IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2017-CP-00258-COA
BETTINA GRANDBERRY APPELLANT

v. RIH ACQUISITIONS MS II, LLC D/B/A BALLY’S CASINO APPELLEE

DATE OF JUDGMENT: 01/27/2017 TRIAL JUDGE: HON. CHARLES E. W EBSTER COURT FROM W HICH APPEALED: TUNICA COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: BETTINA GRANDBERRY (PRO SE) ATTORNEY FOR APPELLEE: RICHARD D. UNDERW OOD NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: AFFIRMED - 06/05/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., CARLTON AND WESTBROOKS, JJ. WESTBROOKS, J., FOR THE COURT: ¶1. Bettina Grandberry alleged she was i n j u r e d b y an unknown object a n d assailant in Bally ’s Casino i n Tunica, Mississippi. Grandberry brought a negligence action under the theory of prem ises liability against RIH Acquisitions MS II, L LC d/b/a B ally ’s Casino. The
Tunica County Circuit Court granted Bally ’s m otion f o r s u m m a r

y judgm ent. G randberry appeals. Finding no error, we af f irm

. FACTS ¶2. On Novem

ber 3, 2012 , G r a n d b e rry a nd her sister, Charlene Ly on, went t o Bally ’s
Casino in Tunica, Mississippi. A f ter visiting the buf

f et, the sisters sat down at a table to eat. Bef ore getting a chance to begin t heir m eals, the lights in the casino went out d ue to a third-party car a ccident outside of the c asino. Grandberry claim s there were two power outages

within a f ive m inute period. 1 The f irst outage being f

o rty -f ive seconds in duration and the
second l asted f

or a period of three t o f

ive m inutes. I t is d

uring the second outage that Grandberry asserts that she was h it in the back o f the head with a n unknown object by an unknown person. Im m e diately af ter the l ights resum ed, Gran d b e r r y was transported to Baptist DeSoto Hospital where she was treated f o r her injuries. ¶3. In O ctober 2015, G randberry brought an action against Bally ’s f or negligence under
the theory of prem ises l iability in response to her injuries. Grandberry appeared pro se. In
Novem ber 2015, the c ircuit c ourt set a deadline f or discovery of 120 day s af ter service o f an

answer. Bally ’s f

iled its answer on Novem ber 1 9 , 2 0 1 5 , setting the d eadline at M arch 19,
2016. Bally ’s deposed G randberry on March 22 , 2016, af ter re-noticing the original deposition set f

o r M arch 1, 2016. Af

ter responding to discovery , on April 18, 2016, Bally ’s
f iled a m otion f

or s um m ary judgm ent. In January 2017, the circ u i t c o u r t g r anted Bally ’s

m otion. Grandberry

tim e ly appeals.
STANDARD OF REVIEW ¶4. In regard to sum m ary judgm ent, this Court has previously held,
In consideri n g a t r ial court’s grant of a m otion f or sum m ary judgm ent, this Court conducts a de novo review and exam i nes all the e videntiary m atters bef ore it—adm i ssions in plea d i n g s, answers to interrogatories, d epositions, af f idavits, etc. The Mississippi Suprem e C ourt r ecently clar i f i e d the sum m ary -judgm ent standard, explaining that the m ovant bears the burden of

1 P rio r to th e h e arin g f

o r su m m ary j u d g m e n t, th e in itial f o r t y - f i v e -seco n d p o w er o u tag e w as th e o n ly o u tag e m en tio n ed in th e f a cts b y eith e r p a r t y . A t th e h earin g , f o r th e f irst tim e, G ran d b erry m en tio n ed th e seco n d p o w er o u t ag e an d stated h er in j u r ies o ccu rred th en
. 2persuading the trial j udge that: (1) no genuine issue of m a terial f a c t exists, and (2) on the basis o f the f

acts established, he i s entitled to a judgm e nt as a m atter of law. The suprem e court f urther s tated that the m ovant bears the burden of production i f

, a t t r i al, he would bear t he burden of proof on the issue raised. In other w ords, the m ovant only bears the burden of p roduction where he would bear the burden of proof at trial.
Jones v. Dragway E

n terprises, Inc ., 203 So. 3d 1157, 1160 (¶10) (Miss. Ct. A p p. 2016) (citing Dickinson v. Vanderburg , 141 So. 3d 455, 457 (¶4) (Miss. Ct. App. 2014)).
DISCUSSION ¶5. Grandberry argues t hat the circuit court erred in granting B a lly ’s m otion f or sum m ary judgm ent. W e disagree. Mississippi courts conduct an a naly sis of t hree f actors t o ascertain whether a property owner is liable to an injured p arty in a prem ises-liability case: (1) the injured party ’s classif

ication as an invitee, licensee, or tresp a sser at the tim e he or she was i njured; (2) the duty owed b y the def endant to the injured party ; and (3) whether the def

endant breached that duty

. IOC-Lula, Inc. v. Smartt , 198 So. 3d 455, 459 (¶11) (Miss. Ct. App. 2016) (internal quotation

m ark om itted). ¶6. I n t h e p r e s e n t c a s e , the parties have stipulated to Grandberry being an invitee of Bally ’s. However, Grandberry has not e stablished B ally ’s breach of i ts d uty owed to her. Bally ’s duty was “to keep the prem ises reasonably saf e, a nd when not reasonab l y saf e, to

warn o n l y w h e r e t h e r e is h idden danger or peril t hat is n ot in plain and open view.” Id. at 459 (¶12). Moreover, “Mississippi law f urther requires that, w h e n a dangerous condition
exists that w as created by som eone not a ssociated with the business, the plaintif f m ust produce evidence that t he own e r o r o p erator h ad a ctual or c o nstructive knowledge of the dangerous condition as well as a suf f icient opportunity to correct it.” Jones , 2 03 So. 3d at

31159 (¶10).

¶7. In the present case, t he lights powering d own was the result of a third party , not within
the control of Bally ’s or a Bally ’ s em ploy ee. It was Grandberry who had the b urden to prove that Bally ’s had a ctual or constructive knowledge of a dangerous c ondition. She did not m eet that burden. At the h earing f or sum m ary judgm ent, in support of her claim s, G randberry
stated that (1) her deposition w as taken in violation of the discovery deadline, (2) the court should have com

pelled Bally ’s to com

plete her w ritt e n discovery requests that were propounded af

ter the discovery d eadline, a nd (3) the court should allow her f urther discovery
of Bally ’s em ergency

power source. ¶8. In response, the court stated that G randberry ’s claim s w ere waived as s h e voluntarily
g a v e h er deposition af

ter the deadline and Bally ’s was within its rights to d eny an s w e r i n g written discovery requests af ter the deadline. F urtherm ore, Grandberry did n ot p roduce any evidence or af

f idavits in support of her claim s. Theref ore, Gr a n d

b e r r y did not m eet her
burden to prove there was a dangerous con dition o r that Bally ’ s had a c tual o r constructive
notice of a dangerous condition.
CONCLUSION ¶9. This Court f

inds no error in the circuit court’s determ ination to grant Bally ’s m otion
f or sum m ary

judgm ent. ¶10. AFFIRMED. LEE, C .J., IRVING A ND GRIFFIS, P.JJ., BARNES, CARLTON, FA IR, WILSON, GREENLEE AND TINDELL, JJ., CONCUR.

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