IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2017-CA-01532-COA WILBUR M. WASHINGTON, JR. AND HAZ EL M. WASHINGTON APPELLANTS

v. WEST QUALITY FOOD SERVICES, INC. APPELLEE DATE OF JUDGMENT: 09/29/2017 TRIAL JUDGE: HON. DAL W ILLIAMSON COURT FROM W HICH APPEALED: JONES COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT ATTORNEY FOR APPELLANTS: W A YNE E. FERRELL JR. ATTORNEY FOR APPELLEE: JOHN D. BRADY NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: AFFIRMED - 12/03/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE J. WILSON, P.J., TINDELL AND LAWRENCE, JJ. J. WILSON, P.J., FOR THE COURT: ¶1. W i lbur W ashington was injured when he slipped a nd f ell in a restroom a t a gas station convenience store. H e later sued v arious entities that owned the property or that operated or

were af f iliated with the gas station or the convenience store. H e also sued W est Q uality Food Services Inc. (W est), a Kentucky F ried Chicken (KFC) f ranchisee t hat operated a restaurant

as a t enant in another part of the sam e building as t h e c o n v e n i ence store. W a shington eventually

settled with and/or voluntarily dism issed all def

endants other than W est. ¶2. W a shington alleged that W est f ailed to exercise reasonable care to keep the restroom in a reasonably

saf e condition. W est m oved f or sum m ary judgm ent, a r guing that it did notexercise control over the restroom , which was in a com m on area of the b uilding. The circuit

court granted W est’s m otion, and W ashington appealed. W e agree with the circuit court that
t h e r e is no genuine issue of m aterial f act or evidence that W est exercised control ove r t h e
restroom . Theref

o r e, W e st is entitled to judgm ent as a m a tter of law, and we af

f irm

. FACTS AND PROCEDURAL HISTORY ¶3. Tugwell Oil Com

pany built the “Casino Center E xxon II” in Robinsonville in 1996. The property con s isted of a gas station and a convenience store with a restaurant on either end o f the convenience s tore. A S u b w a y s a n d w ich shop was at one end of the building. Tugwell leased the other end t o W est to operate a K FC f ranchise. There were n o restroom s in the part of the building that Tugwell leased to W est. Restroom s were located of f a f oy er between the convenience store and the KFC. ¶4. We s t’s lease with T ugwell required Tugwell to m aintain the r e s t r o o ms a n d o t h e r “com m on areas” of the b u ilding. W est w as required t o pay Tugwell part of the cost of

m aintaining the com m on areas, including the r estroom s. W est agreed to pay Tugwell $500
per m onth f

or such costs. ¶5. In 2003, Tugwell sold the Casino Center Exxon II to Tunica Properties LLC. W est and Tunica Properties continued to operate under the o riginal Tugwell-W est lease, and W est continued to pay

Tunica Properties $500 per m o nth f or m aintenance costs. 1 ¶6. In May 2009, W ashington was driving f rom M em phis to Tunica. He and his f am ily

1 T u n ica P ro p e rties w a s o r i g in ally a d ef en d an t in th e case. T h e co u r t en tered an a g r e e d o rd er d ism issin g T u n i ca P ro p erties w ith o u t p rej u d ice in 2 0 1 2

. F o u r y ears later, at a h earin g o n W est’s m o tio n f o r s u m m ary j u d g m en t , Wa sh in g to n ’s co u n s el in d icated th at p erh ap s h e sh o u ld n o t h av e ag reed to d ism iss T u n ica P ro p erties. 2h a d b e e n t o Mem phis f or the day while in Tunica f or a convention. On their way back t o Tunica, they stopped at the Casino Center E xxon II to use the restroom a nd t o get som ething to eat at the KFC. ¶7. The restroom s were of f a f oy e r just inside the e n t r a n c e t o t h e c onvenience store. W a shington and h is s on went in t h e m en’s restroom

