Charlene Billiot THOMAS, Appellant v. BOYD BILOXI LLC, Appellee
¶1. On February 12, 2021, the Circuit Court of Harrison County entered an order that granted Boyd Biloxi LLC's motion for summary judgment and dismissed Charlene Billiot Thomas’ complaint. Thomas’ complaint was filed as a result of injuries she sustained after falling on a pool deck after she descended the stairs from a hot tub area on Boyd Biloxi's premises. Prior to its order granting summary judgment, the circuit court entered an order on January 26, 2021, granting in part and denying in part a motion Thomas filed to deny or defer ruling on Boyd Biloxi's motion for summary judgment. See M.R.C.P. 56(f). Aggrieved by a portion of the circuit court's ruling on her Rule 56(f) motion and the ruling on Boyd Biloxi's motion for summary judgment, Thomas appealed.
FACTS AND PROCEDURAL HISTORY
¶2. On July 14, 2016, Thomas, her sister Becky Landry, and her nephew Larry Kyle checked into the IP Casino Resort owned by Boyd Biloxi. On that same day, all three went to the pool area and walked up an outdoor staircase to the hot tub overlooking the main pool deck. After spending time in the hot tub, Kyle walked down the steps and across the pool deck to inquire about purchasing drinks. A few minutes later, Kyle returned to the base of the stairs leading up to the hot tub area and remained there until Thomas started her descent. As Thomas was making her final step onto the main pool deck, she fell at the spot where Kyle had been standing and sustained multiple injuries to her legs, back, and spine.
¶3. Thomas filed her original complaint against Boyd Biloxi on July 13, 2018, in the First Judicial District of the Harrison County Circuit Court as a result of the injuries she sustained after her fall. The complaint was transferred to the Second Judicial District of the Harrison County Circuit Court pursuant to an order dated November 8, 2018. Thomas filed an amended complaint on July 24, 2019, and Boyd Biloxi filed an answer to the amended complaint on August 6, 2019. Boyd Biloxi subsequently filed a motion for summary judgment on January 22, 2020. On February 18, 2020, Thomas filed a “Response in Opposition to Defendant's Motion for Summary Judgment” in which she sought a continuance on the hearing of the motion for summary judgment pursuant to Rule 56(f). The hearings on the two motions were reset twice by agreement. On July 28, 2020, new counsel for Thomas filed an amended response to the summary judgment motion and an amended motion for a continuance pursuant to Rule 56(f). The motions were set for a hearing on August 14, 2020. The circuit court first considered Thomas’ Rule 56(f) motion, which was granted in part and denied in part.1 As a result, the summary judgment motion was not heard until October 23, 2020. Although the circuit judge made a ruling granting summary judgment from the bench that day, the written order was not entered until February 12, 2021.2 Thomas filed her notice of appeal on March 10, 2021, to challenge the trial court's ruling on her amended Rule 56(f) motion and the order granting summary judgment.
We will address the circuit court's rulings on each of these motions separately below.
I. Summary Judgment Motion
¶4. The circuit court granted Boyd Biloxi's motion for summary judgment based upon its finding that Thomas failed to produce sufficient summary judgment evidence, in response to the motion, to create a genuine issue of material fact as to causation. In McKinley v. Lamar Bank, 919 So. 2d 918 (Miss. 2005), the supreme court described the appellate review standard when dealing with rulings on summary judgment motions:
We thus apply a de novo standard of review concerning the propriety of a trial court's grant or denial of summary judgment. Montgomery v. Woolbright, 904 So. 2d 1027, 1029 (Miss. 2004); Brown ex rel. Ford v. J.J. Ferguson Sand & Gravel Co., 858 So. 2d 129, 130 (Miss. 2003); Armistead v. Minor, 815 So. 2d 1189, 1191-92 (Miss. 2002); Richardson v. Methodist Hosp., 807 So. 2d 1244, 1246 (Miss. 2002). We recently discussed our responsibilities in reviewing cases involving summary judgments:
We apply a de novo standard of review of a trial court's grant or denial of a motion for summary judgment. Satchfield v. R.R. Morrison & Son, Inc., 872 So. 2d 661, 663 (Miss. 2004); McMillan v. Rodriguez, 823 So. 2d 1173, 1176-77 (Miss. 2002); Lewallen v. Slawson, 822 So. 2d 236, 237-38 (Miss. 2002); Jenkins v. Ohio Cas. Ins. Co., 794 So. 2d 228, 232 (Miss. 2001); Aetna Cas., & Sur. Co. v. Berry, 669 So. 2d 56, 70 (Miss. 1996). Accordingly, just like the trial court, this Court looks at all evidentiary matters in the record, including admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. Id. at 70. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. Id. If, in this view, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Id. When a motion for summary judgment is made and supported as provided in Miss. R. Civ. P. 56, an adverse party may not rest upon the mere allegations or denials of the pleadings, but instead the response must set forth specific facts showing that there is a genuine issue for trial. Miller v. Meeks, 762 So. 2d 302, 304 (Miss. 2000). If any triable issues of fact exist, the trial court's decision to grant summary judgment will be reversed. Otherwise, the decision is affirmed. Id. at 304.
McKinley, 919 So. 2d at 925 (¶13) (emphasis added) (quoting Harrison v. Chandler-Sampson Ins. Inc. 891 So. 2d 224, 228 (¶11) (Miss. 2005)). This Court's de novo review requires that we look anew at the summary judgment proof submitted to determine whether summary judgment was properly granted.
¶5. On July 14, 2016, Thomas was on the premises owned by Boyd Biloxi. As she stepped off the stairs coming down from the hot tub area to the pool deck, Thomas fell and suffered severe bodily injuries. She filed her complaint on July 13, 2018, and her first amended complaint on July 24, 2019.
¶6. Thomas was a business invitee of Boyd Biloxi at the time of her fall. Concerning the duties owed by Boyd Biloxi to Thomas and Thomas’ burden of proof in such a slip-and-fall case, in Moore v. Rouse's Enterprises LLC, 219 So. 3d 599, 602 (¶7) (Miss. Ct. App. 2017), this Court explained:
“A landowner owes a business invitee a duty of reasonable care for the invitee's safety.” Hudson v. Courtesy Motors Inc., 794 So. 2d 999, 1003 (¶9) (Miss. 2001). “The duty owed by a premises owner to a business invitee is the ‘duty to exercise reasonable or ordinary care to keep the premises in a reasonably safe condition.’ ” McSwain v. Sys. Energy Res. Inc., 97 So. 3d 102, 107 (¶11) (Miss. Ct. App. 2012) (quoting Jones v. James Reeves Contractors Inc., 701 So. 2d 774, 782 (Miss. 1997)). As this Court noted in Grammar v. Dollar, 911 So. 2d 619, 624 (¶12) (Miss. Ct. App. 2005):
In order for an invitee to recover in a slip-and-fall case, the invitee must (1) show that some negligent act of the defendant caused his injury; or (2) show that the defendant had actual knowledge of a dangerous condition and failed to warn the plaintiff; or (3) show that the dangerous condition existed for a sufficient amount of time to impute constructive knowledge to the defendant, in that the defendant should have known of the dangerous condition.
(Citing Anderson v. [B.H. Acquisition Inc.], 771 So. 2d [914,] 918 (¶8) [(Miss. 2000)]).
¶7. Thomas cannot meet her burden of proof by simply showing that she fell and was injured on Boyd Biloxi's premises. Green v. Supermarket Operations Inc., 330 So. 3d 434, 438 (¶12) (Miss. Ct. App. 2021). Our supreme court has held that res ipsa loquitur (i.e., “the thing speaks for itself”) does not apply in slip-and-fall cases. Douglas v. Great Atl. & Pac. Tea Co., 405 So. 2d 107, 111 (Miss. 1981). It is essential to Thomas’ claim that (1) she prove that some negligent act of Boyd Biloxi caused her injuries or (2) that a dangerous condition existed on the Boyd Biloxi premises, of which Boyd Biloxi had actual or constructive knowledge, and that such dangerous condition was the proximate cause of her injuries. Trull v. Magnolia Hill LLC, 171 So. 3d 518, 520 (¶7) (Miss. Ct. App. 2014). This law is also described in Burns v. Gray, 270 So. 3d 1084, 1088 (¶14) (Miss. Ct. App. 2018), where this court held:
“In order to survive a motion for summary judgment in a negligence action, the plaintiff must put on evidence showing that the defendant breached a duty of care and that the breach proximately caused h[er] injury.” Id. “Proximate cause requires: (1) cause in fact; and (2) foreseeability.” Ogburn v. City of Wiggins, 919 So. 2d 85, 91 (¶21) (Miss. Ct. App. 2005). “Cause in fact means that the act or omission was a substantial factor in bringing about the injury, and without it the harm would not have occurred.” Id.
