IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2014-CA-00620-COA DARLENE WALZ APPELLANT

v. HWCC-TUNICA, INC. APPELLEE DATE OF JUDGMENT: 04/15/2014 TRIAL JUDGE: HON. JOHNNIE E. W ALLS JR. COURT FROM W HICH APPEALED: TUNICA COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: EDW ARD P. CONNELL JR. CORRIE SCHULER ATTORNEY FOR APPELLEE: ALFRED THOMAS TUCKER III NATURE OF THE CASE: CIVIL - PERSONAL INJURY TRIAL COURT DISPOSITION: GRANTED APPELLEE’S MOTION FOR SUMMARY JUDGMENT DISPOSITION: AFFIRMED MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., CARLTON AND WILSON, JJ. GRIFFIS, P.J., FOR THE COURT: ¶1. Darlene W alz b r ought a personal-injury a c tion against HW CC-Tunica, Inc. (HW CC), the owner of

the Holly w ood Casino and H otel in Tunica County , Mississippi. The Tunica County Circuit Court granted HW CC’s m otion f or sum m ary judgm ent. W alz argues that the circuit court erred. W e f

ind no error and af

f irm

. FACTS ¶2. On October 2 5, 2010, around 5:30 p.m ., W alz and her f riend, Steve Bruck, checked into a hotel room at the Holly wood Casino. T h e y planned to spend a f ew day s in Tunicagam

bling at several casinos in the area. Af ter they checked in, they dropped their luggage in their room

and headed out f

or dinner and gam

bling. ¶3. In the early m orning hours of October 26, W alz and B ruck returned t o the hotel room . According to W alz, as she was walking to turn on a light, she f ell over the corner o f the bed’s box spring and sustained injuries. The next day , W alz saw a p hy sician a t a clinic in Tunica and alerted the hotel of

the incident. ¶4. I n Decem

ber 2010, W alz f

iled a com

plaint against HW C C. S he claim e d t h a t s h e incurred severe personal injuries as a business invitee while a guest at HW CC. B o th parties

com m enced discovery , including a deposition of Alice Stapleton, w ho was allegedly the last individual who entered the room prior to W alz and B ruck. As a h otel em ploy e e , Stapleton inspected the room bef

ore it was cleared and rented t o W alz. S tapleton s t ated that the bed

was properly on the f

r am e during her i nspection. Yet W alz m a i ntained that neither she nor Bruck had gone f

ar enough into the room

to touch the bed bef

ore she f ell. ¶5. HW C C f

iled a m otion f

or sum m ary judgm ent a nd argued that W alz had f ailed to of f er proof that a d angerous condition existed at the t i m e o f t h e f all b ecause the bed did not constitute a dangerous condition. HW CC also claim ed t hat W alz f ailed to of

f er proof that it caused the dangerous condition if such a condition d id exist. The c ircuit court granted the

m otion. W alz appeals. STANDARD OF REVIEW ¶6. W e review the grant o f a m otion f or sum m ary judgm ent de novo. Karpinsky v. Am. Nat’l Ins. , 109 So. 3d 8 4, 88 (¶9) (Miss. 2013). T h e C o u r t v iews the evidence in the light

2m ost f

avorable to the party

against whom

the m otion has been m ade. Id. ¶7. Sum ma ry judgm ent is appropriate if the pleadings, depositions, answers to i n t e r r o gatories a nd adm i ssions on f ile, together with the af

f idavits, show that there i s n o genuine i ssue of a ny m aterial f act and that the m oving party is entit l ed to a judgm ent as a

m atter o f law. Id

. at (¶10). The m ovant bears the initial burden of persuading the judge that

no issue of m aterial f

a ct exist s a n d t h a t , a s a m atter of law, he is entitled to sum m ary judgm ent based on the f

acts. Id. at (¶11). However, when the m ovant carries no burden of production at trial, he also carries no b urden of production at the sum m ary -judgm ent stage. Id. a t 88-89 (¶13). W hen the n on-m oving party bears the burden of proof at trial, he carries the burden of producing suf f i cient evidence of the essential e lem ents of his claim during the

sum m ary -judgm ent stage. I d. If the non-m oving party f ails t o do so, sum m ary j u d gm ent should be granted. Id. at 89 (¶13). DISCUSSION I. Dangerous Condition ¶8. W a lz argues that t here is a genuine issue of m aterial f act in d ispute. She claim s that the f actual dif f e rences between her statem ent and S tapleton’s stateme n t are suf f icient to def eat sum m ary

judgm ent. W alz of

f ered several depositions, Bruck’s af f idavit, a diagram of the hotel room , photographs of the m attress and box spring, and the hotel’s policies and
p r o c e dures. She also relies on circum stantial proof as t o the c a usation of t he a l l e g e d dangerous condition. ¶9. To succeed in a prem i ses-liability c laim , the plaintif f m ust show: “(1) a negligent act