. W h ile in the restroom , W a shington slipped and f

ell in “water and urine” that had collected around a “ b ig drain

. . . in the f loor.” He tried to get up, but he slipped and f ell again. W ashington im m ediately experienced pain in his shoulders. H e reported his f a ll to a cashier nam ed Casey at the convenience store. The W a shingtons then bought som e chicken f rom the KFC and went back to their hotel. ¶8. W a shing t o n r e t u r ned to the convenience store the next day

. He asked Casey if he could f ill out a n incident report, but Casey said, “No—we d on’t do incident reports.” Wa shington then lef

t the store. He never reported his f all t o any em

ploy ee i n t h e K F C because he did not think the restroom s were part of the KFC. ¶9. In F ebruary 2011, W ashington sued W est and various entities t hat owned the property

or that operated o r were af f iliated with the gas station o r the convenience store. 2 W a shington eventually settled with a nd/or voluntarily dism issed all def endants other than W est. In 2015, W e st m oved f

or sum m a ry judgm ent on the ground that it did not own or exercise control over the c onvenience store’s restroom s. The circuit c ourt initially reserved ruling o n W est’s

m otion and ordered W est to produce additional docum ents. Af t er additional discovery , the
court granted W est’s m otion o n the ground that W ashington h ad not p roduced any evidence

2 T h e C a s i n o C en ter E x x o n II an d th e K F C restau ran t su b seq u e n t ly c lo sed in N o v e m b er o r D e cem

b er 2 0 1 1

. 3that W est exercised control over the restroom s . W ashington appealed.

¶10. On appeal, W ashingt o n a r g u e s ( 1 ) t h a t w h e t her W est e xercised control over the
restroom is a disputed issue of f act; (2) t hat “W est had p artial control ov e r the m en’s
restroo m, ” i mp roperly “delegated a n ondelegable duty to m aintain a saf e prem ises,” and im p roperly “delegated a duty that involves a dangero u s h azard”; a n d ( 3) t hat he is entitled
to a “ negative inf

erence” due to W est’s f

ailure t o produce docum ents in response to a court order. W e address thes e i s s u e s below. W e agree with the circuit court t hat there is no genuine i ssue o f ma t e r ial f act a nd that W est did not exercise control over the restroom

. W a shington’s rem aining argum e nts are without m erit. Theref ore, we af f irm

. ANALYSIS ¶11. “W e review the grant or denial o f a m otion f or sum m ary j udgm e n t de novo, viewing the evidence in the light m ost f a vorable t o the [ non-m oving] party

. . . .” Karpinsky v. Am. Nat’l I ns. , 109 So. 3 d 84, 88 (¶9) (Miss. 2 013) ( quotation m arks om itted). Sum m ary judgm ent “shall be rendered” if the record e vidence shows “ that there is no genuine issue as to any m aterial f

act and that the m oving party is entitled t o a judgm ent as a m atter of law.” M.R.C.P. 56(c). Thus, “sum m ary judgm ent i s appropriate when the non-m oving party has f ailed to m ake a showing suf f i cient to establish the existence of an e l em ent essential to the party ’s case, and on which that p arty will bear the burden of proof at trial.” Karpinsky , 109 So. 3d at 89 (¶11) (quotation m arks om itted). The non-m oving “party m ay not rest upon the

me r e a l l e g a t ions or denials of h is pleadings, but his response, by af f idavits or [ deposition testim o ny , answers to i nterrogatories, or adm issions], m ust set f o rth specif

ic f acts showing

4that there is a genuine issue f or trial.” M.R.C.P. 56(e). I. West did not ex ercise control over the restroom s. ¶12. “Generally speaking, under Mississippi law, a tenant m a y be liable f or injuries occurring on th ose parts of the prem ises which are . . . actually leased by the tenant.” Doe

v. C loverleaf Mall , 829 F. Sup p . 8 6 6 , 870 (S.D. Miss. 1993). As discussed above, the
restroom at issue in this case was not part of the prem ises actually

leased by W est. W est’s lease provided in relevant part:

Lessee, at the e xpense of Lessee, shall m a intain the dem ised p rem i ses a n d a ppurtenances to the dem ised prem ises in good repair a nd i n at leas t a s good condition as that in which they were delivered, allowing f or ordinary wear and tear. Lessee agrees to pay Lessor, in a ddition to the r entals s pecif ied in this Lease Agreem ent, a proportion of the Lessor’s operating cost f or the com m on f acilities in the building l eased, based upon the ratio of the square f ootage of the dem ised prem ises to the total square f e et of all the building space leased. The term “operating cost” shall m ean the cost and expense in c u r r e d in operating and m aintaining the com m on f acilities actually used or a vailable f or use by Lessee and its em ploy ees, a g ents, c u stom ers, a n d other i nvitees i n c l u d ing but not lim ited to, painting, lighting, rem oval of s now or g arbage, security s anitation, repairs, and public liability and property dam age insurance prem ium s. The term “com m on f acilities” shall m ean all areas, e q uipm ent and services provided by Lessor f or t he com m on o r joint use and benef it of L essee and its em ploy ees, agents, custom ers, and other invitees, m o re specif ically , but not lim i ted to, com m o n

areas, parking lots and rest room s . (Em phasis added). Pursuant to the latter provision, W est paid the l essor $500 p er m onth f or

m aintenance of

the com m on f

acilities, including the restroom s. 3 Thus, t he restroom s were
not part of the “dem ised p rem ises” that W est leased and had a contractual obligation to

3 We n o te th a t su c h a p ay

m en t b y a ten an t “ d o es n o t d em o n strate [ th at th e ten an t h as] p o ssessio n a n d co n tro l o f th e co m m o n areas. I t is m erely a f in an cial u n d ertak in g .” D o e , 8 2 9 F . S u p p . 2 d at 8 7 3

. 5m aintain. Rather, they were part of the “com m on f acilities” that the lessor was required by
contract to m aintain. ¶13. W h en, as in this case, “the l essor reserves control over a d esignated area f or com m on

use of tenants,” the lessor has a d uty to exercise r easonable care t o keep the com m on area in

a reasonably saf

e condition, and the lessor will b e liable f or any inju r i e s t h a t r e s u lt f rom a breach of that duty

. W

ilson v. Allday , 487 So. 2d 7 93, 796 (Mi s s . 1 9 8 6 )

. 4 A lessee has a “concurrent” d

uty to m aintain such an un-leased com m o n area only if i ts u se o f the com m on area is “tantam ount to possession and control.” Id. at 797-98. “Conversely , if the lessee’s

use of the [ com m on a rea did] not constitute control, there w ould be no d uty owed and theref ore no cause of

action” against the lessee. Id. at 797. ¶14. W a shington a rgues that there is a triable issue of f act in this case as to whether W e st’s

use of the restroom was “tantam ount to possession and control.” W a s hin gton s pecif ically
argues that l anguage in the lease’s insurance and i ndem nity provisions a nd certain standards f or KFC f ranchisees create a triable issue of f a ct. W e disagree. ¶15. To start w ith, there is no e v i d e n c e t h a t We s t o r any of its em ploy e es e ver had or exercised any actual c ontrol over the r e s t r o o ms . W est’s on-site m a nager, Marva Gardner, stated that W est’s em

ploy ees never cleaned, m aintained, or otherwise exercised any control

over the restroom s. If a custom er ever raised an issue with the restroom s, W est’s e m ploy ees would tell the custom er to t ell an em ploy ee i n the convenience s t o r e . Avit Varm a, who

4 Wilso n w as l ater o v erru led in p art b u t o n ly as it relates t o a lan d o w n er’s d u ty w ith resp ect to “o p en an d o b v io u s” d an g ers. S e e M a yfield v. T h e H a i rb en d er , 9 0 3 S o . 2 d 7 3 3 , 7 3 6 n .1 (M iss. 2 0 0 5 )

. 6operated the gas s t ation and convenience store, testif ied that his em

pl o y e e s cleaned the
restroom s. 5 Varm a testif

ied that his em

ploy ees would “ go and take care o f ” any i ssues with the restroom s. Varm a also stated that he had a part-tim e worker who would service and clean the restroom s daily