¶8. In the amended complaint, Thomas alleged that her fall was caused by Boyd Biloxi's negligence by:
a.) Not properly equipping the base of the steps with a non-slip pad;
b.) Not properly keeping the area clean and free from algae, mildew or other slippery materials;
c.) failing to post proper signage or warning regarding the hazard;
d.) failing to have a properly trained employee on the scene.
Since Thomas alleges that her fall and injuries were caused by the negligence of Boyd Biloxi, Thomas must show that Boyd Biloxi's negligence created a dangerous condition. In Thomas v. Shed 53 LLC, 331 So. 3d 66, 71 (¶17) (Miss. Ct. App. 2021), this Court reasoned:
“[R]egardless of the invitee's precise theory of premises liability, proof that her injury was caused by a ‘dangerous condition’ is an essential element of her claim.” Jones [v. Wal-Mart Stores E. LP], 187 So. 3d [1100,] 1104 (¶12) [(Miss. Ct. App. 2016)]. “[A] property owner cannot be found liable for the plaintiff's injury where no dangerous condition exists.” Stanley v. Boyd Tunica Inc., 29 So. 3d 95, 97-98 (¶10) (Miss. Ct. App. 2010). Moreover, a business “is not required to keep the premises absolutely safe, or in such a condition that no accident could possibly happen to a customer.” Stanley v. Morgan & Lindsey Inc., 203 So. 2d 473, 476 (Miss. 1967).
¶9. In her answers to interrogatories, Thomas explained that “there was no non-slip sand grit strip on the floor and there was a good bit of algae built up in the area.” Subsequently, in her deposition, when asked if she knew what caused her to fall, she testified that it was “the slippery floor.” When asked if she knew what made the floor slippery, Thomas stated that “it needed cleaning.” When asked if there was something on the flooring, Thomas replied, “Not–no. I mean, it was wet. I guess, you know, from people coming down from it, but it was –had to have been wet.” When asked about her interrogatory answer concerning algae being on the tile floor, Thomas responded:
It was possible. Because she kept saying - - the lady that came running with the towels, that's when she said, I told the[m] that it was dirty and that they needed to come clean it. I've been telling them to come pressure wash it. So I just figured it was algae. But I know it was damp, wet, from people coming in and out because people were coming in and out of the hot tub.
She admitted that she never noticed any algae. Thomas also testified that she remembers being wet while she was lying on the ground after the fall, but she does not remember seeing any puddle of water before she fell. She testified that the deck was not slippery as she went up to the hot tub, but the pool deck was wet. When she later came down the stairs, according to her testimony, she does not remember if she slipped in water or not.
¶10. In his deposition, Kyle testified that he was disabled and had gotten out of the hospital shortly before that day. He had spent four to six months being unable to walk due to various medical issues. Thomas, Landry, and Kyle can be seen in the video 3 walking across the pool deck and going up the stairs together to the hot tub area. Kyle testified that he got into the hot tub for a while and then decided that he wanted something to drink. He testified that he got out of the hot tub and was going to see if he could charge drinks to his room. He testified, as Thomas did in her deposition and stated in her answers to interrogatories, that Thomas was going with him and she followed him down the stairs.4 However, the video clearly shows that Thomas did not follow Kyle and that he went alone to check on drinks. The video shows that Kyle walked through the pool area leaving and returning to the stairs leading to the hot tub. In doing so, the video shows that Kyle walked through some of the largest pools of standing water that can be seen in the video. When he returned to the stairs, he stood there for well over a minute immediately preceding the fall, in the exact place at the base of the stairs where Thomas fell. Kyle testified that he saw water standing in the place where Thomas fell. He described it as follows:
Q. All right. Describe the water you saw on the ground.
A. It was just like at any - - anywhere you have a pool area and people that were going up and down from the area, so drippings from the people.
Q. I mean, was it a big puddle? Was it some drops, I mean?
A. It wasn't drops, but it wasn't a huge ditch-type puddle. It was just accumulated water that was down at the bottom of the stairway.
Q. And what I'm trying to do is just kind of get maybe some sense of how big or how much water.
A. As far as the puddle goes, I would say like if a person was standing in that one spot and just it dripped off and it had an accumulation of people over time walking in that area and dripping off, also. So maybe like - - just maybe, what, two or three foot wide in the general area. Like three foot by three foot square area would be probably a larger - -
Q. So maybe a two, three foot area?
Q. And it looked like where somebody may have been standing - -
Q. - - and their bathing suit had been dripping?
A. Basically. And what I'd say about that is it looked - - it would be more than one person. It was just like an accumulation of water. Like when people get out of a pool onto a cement area, if you get a bunch of people doing that eventually water will start accumulating in that one spot.
In the hour prior to the fall, the video shows that Kyle was the only person who stood at the base of the stairs, in the exact spot where Thomas fell, in the manner he described, after having been in the hot tub, and after having walked through large puddles of water around the pool itself.5
¶11. Karla Wedgeworth Payne worked for Boyd Biloxi as an attendant in the pool area and was on duty at the time of Thomas’ fall. While she did not witness Thomas fall, she did render assistance after it occurred. Her deposition was taken on September 24, 2020, after she had reviewed the video from the day of the incident. As noted in Thomas’ brief on appeal, Payne testified that the spot where Thomas fell was “beveled” or “dipped inward, like where puddles will form.”
¶12. Payne further testified that she had seen kids fall in that same area, but they would just get up and run away. According to Payne, that is how she knew it was slippery, and she told a supervisor that the area needed “taken care of.” Payne does not recall the name of the supervisor she told about the need to clean the area, and she was not aware of any action taken as a result of her report. According to Payne, routine cleaning of the pool area was generally done by the night shift when the pool was closed. Payne did not know how they cleaned or how often they cleaned.
¶13. During her deposition, Payne was also asked about two incident reports of prior falls. Payne did not witness the falls and had no knowledge of the falls, other than what she then read in the reports. In her deposition she testified that both prior falls appeared to have occurred in substantially the same manner and in the same location as Thomas’ fall. However, Payne's testimony concerning these two incident reports is not proper summary judgment proof because it is not based upon first-hand knowledge.6 Karpinsky v. Am. Nat. Ins. Co., 109 So. 3d 84, 91 (¶¶21-24) (Miss. 2013). Payne would not be competent to testify at trial concerning a comparison of the two prior incidents and Thomas’ fall. Id. There is insufficient information on the face of the reports to show that these prior falls occurred in the “same manner and in the same location” as Thomas’ fall. There is nothing in the incident reports to show that those falls occurred in the two-to-three-foot area described by Kyle or that they occurred at the same location as shown by the video from the day of Thomas’ fall. No one with first-hand knowledge of these prior falls provided testimony or affidavits to compare the prior falls with Thomas’ fall.
¶14. Finally, Thomas pointed to the affidavit of John Laughlin, P.E., in support of her opposition to summary judgment. Laughlin reviewed the video of the fall and the depositions described above. He also reviewed the reports of the prior incidents. He opined it is more likely than not that a physical hazard existed on the premises on the day of the fall. He further stated his opinion that Thomas’ fall was “indicative of a potential problem in the area, such as a reduced coefficient of friction due to pooling water or tile wear, for example.” As noted above, without more, the prior incident reports and Payne's deposition testimony concerning these prior falls are not a reliable basis upon which an expert can base an opinion.7 Karpinsky, 109 So. 3d at 91 (¶¶21-24). Further, Laughlin's report failed to identify the “physical hazard” or the “potential problem” in the area.
¶15. The issue presented here is succinctly addressed in McCullar v. Boyd Tunica Inc., 50 So. 3d 1009, 1014 (¶23) (Miss. Ct. App. 2010), where this court stated:
But in the context of a slip-and-fall case, we have stated: “Negligence of the defendant and notice to him may be found from circumstantial evidence of adequate probative value.” Elston [v. Circus Circus Miss. Inc., 908 So. 2d [771,] 775 (¶16) [(Miss. Ct. App. 2005)]. In other words, “the plaintiff may prove circumstances from which the jury might [reasonably conclude] that the condition of the floor was one which was traceable to the proprietor's own act or omission.” Id. (quoting Winn-Dixie Supermarkets v. Hughes, 247 Miss. 575, 585, 156 So. 2d 734, 736 (1963)). Our supreme court has explained that:
[W]hile inferences of negligence may be drawn from circumstantial evidence, those inferences must be the only ones which reasonably could be drawn from the evidence presented, and if the circumstantial evidence presented lends itself equally to several conflicting inferences, the trier of fact is not permitted to select the inference it prefers, since to do so would be the equivalent of engaging in pure speculation about the facts.
