IN THE SUPREME COURT OF MISSISSIPPI. v. No CA RETZER RESOURCES, INC., et al. PRINCIPAL BRIEF OF APPELLANT JOHN RENNER

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1 E-Filed Document Mar :13: CA Pages: 29 IN THE SUPREME COURT OF MISSISSIPPI JOHN RENNER APPELLANT v. No CA RETZER RESOURCES, INC., et al. APPELLEES PRINCIPAL BRIEF OF APPELLANT JOHN RENNER ORAL ARGUMENT REQUESTED On Appeal from Washington County Circuit Court, Mississippi No CI R. Allen Smith, Jr. Miss. Bar No THE SMITH LAW FIRM, PLLC 681 Towne Center Blvd., Suite B Ridgeland, Miss David Neil McCarty Miss. Bar No DAVID NEIL MCCARTY LAW FIRM, PLLC 416 East Amite Street Jackson, Miss T: E: dnmlaw@gmail.com W: McCartyAppeals.com Attorneys for Appellant

2 IN THE SUPREME COURT OF MISSISSIPPI JOHN RENNER APPELLANT v. No CA RETZER RESOURCES, INC., et al. APPELLEES CERTIFICATE OF INTERESTED PERSONS Pursuant to Miss. R. App. P. 28(a)(1), the undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of the Supreme Court and/or the Judges of the Court of Appeals may evaluate possible disqualification or recusal. 1. John Renner, Appellant 2. R. Allen Smith, of the Smith Law Firm, PLLC, and David Neil McCarty, of the David Neil McCarty Law Firm, PLLC, Counsel for Appellant 3. Retzer Resources, Inc., and Valencia Hubbard, Individually and in her capacity as manager of McDonald s, Appellees 4. Robert F. Stacy, Jr., of Daniel Coker Horton & Bell, P.A., counsel for Appellees 5. McDonald s, Named as Defendant Below, Dismissed from this Appeal 6. The Honorable Ashley Hines, Washington County Circuit Court So CERTIFIED, this the 24th day of March, Respectfully submitted, s/ David Neil McCarty David Neil McCarty Miss. Bar No Attorney for Appellant i

3 Table of Contents Certificate of Interested Persons... i Table of Contents... ii Table of Authorities... iii Statement of the Issues... 1 Statement of the Case... 1 Statement Regarding Oral Argument... 2 Statement of Assignment... 2 Relevant Facts... 2 Course of Proceedings... 9 Summary of the Argument Standard of Review Argument I. John Met the Elements of Premises Liability A. McDonald s Had Actual Knowledge of a Dangerous Condition and Failed to Warn B. McDonald s Had Constructive Knowledge of the Hidden Hazard C. McDonald s Negligence Caused John Harm Conclusion to Section I II. The Spoliation of the Security Tapes Forbids Summary Judgment Conclusion Certificate of Service ii

4 TABLE OF AUTHORITIES Cases Alfonso v. Gulf Pub. Co., Inc., 87 So.3d 1055, 1060 (Miss. 2012)... 17, 18 Bennett v. Hill-Boren, P.C., 52 So.3d 364, 368 (Miss. 2011)... 10, 11 Downs v. Choo, 656 So. 2d 84, 86 (Miss. 1995)... 11, 12, 14, 16 Evans v. Aydha, 189 So. 3d 1225, 1228 (Miss. Ct. App. 2016)... 11, 14, 15 Rowe v. Albertsons, Inc., 116 Fed. Appx. 171, 176 (10th Cir. 2004) Starcher v. Byrne, 687 So.2d 737, 739 (Miss. 1997) Thomas v. Isle of Capri Casino, 781 So. 2d 125, 133 (Miss. 2001)... 18, 19, 21, 22 Wallace v. Ford Motor Co., 2013 WL , at *5 (S.D. Miss. June 28, 2013) Whalen v. The Kroger Co., 2007 WL , at *3-4 (N.D. Miss. July 10, 2007) Rules MRAP iii

