Pearlie Wright v. R.M.Smith Investments, L.P.

210 So. 3d 555, 2016 Miss. App. LEXIS 566
CourtCourt of Appeals of Mississippi
DecidedAugust 30, 2016
DocketNO. 2015-CA-00199-COA
StatusPublished
Cited by12 cases

This text of 210 So. 3d 555 (Pearlie Wright v. R.M.Smith Investments, L.P.) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pearlie Wright v. R.M.Smith Investments, L.P., 210 So. 3d 555, 2016 Miss. App. LEXIS 566 (Mich. Ct. App. 2016).

Opinion

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. *557 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 pa-tool in the parking lot, during hours 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 *558 the burden to show that no genuine issue of material fact exists, and the evidence must 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, 113 S.Ct. 2786, 125 L.Ed.2d 469 (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, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)). The reliability of expert testimony is analyzed under the 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 stan-dardes]” in place, then the incident would not have occurred.

1Í10.

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210 So. 3d 555, 2016 Miss. App. LEXIS 566, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pearlie-wright-v-rmsmith-investments-lp-missctapp-2016.