Miss. Valley Gas Co. v. Estate of Walker, 725 So. 2d 139, 145 (Miss. 1998), implied overruling on other grounds recognized by Adams v. U.S. Homecrafters, Inc., 744 So. 2d 736 (Miss. 1999).
(Emphasis added). In the present case, Thomas does not know why she slipped. She first said algae was to blame. Then she admitted that she did not see any algae but said the floor was slippery. When asked if she knew why the floor was slippery, she said she assumed it was water she slipped on because she got wet after the fall. Thomas’ inconsistent descriptions and uncertainty “fail to remove the case from the realm of conjecture and place it within the field of legitimate inference.” Parson v. Go Knightrider LLC, 282 So. 3d 609, 618 (¶28) (Miss. Ct. App. 2019).
¶16. The video evidence in this case is important to our decision. Standing water can be seen all around the pool, and dozens of people (adults and children) are seen navigating those large areas of water on the pool deck without any apparent difficulty. Water on a pool deck in and around pools is not an unusual condition. In Venture Inc. v. Harris, 307 So. 3d 427, 433 (¶¶24-25) (Miss. 2020), the Court explained:
“The invitee is still required to use in the interest of his own safety that degree of care and prudence which a person of ordinary intelligence would exercise under the same or similar circumstance.” Fulton v. Robinson Indus. Inc., 664 So. 2d 170, 175 (Miss. 1995) (citing Tate v. S. Jitney Jungle Co., 650 So. 2d 1347, 1351 (Miss. 1995)). “The owner of a business is not ․ liable for injuries caused by conditions which are not dangerous ․” McGovern v. Scarborough, 566 So. 2d 1225, 1227 (Miss. 1990) (quoting Stanley v. Morgan & Lindsey Inc., 203 So. 2d 473, 476 (Miss. 1967)).
This Court has distinguished cases that “involved dangers which are usual and which customers normally expect to encounter on the business premises, such as thresholds, curbs and steps” from those cases involving a “physical defect on the defendant's premises condition which may be found to be unusual and unreasonably dangerous ․” Tate, 650 So. 2d at 1351. Obviously, the plaintiff must present evidence to prove the existence of a dangerous condition. Stanley v. Boyd Tunica Inc., 29 So. 3d 95, 97-98 (Miss. Ct. App. 2010).
(Emphasis added). Water on a pool deck is a condition one would normally expect to encounter on a business premises such as Boyd Biloxi's pool area.
¶17. The video also reveals that more than thirty people, within the hour before Thomas’ fall, went up and down the stairs in question without any apparent difficulty. No one made any visible effort to avoid a pool of water at the base of the stairs. While there was mention of a shower next to the stairs, the video shows no one using the shower within the hour before the fall. Again, while the video shows obvious pools of water around the pool area, even using the zoom feature, no pools of water can be seen at the base of the stairs. After Thomas’ fall, while she is lying on the deck, people are walking all around her, and no one seems to be avoiding a water puddle. Using the zoom feature, again, the people walking around her do not seem to be walking in standing water.8
¶18. At the summary judgment stage, the evidence should be viewed in the light most favorable to the non-moving party. However, in Smith v. City of Southaven, 308 So. 3d 456, 465 (¶35) (Miss. Ct. App. 2020), this Court stated:
As the Mississippi Supreme Court explained in Duckworth, “Scott [v. Harris, 550 U.S. 372, 380-81, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007),] thus informs our courts that where the record contains a videotape of disputed facts capturing the events in question, the courts should view the story as depicted by the videotape, when one party's version is blatantly contradicted, for the purpose of ruling on a summary judgment motion.” Duckworth [v. Warren], 10 So. 3d [433,] 438 (¶12) [(Miss. 2009)].
The video in this case does not show puddles or pools of water at the base of the stairs. After the fall, people are not seen standing or walking through standing water at the base of the stairs. Therefore, even at the summary judgment stage, we are not bound by testimony that is contradicted by the video that is part of the evidence in this case.9
¶19. Finally, the video shows that the only difference between the time that the other thirty plus people walked up and down those stairs without any apparent difficulty and when Thomas came down the stairs and fell is that Kyle, after getting out of the hot tub, walked through the pools of water on the main pool deck and then stood in the exact place where Thomas fell for over a minute immediately before the fall. Again, according to Payne's deposition, she did not see any standing water by the stairs that day. If she or the other attendants had seen water there, she testified that she would have placed warning signs in the area. Based on the video, there was insufficient time for Payne or the other attendants to become aware of the problem if any water problem at the base of the stairs was created by Kyle.
¶20. The dissent is critical of the “trial court's and majority's use of speculation when they conjured up other possible scenarios that could have caused Thomas’ fall.” The dissent contends that there is no basis in the evidence to support such scenarios. However, the video of Thomas’ fall, which is part of the evidence, does support more than one reasonable inference as to the cause of Thomas’ fall. Further, the dissent fails to appreciate McCullar’s requirement that Thomas’ circumstantial evidence in opposition to summary judgment eliminates all other reasonable inferences that can be drawn from the evidence as to the cause of her fall. McCullar, 50 So. 3d at 1014 (¶23). After reviewing the video, it is reasonable to infer that if Thomas’ fall was caused by a wet deck, it was Kyle's action that caused the deck to be wet at the spot where Thomas fell. That inference is supported by Payne's testimony that she had not seen any standing water at the base of the stairs before Thomas’ fall. Further, Thomas testified in her deposition that she had been on disability since 2014 with spinal stenosis, back problems, and neuropathy, which made it hard for her to walk. So for the trial court to infer from the evidence that Thomas got off balance and fell is also reasonable. In any event, pursuant to McCullar, it was Thomas’ burden to produce sufficient circumstantial evidence to show that the only inference that can be drawn from the evidence is that her fall was caused by the negligence of Boyd Biloxi. Id. Thomas simply did not meet that burden.
¶21. We find that the circumstantial evidence Thomas presented does not rise to the level required by McCullar. Thomas’ circumstantial evidence was not sufficient to show that the only inference that could be drawn was that her fall was proximately caused by a dangerous condition on the Boyd Biloxi premises, which itself was caused by Boyd Biloxi's negligence. In this case, it is just as reasonable to infer from the evidence that Thomas’ fall was caused by conditions at the base of the stairs created by Kyle's actions immediately prior to her fall. The order granting summary judgment is affirmed.
II. Thomas’ Amended Response/Rule 56(f) Motion to Deny or Defer Ruling on Boyd Biloxi's Motion for Summary Judgment
¶22. In her notice of appeal, Thomas indicated that she was also appealing from the circuit court's order regarding the Rule 56(f) motion. However, Thomas did not separately address the court's ruling on this motion in her initial brief on appeal. In her statement of issues, Thomas raised the question of whether the circuit court erred “by refusing to allow Appellant's expert to inspect the Appellee's premises[;]” however, she only addressed the issue of the circuit court's denial of the site inspection in the section of her brief challenging the court's grant of summary judgment. She does not specifically contend that the court erred in denying in part her amended Rule 56(f) motion. She first raised this issue, specifically, in her reply brief. In the reply brief, Thomas states, “There is also another basis for reversal of the trial judge.” She then points to the trial court's denial of a site inspection by her expert and the denial of the Rule “30(b)(6) deposition of Boyd.” In GEICO Casualty Co. v. Stapleton, 315 So. 3d 464, 469 (¶17) (Miss. 2021), the supreme court again made clear that we will not consider issues raised for the first time in an appellant's reply brief. This issue is procedurally barred.
¶23. In any event, this issue is without merit. Boyd Biloxi served Thomas with requests for written discovery on August 13, 2019, and Thomas did not timely respond.10 Thomas did not seek written discovery during the discovery period set out by the court's procedural rules, UCRCCC 4.03A, and did not seek an extension of the discovery period from the court. Thomas did not serve her discovery requests until after the motion for summary judgment was filed on January 22, 2020, and set for a hearing. Further, she did not timely file her response to the motion for summary judgment. The overdue response and opposition to Boyd Biloxi's motion for summary judgment was filed by Thomas on February 18, 2020.11 This response contained a reference to Rule 56(f) and asked for a continuance of the hearing “to allow Plaintiff to take depositions and obtain documents in defense of the Defendant's motion for summary judgment.” There were no affidavits attached in support of the Rule 56(f) request. The motion did not identify the persons Thomas sought to depose or the documents she sought to obtain. In the response to the summary judgment motion, Thomas referenced her brief in support of her opposition to the motion; however, there is no brief filed by Thomas found in the record. The hearing on the motion for summary judgment was continued twice by Boyd Biloxi to accommodate Thomas’ counsel's request.