5 Statement of the Issues Presented for Review I. John Met the Elements of Premises Liability. II. The Spoliation of the Security Tapes Forbids Summary Judgment. Statement of the Case This case is about a family who went to a McDonald s for a break on a long ride home which ended with blood pouring from the mouth of the husband, his shoulder shattered from a fall. The McDonald s in Winona had a problem with people tripping in the store it had happened a lot in the past few years, and one customer kept pointing out how she saw people trip over a certain set of highchairs. The McDonald s never made sure the highchairs were safely tucked out of the aisles, and the feet to the chairs poked out. The hidden highchairs snared the husband and he crashed to the floor so hard it essentially destroyed his shoulder. He was hurt so badly that afterwards he couldn t even pull on his own pants, or even sleep in the same bed with his wife due to the pain. McDonald s had already been informed by the other patron of the danger, and it also had recorded footage of the husband s fall. Employees admitted that the tape would have shown exactly what happened to the man to cause him to fall that day where the highchairs were, who put them there, how he tripped. The company knew the tape was important, and told the husband and wife that they had the footage and were reviewing it. The family never saw it. The company s computer expert later admitted the footage was completely gone. He could not say whether it was accidentally deleted or intentionally ruined. Despite the testimony of the eyewitness that the highchairs were a known hazard, and hidden from public view, and despite the deletion of the crucial footage, the trial court granted summary judgment. 1

6 Statement Regarding Oral Argument Pursuant to MRAP 34(b), oral argument would assist the Court in resolving this case and unpacking the dual legal errors that were committed. There was uncontested proof that an eyewitness had seen the hidden hazard which hurt John Renner, and had warned the McDonald s to fix it. Despite these warnings, and this knowledge of a hidden harm, the McDonald s failed to correct the hazard. Oral argument can assist in unpacking these genuine issues of material fact. Oral argument will also illuminate how summary judgment should have never been granted, as McDonald s had recorded footage of John s fall. Employees of the McDonald s agreed it would have shown exactly what happened. Yet McDonald s either allowed the footage to be destroyed or destroyed it intentionally. Oral argument will explain how the doctrine of spoliation applies and forbids summary judgment in this case. Statement of Assignment This case involves a grant of summary judgment despite proof that the defendant had actual or constructive knowledge of a hidden harm. Either court can address this core issue. Relevant Facts Ten plus falls at the Winona McDonald s. This case is about a man getting hurt at the McDonald s in Winona, Mississippi. Valencia Hubbard was the general manager of the Winona McDonald s at the time. 1:106. Valencia worked for the company that owns the McDonald s, Retzer Resources, and one of her jobs for them was focusing on safety performance. 1: This is because a big part of keeping a McDonald s running smoothly is customer safety, and Valencia explained that customer slips and falls are a big concern for restaurants. 1: For ease of reading, the defendants are collectively referred to as McDonald s. 2

7 The Winona McDonald s was no stranger to slip and falls in Valencia s 4 years as manager, she saw maybe ten or more. 1:110. The ten plus falls over those years included falls where people tripped over something or caught their foot. 1:111. Because this type of tripping and falling was a foreseeable danger, McDonald s had developed procedures to protect customer safety. 1:114. This included making sure items were properly stored, since improperly stored items could be unsafe. 1:113. The McDonald s procedures also warned against congested aisles. 1: There were special precautions to be taken with highchairs, and Valencia agreed that she or her crew members were supposed to put them in their proper storage places. 1:115. There were times she had to instruct her crew to put up the highchairs because they were in the wrong place. 1:115. This situation happened before and after the fall in this case. 1:115. When someone fell, Valencia was first supposed to check on them, and then prepare an incident report for the restaurant s insurance company. 1: After some falls, Valencia would send in the videotape of what happened to the insurance company. 1:112. Valencia knew the store had cameras, and they were recording the day John Renner visited the store. 1:109. McDonald s Knows the Highchairs Are A Risk. Greta Siegel was at the McDonald s the day in question as she had been many times before, because she went to the restaurant to eat and use their wi-fi. 2:152. Greta had been Dean of Students at College of Marin in California, but she and her family were from Winona. 2:151. The highchairs were a problem at the McDonald s, Greta testified, because the feet of the highchair extends out into the aisle. 2:156, 159. [T]here s a flare to the base, and then another flare to the foot, she recalled. 1:159. So, it goes out pretty far. Ex. C at 32:1597. This posed a tripping danger to customers because what is hidden is the way that bottom juts out, because 3

