Martina Tucker v. Riverboat Corporation of Mississippi-Vicksburg,
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-CA-01505-COA
MARTINA TUCKER AND HUSBAND, JOSEPH
TUCKER
v.
APPELLANTS
RIVERBOAT CORPORATION OF MISSISSIPPI
D/B/A ISLE OF CAPRI CASINO
APPELLEE
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANTS:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
6/4/2003
HON. KOSTA N. VLAHOS
HARRISON COUNTY CIRCUIT COURT
CHRISTOPHER E. FITZGERALD
WILLIAM E. WHITFIELD
SAMUEL TRENT FAVRE
CIVIL - PERSONAL INJURY
DIRECTED VERDICT GRANTED IN FAVOR OF
ISLE OF CAPRI CASINO
AFFIRMED: 11/23/2004
BEFORE KING, C.J., IRVING AND MYERS, JJ.
KING, C.J., FOR THE COURT:
¶1.
Martina Tucker brought suit against the Isle of Capri Casino alleging that a handrail was decorated
by Christmas decorations, and due to the impediment she was unable to prevent herself from falling when
she misstepped on the stairwell. The Circuit Court of Harrison County granted a directed verdict in favor
of the Isle of Capri. Aggrieved by this, Tucker appeals and asserts the following assignment of error, which
we quote verbatim:
I.
Whether the trial court committed reversible error by directing a verdict in favor of the Defendant,
Riverboat Corporation of Mississippi d//b/a Isle of Capri Casino (hereinafter “the Isle of Capri
Casino") at the close of all the evidence presented by the Plaintiffs, Martina Tucker and Joseph
Tucker, and the close of all the evidence by the Isle of Capri Casino.
¶2.
Finding no error, we affirm.
STATEMENT OF FACTS
¶3.
On December 23, 1994, Martina Tucker, her mother Lucille Thames, her brother James Thames
and his wife Melinda Thames, were visiting the Isle of Capri Casino in Biloxi. Upon their arrival the group
decided to play the slot machines located on the second floor of the casino. Tucker and her family choose
to use the staircase, which was decorated for the holidays with garland and bows draped from the upright
banister. Tucker testified she is unsure of what made her fall, but she tripped while ascending the staircase.
Tucker alleged that she was prevented from utilizing the handrail to break her fall due to the placement of
the Christmas garland on the banister, and in actuality the garland contributed to her fall because it came
off the handrail when she attempted to use it. James Thames testified that a strand of garland hanging down
on the stairs caused Tucker to trip. Tucker did not immediately leave the casino, and did not report the
incident to casino personnel. In January 1995, Tucker began seeing a doctor with complaints of severe
pain and a tingling sensation in her back.
¶4.
On December 17, 1997, Tucker and her husband, Joseph Tucker, filed a complaint in the Circuit
Court of Harrison County, Second Judicial District, against the Isle of Capri Casino, alleging that the Isle
of Capri was negligent in failing to maintain its premises in a reasonably safe condition, and that such
negligence was the proximate cause of Martina Tucker’s injuries. Joseph Tucker also alleged loss of
consortium as a result of Martina’s injuries. After extensive discovery the case went to trial on September
24, 2002. The Isle of Capri moved for a directed verdict at the close of Tucker’s evidence, which motion
was denied. At the close of its case, the Isle of Capri renewed its motion for a directed verdict, and the
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Tuckers moved to amend the pleadings to conform to the evidence presented at trial that Tucker tripped
on garland that was hanging from the handrail onto the stairs. The trial judge granted the Tuckers motion
to amend the pleadings, and also granted the Isle of Capri’s motion for a directed verdict.
I.
ISSUE AND ANALYSIS
Whether the trial court committed reversible error by directing a verdict in favor of the
Defendant, Riverboat Corporation of Mississippi d//b/a Isle of Capri Casino (hereinafter “the
Isle of Capri Casino") at the close of all the evidence presented by the Plaintiffs, Martina Tucker
and Joseph Tucker, and the close of all the evidence by the Isle of Capri Casino.
¶5.
Tucker contends that sufficient evidence was presented at trial to prove the Isle of Capri’s
negligence in the manner and method of decorating the stairs of the casino, and accordingly the trial court
erred in directing a verdict in favor of the Isle of Capri.
¶6.
The standard of review in cases where a directed verdict has been granted is as follows: “[t]his
Court conducts a de novo review of motions for directed verdict....If the Court finds that the evidence
favorable to the non-moving party and the reasonable inferences drawn therefrom present a question for
the jury, the motion should not be granted.” Entergy Mississippi, Inc. v. Bolden, 854 So. 2d 1051, 1055
(¶7) (Miss. 2003) (internal citations omitted). “Additionally, this Court has held that a trial court should
submit an issue to the jury only if the evidence creates a question of fact concerning which reasonable jurors
could disagree.” Id.
¶7.
