Clair Hearn v. Square Property Investments, Inc. d/b/a Reed's Piggly Wiggly and Piggly Wiggly

• Court: Court of Appeals of Mississippi
• Decided: March 24, 2020
• Docket: NO. 2018-CA-01576-COA
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2018-CA-01576-COA

CLAIR HEARN APPELLANT

v.

SQUARE PROPERTY INVESTMENTS, INC. APPELLEE D/B/A REED’S PIGGLY WIGGLY AND PIGGLY WIGGLY

DATE OF JUDGMENT: 11/01/2018 TRIAL JUDGE: HON. GERALD W. CHATHAM SR. COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: D. REID WAMBLE ATTORNEY FOR APPELLEE: RICHARD W. WACKERFUSS NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: AFFIRMED - 03/24/2020 MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC.

GREENLEE, J., FOR THE COURT:

¶1. After falling in a grocery store, Clair Hearn filed a premises-liability action in the

DeSoto County Circuit Court against Square Property Investments Inc. d/b/a Reed’s Piggly

Wiggly (Piggly Wiggly). Piggly Wiggly moved for summary judgment, which the circuit

court granted.

¶2. Now Hearn appeals, claiming summary judgment was improper because there were

genuine issues of material fact as to (1) whether a negligent act of Piggly Wiggly caused her

injury, (2) whether a dangerous condition existed for a sufficient amount of time to impute

constructive knowledge to Piggly Wiggly, (3) whether reasonable inspections would have revealed the dangerous condition, and (4) whether Piggly Wiggly’s internal policy is

reasonable. We affirm the circuit court’s grant of summary judgment.

FACTS AND PROCEDURAL HISTORY

¶3. On December 24, 2014, sixty-year-old Clair Hearn and her son, Mario Richmond,

went to Piggly Wiggly in Olive Branch, Mississippi. Richmond drove Hearn to the store

because she previously had had an aneurysm and a stroke, and she was unable to drive. The

weather was cold but not raining.

¶4. According to Hearn, they had been at the store for less than ten minutes when she

slipped and fell. Hearn was pushing a shopping cart and turned around to get an item. She

then slipped and fell in what she believed was a puddle of water, approximately three feet

in diameter, and injured her foot. According to Hearn, she did not realize there was a puddle

until she fell, she did not know what caused the puddle, and she did not know how long the

puddle had been on the floor. But it appeared to her as though other people had walked

through the puddle.

¶5. Richmond also did not notice the puddle until after his mother fell, and he did not

know what caused the puddle. According to Richmond, there were footprints and shopping-

cart tracks in the puddle, but otherwise there was no indication as to how long the puddle had

been there.

¶6. After Hearn filed a complaint in the DeSoto County Circuit Court and Hearn and

Richmond’s depositions had been taken, Piggly Wiggly filed an answer and a motion for

summary judgment. In the motion for summary judgment, Piggly Wiggly disputed the

2 presence of any liquid on the floor but conceded the fact “for purposes of [the] [m]otion.”

Piggly Wiggly asserted that summary judgment was appropriate because Hearn could not

establish the essential elements of a premises-liability claim. Piggly Wiggly attached a

surveillance video as an exhibit to the motion.

¶7. Hearn filed a response to the motion for summary judgment and attached, among other

things, David Reed’s deposition transcript. Reed, one of the store owners, admitted that

Piggly Wiggly had no written policies and that all employees were trained verbally. When

asked about safety inspections, Reed stated that “floor sweeps” were performed on an “as-

needed” basis, but employees were trained to notice the floor conditions throughout the day.

Reed stated that if a spill occurred, an employee was required to stand over the spill while

another employee retrieved a mop and wet-floor signs. And the employees were trained to

not leave the area until the floor was completely dry. Reed admitted the store did not

maintain written “sweep logs,” and he did not know when the floor was last checked prior

to Hearn’s fall.

¶8. Ultimately, the circuit court granted Piggly Wiggly’s motion for summary judgment.

Now, Hearn appeals.

STANDARD OF REVIEW

¶9. A circuit court’s grant of summary judgment is reviewed de novo. Stuckey v. The

Provident Bank, 912 So. 2d 859, 864 (¶8) (Miss. 2005). “Summary judgment is proper when

‘the pleadings, depositions, answers to interrogatories and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to any material fact and that the

3 moving party is entitled to judgment as a matter of law.’” Robinson v. Martin Food Stores

Inc., 231 So. 3d 1060, 1061 (¶2) (Miss. Ct. App. 2016) (quoting M.R.C.P. 56(c)). “The

evidence is viewed in the light most favorable to the party opposing the motion.” Id. at 1062

(¶3) (quoting Davis v. Hoss, 869 So. 2d 397, 401 (¶10) (Miss. 2004)). However, “an adverse

party may not rest upon the mere allegations or denials of [her] pleadings, but [her] response

must set forth specific facts showing that there is a genuine issue for trial.” Id. (quoting

M.R.C.P. 56(e)).