¶24. On July 21, 2020, new counsel entered his appearance on behalf of Thomas. Then, on July 28, 2020, a motion to amend the complaint to add additional bases for the negligence claims and to clarify certain allegations was filed. New counsel also filed an amended Rule 56(f) motion and an amended response to the motion for summary judgment.12 Thomas’ new counsel noticed these motions for a hearing on August 14, 2020.
¶25. The hearing on Thomas’ amended Rule 56(f) motion occurred on August 14, 2020. Other than the belated explanation of original counsel's medical issues, there was no explanation of why Thomas had not sought depositions from corporate representatives or an inspection of the Boyd Biloxi premises much earlier. After considering the matters presented, the circuit court found that original counsel had not been diligent in pursuing discovery in this matter. However, the court allowed discovery concerning the deposition of Payne and the reports of the prior falls because it was clear that those matters had been diligently pursued. The circuit court continued the hearing in order for those matters to be concluded. The circuit court denied the motion as to the new matters first raised in the amended motion filed days before the third scheduled hearing date for the motion for summary judgment (and six months after the summary judgment motion was filed).
¶26. As shown above, Thomas had missed several deadlines, and the hearing on the motion for summary judgment had been delayed several months at Thomas’ request. In Webb v. Forrest General Hospital, 301 So. 3d 695, 703 (¶29) (Miss. Ct. App. 2020), this Court held:
“The decision to grant or deny a continuance is within the sound discretion of the trial court and will be reversed solely where the court abuses that discretion.” O'Hea v. George Reg'l Health & Rehab. Ctr., 276 So. 3d 1266, 1269 (¶6) (Miss. Ct. App. 2018) (quoting Owens v. Thomae, 759 So. 2d 1117, 1120 (¶10) (Miss. 1999)).
The circuit court granted Thomas’ motion in part to allow Payne's deposition and review the incident reports that had been part of the ongoing discovery efforts. The hearing on the summary judgment motion had already been delayed six months, and the circuit court did not abuse its discretion by denying the remaining parts of Thomas’ Rule 56(f) motion.
¶28. The majority affirms the trial court's grant of summary judgment and upholds the trial court's decision to deny portions of Thomas’ Rule 56(f) motion. Because I find that a genuine issue of material fact exists, and because I believe the trial court's partial denial of Thomas’ Rule 56(f) motion was in error, I respectfully dissent.
¶29. The majority contends that its inability to see a puddle in the video of Thomas’ fall, which I perceive, and to which multiple witnesses testify, precludes a genuine issue of material fact. I disagree, and I believe that the majority has improperly placed itself in the role of fact-finder in this case. At the summary judgment phase, we must take care to remember that “summary judgment is not a substitute for the trial of disputed fact issues․ The court cannot try issues of fact on a Rule 56 motion; it may only determine whether there are issues to be tried.” Brown v. Credit Ctr. Inc., 444 So. 2d 358, 362 (Miss. 1983). Here, taking into account the conflicting perceptions of the video footage, as well as the testimony from Thomas’ witnesses, the majority should have found that “there are issues to be tried.”
¶30. Based on the video and the record, it is clear that where Thomas slipped—the pool deck floor below the stairs—was tiled, with no mats or grips.13 There was a small warning sign on the interior wall of the staircase above the bottom step that read “please watch your step.” It is unclear whether the sign is visible to those descending because it is in an area where the wall curves outward toward the pool deck. The video and photographs of the scene show a discolored surface on the right side of the pool deck below the stairs, where there appears to be a thin puddle of standing water. The edges of the puddle are apparent when the video begins at 6:24:59 p.m., as well as 7:26:17 p.m., which was approximately one minute before Thomas’ fall at 7:27:42 p.m.
¶31. In her 2019 deposition, Thomas was asked what caused her to fall. The following exchange ensued regarding causation:
Q. All right. So you fell. Do you know what it is that caused you to fall?
A. The slippery floor.
Q. But do you know why the floor was slippery?
A. It needed cleaning.
Q. I mean; was there something on it?
A. Not -- no. I mean, it was wet. I guess, you know, from people coming down from it, but it was -- had to have been wet.
Q. All right. And one of the reasons I ask is because in your discovery answers you talk about algae being on the tile floor.
A. It was possible. Because she kept saying -- the lady that came running with the towels, that's when she said, I told them that it was dirty and that they needed to come and clean it. I've been telling them to come pressure wash it. So I just figured it was algae. But I know it was damp, wet, from people coming in and out because people were coming in and out of the hot tub.
¶32. Initially, Thomas answered in her interrogatories that algae caused her to fall. But in her deposition, Thomas stated that she “figured” algae was present due to her conversation with Boyd Biloxi's employee Karla Payne immediately after the accident. Payne told Thomas that “[the floor] was dirty and that they needed to come clean it․ I've been telling them to come pressure wash it.” Thomas further stated in her deposition that she did not actually see the algae, but she “knew” the area was damp and wet from people coming out of the pool. When Thomas was asked in her deposition if she saw anything on the ground that caused her to fall, she answered “no.” When asked if she was assuming there was water where she fell, Thomas answered affirmatively. She immediately added that although she did not remember seeing a puddle on the pool deck where she fell, she remembered being wet while lying on the ground after her fall.
¶33. Thomas’ nephew Kyle was also deposed and questioned regarding causation. He stated that there was a puddle of water approximately three feet long by three feet wide at the bottom of the stairs that he and Thomas had descended. He testified that the puddle was on the right side of the staircase and noted that he tried to avoid it. He described the water as “drippings” from people's bathing suits that had accumulated at the bottom of the stairway. During his deposition, Kyle was shown the video, and he pointed to the “discoloration right here [in the video]” and stated, “[T]hat's the actual water I was speaking of.” However, Kyle testified he could not give an “exact cause” for Thomas’ fall.
¶34. The third and final deposition was of Imperial Palace's lead pool attendant, Payne. Payne testified that the area where Thomas slipped was a known problematic area that she had reported to her supervisors as being slippery. Payne had personally observed multiple children fall in this area. The children were able to get up and run away after falling.14 Payne believed the area was “embeveled”(i.e., beveled)—meaning it dipped inward and allowed puddles to form that “protrud[ed] out just a few feet.” She described the area as “always slippery” and said that the floor “would always hold water in that specific little area.” To her knowledge, no action was taken by her supervisors in response to her report. Furthermore, Payne testified about the presence of the puddle on the day of the incident:
Q. Now, Ms. Thomas's nephew, Larry Kyle, was also there that day. Do you remember talking to her nephew?
A. I remember there was a young man there with her. I didn't know the relationship at the time, but I was speaking to somebody young that was with her.
Q. All right. Mr. Kyle said that you actually made the comment to him and what you told him was ․
Q. I've been telling people to -- telling these people to put something -- a mat there at the bottom where there's water accumulated from that, where the final step is coming down off the stairway. Do you remember telling Mr. Kyle that?
A․ I did speak to him about how it needed to be -- something needed to be put there to reduce the slippage. Because even when I was standing there talking to [Kyle], it was wet.
Q. All right. And, again, we're talking about the puddling?
Q. All right. And you said it was wet when you were standing there?
¶35. Additional discovery included the incident report submitted after Thomas’ fall, as well as two incident reports of slip and falls that occurred on the staircase in the month before Thomas fell. Although the facts are sparse in the incident reports, the two prior falls reported in June 2016 describe a man who “was holding onto the rail, but as he put his foot down onto the tile from the stairs he slipped and fell,” striking the back of his head, and a woman “walking down the stairs from the hot tub who slipped and fell” but did not want medical treatment.
¶36. An affidavit and expert report from biomedical and mechanical engineer John C. Laughlin was entered as an attachment to Thomas’ response in opposition to summary judgment. Laughlin based his report solely on the video, photos of the fall, deposition testimony, and all three incident reports. After reviewing the surveillance video of the incident, it was Laughlin's opinion that the buckling of Thomas’ knee and other physiological conditions could be eliminated as the cause of the incident. He opined that there was a hazardous condition at the bottom of the stairs, possibly from “a reduced coefficient of friction due to pooling water or tile wear, for example.” Boyd Biloxi designated no expert to testify in its behalf regarding causation and filed a motion for summary judgment in January 2020.
