IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2016-CA-00824-COA SHARON WILLIAMS APPELLANT

v. POTTER & SIMS FOODS, INC. D/B/A FOOD DEPOT APPELLEE

DATE OF JUDGMENT: 10/14/2015 TRIAL JUDGE: HON. JEFF W EILL SR. COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: FRANK THACKSTON ATTORNEY FOR APPELLEE: FRANCES R. SHIELDS NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: AFFIRMED - 09/26/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. IRVING, P.J., FOR THE COURT: ¶1. The Hinds County Circuit Court, First Judicial District, granted Potter & Sim s Food
Inc. d /b/a Food Depot’s ( Food D epot) m o t i o n f o r s u m m ary j udgm ent, f

i nding no genuine issue of m aterial f

act was raised by Sharon W illiam s’s com plaint. Believing that the circuit court erred, Sharon appeals. ¶2. W e f

ind no error; theref

ore, we af f irm

. FACTS ¶3. On May

1, 2013, W illiam s was shopping a t Food Depot in Jackson, Mississippi. In

a com plaint f iled against Food D epot on July 9 , 2 014, she a l l eged that she inhaled a whitepowder that em a nated f rom the inside of

a box of light bulbs when she shook the box. The box contained a broken bulb or bulbs. Apparently , there i s a video that w as not m ade a part of the record on appeal showing W illiam s r em oving a box of bulbs f rom the shelf

, shaking it, a nd returning it to the shelf . In any event, she reported the incident to a cashier, and the

next day s he m et with t he m anager, Aubr e y W ren, and f illed out a n incident report. W ren adm itted i n his deposition that, as a m atter of s tore policy , d e f e c t i v e m e rchandise is not allowed on the store’s shelves. ¶4. W i lliam s alleged that she sustained injuries, f or w h i c h s h e o b t a i n e d m e d i c a l treatm ent, including nasal s urgery , as a r esult of inadvertently inhaling the powder/dust f rom the broken incandescent light bulbs. She also alleged that t he light bulbs were b roken a s a result of the negligent actions on the part of the store’s em ploy ees and that the Food Depot f a i l e d to exercise o rdinary care to discover the presence o f the powder on or about the o utside of the light-bulb box when the boxes were placed on the shelves. She f u rther alleged that the Food Depot em ploy ees f ailed t o exercise reasonable care to discover and rem ove t he boxes f rom the s helves when i t was f

oreseeable that t he boxes would be handled by custom ers—a f ailure, she argues, that constituted negligence. ¶5. Food Depot, in its answer, denied all allegations o f n egligence. F ood Depot did not dispute t hat the bulbs were b r oken; however, w h o broke the bulbs and whether the Food Depot knew that the broken b ulbs w ere o n the shelf were contested issues. Af ter d epositions, the trial was set t o begin on August 3, 2015, w i th the deadline f or d esignating experts set f or

2June 4, 2 015. On June 1 7 , 2 0 1 5 , Food Depot f i led a m otion f

or sum m ary judgm ent; W i lliam s responded o n J uly 1 3 , 2015. However, on July 8, 2015, approxim ately one m onth bef ore trial, W illiam s f

iled a m otion s eeking an order allowing h er to take the deposition of her treating phy s ician, D r. Jadien Y oung. T he circuit court denied her m otion on t wo bases: it was untim ely , as the deadline to designate expert witnesses had passed, and according to the deposition testim ony of D r. Young, W illiam s’s i njures were n ot connected t o the incident

at Food Depot, or at l east, Dr. Young could not m a ke the connection. On or about October 14, 2015, the circuit court issued its order granting Food D epot’s sum m ary -judgm ent m otion. This appeal f

o llowed.
DISCUSSION ¶6. Our standard of review is s uccinctly addressed in Gorman-Rupp Co. v. Hall , 908 So. 2d 749, 753-54 (¶¶12-15) (Miss. 2005): [ The a p p e l l a t e court] applies a de novo standard of review on appeal f rom a denial of sum m a ry judgm ent by the trial court. Rule 5 6(c) of the Mississippi Rules of Civil Procedure provides that sum m ary judgm ent shall be granted by a court if the pleadings, depositions, answers to interrogatories and adm i ssions on f ile, together with af