8 as you walk up to the chairs, obviously, they are there, but what you wouldn t expect is for a... piece of it to be sticking out. 2:156. The highchairs also didn t fit into the small spot they were jammed into at the McDonald s, she remembered, but that nonetheless that is where they store it. 2:156. Maybe they don t have room in there or something, but that s it is just a big hazard. 2:155. Greta had repeatedly complained to the crew members about the danger of the highchairs. 2:154. I always notice those chairs, and I have asked them about it before. 2:154. She had also mentioned it to some of the other girls before that just were working the counter, in addition to telling one of the managers. 2:154. Despite Greta s warnings, the Winona McDonald s never moved the hidden highchairs to protect its customers from falling. 2:153. They are always there. Still now they are there. 2:153. None of the employees ever responded to Greta s warnings about the hidden hazards. 2:158. It wasn t just that Greta thought the highchairs were a danger she had seen customers ram into them. 2:155. I have definitely seen people bump into them with their foot and their knee, she recalled. 2:155. She again stated I have seen [people] fumble up against them. 2:157. Estimating, Greta figured she had seen people trip three times prior to John s fall. 2:157. The Renners Visit the McDonald s and John Falls Because of a Highchair. John and Sherlyn Renner live in Kansas City, and have been married for over thirty years. 2: They had traveled to Mississippi for the funeral of her sister-in-law. 2:168. The Renners stopped at the Winona McDonald s on long way back home after the funeral. 2:168. The eyewitness, Greta Siegel, explained how John fell. 2:152. She saw it all from where she was sitting in a booth kind of catty-corner to where the the accident happened, as she 4

9 testified. 2:152. As she described it in an affidavit, she witnessed Mr. John Renner catch his foot and trip on a high chair. R.E. 10, 2:181. 2: In her deposition, the eyewitness fleshed out John s trip over the hidden highchair: I saw it [his foot] caught on the chair. Before he hit the ground, I looked up.... And before he hit the ground, I remember looking in that direction and seeing his foot in the edge of that chair and it whipping out and him hitting the ground. Because Greta knew the hidden highchairs were a hazard, had seen people trip on them before, and had repeatedly complained to management and employees about that risk, she was not shocked when John fell. 2: And so, yeah, it wasn t a surprise to me when it happened. 2:154. She repeated I just wasn t surprised when he fell. 2:155. After the fall, Greta heard the manager tell the employees to move the highchairs out of the way. 2:157. Sherlyn Renner did not trip herself on the highchair, and did not see her husband fall. 2: While she did not see John fall, she actually felt it because John hit the floor so hard that it vibrated, as she twice testified. 2:169, 173. She also heard a large crash. 2:173. Sherlyn did not know why her husband fell. 2:170. The manager came up and told her John fell because of the highchair. 2:170. Like the eyewitness Greta Siegel, Mrs. Renner then overheard the manager telling employees to move the highchairs out of the way. 2:170, 174. It was all a blur to John Renner:... the next thing I knew, I was waking up stomach and face on the ground and two employees of the restaurant were standing behind me, and one turns to the other, and I heard them talk. I don t know how long I was down. Long enough for someone to talk up. And one of the employees was saying to the other, what is that chair doing here?... Move it. And then at that point, it was pretty much my wife standing over me saying, okay, somebody call 911, and all of those kinds of things. 5

10 2:189. John remembered being face down, blood dripping out of my mouth. 2:191. He recalled precisely the conversation between the two employees, who said Why is it here? Move it, and Get it out of here. 2:191. John himself did not see anything at all I did not see the child s chair because it was moved by the time the ambulance got me up out of there... what I hit, I m not positive. 2:192. John had serious injuries as a result of the brutal fall he initially could not move his arm, and his wife had to help put his pants on. 2:174. They can no longer travel together due to his injuries, and a recently purchased boat was unable to be used because John cannot rig the sail. 1: Indeed, John was in such constant pain the couple together for over 3 decades no longer slept in the same bed. 2:176. John s Brutal Fall Is Filmed by the McDonald s. Hugh Ballard was the operations technology person for the McDonald s the computer guy, in everyday language. 1:42. He was trained by McDonald s to take care of all their technology needs, including video surveillance. 1: Even though video surveillance was supposedly important to the company, there were no written policies or procedures on how to deal with the surveillance video. 1:140. The company also did not have a policy on slip and falls. 1:144. Nonetheless, the computer expert agreed that video surveillance is key. 2:146. He had dealt with numerous requests for video footage related to slip and falls. 2:147. He had also many times preserved video footage if needed. 1:144. The video recorded to a hard drive, but it only kept the video for a certain time period. 1:143. According to the computer expert, the hard drive kept video for 63, 64 days, maybe, at the most. 1:143. After that period, the footage was destroyed and deleted as new footage was recorded. 1:144. 6