¶37. A February 2020 response to summary judgment containing a Rule 56(f) motion was filed by Thomas requesting additional time to gather discovery. In July 2020 Thomas filed an amended response to summary judgment and Rule 56(f) motion. In these Rule 56(f) motions Thomas specifically requested to depose Boyd Biloxi's employees, its corporate representatives, and Payne. He also sought production of the prior two slip-and-fall incident reports and for Laughlin, the expert, to be allowed to inspect the site. In an affidavit attached to the second Rule 56(f) motion, Thomas’ original attorney communicated to the court for the first time that he had been contending with recurrent health complications related to an ongoing cancer struggle, and he indicated this was the cause of earlier delays in the case.
¶38. At the subsequent hearing on the Rule 56(f) motion, the trial court determined that Thomas’ attorney had “not pursued the case as diligently as he should have.” Because of the lack of diligence, the trial court denied Thomas’ request to depose the corporate representatives. The trial court also denied Thomas’ request for an expert inspection, reasoning that the expert inspection was unnecessary since Thomas’ and Kyle's deposition testimony did not lead to an inference that there was a defect with the stairs or surfaces. However, the court granted Thomas’ request to depose Payne and allowed her access to the prior incident reports.
¶39. After gathering the additional discovery, a summary judgment hearing was held in October 2020. In granting summary judgment to Boyd Biloxi, the trial court held that “there [was] no genuine issue of material fact as to causation in this case” and that Thomas could not prove what caused her fall. The trial court continued by stating that a person could make several inferences about why Thomas fell:
[T]he case law in these cases with regard to drawing reasonable inferences is that [the] reasonable inference has to be such as to pretty much be the way this had to happen. In other words there can't be a lot of wiggle room. There can't be a lot of other surmises because then otherwise ․ the jury is just guessing about what happened and how it happened.
[O]ne could reasonably infer that [Thomas] stepped in this dip that had water in it and she fell even though there's no proof of it. One could also infer that she just slipped because she got off balance. One could infer that she slipped because somebody had dripped there prior. One could infer that somebody spilled a drink there ․ There's all sorts of things that can be inferred because we have no proof as to what caused her to fall.
¶40. Thomas appealed both the trial court's grant of summary judgment and its decision to prohibit the expert's inspection by partially denying the Rule 56(f) motion.
I. Summary Judgment
¶41. Thomas asserts that the trial court erred by granting summary judgment because the evidence and reasonable inferences that could be drawn from it were not considered in the light most favorable to the non-movant. Thomas also asserts that the trial court inappropriately weighed the evidence and incorrectly required the identification of the substance in which she slipped. I maintain that summary judgment was inappropriate and that genuine issues of material fact exist.
¶42. “Summary judgments should be granted with great caution.” Evan Johnson & Sons Const. Inc. v. State, 877 So. 2d 360, 365 (¶17) (Miss. 2004) (citing Smith v. Sanders, 485 So. 2d 1051, 1054 (Miss. 1986); Brown, 444 So. 2d at 363). “In spite of this requirement of caution in granting summary judgment, this Court has held that the non-moving party must be diligent in opposing the motion for summary judgment.” Id. When reviewing the trial court's grant of summary judgment on liability in favor of Boyd Biloxi, this Court should review the evidence and the inferences that flow from it in the light most favorable to Thomas. Clinton Healthcare LLC v. Atkinson, 294 So. 3d 66, 72 (¶12) (Miss. 2019). Thomas “should be given the benefit of every reasonable doubt.” Renner v. Retzer Res. Inc., 236 So. 3d 810, 815 (¶21) (Miss. 2017). However, when doubt is present about whether any genuine issues of material fact exist, the trial court should deny the motion for summary judgment and permit a full trial on the merits. Id.
¶43. Mississippi uses a three-step process to determine liability in a premises liability case. Venture Inc. v. Harris, 307 So. 3d 427, 433 (¶19) (Miss. 2020). “The first step consists of classifying the status of the injured person as an invitee, licensee, or a trespasser. Following this identification, the duty which was owed to the injured party is determined. The third step is to determine whether this duty was breached by the landowner or business operator.” Id. “In a negligence action, the plaintiff must show duty, breach, causation, and damages.” Clinton Healthcare LLC, 294 So. 3d at 71 (¶9) (Miss. 2019) (quoting Hardy ex rel. Hardy v. K Mart Corp., 669 So. 2d 34, 37-38 (Miss. 1996)). There is no dispute that Thomas was an invitee. “A business owner owes a duty to an invitee to keep its premises in a reasonably safe condition and to warn the invitee of dangerous conditions that are not readily apparent.” Id. In order to prove a breach of this duty, Thomas must be able to do one of the following:
(1) show that some negligent act of the defendant caused [her] injury; or (2) show that the defendant had actual knowledge of a dangerous condition and failed to warn the plaintiff; or (3) show that the dangerous condition existed for a sufficient amount of time to impute constructive knowledge to the defendant, in that the defendant should have known of the dangerous condition.
Walker v. Cellular S. Inc., 309 So. 3d 16, 24 (¶29) (Miss. Ct. App. 2020), cert. denied, 309 So. 3d 451 (Miss. 2021). To recover under any of the three theories, “the plaintiff must present evidence to prove the existence of a dangerous condition.” Venture, 307 So. 3d at 433 (¶25). The existence of a dangerous condition and a defendant's notice of such can be shown by evidence of prior accidents, as long as the prior incidents are substantially similar to the present incident. Yoste v. Wal-Mart Stores Inc., 822 So. 2d 935, 936 (¶8) (Miss. 2002) (holding that prior incidents were not admissible to prove causation when the only similarity between those incidents and plaintiff's fall was that they all happened in a Walmart parking lot but were not in close proximity to the plaintiff's fall).
¶44. The majority contends that the video shows the base of the stairs to be ten to twenty feet wide. Maj. Op. at n.7. The trial court estimated from photographs that the base of the stairs was ten or twelve feet wide. The majority maintains that there is no evidence that either prior incident occurred “in the spot where Thomas stepped off the stairs onto the pool deck.” Maj. Op. at n.7. Thomas provided evidence of two prior falls in the limited area of the staircase, a significantly more confined area than the Walmart parking lot described in Yoste. Our Supreme Court does not require the prior incidents to be in the exact spot of the current one, only that they be substantially similar. See Parmes v. Ill. Cent. Gulf R.R., 440 So. 2d 261, 265 (Miss. 1983). The Supreme Court has even found subsequent slip-and-fall incidents on a staircase to be “substantially similar” and to present a genuine issue of material fact, reversing this Court when it held otherwise. Vivians v. Baptist Healthplex, 234 So. 3d 304, 307 (¶¶11-12, 21) (Miss. 2017). As in Vivians, the prior incidents Thomas presented should clearly have allowed this case to survive the summary judgment phase.
¶45. Furthermore, in the present case, the trial court also conceded that there “[was] a chance that [Thomas could] prove this hazardous condition existed.” The trial court took issue with Thomas’ proof of causation and granted summary judgment after finding that no proof of causation was supplied. Thomas, however, presented an abundance of circumstantial evidence regarding causation that would have been admissible at trial. The rule regarding circumstantial evidence used for proof of causation at trial states:
Proof of the necessary factual causal connection may be by either direct or circumstantial evidence, but in the event the latter is used, it must be sufficient to make plaintiff's asserted theory reasonably probable, not merely possible, and more probable than any other theory based on such evidence, and it is generally for the trier of fact to say whether circumstantial evidence meets this test.
Miss. Valley Gas Co. v. Est. of Walker, 725 So. 2d 139, 145 (¶21) (Miss. 1998) (appealed after trial on merits), abrogated on other grounds by Adams v. U.S. Homecrafters Inc., 744 So. 2d 736, 743 (¶21) (Miss. 1999).
¶46. “[T]he circumstantial-evidence doctrine allows the jury to draw an inference of the defendant's negligence[.]” Est. of Ellis v. MMC Materials Inc., 311 So. 3d 691, 696 (¶21) (Miss. Ct. App. 2021) (quoting Lyon v. McGee, 249 So. 3d 436, 444 (¶26) (Miss. Ct. App. 2018)). “Juries may reasonably infer the existence of one fact from the existence of another fact or set of facts.” Clinton Healthcare, 294 So. 3d at 71 (¶12) (citing Miss. Winn-Dixie Supermarkets v. Hughes, 247 Miss. 575, 156 So. 2d 734, 736 (1963)). “Negligence ‘may be found from circumstantial evidence of adequate probative value.’ ” Id. (quoting Hughes, 156 So. 2d at 736). “Verdicts may rest upon reasonable probabilities.” Id.