DISCUSSION

¶10. We must decide whether the circuit court erred by granting summary judgment. There

is no dispute that Hearn was a business invitee. A business owner is not required to insure

against all injuries; 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.” Coll v. Wal-Mart Stores East L.P., 232 So. 3d 748, 751 (¶9)

(Miss. Ct. App. 2017) (quoting Robinson v. Ratliff, 757 So. 2d 1098, 1101-02 (¶12) (Miss.

Ct. App. 2000)). “Mere proof ‘of the occurrence of a fall on a floor within the business

premises is insufficient to show negligence on the part of the proprietor.’” Id. (quoting

Stanley v. Boyd Tunica Inc., 29 So. 3d 95, 97 (¶8) (Miss. Ct. App. 2010)).

¶11. In a slip-and-fall case, the plaintiff “must prove one of the following to recover: (1)

a negligent act of the defendant caused her injury; (2) the defendant had actual knowledge

of the dangerous condition [and failed to warn her]; or (3) . . . the dangerous condition

4 existed for a sufficient amount of time to impute constructive knowledge to the defendant.”

Rod v. Home Depot USA Inc., 931 So. 2d 692, 694-95 (¶10) (Miss. Ct. App. 2006).

¶12. Hearn claims she provided evidence that a negligent act of Piggly Wiggly caused her

injury and that a dangerous condition existed for a sufficient amount of time to impute

constructive knowledge to Piggly Wiggly. She further claims that genuine issues of material

fact exist as to whether reasonable inspections would have revealed the dangerous condition

and whether Piggly Wiggly’s internal policies are reasonable.

I. Negligent Act

¶13. Hearn claims she provided evidence that a negligent act of Piggly Wiggly caused her

injury. However, during her deposition, Hearn admitted that she did not know how the

puddle of water came to be on the floor. Hearn’s son, Richmond, also did not know how the

puddle got on the floor. The store owner, Reed, was unaware that there was liquid on the

floor and stated that he was informed Hearn fell because her leg gave out. Hearn, Richmond,

and Reed were the only people deposed, and there is nothing in the record to indicate that a

negligent act of Piggly Wiggly or its employees caused Hearn’s fall. See Haggard v. Wal-

Mart Stores Inc., 75 So. 3d 1120, 1125 (¶12) (Miss. Ct. App. 2011). Therefore, Hearn’s

“claim fails under this theory.” Id.

II. Constructive Knowledge

¶14. Next, Hearn claims she provided evidence that a dangerous condition existed for a

sufficient amount of time to impute constructive knowledge to Piggly Wiggly. “Constructive

knowledge is established where the condition is shown to have existed for such a length of

5 time that the operator, through the exercise of reasonable care, should have known of its

existence.” Id. at 1126 (¶15) (quoting Almond v. Flying J Gas Co., 957 So. 2d 437, 439 (¶8)

(Miss. Ct. App. 2007)). “Further, the court will not indulge presumptions for the deficiencies

in plaintiff’s evidence as to the length of time the hazard existed; therefore, the plaintiff must

produce admissible evidence as to the time period in order to establish the operator’s

constructive knowledge.” Id. “The plaintiff must present specific proof as to the relevant

actual length of time.” Id.

¶15. During their depositions, Hearn and Richmond stated that they did not see the puddle

until after Hearn fell. And Hearn admitted that she did not know how long the puddle had

been on the floor. However, both Hearn and Richmond stated that the puddle had footprints

and shopping-cart tracks in it.

¶16. In support of her claim, Hearn cites to Ducksworth v. Wal-Mart Stores Inc., 832 So.

2d 1260 (Miss. Ct. App. 2002). In Ducksworth, the plaintiff slipped and fell while shopping

in Wal-Mart. Id. at 1261 (¶1). At trial, the plaintiff produced a photograph of the spill in

question. Id. at 1262 (¶4). The spill appeared to be dirty, with footprints and shopping cart

tracks in it. Id. This Court found “[t]he photograph’s condition created a question of fact

that should have been resolved by the jury.” Id. (emphasis added). Therefore, this Court

held that the trial court erred by granting a directed verdict. Id.

