Evelyn Wilkins v. Sadie Bloodsaw
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-CA-00705-COA
EVELYN WILKINS, RICHARD WILKINS, SR. AND
MATTHEW WILKINS
v.
SADIE BLOODSAW AND NPC INTERNATIONAL,
INC.
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANTS:
ATTORNEYS FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANTS
APPELLEES
3/29/2002
HON. ROBERT WALTER BAILEY
LAUDERDALE COUNTY CIRCUIT COURT
H. GREGORY JOHNSON
JOHN G. HOLADAY
JAMES EVERETTE WOODS
SANDRA TAYLOR DOTY
LELAND S. SMITH
CIVIL - PERSONAL INJURY
SUMMARY JUDGMENT IN FAVOR OF
DEFENDANTS
REVERSED AND REMANDED - 07/15/2003
BEFORE SOUTHWICK, P.J., BRIDGES AND CHANDLER, JJ.
CHANDLER, J., FOR THE COURT:
¶1.
Evelyn, Richard, and Matthew Wilkins appeal the grant of summary judgment in favor of NPC
International, Inc. and Sadie Bloodsaw. Finding error in the granting of summary judgment, we reverse
and remand.
FACTS
¶2.
On April 7, 1998, Evelyn and her adult disabled son Matthew went to eat at a Pizza Hut located
in Meridian, Mississippi. Matthew must use a wheelchair or a walker to move around and must have an
attendant assist him with walking at all times.
¶3.
As the two exited the Pizza Hut they had to maneuver down a step. As Evelyn was assisting
Matthew down the step he lost his balance and fell onto Evelyn. Evelyn then lost her balance and fell,
injuring her left knee.
¶4.
The Pizza Hut was owned by NPC International and managed by Bloodsaw. The Wilkinses filed
suit on July 6, 1999, alleging that NPC International and Bloodsaw, hereinafter referred to as NPC, were
negligent in not providing a reasonably safe premises. The circuit court granted a summary judgment and
the Wilkinses have appealed.
DISCUSSION
¶5.
This Court has stated the standard for a trial court's review of a motion for summary judgment:
Upon request for summary judgment, the trial court considers all of the evidence,
admissions, answers to interrogatories, [and] depositions, to determine whether there exists
a disputed issue of material fact. In viewing the evidence, the court is required to consider
it in the light most favorable to the non-movant. If after having done so, the court is
satisfied that there is no dispute of material fact, and the movant is entitled to judgment as
a matter of law, then summary judgment is appropriate.
Ball v. Dominion Ins. Co., 794 So. 2d 271, 272 (¶ 5) (Miss. Ct. App.2001) (citing Brown v. Credit
Ctr., Inc., 444 So. 2d 358, 362 (Miss. 1983)).
¶6.
"[M]otions for summary judgment are to be viewed with a skeptical eye, and if a trial court should
err, it is better to err on the side of denying the motion." Titan Indemnity Co. v. Estes, 825 So. 2d 651,
2
654 (¶11) (Miss. 2002). This Court reviews de novo the grant or denial of summary judgment and
"considers all evidentiary matters before it." Id.
¶7.
This is a negligence action and the Wilkinses bear the burden of producing evidence sufficient to
establish the existence of the conventional tort elements of duty, breach of duty, proximate causation, and
injury. Bailey v. Wheatley Estates Corporation, 829 So. 2d 1278, 1282 (¶17) (Miss. Ct. App. 2002).
The Wilkinses contend that a genuine issue of fact exists as to whether NPC's premises were reasonably
safe. They argue that this issue precluded summary judgment.
¶8.
Both parties agree that the Wilkinses were business invitees. It is settled law that a business owner
or operator owes a duty to a business invitee to keep its premises in a reasonably safe condition and to
warn of dangerous conditions which are not readily apparent to the invitee. Munford, Inc. v. Fleming,
597 So. 2d 1282, 1284 (Miss. 1992). The Wilkinses allege that this duty was breached because NPC
failed to provide a handicap accessible ramp.
¶9.
To show breach of duty, the Wilkinses offered the affidavit of an expert, Michael Frenzel, who has
over thirty years' experience in directing and managing safety, training, and resource management programs.
He stated that NPC had a duty to construct and maintain the premises in conformity with federal law and
various safety standards, namely the Americans with Disabilities Act (ADA), US Public Law 101-336,
Title III; The American Society for Testing and Materials (ASTM) in their Standard Practices for Safe
Walking Surfaces and the American National Standards Institute (ANSI) in their Standard on Accessible
and Useable Buildings and Facilities. The Wilkinses assert that the trial court erred in not considering
Frenzel's affidavit as evidence that NPC was negligent in not providing on the restaurant's premises a
handicap ramp, as required by those regulations.
3
¶10.
Relying on Ball v. Dominion Ins. Co., 794 So. 2d 271 (Miss. Ct. App. 2001), the trial court
granted the defendant's motion for summary judgment. The plaintiff in Ball, a legally blind elderly woman,
injured herself while attempting to step down from the curb onto the parking lot. Id. at (¶ 2). She
maintained that the defendant was negligent in not providing "safety rails, caution signs and a ramp for
customers." Id. at (¶ 3). This Court affirmed the summary judgment ruling, stating that the plaintiff had
failed to provide any "case law that mandates that Dominion was required to provide handrails or a warning
sign" or evidence to establish that Dominion's premises were not reasonably safe. Id. at (¶ 12).
¶11.
Although the fact pattern is similar, we find Ball to be distinguishable from the case at bar. Like
the plaintiff in Ball, the Wilkinses did not provide case law establishing that a business must comply with
federal regulations and various safety standards. However, the Wilkinses did provide case law that states
that safety standards and regulations are admissible as a measure to show reasonable care consistent with
industry standards. Accu-Fab & Constr., Inc. v. Ladner, 778 So. 2d 766, 771 (¶ 21) (Miss. 2001)
(holding that Occupational Health and Safety Administration (OSHA) standards were admissible)1 and
Jones v. Panola County, 725 So. 2d 774 778-79 (¶ 14) (Miss. 1998) (holding that Manual on Uniform
Traffic Control Devices (MUTCD) standards were admissible). ¶12.
Also, Frenzel's affidavit established
that there was no handicap accessibility available on the premises. He concluded that but for the absence
of a ramp this accident would not have happened as described.
¶13.
We, therefore, find that the expert's affidavit provided evidence to establish the question of
negligence as a genuine issue of material fact. We reverse and remand the trial court's decision.
1
This case was overruled on different grounds by Mack Trucks, Inc. v. Tackett, 841 So. 2d
1107 (Miss. 2003).
4
¶14. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT IS
REVERSED AND REMANDED. COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLEES.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
IRVING, MYERS AND GRIFFIS, JJ., CONCUR.
5
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