Reviewing the evidence de novo, as we are required to do, the following evidence was adduced
in support of the Tuckers contention that a directed verdict was inappropriate: (1) Rosemary Wild the
decorator at the Isle of Capri testified that before she began decorating the casino in November 1994, she
was told by the director of security to not impair the use of any hand railing, or impede any area where
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patrons would be “coming and going” for safety reasons. Wild also testified that she decorated the stairway
by looping the garland below the banister and bringing it up to tie onto the bannister with two strands of
the garland, and that she possibly put a bow where the garland was tied onto the bannister; (2) James
Thames, Martina’s brother who witnessed her fall at the Isle of Capri, testified that Martina actually tripped
on a strand of garland hanging down on the steps and the garland came off the handrail when she attempted
to utilize the handrail, however he testified that he used the handrail withno significant problem; (3) Martina
Tucker testified that she is not sure what she tripped over; (4) she also testified that when she attempted
to use the handrail to prevent herself from falling she was unable to use it because it was impeded by the
placement of the garland; and (5) Dr. Harold Rubenstein, Martina’s family practitioner, testified that in
January 1995, Martina came to him complaining of lower back pain and pain running down her left leg.
He admitted that he had treated Martina for back pain before she fell at the Isle of Capri, but he testified
that the current pain was a direct result of her fall at the casino.
¶8.
The following evidence supports the trial court’s directed verdict: (1) When questioned on whether
Martina used the banister as she was walking up the stairs, her mother, Lucille Thames, testified “Yeah.
Uh-huh. And that’s when she fell trying to get to it.” Thames also testified that she used the banister with
no problem, and that she was walking behind Martina when she fell; (2) Dr. Manuel Daugherty, Martina’s
orthopedic doctor testified that he had treated Martina for a herniated disk but that he could not say with
absolute certainty that it was a result of her fall at the Isle of Capri, when he considered she was previously
treated for back pain, and she had been referred to him when her back pain increased after picking up a
12-pack of Diet Coke; (3) a casino surveillance videotape was introduced depicting the staircase as it
looked on December 20, 1994, and a model of the staircase as it would have existed in December 1994
was reconstructed and introduced, as well as a photograph of the model which depicted an unobstructed
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staircase with garland draped under it; (4) a videotape was introduced showing Martina leaving her place
of employment driving a car, taking care of her grandchildren, and going up steps.
¶9.
In order for a plaintiff to recover in a trip and fall he must prove the following elements: (1) some
negligent act of the defendant caused his injury; (2) the defendant had actual knowledge of the dangerous
condition and failed to warn the plaintiff, or (3) the dangerous condition existed for a sufficient amount of
time to impute constructive knowledge to the defendant whereby the defendant should have known of the
dangerous condition. Anderson v. B.H. Acquisition, Inc., et al., 771 So. 2d 914 (¶8) (Miss. 2000).
¶10.
The circuit judge held that a breach of duty was not established by the Tuckers noting “[t]he owner
of a business is not an insurer of the customers and is not liable for injuries caused by conditions which are
not dangerous or which are, or should be known are [sic] obvious to the customer. The business owner
is not required to keep the premises absolutely safe or in such a condition that no accident could possibly
happen to the customer.” (emphasis added). The Tucker’s contend that the trial judge relied on the “open
and obvious” doctrine to make his ruling, and was therefore in error, as this doctrine has been abolished
as an absolute bar to recovery in Mississippi. See Tharp v. Bunge, 641 So. 2d 20 (Miss. 1994). In
Tharp, the supreme court "abolished the open and obvious defense and applied the comparative negligence
statute of the state instead, stating, if a dangerous condition is obvious to a plaintiff, then surely it is obvious
to the defendant as well.” Hall v. Cagle, 773 So. 2d 928, 934 (¶31) (Miss. 2000). However, if there is
no negligence on the part of the defendant, then there is no cause of action for the plaintiff. Id. at 935. The
Tuckers are correct in their assertion that the “open and obvious” defense is no longer available in
Mississippi courts; however, they fail to note that if no negligence is found on the part of the defendant then
the case can not be considered by the jury. Fulton v. Robinson Industries, Inc., 664 So. 2d 170, 175
(Miss. 1995). We find no case law to suggest that placing garland on a banister is such an inherently
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dangerous activity that negligence is imputed to the Isle of Capri. See Jackson v. City of Biloxi, 272 So.
2d 654, 658 (Miss. 1973) (citing inherently dangerous instrumentalities to include the following: turntables,
live shells such as an unexploded anti-aircraft shall, dynamite or dynamite caps, other explosives such as
foreworks, [sic] and electrical conduits). Nor does the record indicate that the garland itself was hung in
a negligent manner for which the Isle of Capri could be liable. Fulton, 664 So. 2d at 176.
¶11.
Reviewing the evidence de novo in its totality in the light most favorable to the Tuckers, and
considering all reasonable inferences that may be drawn therefrom, we find no reasonable hypothetical juror
could have found negligence on the part of Isle of Capri for hanging garland on a staircase in an unobtrusive
manner. Accordingly, the trial judge was not in error for directing a verdict in favor of the Isle of Capri.
¶12. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.
BRIDGES AND LEE, P.JJ., IRVING, MYERS, CHANDLER, GRIFFIS, BARNES AND
ISHEE, JJ., CONCUR.
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