building in 2013.” Cox

does not contest either of these facts. Adventures was simply not responsible for creating a

dangerous condition even if the windowsill could be categorized as one.

9 ¶19. Without evidence that Adventures created the allegedly dangerous condition, Cox

would have to prove that Adventures had actual or constructive knowledge of a danger. As

fully outlined and explained above, there is simply no evidence in this record to establish

either actual or constructive knowledge by Adventures of any dangerous condition in the area

where Cox fell. “Thousands” of customers had sat in the same seat as Cox and did not report

any problems over the seven years Adventures had been open. It would thus require

conjecture and speculation to conclude that Adventures was aware of any problem, and

Mississippi appellate courts have been clear that conjecture and speculation about the

premises owner’s knowledge are insufficient to sustain the plaintiff’s burden of proof. See

Young v. Wendy’s Int’l Inc., 840 So. 2d 782, 784 (¶6) (Miss. Ct. App. 2003) (A plaintiff must

be able to “show that the party charged is the party actually responsible for the wrong, with

reasonable certainty or definiteness,” and “it is not enough that this shall be left to conjecture

or to inferences so loose that it cannot be dependently told where conjecture ceases and

cogent inferences begins.”) (citing Berry v. Brunt, 252 Miss. 194, 172 So. 2d 398, 401

(1965)).

CONCLUSION

¶20. This Court finds summary judgment in favor of Adventures was proper because the

case presented no genuine issue of material fact. The windowsill was not a dangerous

condition as required for a premises-liability claim. See Walz, 186 So. 3d at 377 (¶9) (citing

Garson, 135 So. 3d at 934 (¶9)). Regardless, Cox was unable to prove any of the theories

for premises liability. See id. (quoting Byrne, 877 So. 2d at 465 (¶5)). Therefore, we affirm.

10 ¶21. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., McCARTY, EMFINGER, WEDDLE AND ST. PÉ, JJ., CONCUR. WESTBROOKS AND McDONALD, JJ., CONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.