. Varm a testif ied that W est’s em

ploy ees did not “check t he restroom s on a regular basis,” and he never saw any W est em ploy ees clean the restroom s. ¶16. W a shington also argues that the insurance and indem nity clauses in W e st’s lease are

e v idence that it controlled the restroom s. However, the insurance clause sim ply r e q u i r e d W e st t o m aintain a “liability polic y f o r a c c i dents o r dam ages on or about t he dem ised
prem ises, com m on areas and areas appurtenant to the dem ised prem i ses and com m on areas.” The m ere f

act that t h e l e a s e r e quired W est to obtain a liability policy that extended to the

com m on areas does not s how that W est exercised control over the com m on areas. W est’s

em p l o y ees c ould have caused insurable accidents or dam ages in un-leased areas of the property over w h ich they had absolutely no control o r authority

. The sam e is true of the indem nity clause, which only required W est to indem nif y the lessor f

o r accidents, injuries,

or dam ages that occurred “on or about the dem ised prem ises.” The clause does not ref erence

com m on a reas or restroom s, but even assum i ng t hat i t applies to the com m on a r eas, it does
not s h o w that W e st exercised control over those areas. In s h ort, nothing in the lease itself shows t hat W est exercised control over the restroom s. Rather, as discussed above, the lease

5 V arm a o p erated th e g as statio n an d co n v en ien c e sto r e p u rsu an t to a l ease w ith T u n ica P ro p erties L L C . V a rm a ap p aren tly to o k

o n th e co st an d resp o n sib ility o f clean i n g th e restro o m s in th e co m m o n area, alth o u g h it ap p ears th a t T u n ica P ro p erties k ep t f o r itself th e $ 5 0 0 p er m o n th th at it r eceiv ed f ro m West f

o r m a in ten a n ce. Wash in g to n n am ed V a r m a as a d ef e n d a n t b u t ev en tu ally

settled w ith h i m .

7indicates just the opposite.

¶17. W a shington also a rgues that certain provisions of K FC’s “standards” applicable to its f ranchisees’ operations show that W est exercised c ontrol over the r e s t r o o m . K F C ’ s s t a n d a rds require f ranchisees to m ake regular inspections of the r estroom s in t heir r estaurants. However, W est’s em

ploy ees testif

ied that those particular standards only apply to s t andalone locations or other locations that have restroom s i nside the restaurant. They t estif ied that the standards did not r equire W est’s em ploy ees at locations such as the C asino Center Exxon II
to inspect restroom s that were n ot under W est’s control. W ashington produced nothing to contradict W est’s e vidence on this i s s u e . Wa s hington’s reliance on the KFC standards sim ply begs the question. There i s no evidence that the s t a n d a r ds apply to the restroom at issue in this case. ¶18. T h is case i s distinguishable f rom W ilson , supra , which i nvolved a cla i m a g a i n s t a lessee/grocery store f

or an injury t o a custom er caused by a pothole in the parking lot in f ront of the store. W

i lson , 487 S o. 2d at 794-95. T he parking lot in W ilson was not part of the leased p rem ises, and the landlord was responsible f or m aintainin g i t ; b u t the grocery store “had erected a cart c orral there and its em ploy ees went o nto the lot at least twelve tim es each day to gather its carts

. ” I d. at 797. In addition, the store “invited custom ers to park in the lot in f ront of the store and instructed its em ploy ees to park in other designated areas on the lot.” Id. The Suprem e Court held that the grocery store’s p r esence and activities in the parking lot w ere s uf

f icient f or a jury t o f

ind that it “occupied and controlled” the lot. Id. at 797-98.

8¶19. In contrast, there is no e vidence in this case that W est or its em p loy ees exercised any control over the restroom at i ssue. The restroom was not part of t he restaurant’s operations, and W est’s em

ploy ees were not assig n e d a n y duties or responsibilities with respect to the
restroom

. Further, there is no evidence that W est placed any advertising m aterials or other property in the restroom