11 According to Mr. Ballard, there was a camera in McDonald s that pointed to the exact place where John Renner fell. 1:146. Mr. Ballard also agreed that the video footage would have shown exactly what happened that day at the McDonald s. 1:147. The Renners Get the Runaround. Just 2 days after John s fall, Sherlyn got a call by the risk management company working for McDonald s. R.E. 16, 2:266. At first she thought it was the doctor calling about surgery on John s crushed shoulder. R.E. 16, 2:266. The person on the phone was blasé, call[ing] to say they were checking on John, stating that she was sure that Mr. Renner was probably fine. R.E. 16, 2:266. Sheryln was emphatic that he was not fine. R.E. 16, 2:266. The person from the risk management company explained that McDonald's had provided them with videotape(s) of the incident and that they would review these to see what had happened. R.E. 17, 2:267. She told Sheryln they would call back after John s surgery and that she would view the videotape(s) prior to calling back. R.E. 17, 2:267. There was one hitch, as Sherlyn testified: They never called back. R.E. 17, 2:267. About 4 or 5 weeks later, John tried to call the risk management company back. R.E. 14, 2:264. He was told that the security tape(s) would have to be reviewed before they could discuss the incident with me. R.E. 14, 2:264. John also asked for a copy of any of the film of his brutal fall. R.E. 14, 2:264. Again, he was told the company would need to first watch the tape before they could send it. R.E. 14, 2:264. After another 4 or 5 weeks passed, John called back. R.E. 15, 2:265. He was told by their representative that they had not had time to review all of the tapes and that once the tapes had been reviewed, they would call me. R.E. 15, 2:265. There was never any follow up or call back to the Renners, and John never saw the footage of his fall. R.E. 15, 2:265. 7

12 It s gone : The Film of the Fall Is Destroyed or Lost. By the time Hugh Ballard, the IT person, was deposed, the footage from John s fall no longer existed. 1:146. The IT man testified under oath that it s gone. 1:146. Ballard could not say whether the footage was deleted by taping over itself, or if it was consciously sabotaged. R.E. 19, 2:147. Q And you can t tell me if it was, if it [the footage] did survive and was destroyed by somebody at a later date; is that correct? A I can t tell you. R.E. 19, 2:147 (emphasis added). While Sherlyn and John had been called by risk management just 2 days after the brutal fall, and told the tapes were being reviewed, the process apparently did not trigger any internal preservation of the footage. In contrast, the IT person explained that he had received a preservation request from a manager in the company but the request came on the 65th day after John s fall, or over 2 months later. 2: As the computer expert had explained, the hard drive only kept video for 63, 64 days, maybe, at the most. 2:143. After that period, the footage was destroyed, and therefore the request from the manager to preserve the tape came at a troublingly specific time after the company assumed it would have been deleted. Ballard repeatedly agreed the footage would have shown exactly had happened that day. 2:147. Likewise, then-store manager Valencia Hubbard testified she also knew that the recordings of falls at the store were important, as they were the best piece of information to have after a fall. 1:120. The manager also knew that legal action could happen after the fall, and so the value of the footage was critical. 1:120. She also agreed the footage of John s fall would be the best evidence of what really happened that day. 1: The request came on October 17, :145. John s fall was on August 13, :3. 8