f idavits, i f any , show that there is no genuine issue as to any m a terial f

act. The m oving party has the burden of dem o nstrating t hat there is no genuine issue of m aterial f a ct i n e xistence, while t he non[ ]m oving party should be g iven the benef it of every reasonable doubt. A f act i s m a terial if it tends t o resolve any of the issues properly raised by the parties. If , in this view, t here i s no genuine issue of m aterial f act and[ ] the m oving party is entitled to judgm ent as a m atter o f law, sum m ary judgm ent should f orthwith be entered i n his f

avor. Otherwise, the m otion should be denied. Issues of f act suf f icient to require d enial of a m otion f

or sum m ary judgm ent obviously are pre s e n t w h e r e one p arty swears to one version of the m atter in issue and another say s the opposite.

3* * * *

To avoid sum m ary judgm ent, the non[ ]m oving party m ust establish a genuine issue of m a terial f

a ct within the m eans a llowable under the Rule. If any triable issues o f f a ct exist, the l ower court’s decision t o grant sum m ary j udgm ent will be reversed. Otherwise the decision is af f irm ed. (Internal citations and quotation m arks om itted). ¶7. This Court has stated that “[ a] claim of negligence has f our elem e nts: dut y , breach, causation, and dam ages. To e stablish a prim a f acie case, [ the plaintif

f ] m u s t p r e s e nt suf f i cient evidence on all f

our elem ents of the claim to carry the burden of going f orward.”
Price v. Park Mgmt. Inc. , 831 So. 2d 550, 551 (¶5) (Miss. Ct. App. 2002) (internal citation

om itted). ¶8. In her com

plaint, W i lliam s states that she was an invit e e o f F o o d D e pot and was, theref ore, owed a duty of care. She alleges that Food Depot f ailed to exercise ordinary care
to d iscover and/o r r e mo v e the broken light bulbs o r the light-bulb boxes f rom its shelves. She essentially a rgues that is not likely that a custom er or custom ers broke all of the bulbs and placed the boxes containing the broken bulbs back on the shelves w ithout Food Depot’s knowledge. S h e f

urther alleges that she sustained p ersonal injuries a f ter she inadvertently inhaled a white powder/dust associated with the broken light bulbs on Food Depot’s shelf , that it was f

oreseeable that these boxes would be handled by Food Depot’s custom ers, and that Food Depot’s f

ailu r e t o r e mo ve the boxes constituted negligence. Finally , she argues that she suf

f ered dam ages, as the incident caused her serious injury that required surgery

. ¶9. Additionally , she m aintains that the court should h ave granted h er m otion to take Dr.
4Young’s d eposition, despite the expiration o f t he d eadline f or designating e xpert witnesses. She argues that she could not locate Dr. Young, a s he had relocated to Florida, a n d the Florida clerk’s o f

f ice ref used to issue a subpoena with o u t an o rder f rom the Mississippi circuit court. ¶10. I n i ts m o tion f

or sum m ary judgm ent, Food Depot asserts t hat W illi a ms f a i l e d t o establish that it had a ctual or constructive knowledge that t he b roken light b ulbs existed prior

to t he incident. W illia ms d i d n o t e s tablish w hen or how t he light bulbs were broken, who broke them , or how l ong they had rem ained on the s t o r e s helf bef ore she picked them up. The surveillance video, which w as attached to the F ood Depot’s m otion f or sum m ary judgm ent, indicates that W illiam s’s own actions in r em oving the light bulbs, shaking the box, and placing the bulbs back on the shelf could have been what caused s om e bulbs to break, although that would not explain how the bulbs in the o ther six or seven boxes were broken. ¶11. W e have said: [ I]n order to succeed in a prem ises[ -]liability action, the plaintif

f m ust prove one of three things: (1) a negligent a ct by the def endant caused the plaintif f ’s inju r y ; or, (2)