¶17. Although the purported puddle in this case allegedly had footprints and shopping-cart

tracks in it, the photograph in Ducksworth was specific poof as to the “relevant actual length

of time.” Conceivably in Ducksworth, a jury could have looked at the photograph and

6 determined the length of time the spill was on the floor and whether it existed for such a

length of time that the operator should have known of its existence. Here, Hearn and

Richmond’s deposition testimony gave no indication as to the “actual length of time” the

puddle existed. Although they both stated that the puddle had footprints and shopping-cart

tracks in it, this only proves that the puddle existed. Without more, it is impossible to

determine whether that period of time was for several minutes or several hours.1

¶18. Furthermore, we were able to review the surveillance video in this case. Neither the

puddle nor the footprints and shopping-cart tracks are evident. The surveillance video shows

numerous people passing through the area prior to Hearn’s fall, many of whom were pushing

shopping carts.

¶19. After reviewing the record, we find that Hearn failed to present any evidence showing

that Piggly Wiggly should have known that there was a puddle on the floor. Therefore,

Hearn’s “claim fails on this theory of liability.” Haggard, 75 So. 3d at 1127 (¶16).2

1 The dissent states, “There has never been a requirement that a plaintiff prove the time of the spill . . . .” However, as stated, this Court has held that “[c]onstructive knowledge is established where the condition is shown to have existed for such a length of time that the operator, through the exercise of reasonable care, should have known of its existence.” Haggard, 75 So. 3d at 1126 (¶15). And “the plaintiff must produce admissible evidence as to the time period in order to establish the operator’s constructive knowledge.” Id. 2 Hearn also cites to Evans v. Aydha, 189 So. 3d 1225 (Miss. Ct. App. 2016). In Evans, the plaintiff slipped and fell on an oily spot at a gas station. Id. at 1227 (¶1). The plaintiff produced an affidavit from her daughter, which stated that the spot was “mostly black, dirty, and it was obvious to me that the oily residue had been on the pavement for an extended period of time, at least several days.” Id. at 1229 (¶11) (emphasis added). This Court held that a reasonable inference could be made that the spot existed long enough to place the gas station operator on constructive notice of its existence. Id. at 1230 (¶16). As discussed, such an inference cannot be made in this case.

7 III. Reasonable Inspections

¶20. Next, Hearn claims that a genuine issue of material fact existed as to whether

reasonable inspections would have revealed the dangerous condition. “Within a premises

owner’s duty to keep the premises reasonably safe is included a duty to conduct reasonable

inspections.” Jones v. Imperial Palace of Miss. LLC, 147 So. 3d 318, 321 (¶13) (Miss. 2014)

(citing Pigg v. Express Hotel Partners LLC, 991 So. 2d 1197, 1200 (Miss. 2008)). However,

“[t]he mere existence of a defect or danger is not enough to establish liability, unless it is

shown to be of such a character or of such a duration that the jury may reasonably conclude

that due care would have discovered it.” Id. at 322 (¶14) (quoting Moore v. Winn-Dixie

Stores Inc., 252 Miss. 693, 699, 173 So. 2d 603, 605 (1965)).

¶21. As discussed, Hearn has failed to present any evidence to show for what length of

time the puddle existed. Although she and her son stated that the puddle had footprints and

shopping-cart tracks through it, this only could prove that the puddle existed. We do not

know if that period of time was several minutes or several hours. Even if Piggly Wiggly

failed to conduct reasonable inspections, there is simply no evidence to conclude that the

problem had existed for “such a duration that the jury may reasonably conclude that due care

would have discovered it.”3 Id.

¶22. Hearn relies on Elston v. Circus Circus Miss. Inc. 908 So. 2d 771 (Miss. Ct. App.

2005). In Elston, the plaintiff slipped and fell in a puddle of water in the lobby of the Gold

3 The surveillance video showed what appeared to be an employee stocking a nearby shelf prior to Hearn’s fall. However, after the employee walked away, approximately fifteen people passed through the area where Hearn ultimately fell. And more than half of those people pushed loaded shopping carts over the area.

8 Strike Casino. Id. at 772 (¶3). Her fall occurred within the “immediate vicinity of some

plants and within ten feet of the front desk.” Id. And she fell within several hours of the

time when the plants were usually watered. Id. at (¶5).4 The casino had procedures in place

to make sure there were no spills on the lobby floor. For example, employees were required

to walk the lobby’s floor twice an hour to check for spills. Id. at 773 (¶10). This Court

found the “evidence [was] beyond speculation and sufficient for a jury to conclude that . . .

Elston’s injury was caused by a dangerous condition that Gold Strike created.” Id. at 774

(¶12). And “[s]ince there was sufficient proof that the spill had been on the floor for at least

several hours prior to the plaintiff’s fall, this Court also found a jury question existed as to

Gold Strike’s constructive knowledge of the spill.” McCullar v. Boyd Tunica Inc., 50 So.