13 COURSE OF PROCEEDINGS John filed suit against the McDonald s for damages for his shattered shoulder. 1:1. After discovery, McDonald s asked the trial court for summary judgment, claiming that John could not meet the elements of the tort he claimed. 1:23. John vigorously opposed the request, relying on the eyewitness testimony of Greta Siegel, as well as the testimony of the store manager and the IT person. 1:87. John also asked the trial court to grant a spoliation instruction for use at trial due to the intentional or negligent destruction of the footage of his fall. 2:205. John also requested that the trial court strike the answer of the defendants due to the destruction of the footage, since it constituted a discovery violation. 2:208. Despite the eyewitness testimony and the reality that the footage of John s fall was destroyed intentionally or negligently by McDonald s, the trial court granted summary judgment. R.E. 5, 2:277. The trial court ruled that Mr. Renner was an invitee of McDonald's. R.E. 7, 2:279. Disregarding eyewitness testimony that the highchair was placed in a way where it was hidden, the trial court held that [t]he presence of a high chair in a restaurant like McDonald's is clearly a normal and usual condition that an invitee could expect to encounter. R.E. 7, 2:279. Therefore, McDonald's cannot be held liable for Mr. Renner' s injuries in this case. R.E. 7, 2:279. Even though Greta Siegel had testified that she had repeatedly warned the staff of the McDonald s about the hidden hazards, the trial court completely ignored her testimony, and held that there is no evidence that any McDonald's employee placed the high chair in Mr. Renner s path or had actual or constructive knowledge that the high chair posed a danger to Mr. Renner. R.E. 7-8, 2:

14 After ignoring this crucial and uncontested evidence and not looking to the destruction of the tape at all the trial court ruled that there is not a genuine issue of material fact in this case and that the defendants cannot be held liable for Mr. Renner's injury. R.E. 8, 2:280. A final judgment dismissing all claims was entered the same day. R.E. 9, 2:281. John timely appealed. 2:282. Summary of the Argument For two core reasons the order granting summary judgment is improper and must be reversed. First, there is ample testimonial evidence that concretely establishes that McDonald s was either directly negligent in causing John Renner s fall, or had actual or constructive knowledge that allowed it to happen. An eyewitness testified that the highchairs were hidden, and that she had repeatedly seen people almost fall on them, and communicated the hazard to the store s staff. Nonetheless, McDonald s never took care of the problem they knew they had. This knowledge by the restaurant mandates reversal of summary judgment and a remand for a full trial on the merits. Second, the Mississippi Supreme Court has decreed that destroyed or lost evidence must be presumed to have been unfavorable to the party responsible for its loss. The computer person for McDonald s testified they had tape of John s fall, it would have shown exactly what happened, and yet it was still destroyed. In fact, the IT person could not say if it had been lost or intentionally destroyed. When applied to this case, the spoliation rule warrants reversal of the grant of summary judgment. Standard of Review The Court uses de novo review of the grant of summary judgment. Bennett v. Hill-Boren, P.C., 52 So.3d 364, 368 (Miss. 2011). When reviewing the evidence on summary judgment, the Court should view the evidence in the light most favorable to the nonmovant. Id. The 10

15 nonmoving party is given the benefit of every reasonable doubt as to the existence of a genuine issue of material fact. Id. The Court also uses de novo review to determine if the proper law was applied. See Starcher v. Byrne, 687 So.2d 737, 739 (Miss. 1997) ( Our standard for review is de novo in passing on questions of law ). ARGUMENT I. John Met the Elements of Premises Liability. Because there was uncontested eyewitness testimony that McDonald s knew the hidden highchairs were a hazard, knew they were not easily seen because people kept tripping over them, and that the staff knew all this, summary judgment should have never been granted. There was a hidden hazard, it caused John damages, and this proof allows him to proceed to trial. There is no dispute that John was a business invitee of McDonald s, and actually had bought food and was walking to sit down to eat. The trial court ruled accordingly that [u]nder the facts of this cases, Mr. Renner was an invitee of McDonald s. There are three ways a plaintiff to recover in a slip-and-fall case and any one of these will satisfy the elements of the tort. Downs v. Choo, 656 So. 2d 84, 86 (Miss. 1995). First, one could show that some negligent act of the defendant caused his injury. Id. The second path one can travel is to show that the defendant had actual knowledge of a dangerous condition and failed to warn the plaintiff. Id. Third, a plaintiff could establish liability by show[ing] that the dangerous condition existed for a sufficient amount of time to impute constructive knowledge to the defendant, in that the defendant should have known of the dangerous condition. Id.; see also Evans v. Aydha, 189 So. 3d 1225, 1228 (Miss. Ct. App. 2016) (listing the three paths). 11