¶47. The standards for admitting inferences at the summary judgment phase of trial are fairly low. This Court has found when a plaintiff has provided “enough circumstantial evidence to take [its] claims out of the realm of ‘mere conjecture’ and plant them in the solid ground of ‘reasonable inference[,]’ ” then summary judgment is not proper. Patricola v. Imperial Palace of Miss. LLC, 235 So. 3d 214, 217 (¶11) (Miss. Ct. App. 2017) (quoting Buckel v. Chaney, 47 So. 3d 148, 156 (¶26) (Miss. 2010)). “[I]t is only in rare and exceptional cases that a civil case depending upon circumstantial evidence should be taken from the jury.” Miss. Valley Gas Co., 725 So. 2d at 146 (¶21).
¶48. The majority relies heavily on McCullar for the premise that for Thomas’ case to survive summary judgment, “it was Thomas’ burden to produce sufficient circumstantial evidence to show that the only inference that can be drawn from the evidence is that her fall was caused by the negligence of Boyd Biloxi.” Maj. Op. at ¶20. But not only is McCullar distinguishable from the present case, it is also misconstrued by the majority. In McCullar, this Court found summary judgment was appropriate after a sudden water leak above a bathtub at a casino caused a person to slip and fall. McCullar v. Boyd Tunica Inc., 50 So. 3d 1009, 1010 (¶3) (Miss. Ct. App. 2010). According to this Court, McCullar failed to show that there was a dangerous condition, a plumbing deficiency (as opposed to a spontaneous leak), or that the casino had any notice of the defect. Id. at 1013 (¶18). This scenario drastically differs from the present case, where Payne's testimony supports the fact that a dangerous condition existed and that Boyd Biloxi had notice of the defective area. More importantly, however, is the mischaracterization that Thomas’ evidence at the summary judgment phase must produce a theory that is “the only inference” available. What McCullar actually states is that “[n]egligence of the defendant and notice to him may be found from circumstantial evidence of adequate probative value.” Id. at 1014 (¶23) (citing Elston v. Circus Circus Miss. Inc., 908 So. 2d 771, 775 (¶16) (Miss. Ct. App. 2005) (reversing summary judgment when this Court determined there was ample circumstantial evidence that casino employees created the dangerous condition in a slip-and-fall case when plaintiff slipped on water the same day plants were typically watered)). McCullar continues, by citing the Supreme Court in Mississippi Valley Gas Co.:
[W]hile inferences of negligence may be drawn from circumstantial evidence, those inferences must be the only ones which reasonably could be drawn from the evidence presented, and if the circumstantial evidence presented lends itself equally to several conflicting inferences, the trier of fact is not permitted to select the inference it prefers, since to do so would be the equivalent of engaging in pure speculation about the facts.
Id. (emphasis added) (citing Miss. Valley Gas Co., 725 So. 2d at 145). The majority ignores the Supreme Court's guidance from this passage that the inferences must be ones that “reasonably could be drawn from the evidence,” and only if several inferences are equally possible, then summary judgment is appropriate. Nothing in the Court's language above allows speculative inferences by this Court, which are less probable than the theory put forth by the plaintiff and testified to by witnesses, to mandate summary judgment in this case.
¶49. Here Thomas put forth evidence from Payne's deposition to show that the area was defectively “embeveled,” which caused it to hold water, and that this defect had been reported to Boyd Biloxi with no resolution. The majority correctly notes that “[w]ater on a pool deck in and around pools is not an unusual condition.” Maj. Op. at ¶16. However, Payne's testimony described a tiled area that defectively “dipped inward,” that would “always hold water,” and that “was always slippery in that particular area.” I disagree with the majority and would submit that this is a rather “unusual condition” to have at the bottom of a flight of stairs. Furthermore, as stated, the trial court conceded that there was a chance that Thomas could prove the existence of a hazardous condition.
¶50. Payne further testified to personally seeing multiple children slip in the area. She testified to the presence of “puddling” in the defective area after the incident. Additionally, Kyle testified to the presence of water in this area prior to the incident, describing its dimensions in detail and pointing it out in the video. The majority disagrees with these first-hand witness accounts, stating that “even using the zoom feature on the video, no pools of water can be seen at the base of the stairs.” Maj. Op. at ¶17. As stated above, I disagree, and I clearly see a thin puddle of standing water in the video that accumulated in the defective area where Thomas fell. The majority cites Smith v. City of Southaven, 308 So. 3d 456, 465 (¶35) (Miss. Ct. App. 2020), to support its contention that its inability to see a puddle in the video, which I perceive, and about which multiple witnesses testify, should preclude a genuine issue of material fact. This reliance is misplaced. In Smith, summary judgment was upheld “when one party's version [was] blatantly contradicted” by the video and “so utterly discredited by the record that no reasonable jury could ․ believe[ ] him.” Id. at 465 (¶¶35-36) (emphasis added). “In instances where ․ different interpretations or inferences can be drawn from undisputed facts [(i.e., the video)], summary judgment is inappropriate.” Morgan v. Citizens Bank, 912 So. 2d 1133, 1135 (¶9) (Miss. Ct. App. 2005) (citing Johnson v. City of Cleveland, 846 So. 2d 1031, 1036 (¶14) (Miss. 2003)). Because I find that the video supports Thomas’ contentions, it cannot be said that Thomas, Payne, and Kyle's versions of events are “blatantly contradicted” or “utterly discredited” for summary judgment purposes by the video, as Smith requires.
¶51. I must pause here again to remind the majority of an important tenet of summary judgment: at the summary judgment phase, the trial court must view the evidence in the light most favorable to the non-movant. Meyers v. Am. States Ins. Co., 914 So. 2d 669, 673 (¶13) (Miss. 2005). Under a de novo review, this Court must do the same. Franklin Collection Serv. Inc. v. Kyle, 955 So. 2d 284, 288 (¶9) (Miss. 2007). In the present case, the testimony, photos, and video evidence in support of water puddled in a defective area at the bottom of the stairs should be considered in the light most favorable to Thomas. Failing to do so improperly positions this Court in the role of the fact-finder. Even if water was dripping from Kyle, as the majority suggests, it still does not clear the casino from liability for the defective “embeveled” tile where the water accumulated—which creates a genuine issue of material fact.
¶52. The majority also notes that Boyd Biloxi's employee Payne testified about the similarity of the prior reported falls to Thomas’ fall, but the majority finds this testimony “is not proper summary judgment proof because it is not based on first-hand knowledge” since Payne was not present when the prior falls occurred. Maj. Op. at ¶13. I first note, in response to the majority, that Payne's testimony regarding these prior incidents was not required for the Court to consider the matter during summary judgment. A description of the two prior incidents was set forth in the interrogatory responses supplied by Boyd Biloxi, with Boyd Biloxi's actual incident reports produced later and attached to Thomas’ response in opposition to summary judgment. The prior incidents were further detailed by Thomas’ expert Laughlin in his affidavit in support of Thomas’ opposition to summary judgment. “In evaluating the moving party's position, the court reviews ‘all admissions, answers to interrogatories, depositions, affidavits, and any other evidence, viewing the evidence in a light most favorable to the non-movant.’ ” Owen v. Pringle, 621 So. 2d 668, 670 (Miss. 1993) (quoting Skelton ex rel. Roden v. Twin Cnty. Rural Elec. Ass'n, 611 So. 2d 931, 935 (Miss. 1992)). Second, the majority places much emphasis on Payne's brief comments that the incidents were similar, while ignoring that the majority of her testimony regarding the prior incident reports reflected her personal knowledge of the process for filing these reports. The majority also downplays Payne's personal observations of children falling in the exact same area due to the defective “embeveled” area accumulating water, as well as her reporting this defective area to her superiors.
¶53. This evidence supports Thomas’ theory that a defective area existed at the bottom of the stairs where water accumulated, that Boyd Biloxi had adequate notice of it, and that it caused Thomas to slip and fall. In viewing the “totality of the circumstances surrounding the injury,” and when viewing the evidence and its inferences in the light most favorable to Thomas, this theory appears to me to be “reasonably probable, not merely possible, and more probable than any other theory based on [the] evidence.” Miss. Valley Gas Co., 725 So. 2d at 145 (¶21); Clinton Healthcare, 294 So. 3d at 72 (¶12). A jury could reasonably infer such. These facts show that Thomas can easily be described as providing “enough circumstantial evidence to take [her] claims out of the realm of ‘mere conjecture’ and plant them in the solid ground of ‘reasonable inference[.]’ ” Patricola, 235 So. 3d at 217 (¶11).
