IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-CA-01389-COA
OWEN J. BRADLEY AND MARGARET M. BRADLEY APPELLANTS

v.
DIAMONDHEAD COUNTRY CLUB AND PROPERTY OWNERS ASSOCIATION INC. APPELLEE

DATE OF JUDGMENT: 09/13/2017 TRIAL JUDGE: HON. LAW RENCE PAUL BOURGEOIS JR. COURT FROM W HICH APPEALED: HANCOCK COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANTS: OW EN J. BRADLEY ATTORNEYS FOR APPELLEE: RICHARD B. TUBERTINI DAVID W

. CRANE NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: AFFIRMED - 04/30/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE BARNES, C.J., WESTBROOKS AND LAWRENCE, JJ. WESTBROOKS, J., FOR THE COURT: ¶1. O w e n a

n d M argaret Bradley appeal a f i nal judgm ent f

rom the H ancock Co u

n t y C i r c u i t
Court g ranting the Diam ondhead Country Club and P roperty Owners Association’s m otion
f or sum m a ry judgm ent and alternative m otion f o r partial sum m ary judgm ent. A f ter review
of the record, we af

f i rm
. FACTS ¶2. On February 9, 2013, a r o u n d n o o n , O w en Bradley and h is wif e, Margaret, were walking on a pathway leaving their Lan ai Village condom i nium headed toward the
Diam ondhe a d Country Club swim m ing pool when Bradley stepped partially of f the path withh i s r i g h t f

oot, causing him to f

all onto the edge of the pathway

. Margaret was walki n g slightly ahead of Bradley and s tated s he did not see him f all. The drop-of

f on t he side of the walkway was approxim ately f o u r inches. 1 Six weeks prior to the accident, the walkway had
been resurf

a ced and overlaid with asphalt creating the drop-of f

. ¶3. A f t e r t h e f a l l , Bradley was taken by am bulance to Ochsner Hospita l i n S l i d e l l , Louisiana. A t the hospital, i t w as deter mi n e d t h a t Bradley h ad a c om m inuted lefti n t e r t r o c hanteric f

em ur f racture. As a result, B radley had an eighteen-inch m etal rod surgically screwed into his pelvis t hat ran t hrough his f em ur extending to his knee. He stay ed
in t he hospital f

or s e v e n day s, and he also required extensive p hy sical therapy f or m onths
af ter the incident. ¶4. On June 2 3 , 2 0 1 4 , B r a d l e y fi l e d a n e g l i g e n c e com plaint against Diam ondhead Country
Club a nd Property Owners Association ( D P O A) and W arren Paving Co., requesting $1,500,000 in dam ages. Additionally , Br a d l e y f iled, o n behalf of Margaret, a loss of
consortium

claim attached to his lawsuit. ¶5. Soon af

ter, Bradley voluntarily dism issed W a rren Paving Co., agreeing that they held

no contractual obligation to ensure that the pathway was level. In response to the c om plaint,
DPOA f iled a m otion f

o r sum m ary judgm ent or a lternatively a m otion f or partial sum m ary judgm ent. Bradley countered by subm itting tw o a f f i davits: an initial af

f idavit and a supplem ental a f

f idavit provided by his expert witness, Charles Turnbow. The court struck
Turnbow’s af

f idavits, stating they would not be adm issible at trial under Mississippi Rules

1 B o th p arties ag ree th e d ro p -o f f w as f o u r-in ch es. 2of Evidence 702 and 403 and subsequently granted D POA’s m otion f or sum m ary j udgm ent.
From that judgm ent, Bradley

appeals.
STANDARD OF REVIEW ¶6. “Our well-established standard of review f or the trial court’s adm is s i o n o r s u p p r e s s ion
of evidence, including expert testim ony , is a b use of discretion.” Tunica County v. Matthews , 926 So. 2d 209, 212-13 (¶5) (Miss. 2006). “W e g ive great def erence to t he discretion of the

t r i a l j u d g e .” Id. “Unless we conclude that the discretion was arbitrary a n d clearl y

erroneous, am ounting to an abuse of discretion, t h a t d e c ision will stand.” I d. “It is
well-settled that appellate r eview o f the trial court’s grant or denial of a m otion f or sum m ary judgm ent requires t he a

pplication of d e novo review.” Adams v. G raceland Care C t r
. of Oxford LLC , 208 So. 3d 575, 579 (¶9) (Miss. 2017).
DISCUSSION ¶7. On appeal, Bradley raises two issues: (1) the circuit court e rred in striking Turnbow’s
af f idavits, and (2) the circuit court erred in granting DPOA’s m otion f o r sum m ary j udgm ent.
I. The Adm i ssibility of Charles Turnbow ’s Affidavits ¶8. Bradley ’s f

irst assignm ent of err or deals with his expert w itness’s af f idavits subm itted
in response to DP O A ’ s m otion f or sum m ary judgm ent and a lternative m otion f or partial

sum m ary judgm ent. B radley states tha t t h e circuit court abused its discretion by f ailing to apply t he pertinent Mississippi Rules of Evidence and relevant case law when it ordered that
the two af

f idavits his e x p e rt subm itted be stricken f rom the record. In its o rder, the court
stated:

33. The initial af f idavit of Charles E. T urnbow f ails to dem onstrate knowledge of the s tandard of care due a visitor to p r o p e r t y in the context of Mississippi Law. T he Supplem ental Af f id a v it of Mr. Turnbow, likewise f

ails to d em onstrate that knowledge. The Court recognizes that in the Supplem e ntal Af f idavit, M r. Turnbow states t hat he i s f am iliar with t he reasonableness standard. Yet his testim ony in that af f idavit, nonetheless f

a ils to dem onstrate a knowledge of the actual s tandard of care due a n i n vitee (which this Court f inds the Plaintif f to be) in the State of Mississippi.
4. The testim ony contained in the af f idavits a r e , theref

ore, m ore prejudicial than they are probative and it would not be adm issible a t trial p ursuant to Rule 4 0 3 a n d Rule 702 of the Mississippi Rules of Evidence.
5 Consequently , the testim ony contained in the af f i d a v i t s of Charles E. Turnbow cannot be considered in the deliberation of t he D ef endants Motion f or Sum m ary

Judgm ent. ¶9. Bradley a rgues t hat the court never m ade a f inding of whether Turnbow qualif ied as

an expert witness nor to the relevance of the evidence prof f ered in Turnbow’s af

f idavits. He
also argues t hat Turnbow’s a f f idavits are reliable and that exclusion of his expert testim ony is not a proper rem edy

available to DPOA. The Mississippi Suprem e Court has held:
The l aw em

powers a trial judge to determ ine w h e t h er a prof f ered expert is qualif ied to testif

y and does not r estrict exercise of this power to t he trial stage only . That is, a judge has as m uch p ower to resolve doubts on qualif i cations of prof f ered experts d

uring the sum m ary judgm ent stage as he h as during the trial stage. And of c o u r se, the standard which this Court m ust apply when revi ewing a trial judge’s decision t o disqualif y rem ains unchangednotwithstanding t h a t t h e decision was m a de during the sum m ary j udgm ent stage. T hat is, t his Cour t w ill determ ine whether the trial judge abused his discretion. McDonald v. Mem’l Hosp. at Gulfport , 8 So. 3d 175, 179 (¶8) (Miss. 2009). ¶10. Here, the circuit court looks to two rules of evidence in its order, Rules 702 and 403,
when determ ining whether to a llow Turnbow’s testim ony
. Mississippi R ule o f Evidence 702

4states:
If s cientif ic, techn i c a l , or other specialized k nowledge will a s sist the trier of f act to understand the evidence or to determ ine a f act in issue , a witness qualif ied as an expert by knowledge, skill, experience, training, o r education,
m ay testif y thereto in the f

orm of an opinion or otherwise, if (1) the testim ony is b ased upon suf

f icient f acts or data, (2) th e testim ony is the product of reliable principles and m ethods, and (3) t he w itness has applied the principles and m ethods reliably

to the f acts of the case. ¶11. Furtherm ore, “ expert testim ony sh o u l d o n l y be adm itted if it withstands t he two-prong inquiry under Rule 702.” McDonald , 8 So. 3d at 181 (¶1 5 )

. “ F i r s t , t he witness m ust be qualif ied by virtue of his or her knowledge, skill, experience or e d ucation.” Id. “Second, the
witness’s scientif

i c, technical or other specialized knowledge m ust assist the trier of f

act in understanding or d eciding a f act in issue.” Id. Additionally , the court looked t o Mississippi
Rule of Evidence 403, which states:
The court m ay ex c l u d e relevant e vidence if its probative v alue is substantially outweighed by a danger of one or m ore of the f ollowing: u nf

air prejudice, conf

using the issues, m isleading the jury , undue d elay , w asting t i m e , o r needlessly presenting cum ulative evidence. ¶12. Here, Turnbow was hired to give an e xpert o pinion on f our iss u e s : (1) whether the
conditions existing at the tim e of the plaintif f ’s f all created an unreasonable hazard t o the

m em bers and the public, (2) whether the f all described the by the plaintif f and witnesses is
consistent with an individual f alling victim to the hazard, (3) whether the hazard was a ty pe
that is r ecognized and would have been identif iable o n reasonable and com petent inspection,
and (4) w hether the condition of the pathway m et reasonable s af ety and industry standards. ¶13. U n d e r Mississippi law, DPOA o wed Bradley “ the d u t y t o k e e p t h e p r e mi s e s reasonably saf

e and when not reasonably saf e to warn only

where there is a hidden danger

5or peril that is not in plain and open view” because h e is treated as a b usiness invitee when

in com m o n a reas. See G reen v. Dalewood Prop. Owners’ Ass’n Inc. , 919 So. 2d 1000, 1007 (¶8) ( Miss. Ct. App. 2005). I n Turnbow’s supplem ental a f f idavit, he opined u sing the reasonableness standard adopted by Mississippi and still concluded:

. . . due to t he lack of visibility , the m agnitude of the def ect, the ef f ect on the body of a m isstep, the reasonable anticipation of the pedestrian, and the lack of reasonable post construc t i o n ( repair) were clear indicators of an u n r e a s o n a b l e dangerous c ondition (hazard) which c o u l d c a u s e s u b s t a n t i a l h a r m to an individual f

alling victim

to the def

ective condition. ¶14. The circuit court still f o u n d T u rnbow’s af

f idavits u npersuasive to be adm issible at
trial. A s h e ld b e f

ore, the circuit court has wide d iscretion in allowing or disallowing
evidence. “The relevancy and adm issibility of evidence are largely w ithin t he discretion of
the trial judge.” Eskridge v. State , 765 So. 2d 508, 510 (¶7) (Miss. 2000). “Only i f the trial judge a buses this discretion will his decision be reversed.” Id. Because we do n ot f ind that the trial court erred in disallowing Turnbow’s testim ony , we f ind this issue without m erit.
II. Sum m ary Judgm ent ¶15. Bradl e y ’ s s e c o n d a s s i g n me n t of error is t hat the circuit court erred in granting
DPOA’s m otion f

or sum m ary judgm ent. Bradley m aintains that there is a genuine issue of

m aterial f act contrary t o the c ourt’s f inal judgm ent. The ci r c u i t c o u r t s tated that “[ a]s a

m atter of law, the f

our inch drop-of

f , wh ich Mr. Bradley a l leges to have c aused his f all, is

not a dangerous or u n reasonably hazardous condition. T here f o re, t his [ c]ourt s pecif

ically
f inds t h a t , a s a m atter of l aw, the Def endant breached no duty to M r. B radley .” Bradley
f urther contends that the f

o ur i nch drop-of

f c annot properly be h eld to b e “not dangerous or

6unreasonably hazardous” as a m atter o f l aw. However, under Mississippi law, even a sevenand-half -inch drop o f

f is not a per se hazardous condition such that the owner of the business
would reasonably anticipate that o n e would f a ll or trip. See Stanley v. M organ & Lindsey
Inc. , 203 So. 2d 473, 477 (Miss. 1967). Noting t h a t e a c h case is f act specif ic, in this particular case we do not f ind that the circuit court e r red in f i nding that the f

our-inch drop was not a dangerous or unreasonable hazardous condition by law. ¶16. Our suprem e court has held t h a t “ [ s ] u m ma r y j u d g m e nt is appropriate where the pleadings, depositions, answers to interrogatories and adm i ssions o n f ile, together with the
af f idavits, if any , show that there is no genuine issue as to any m aterial f act and that the

m oving party is entitled to a judgm ent as a m atter o f law.” McDonald , 8 S o. 3 d at 178 (¶8);

see also M.R.C.P. 56(c). “W e will not reverse the trial court’s decision unless it appears that
triable issues of f

act rem ain w hen the f

acts are viewed in the light mo s t f avorable to the

nonm o ving party .” Id. ¶17. F u r t h erm ore, “the party opposing sum m ary j udgm ent m ay n ot r est upon the me r e allegations or denials of h is pleadings, but his response, by af f idavit or as otherwise provided
in this rule, m

ust set f orth s pecif

ic f acts showing that there is a genuine issue f or t rial. If he
does not so respond, su mma r y judgm ent, if appropriate, will be entered against him .” Karpinsky v. Am. Nat’l I n s
. C o
. , 1 0 9 So. 3d 84, 88 (¶10) (Miss. 2013). S till, “sum m ary judgm ent evidence m

ust b e adm issible a t t r ial.” I ll. Cent. R

. C

o. v
. Jackson , 179 So. 3d 1037, 1044 (¶14) (Miss. 2015). ¶18. Here, the c ircuit c ourt f ou n d that Turnbow’s testim ony , Bradley ’ s only e vidence in

7response to D POA’s m otion, would not be adm issible at trial. Accordingly , the c ircuit court

properly granted D POA’s m otion f or sum m a ry judgm ent as it w a s Bradley ’ s b urden to rebut
DPOA and s how that there was a genuine issue o f m aterial f act lef t f or the jury to d eterm ine.
CONCLUSION ¶19. Af ter review of

the record, we af

f irm the circuit court’s judgm ent. ¶20. AFFIRMED. BARNES, C.J., C ARLTON AND J. WILSON, P.JJ., GREENLEE, LAWRENCE AND C. WILSON, JJ., CONCUR. McDO N A L D , J ., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY WESTBROOKS AND McCARTY, JJ. McCARTY, J., CONCURS I N PART AND I N THE RESULT W I T H O U T S E P A R A T E W R I T T E N O P I N I O N
. T I N D E L L , J
. , N O T PARTICIPATING. McDONALD, J., SPECIALLY CONCURRING: ¶21. I concur with the m ajority ; however, I t hink that o ur courts should be m indf ul of holding expert witnesses in c ivil cases to a higher Daubert standard than expert w itnesses in
crim inal cases. 2 WESTBROOKS AND McCARTY, JJ., JOIN THIS OPINION.

2 D a u b ert v. M

errill D o w P h a r a m s In c ., 5 0 9 U .S . 5 8 9 (1 9 9 3 )

.

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