16 There was ample sworn evidence in this case that McDonald s could be liable through all of the three paths. Each will be addressed. Because there was this evidence, the grant of summary judgment must be reversed, and this case allowed to proceed to trial. A. McDonald s Had Actual Knowledge of a Dangerous Condition and Failed to Warn. Because the restaurant had actual knowledge that the hidden highchairs posed a hazard, and failed to warn John or correct the danger, summary judgment must be reversed. An eyewitness testified she had repeatedly told the staff of the McDonald s that people were tripping on the highchairs. The store never fixed the issue and never warned, and therefore summary judgment must be denied. A defendant can be liable if the plaintiff can show that the defendant had actual knowledge of a dangerous condition and failed to warn the plaintiff. Downs, 656 So. 2d at 86. The uncontested eyewitness testimony in this case establishes that McDonald s knew there was a danger, and that they failed to warn about it or correct the danger. The facts on this point are undisputed. Greta Siegel would sit at the McDonald s and use their wi-fi, and during that time repeatedly saw people ram into the highchairs and had repeatedly told the staff about it as well. I always notice those chairs, and I have asked them about it before, she testified. The eyewitness had also mentioned it to some of the other girls before that just were working the counter, in addition to telling one of the managers who from the testimony was sure to be Valencia Hubbard. Yet none of the employees ever responded to her concerns about the hidden hazard of the highchair. Nor was John Renner was not the first person to trip there, according to Ms. Siegel. I have definitely seen people bump into them with their foot and their knee, she recalled. She again stated I have seen [people] fumble up against them. Ms. Siegel figured she had seen three such events prior to Mr. Renner s fall. 12

17 Nor was the store a stranger to slip and falls or trip and falls. Valencia Hubbard admitted that there had been maybe ten or more in her four years as manager. And McDonald s employees were trained to keep the aisles clean, use special care with highchair, and to work to ensure invitee safety. This sworn testimony shows that McDonald s had actual knowledge of a dangerous condition, but failed to warn. John Renner was not the first person to trip over those hidden chairs and he was actually injured because McDonald s never cured the known danger of the protruding legs. The trial court ruled that [t]he presence of a high chair in a restaurant like McDonald s is clearly a normal and usual condition that an invitee could expect to encounter. Yet that wholly disregarded the uncontested testimony of Greta Siegel that the highchairs were not normal. The feet of the chairs poked out in an unexpected way, and multiple people had tripped over them before. The witness was so concerned that she had felt the need to repeatedly tell the staff that it was a problem. And after John fell, the staff was heard hurriedly fixing the chairs position Why is it here? Move it, John remembered hearing, and Get it out of here. This critical testimony demolishes any pretense that McDonald s did not have knowledge. It is true that he owner of a business is not required to insure against all injuries, even for an invitee, yet a business still owes a duty to an invitee to exercise reasonable or ordinary care to keep the premises in a reasonably safe condition or to warn of dangerous conditions not readily apparent, which the owner or occupant knows of, or should know of, in the exercise of reasonable care. Evans, 189 So. 3d at This hidden highchair was not known to John, and it was not obvious or should be obvious to the invitee in the exercise of ordinary care. Id. It was hidden to John, but known to McDonald s and this is why summary judgment should have never been granted. 13

18 There was sworn testimony that McDonald s had actual knowledge they had a hidden hazard, knew people tripped on it, and the company did not cure the harm or warn about it. John suffered as a result. This evidence precludes summary judgment. B. McDonald s Had Constructive Knowledge of the Hidden Hazard. In the alternative, there was evidence that even if McDonald s did not have actual knowledge of the hazard, it had at a minimum constructive knowledge of the hidden highchair hazard. Because of that constructive knowledge, summary judgment must be reversed. Another path one can travel to trial on a slip-and-fall claim by show[ing] that the dangerous condition existed for a sufficient amount of time to impute constructive knowledge to the defendant, in that the defendant should have known of the dangerous condition. Downs, 656 So. 2d at 86. The Court of Appeals recently explained how this doctrine applies in the Evans case, where a woman at a quickie mart in Pontotoc slipped and fell, hitting her head on the pavement. 189 So.3d at She argued that there was some kind of a slippery black spot which caused her to fall, and the primary combat was over how long that spot had been on the floor in the convenience store. Id. at The Court recognized that there was no sure way of telling, acknowledging that circumstantial evidence could still hurdle summary judgment. Id. at Circumstantial evidence may be used to prove the length of time a dangerous condition has existed, so long as it creates a legitimate inference that places it beyond conjecture. Id. (internal quotation and citation omitted). Even though the daughter did not see her mom fall, she was familiar with what happened, and knew personally about the location of the black spot, its appearance, and its composition. Id. at She had personal knowledge of these things because she went to the scene of the fall and personally observed them. Id. at