3by the def

endant c aused the plaintif

f ’s injury ; or, (2) that the def endant had actual knowledge of a dangerous condition, but f ailed to warn t he p laintif

f o f the danger; or, (3) t he d angerous condition rem ained long enough to im pute constructive knowledge to the def e ndant.” Byrne

v. W al-Mart Stores Inc. , 877 S o. 2d 462, 465 (¶ 5 ) ( M i s s . C t

. App. 2003) (citing Downs v. Choo , 656 So. 2d 84, 86 (Miss. 1995)). Each of these prem ises-liability claim s requires that the party show a dangerous condition existed. G arson v. Circus Circus Miss. I nc. , 135 So. 3d 932, 934 (¶9) (Miss. Ct. App. 2014). ¶10. This Court has held that a plaintif f seeking dam ages f

or an injury allegedly sustained under sim ilar c ircum stanc e s r e l a t e d to a hotel bed did n ot present enough proof to survive

sum m ary j udgm ent. Id. at 935 (¶10). This Court f ound that the plaintif

f f ailed to prove that the bed was a dangerous condition, that the def endant caused a dangerous condition, or that the def e n dant had knowledge of any dangerous condition. Id. The o nly evidence as to the bed’s condition cam e f

rom the plaintif

f ’s deposition and af

f idavit. Id. ¶11. Sim ilar to Garson , there is a question about whether W alz e stablished that t here was

a genuine issue of a m aterial f a c t i n dispute as to w hether a dangerous condition existed. However, we do not consider whether a dangerous condition existed, because we f ind that
W a lz has f

ailed to establish a genuine issue of a m aterial f act in dispute as to the cause of the condition or the knowledge of HW CC.
II. Circumstantial Evidence of Negligence ¶12. W a lz argues that t his is where the circum stantial e vidence steps in and allows her to proceed t o trial. W a lz relies on the doctrine of res ipsa loquitur, m eaning “the thing speaks

4f

or itself .” See McCullar v. Boyd Tunica Inc. , 50 So. 3d 1009, 1014 (¶22) (Miss. Ct. App. 2010). This “circum stantial-evidence doctrine allow[ s] the jury to draw an inf erence of the def endant’s negligence.” I

d. The suprem e court h as explained this doctrine’s application: [ W ]hile inf

erences o f negligence m a y be d rawn f rom circum stantial e vidence, those inf erences m u st be the only o nes [ that] reasonably could be drawn f rom the evidence p resented, and if the circum stantial evidence presented lends itself equally to several conf licting inf erences, t he trier o f f

act is not perm itted to select the inf

erence it pref

ers , since to do so would be the equivalent of engaging in pure speculation a b o u t the f acts. W here [ a] plaintif f in a negligence action has only presented proof that the actual cause was o ne of a num ber of possibilities, t o enable an inf erence to be drawn that any particular cause is probable, the other causes m ust b e elim inated. T h u s , w hen the evidence shows that it is just as l ikely that [ the] accident m ight have occurred f rom causes other t han [ the] def endant' s negligence , t h e i n f e r ence that his negligence was the proxim ate cause m ay not be drawn.
Miss. Valley Gas Co. v. Estate of W alker , 725 So. 2d 139, 145-46 (¶21) ( Miss. 1998), implied overruling on o ther grounds recognized by Adams v. U .S. Homecrafters Inc. , 744 S o. 2d 736 (Miss. 1999). ¶13. Circum stantial evidence is suf f icient when it leads to an inf erence of negligence on behalf of one party

. But circum s t antial evidence that still leaves m any inf erences available is not suf f icient as proof f

or necessary elem ents o f a claim

. Accordingly , we r eject W alz’s
argum ent and f

ind that HW CC’s negligence w as not the only r easonable inf e rence t hat could be drawn f

rom the evidence presented. ¶14. W h en W alz f

ell, she and Bruck h a d j u s t r e t u rned to their hotel room in the early

m orning hours af

ter a long night of gam

bling. Furtherm ore, they had entered into the room
at least twice bef

ore the f all occurred. D ue t o t hese circum stances, t here are other r easonable inf erences as to what caused W alz’s f all. The circum stantial evidence surrounding the f all

5does not lend itself entirely to negligence on the behalf of HW CC. ¶15. As a result, b ecause W a lz f ailed to show that HW CC caused a dangerous condition through n egligence or that HW CC had knowledge of a d a n g e r ous condition, we f ind that

sum m ary judgm ent was appropriate. The evidence presented w as not suf f icient to create a genuine issue of

m aterial f

act. W e af

f irm

. ¶16. THE JUDGMENT OF T HE CIRCUIT COURT OF TUNICA CO U N TY IS AFFIRMED. A LL COSTS O F THIS APPEAL ARE ASSESSED TO THE APPELLANT.
L E E , C.J., IRVING, P.J., ISHEE, CARLTON, FAIR AND W ILSON, J J . , CON C U R . BARNES, J ., CONCURS IN PART AND IN THE RESULT WITHOUT S E P A R ATE W RITTEN OPINION. JAMES, J ., CONCURS IN PART WITHOU T SEPARATE WRITTEN OPINION. GREENLEE, J., NOT PARTICIPATING.

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