¶54. I must also address the trial court's and majority's use of speculation when they conjured up other possible scenarios that could have caused Thomas’ fall. Two theories the trial court presented were that Thomas may have lost her balance or slipped on a spilled drink. The majority speculates that Kyle dripped water at the base of the stairs when he stood there for one minute after walking across the pool deck and that this could have caused Thomas’ fall,15 even though Kyle testified in detail to a three-foot by three-foot puddle existing at the base of the stairs, and it is not possible to see any moisture dripping from Kyle in the video itself. Maj. Op. at ¶¶10, 19. The majority further speculates that it could infer that “Thomas got off balance and fell” due to her previous health conditions, Maj. Op at ¶20, even though Laughlin's expert report ruled out a physiological cause for the fall, and Boyd Biloxi produced no evidence to dispute this opinion.
¶55. These speculative scenarios have no basis in the evidence presented by either party; therefore they are not inferences that “reasonably could be drawn from the evidence presented” and are not “just as likely” the cause of the accident as the theory Thomas puts forth. Miss. Valley Gas Co., 725 So. 2d at 145 (¶21). In Carpenter v. Nobile, 620 So. 2d 961 (Miss. 1993), the Supreme Court denounced similar speculation by courts during the summary judgment phase after a trial court speculated on the variety of ways a horse might have escaped its paddock and caused an automobile accident. Id. at 965. In Carpenter, just like in the present case, a trial court found that a plaintiff presented inadequate proof of causation regarding how the horse escaped and subsequently granted summary judgment. Id. at 962, 965. The circuit court speculated in its findings that the horse could have jumped over the fence, unfastened the gate itself, or that a trespasser may have opened the gate, although the only evidence presented to the court were affidavits from experienced horse owners describing the defendant's paddock as inadequate. Id. The Supreme Court found the circuit court's speculations had no basis in the evidence presented to it and that the plaintiff had presented “tangible theories as to how the incident may have occurred.” Id. at 965. The grant of summary judgment was found to be inappropriate and was reversed. Id. at 965-66. Because this kind of speculation by the trial court without evidence was rebuked in Carpenter, I believe that this Court should apply that holding here.
¶56. Equally important to the present case, the Supreme Court has already declined to require a plaintiff to prove the exact identity of a substance on the floor—or even how it came to be on the floor—in a slip-and-fall case. Clinton Healthcare, 294 So. 3d at 71 (¶12). In Clinton Healthcare, after a visitor to a nursing home fell and injured herself near the door of a shower room, she testified that she felt some dampness underneath her body after her fall but could not identify precisely what the damp substance was. Id. at 68-69 (¶3). Clinton Health Care argued for summary judgment on the ground that Atkinson provided “no evidence ․ regarding what the substance was or how it came to be present on the floor.” Id. at 71 (¶10). Clinton Healthcare filed for an interlocutory appeal after summary judgment was denied. Id. at 70 (¶5).
¶57. In that case, the Supreme Court affirmed the denial of summary judgment based on the circumstantial-evidence doctrine, emphasizing that “Atkinson need not definitively prove the exact identity of the substance or how it came to be on the floor,” although she must still meet her burden of proof at trial. Id. at 71 (¶11). Our Supreme Court reasoned that such a requirement “would lead to absurd results, practically requiring a potential plaintiff to take a sampling of the substance and have it analyzed.” Id. Because the substance was “clear and ․ likely water,” the Supreme Court determined that Atkinson “produced sufficient evidence such that a jury could infer” Clinton Healthcare's negligence. Id. at (¶¶11-12).
¶58. In the present case, Thomas also stated that she is unsure of what caused her to slip. The majority asserts that Thomas’ lack of knowledge as to why she slipped “fail[s] to remove the case from the realm of conjecture and place it within the field of legitimate inference.” Maj. Op. at ¶15. As in Clinton Healthcare, however, Thomas presented an abundance of evidence via deposition testimony from Payne and Kyle that could allow a jury to infer that she slipped on water that had accumulated in an area Payne previously reported to Boyd Biloxi to be problematic. Since the Supreme Court has held that a plaintiff “need not definitively prove what ․ substance” she fell in, this Court should faithfully apply that holding. Clinton Healthcare, 294 So. 3d at 71 (¶¶11-12).
¶59. “Reasonable minds may differ on the question of whether there is a genuine issue of material fact. If there is to be error at the trial level it should be in denying summary judgment and in favor of a full live trial.” Dennis v. Searle, 457 So. 2d 941, 944 (Miss. 1984) (quoting Brown, 444 So. 2d at 362-63). A plaintiff may not know what she slipped on, but that does not result in a grant of summary judgment. This seems especially true if a witness testifies to the presence of a puddle, to historical knowledge of a problematic area, and that notice was provided to the premises owners of prior incidents in the area. I believe that when viewing the evidence and the inferences that flow from it in the light most favorable to Thomas, Thomas produced sufficient evidence such that a jury could infer that Boyd Biloxi could be found liable under one or two of the three premises liability theories. Because circumstantial evidence in the present case removes the case from the realm of conjecture and places it within the field of legitimate inference, summary judgment was improper in this case. A genuine issue of material facts exists here that should have been allowed to proceed to trial.
II. Rule 56(f) Denial of Expert Inspection of Premises and Request to Depose Corporate Representatives
¶60. Thomas also argues that the trial court abused its discretion when it partially denied Thomas’ Rule 56(f) request. The trial court declined to allow Thomas’ expert to examine the area of the premises where the fall took place. The trial court also denied her request to depose corporate representatives.16 Again, I agree with Thomas’ argument.
¶61. Mississippi Rules of Civil Procedure 56(f) provides:
When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such order as is just.
¶62. Our Supreme Court has established that Rule 56(f) requires the party resisting summary judgment (1) to present specific facts as to why he cannot adequately oppose summary judgment at the time and (2) to specifically demonstrate how postponement of a ruling on a summary judgment motion “will enable him, by discovery or other means, to rebut the movant's showing of the absence of a genuine issue of fact.” Stanley v. Scott Petroleum Corp., 184 So. 3d 940, 942 (¶5) (Miss. 2016). The rule is not meant to protect parties “who are lazy or dilatory.” Owens v. Thomae, 759 So. 2d 1117, 1120 (¶12) (Miss. 1999). If the trial court grants additional time, “it should be premised on the court's conclusion that ‘the party opposing summary judgment [has] been diligent and [has] acted in good faith.’ ” Stanley, 184 So. 3d at 942 (¶5) (quoting Owens, 759 So. 2d at 1121 (¶17)). The Supreme Court has advised that Rule 56(f) should be applied liberally. Id.
¶63. In her amended Rule 56(f) motion in response to Boyd Biloxi's motion for summary judgment, Thomas appropriately outlined what discovery she planned on conducting, what facts she intended to gather, and specifically how an inspection of the premises would allow the expert to help with “understanding of any physical issues present which may have contributed to Ms. Thomas’ fall.” The majority contends that these new discovery requests are untimely. Maj. Op. at n.12. However, the trial court chose to consider them since “they are in the record and they were filed before the date of the hearing.” We defer to the trial court here, as timeliness issues are reviewed for abuse of discretion. Vasser v. Bibleway M.B. Church, 50 So. 3d 381, 383 (¶6) (Miss. Ct. App. 2010). At the hearing on the Rule 56(f) motion, the trial court accepted the amended motion and attached affidavits as proper for review. However, the trial court also found at the hearing that Thomas’ attorney had not been diligent in pursuing Thomas’ case. The trial court denied the expert inspection of the premises, reasoning that Thomas and Kyle did not mention any physical defects to the premises during their depositions. The trial court further denied depositions of Boyd Biloxi corporate representatives for the same reasons.
¶64. The trial court's support for its decision at the Rule 56(f) hearing was that Thomas had violated Rule 4.03 of the Uniform Civil Rules of Circuit and County Court Practice. According to Rule 4.03, “all discovery must be completed within ninety days from service of an answer by the applicable defendant” unless a written request for an extension is received. UCRCCC 4.03(A). But Rule 4.03 is not necessarily dispositive. See Blake v. Wilson, 962 So. 2d 705, 709-10 (¶¶11-14) (Miss. Ct. App. 2007). Additionally, “[T]he Mississippi Supreme Court has indicated that striking untimely filed responses and affidavits is a drastic measure that should be inflicted in limited circumstances.” Id. at 709 (¶12) (citing Thompson v. Patino, 784 So. 2d 220, 223-24 (¶25) (Miss. 2001)).