3d 1009, 1013 (¶17) (Miss. Ct. App. 2010) (citing Elston, 908 So. 2d at 775 (¶14)).

¶23. Hearn points out that in Elston, this Court held that there was a question of fact as to

whether the presence of water on the floor violated Gold Strike’s duty to keep its premises

in a reasonably safe condition. Elston, 908 So. 2d at 774 (¶11). In so holding, this Court

noted that on the day of the accident, no one could testify as to the last time Gold Strike’s

employees inspected the lobby. Id. In the instant case, Reed similarly admitted that he did

not know when the floor was last inspected prior to Hearn’s fall. However, unlike Elston,

there is no proof in this case that the spill had been on the floor for at least several hours. As

discussed, Hearn has failed to put forth any proof that reasonable inspections would have led

to the discovery of the dangerous condition, which could have been created by another

4 The plants were usually watered on Thursday between 10 a.m. and 11 a.m., and Elston fell on a Thursday, between 1:45 p.m. and 2:45 p.m. Id. at 775 (¶14).

9 customer only minutes prior to her injury.5 Therefore, Hearn’s “claim fails on this theory of

liability.” Haggard, 75 So. 3d at 1127 (¶16).

IV. Policy

¶24. Finally, Hearn claims that a genuine issue of material fact exists as to whether Piggly

Wiggly’s internal policy is reasonable. Essentially, Hearn argues that Piggly Wiggly’s mode

of operating—conducting floor sweeps on an “as-needed” basis and not maintaining written

policies or procedures—is negligent. However, this Court has previously declined to set

aside years of precedent to adopt the “mode of operation” theory. Byrne v. Wal-Mart Stores

Inc., 877 So. 2d 462, 467 (¶13) (Miss. Ct. App. 2003); see also Bonner v. Imperial Palace

of Miss. LLC, 117 So. 3d 678, 685 (¶23) (Miss. Ct. App. 2013). We decline to do so again

today.

CONCLUSION

¶25. Because Hearn failed to show the existence of a genuine issue of material fact, we

find summary judgment was appropriately granted.

¶26. AFFIRMED.

BARNES, C.J., CARLTON, P.J., LAWRENCE AND C. WILSON, JJ., CONCUR. J. WILSON, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. McDONALD, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. McCARTY, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY WESTBROOKS, TINDELL AND McDONALD, JJ.

5 The dissent acknowledges that the mere existence of a defect or danger is not enough to establish liability. But the dissent seemingly disregards that the defect or danger must be “shown to be of such a character or of such a duration that the jury may reasonably conclude that due care would have discovered it.” Jones, 147 So. 3d at 322 (¶14).

10 McCARTY, J., DISSENTING:

¶27. Because there was proof that Piggly Wiggly failed to exercise reasonable care to keep

its floors reasonably safe, and because proof the spill had been there long enough to impute

constructive notice existed, we should reverse and remand for a jury trial. Even standing

alone, either of these issues is enough to go to a jury—especially when there is a three-foot-

large puddle of water with track marks and footprints in it.

¶28. Like all businesses open to the public, the grocery store has a duty to “exercise

reasonable care to keep the premises in a reasonably safe condition.” Elston v. Circus Circus

Miss. Inc., 908 So. 2d 771, 773 (¶9) (Miss. Ct. App. 2005) (quoting Jerry Lee’s Grocery v.

Thompson, 528 So. 2d 293, 295 (Miss. 1988)). “No proof of the owner’s knowledge of the

condition is necessary where the condition is created by his negligence or the negligence of

someone under his authority.” Id.

¶29. In this case, Piggly Wiggly admitted in its response to interrogatories, “We do not

have particular people assigned for floor maintenance.” The Mississippi Rule of Civil

Procedure 30(b)(6) representative for the company, Reed, also testified that he was “not sure

exactly” when the floors had last been checked for spills—an inevitable reality since there

were no times or schedules to inspect the floors, which were just looked at when they were

looked at. The grocery store seems to have taken an “ostrich” policy, ignoring its legal duty

to keep the premises reasonably safe.

¶30. This approach is flatly opposite many of the decisions we review since abandonment

or neglect of this duty can lead to a breach of duty and liability. For instance, in Elston, the

11 casino showed proof it “maintained its premises in a reasonably safe condition” by

specifically showing it had two employees who “walk the entire lobby floor at least twice an

hour” and “are hired for the specific purpose of insuring that there is no debris, no stains, and

no spills.” Elston, 908 So. 2d at 773 (¶10); see also Winn-Dixie Supermarkets v. Hughes,

247 Miss. 575, 588, 156 So. 2d 734, 738 (1963) (Where there was a “requirement of the

management for employees to give notice of foreign substances on the floor,” a jury could

have found liability in a slip and fall.).