. . . [ the] def endant h ad a c tual knowledge o f a d angerous condition, but f

ailed to warn the plaintif

f of the danger; o r, (3) the d angerous condition rem ained long enough to im pute constructive knowledge to the def endant. Byrne v. W

al-Mart Stores Inc. , 877 So. 2d 462, 465 (¶5) (Miss. Ct. App. 2003). Despite her contentions to the co n t rary , W illiam s f ailed to prove negligence, actual knowledge, or constructive knowledge on behalf of Food Depot. ¶12. Food Depot argues, a nd we agree, that n o genuine issue of m ater i a l f a c t existed on
5whether there was a causal link between the dust or powder allegedly i nhaled by W illiam s

and the injury she claim ed to h a v e suf f ered. Food Depot’s m edical expert, specializing in otolary ngology , 1 opined that, b ased upon his education, t raining, experience, and review of
W i lliam s’s m e dical records and to a reasonable degree of m edical probability , there existed

no objective m edical e vidence that W illiam s’s sinus surgery was c a u s a l l y related to the incident at Food Depot. In response, W illiam s did n ot provide any testim ony f rom a m edical

e xpert establishing that the alleged inhalation of the white powder f rom the bro k e n b u l b s caused her sinus condition. Also, there was no expert testim ony that the white powder f rom the bulbs was t oxic or inherently da n g e r o u s a s W illiam s suggests. So, e ven accepting
W i lliam s’s contentions that F ood Depot was negligent in allowing the boxes of broken bulbs

to rem ain on its shelves, that a wh i t e p o w der or d ust em anated f

rom t he b oxes of broken bulbs, and that she inhaled t he powder or dust, she still could not prevail because she f ailed to establish that her injuries were caused by her inhalation of

the dust f rom the bulbs. ¶13. The circuit court correctly relied on B yrne , which states: The duty of a store owner to its invitees has repeatedly b een cited as a duty to exercise ordinary care and to keep t he prem ises reasonably saf e while warning invitees o f dangerous conditions known to the store owner. However, the store owner is not an i nsurer of business invitees’ i njuries

. . . . The basis o f liability is negligence a nd not injury

. Proof m erely of the occurrence of a f a l l on a f loor within business prem ises is insuf f icient to sh o w negligence on the part of the proprietor. Proof that the f l oor on which the f

all occurred had present

1 “ A n ‘o to lary

n g o lo g ist’ is a p h y s i c i a n w h o sp ecializes in th e d i seases o f th e ear, lary n x [ ,] an d th ro at, in clu d in g th e u p p e r[ -]r e s pi r a t o r y t r act.” K e n t v. B a p tist M em ’l H o sp
. -N

. M iss. In c. , 8 5 3 S o . 2 d 8 7 3 , 8 7 7 n .1 (M iss. C t. A p p . 2 0 0 3 ). 6thereon litter and debris is sim ilarly insuf f i cient.
B y r n e , 877 So. 2d at 465 (¶6). A nalogous to B yrne , W illiam s’s claim that she in h a l e d a white p owder or dust while s hopping in the Food Depot w as insuf f icient to prove t hat Food Depot was negligent. Sim i larly , her subsequent m edical treatm e nt was insuf f i cient to show

a c a usal c o nnection between the white powder or dust a nd her injury without m edical proof to a reasonable degree of

m edical certainty

that such was the cause of her injuries. ¶14. Pursuant to Rule 56(c), if there is no genuine issue as to any m aterial f act, t he m oving party is entitled t o a judgm ent as a m a tter of law. W e agree with the circuit court’s f inding that W illiam s f

a iled to m e et her burden of proof concerning t he required elem ents of a
prem ises-liability claim of negligence, as she f ailed to show the existence of a genuine issue

o f a n y ma t erial f

a ct that she would have been required to p rove a t trial. The circuit cour t properly granted Food Depot’s m otion f or sum m ary judgm ent. ¶15. AFFIRMED. LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, F A I R , WILSON AND GREENLEE, JJ., CONCUR. WESTBROOKS, J ., CONCURS I N R E S ULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

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