. The r e s t r o o m was available f or use by W e st’s em

p loy ees and
custom ers—just as it was f or the em ploy ees and c ustom ers of t h e g a s s tation/convenience

s tore and the adjoining Subway

. But “m ere use” o f t he restroom , “even t hough this use resulted in econom i c benef it to [ W est], is n ot tantam ount t o possession and control.” Doe , 829 F. Supp. 2d at 872 (em phasis added) (distinguishing W ilson and holding that there was no evidence that m all tenants exercised control over the m all’s parking lot). ¶20. In s um m ary , W ashington presented no evide n c e t h a t W est exercised any degree of control over the restroom at i ssue. Theref ore, the circuit court correctly ruled that there was

no genuine issue of m a terial f act and that W est was entitled to judgm ent as a m atter of law. II. West did not attem pt to delegate a “nondelegable duty .” ¶21. Citing A merican Natio n a l I n s u r a n c e Co. v. Hogue , 749 So. 2d 1254, 1 258 (¶12) (Miss. Ct. App. 2000), W ashington next argues that a “property owner” c annot “delegate” its duty to keep its prem ises reasonably saf e f or invitees. He argues that W est has violated this princi p l e by taking the position t hat its landlord w as responsible f or m a intaining the

com m on areas of the property

. However, a s explained above, W est is not a property owner

or even a lessee with respect to the restroom at issue, and there is no evidence t hat W est was in charge of or exercised any control over the restroom

. As such, W e st did n ot “delegate”

9any

duty . W est did not have a duty to begin with. III. Washington is not entitled to any “negative inference.” ¶22. In 2016, the c ircuit court o rdered W est to produce any f iles concerning audits of the subject restaurant by Steritech, a third-party auditor that inspected KFC restaurants on behalf of KFC. W est subsequently inf orm ed W ashington that it no longer had any such f iles. W est acknowledged that Steritech conducted audits of the subject restaurant in 2008 and 2009, but “W est did not m aintain those audits as it w as not required or needed to d o so.” W est did produce Steritech reports f rom restaurants in Laurel and Collins as exem plars. The Laurel location h a d restroom s w ithin the restaurant, and the Steritech reports included com m ents on the condition a nd c leanliness of those restroom s. I n contrast, t here were n o r estroom s within the Collins restaurant, which, like the Robinsonville restaurant, shared its location wit h a convenience store. Thus, the Steritech reports f or the Collins restaurant noted that the
restroom s were not inspected because W est w as “ n ot responsibl e f o r t he

. . . restroom s.” W e st s tated that a udit reports f or the subject restaurant “would have c ontained sim ilar

com m ents, because W e st em ploy ees had no responsibility f or the restroom s” at that location either. W ashington then f iled a m otion to com

pel W est to produce d o c u m ents or, in the alternative, f

or a ruling that h e was entitled to a “ negative inf erence” based on W est’s f ailure
to produce the docum ents. On a ppeal, W ashington argues that the circuit court e rred by not granting him

such an inf

erence when ruling on W est’s m otion f or sum m ary judgm ent. ¶23. W a shi n g t o n w as not entitled to any negative inf erence. A negative i nf

erence m ay

a r ise if a party deliberately o r negligently d estroy ed relevant e vidence. DeLaughter v
.

1 0Lawrence Cty. Hosp. , 601 So. 2d 818, 821-22 (Miss. 1992). But in this c a s e , t here is no

evidence that W e st’s disposal of Steritech rep o r t s w a s d eliberate or negligent. As noted above, W ashington did not notif y any of W est’s em

ploy ees of

his f all when it occurred, he did not f ile suit against W est until February 2 011, and there is n o evidence that there would have b een any independent reason or n ecessity f or W est to have retained S teritech r eports f or any period of tim e. Accordingly , there was no evidence of negligence on W est’s p art and no basis f or a negative inf

erence. CONCLUSION ¶24. T h e r e i s no evidence showing that W est possessed or exercised control ove r t h e subject restroom

. Theref ore, W est was e n t i t l e d to j udgm ent as a m a tter o f law, and the circuit court properly granted sum m ary judgm ent. ¶25. AFFIRMED. CARLTON, P.J., GREENLEE, W E S TBROOKS, TINDELL, LAWRENCE, McCARTY AND C. WILSON, J J . , CONCUR. McDONALD, J., DISSENTS 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 . B A R N E S , C . J . , N O T PARTICIPATING.

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