¶31. This does not mean Piggly Wiggly is automatically liable for Ms. Hearn’s fall—but

it surely means that there is a jury question of whether the business owner used reasonable

care to keep the premises reasonably safe or whether its own negligence created the hazard.

¶32. As to the second reason why summary judgment should never have been granted,

there is a genuine issue of material fact as to constructive notice. “To establish a negligence

claim in a slip and fall case, proof that the liquid’s presence on the floor for a sufficient

amount of time to give reasonable notice to the proprietor is required.” Waller v. Dixieland

Food Stores Inc., 492 So. 2d 283, 286 (Miss. 1986).

¶33. Importantly, the test is not whether the defendant conclusively knew of a spill—but

instead, whether it “knew, or should have known” there was a problem. Moore v. Rouse’s

Enters. LLC, 219 So. 3d 599, 602 (¶8) (Miss. Ct. App. 2017) (emphasis added).

¶34. There are a graveyard of slip and fall cases where litigants asked us to find

constructive notice, but even taken in the light most favorable to them, the evidence showed

that the complained of puddle had not been there very long. For instance, in Waller,

12 evidence of a pink liquid which “did not appear smeared and it did not appear as if anyone

had pushed a buggy through it,” was not enough to impute notice. Waller, 492 So. 2d at 286.

¶35. Likewise, in a case where the plaintiff “himself admitted that the liquid was clear, did

not have tracks or debris in it, and did not appear to have been there for very long,” and there

was no other evidence of the passage of time or notice, we affirmed a grant of summary

judgment. Robinson v. Martin Food Stores Inc., 231 So. 3d 1060, 1062 (¶6) (Miss. Ct. App.

2016). In that case, speculation that a beer deliveryman had created the puddle also

floundered when he “denied that he could have left the puddle” when stocking a cooler. Id.

¶36. Today’s appeal is the opposite of those decisions. First of all, Ms. Hearn testified that

it was not just a “slick spot” she fell in, but a puddle. Her son Mario testified the puddle was

around three feet across. Further, and as pointed out by the majority, “both Hearn and

Richmond stated that the puddle had footprints and shopping-cart tracks in it.” Ante at (¶15).

Ms. Hearn also testified the “bottom of [her] pants were wet,” and her right pants leg was

also wet after she fell down. This is exactly the type of evidence sufficient to create a

genuine issue of material fact, and it is the crucial missing component that required

affirmance in Waller and Robinson.

¶37. Importantly, it does not appear that their testimony was contradicted by the store; as

such, it should be accepted as true and be submitted to a jury for a resolution of their claims

since “[u]ndisputed testimony, which is not so unreasonable as to be unbelievable, must be

taken as truth.” Estate of Burford v. Freeman, 281 So. 3d 942, 947 (¶14) (Miss. Ct. App.

2019) (quoting Reeves Royalty Co. v. ANB Pump Truck Serv., 513 So. 2d 595, 599 (Miss.

13 1987)). “For in the absence of contradictory evidence, courts are bound to accept the only

credible evidence offered in a proceeding and apply the correct law.” Id. (internal quotation

mark omitted) (quoting Miss. State Univ. v. People for the Ethical Treatment of Animals Inc.,

992 So. 2d 595, 607 (¶20) (Miss. 2008)). The majority suggests that a photograph or video

may be better proof than the sworn testimony of two Mississippians; however, it is evidence

just the same as their sworn statements.

¶38. When the majority concludes that “[w]ithout more” as to the time of the spill, “it is

impossible to determine whether that period was for several minutes or several hours,” it

confuses the burden of the plaintiff to respond at the summary judgment stage with the duty

of the landowner, and it leaves out the role of the factfinder completely. Ante at (¶17). There

has never been a requirement that a plaintiff prove the time of the spill—a burden that of

course they could not meet since they do not control or supervise the premises. They could

testify to what was in their personal observation (that there were track marks and buggy

marks in the puddle and that they were wet), but any comment on how long the puddle would

have been there is likely speculative and not competent summary judgment evidence.

Whether the surveillance tape showed a completely clear puddle is a good closing argument,

but it just further shows a split in the evidence. A jury should resolve it.

¶39. This case presents a classic question for the jury, and it should reach one. Because

today we cut off that proper route, I respectfully dissent.

WESTBROOKS, TINDELL AND McDONALD, JJ., JOIN THIS OPINION.