¶65. “Trial courts have considerable discretion in discovery matters, and their decisions will not be overturned unless there is an abuse of discretion.” Blake, 962 So. 2d at 709 (¶12) (citing Beck v. Sapet, 937 So. 2d 945, 948-49 (¶6) (Miss. 2006)). Even so, prejudice is still a factor in the trial court's decision whether to allow discovery outside of the time frame proscribed by Rule 4.03. See Tatum v. Barrentine, 797 So. 2d 223, 228 (¶¶19-20) (Miss. 2001). “The purpose of the discovery rules promulgated by the Mississippi Supreme Court is that parties might ‘avoid trial by ambush’ and have ‘a reasonable time to prepare for trial.’ ” Six Thousand Dollars v. State ex rel. Miss. Bureau of Narcotics, 179 So. 3d 7, 13 (¶15) (Miss. Ct. App. 2014) (quoting APAC Miss. Inc. v. Johnson, 15 So. 3d 465, 473 (¶17) (Miss. Ct. App. 2009)), aff'd, 179 So. 3d 1 (Miss. 2015). In this case, it is important to note that no trial date had been set by the trial court, no pretrial scheduling order had been entered, and no sixty-day deadline for designation of an expert witness was triggered by Rule 4.03(A). Since no trial date had been set yet, there is little argument for prejudice against the defendant. Given this circumstance, it is clear Rule 4.03 need not be the sole determining factor in the present case.
¶66. With this background in mind, I maintain that the trial court abused its discretion when, instead of using the appropriate considerations for Rule 56(f) determinations, it limited further discovery regarding causation to information previously discussed in Kyle's and Thomas’ depositions. The principles of fairness are the guideposts by which a trial court should determine whether to grant further discovery under Rule 56(f). Owens, 759 So. 2d at 1121 (¶14) (citing Erby v. N. Miss. Med. Ctr., 654 So. 2d 495, 503 (Miss. 1995); Hudson v. Parvin, 511 So. 2d 499, 500 (Miss. 1987); Terrell v. Rankin, 511 So. 2d 126, 129 (Miss. 1987)). This precept is reflected in the language of the rule when it permits a court to “make such order as is just.” M.R.C.P. 56(f). “The issue of whether to grant additional requested discovery, although clearly discretionary with the trial judge, also mandates fairness to all parties.” Erby, 654 So. 2d at 502.
¶67. If the trial court believed that Thomas’ attorney was not diligent in his discovery process, it does not stand to reason, when using fairness as a guidepost, that some discovery was allowed to proceed after the ninety-day deadline under Rule 4.03 while other discovery was not. This is especially true in light of the fact that no sixty-day trial date rule was triggered, and no prejudice was claimed by the defendant. See UCRCCC 4.03(A) (“Absent special circumstances the court will not allow testimony at trial of an expert witness who was not designated as an expert witness to all attorneys of record at least sixty days before trial.”). Moreover, when it limited discovery of causation, the trial court unfairly clipped Thomas’ wings. It prevented her expert from discovering evidence of flaws that could have existed at the base of the staircase—which were subsequently testified to by Payne—that could have provided Thomas actual evidence of causation. Corporate depositions regarding additional prior incidents at the bottom of the staircase could have shown the same. “Where a request for additional time to gather material evidence is properly and timely made, and the request refused by the trial court, [the Supreme Court] has reversed on the basis that ‘fairness required a continuance of limited duration to afford ․ plaintiff the opportunity to go forward, if possible with her case.’ ” Erby, 654 So. 2d at 502 (other quotation mark omitted) (quoting Hudson v. Parvin, 511 So. 2d 499, 500 (Miss. 1987)). The Supreme Court has stated that “[j]ustice is served when a fair opportunity to oppose a motion is provided—because consideration of a motion for summary judgment requires a careful review by the trial court of all pertinent evidence in a light most favorable to the nonmovant.” Id. (emphasis in original). Because Thomas properly and timely made her request and showed the steps she had already taken and would subsequently take to proceed with discovering causation, fairness dictates a “continuance of limited duration” to allow her case to move to trial if possible. Id.
¶68. To conclude, I believe that summary judgment was inappropriate when all evidence and reasonable inferences that flow from it are considered in the light most favorable to Thomas. Furthermore, I find that the trial court abused its discretion under Rule 56(f) when it failed to allow Thomas’ expert to inspect the premises and failed to allow Thomas to depose Boyd Biloxi's corporate representatives. I believe the case should be reversed and remanded for further proceedings. For the foregoing reasons, I respectfully dissent.
1. Although the circuit judge ruled from the bench on August 14, 2020, the written order was not entered until January 26, 2021, for reasons explained in the order.
2. The order dated February 12, 2021, was finally drafted and entered by the circuit court because the orders produced by the parties were either not in the appropriate form as directed by the court or did not coincide with the ruling made on the record.
3. Two videos of the pool area are included in the record. One video shows the pool area starting about one hour prior to Thomas’ fall until the fall itself. The other starts after the fall and continues until Thomas is removed from the scene by paramedics. We refer to them collectively as the “video” for readability.
4. The fall occurred on July 14, 2016. Thomas’ deposition was taken on October 11, 2019, and her answers to interrogatories were produced the day before. Kyle's deposition was taken on January 6, 2020. Neither had reviewed the video of the fall prior to their depositions.
5. The dissent suggests that other people are shown in the video standing at the base of the stairs who could have contributed to a puddle of water in the “defective area.” The video evidence speaks for itself. Those persons noted by the dissent did not stand in the spot where Thomas fell. As noted, the video shows more than thirty people walking up and down the stairs in the hour before Thomas’ fall; however, none of them match Kyle's description noted above, except Kyle.
6. While the incident reports themselves can be considered, only the information on the face of the reports is proper summary judgment proof. It is Payne's comparison of these prior events as having occurred in the “same manner” and “same location” as Thomas’ fall that is not proper summary judgment proof because she did not witness any of the falls.
7. As shown in the video, the base of the stairs appears to be at least ten to twenty feet wide. There are hand rails on both sides. There is no evidence that either of the prior incidents occurred in the spot where Thomas stepped off the stairs onto the pool deck.
8. Payne testified that she did not see any puddles of water at the base of the stairs on that day prior to Thomas’ fall. She stated that if she had seen water there, she would have taken some corrective action. Further, she took no corrective action after Thomas’ fall. The most Payne said concerning the area of Thomas’ fall, on that day, was that while she was standing there, the area was “wet.”
9. The dissent argues that we have not considered the proof in the light most favorable to Thomas. However, the dissent fails to acknowledge the Smith case and the effect the video has at the summary judgment stage on conflicting evidence.
10. Although not noted on the court docket, Thomas’ untimely responses to the interrogatories were apparently produced on October 10, 2019, the day before her deposition.
11. Thomas’ response to the summary judgment motion was due within ten days of the service of the motion and memorandum, plus an additional three days. UCRCCC 4.02.
12. The dissent suggests that new discovery requests, raised for the first time in this motion, were timely made. We disagree. Thomas did not make such requests in her first Rule 56(f) motion in February after the summary judgment motion had been filed and set for a hearing. The new requests were not made in March, April, May, or June but at the end of July, days before the summary judgment motion was again set for a hearing. As with a number of other pleadings, this amended motion containing new discovery requests was not timely.
13. The steps themselves had non-stick grips applied to their length.
14. It goes without saying that a woman in her late fifties such as Thomas does not have the same ability to rebound from a fall as a child.
15. The majority also states that Kyle was the only person who stood at the base of the stairs in the hour prior to the fall. This is incorrect. The video reveals a lone man standing at the base of the stairs in the defective “embeveled” area at 6:46 p.m., a group of four patrons standing at the base of the stairs at 6:47 p.m., and a pair of ladies standing at the base of the stairs at the edge of the defective area at 7:21p.m., six minutes before Thomas’ fall. These people were also walking around the pool deck, which could have contributed to the puddle of water that accumulated in the defective area.
16. The majority asserts that Thomas did not address this issue in her initial brief but raised the issue in her reply brief instead. The majority finds this makes the issue procedurally barred. Maj. Op. at ¶22. This is also incorrect. Although there is no separate heading in the appellant's brief for a section on Rule 56(f), I would point the majority to issue 4, page 1 in the brief of the appellant, which is mentioned again on pages 6-7 and 19-22 of the appellant's brief. Furthermore, the appellee's brief acknowledges this argument in issue 2, page 1, and in its conclusion on page 26. While the failure to cite legal authority in support of an issue is a well-known procedural bar on appeal, I have yet to see any authority to support the premise that failure to provide a section heading for an argument is an equivalent procedural bar. In fact, the opposite seems true. See Eaton Corp. v. Brown, 130 So. 3d 1131, 1136 (¶25) (Miss. Ct. App. 2013).
EMFINGER, J., FOR THE COURT:
CARLTON AND WILSON, P.JJ., McCARTY AND SMITH, JJ., CONCUR. LAWRENCE, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. McDONALD, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. WESTBROOKS, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY BARNES, C.J., AND McDONALD, J.; GREENLEE AND LAWRENCE, JJ., JOIN IN PART.
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