19 Because there was evidence that the black spot had been in the store for long enough to impute knowledge to the store owner, the Court of Appeals reverse[d] the summary judgment against her and remand the case for a trial on the merits. Id. at John s evidence against McDonald s skyrockets past the evidence mustered by the woman who fell on the black spot in Evans. It was enough there for the circumstantial evidence that the spot had been in the store a while to hurdle summary judgment. In this case, we have eyewitness testimony from Greta Siegel that the highchairs repeatedly caused customers to stumble into them, that McDonald s knew about it, and never fixed the situation or warned customers. Greta herself had told the staff repeatedly about the problem to no avail. At the time she was deposed, she suspected the problem at the store still persisted. Even the store manager, Valencia Ballard, admitted that the store had customers fall again and again in her years managing it. At the very least, McDonald s was on constructive notice of the defective condition. Based on the same sworn testimony above, it is clear that the dangerous condition existed long enough that McDonald s had constructive knowledge especially because Greta Siegel had repeatedly informed employees and the manager of the condition. At a minimum, the store had constructive knowledge it was a problem. For these reasons, the grant of summary judgment must be reversed. C. McDonald s Negligence Caused John Harm. Because there was evidence the restaurant s negligence directly caused John harm, summary judgment should not have been granted. 15

20 The third path one can travel to trial in a slip-and-fall case is when one can show that some negligent act of the defendant caused his injury. Downs, 656 So. 2d at 86; Evans, 189 So. 3d at McDonald s negligent act was in knowing that customers had tripped on the chairs before, knowing that the bases of the chairs protruded out into the aisle when they were poorly stored, and breaching their responsibility to keep the premises reasonably safe. The highchair was not obvious to John nor had it been obvious to the other people who tripped or banged into it. The eyewitness, Greta Siegel, testified the highchairs inherently extended beyond the place they were stored, because there s a flare to the base, and then another flare to the foot, she recalled. So, it goes out pretty far. This posed a tripping danger to customers because what is hidden is the way that bottom juts out, because as you walk up to the chairs, obviously, they are there, but what you wouldn t expect is for a... piece of it to be sticking out. It was this negligent act improper storage of the highchairs in a way that you could not see that they could trip you that in and of itself should have resulted in the denial of summary judgment. There was no evidence that anyone other than the store employees had placed the highchairs there. It was therefore the direct negligence of the store which caused John Renner s injuries. This is corroborated by testimony from both Sherlyn Renner and Greta Siegel that immediately after John s fall the manager was yelling for employees to move the highchairs to another location. It is further corroborated by the store s admission, through Valencia Hubbard s incident report, that John tripped on their highchair. The trial court ruled that it was somehow foreseeable that there were highchairs in a McDonald s. Yet the uncontested testimony was that this highchair was not tucked away safely it was in a place where it could trip an invitee like John. Valencia testified that the store 16

21 had problems with people falling, and this was a known hazard. The company had a duty to protect John from this known hazard, and certainly not cause it by their negligence storing of the chairs. For this reason, summary judgment should not have been granted. Conclusion to Section I There are three different paths a person might travel towards recovery in a slip-and-fall case. The uncontested evidence in this case shows that McDonald s knew they had a hidden hazard, knew that people had tripped on it before, did not take steps to correct it, did not warn about it, and that John Renner tripped and shattered his shoulder as a result. This galaxy of sworn and frankly uncontested evidence should have resulted in a denial of summary judgment if the trial court had followed the standard. For summary judgment is only proper after all evidence is considered by the trial court in favor of the nonmoving party. Alfonso v. Gulf Pub. Co., Inc., 87 So.3d 1055, 1060 (Miss. 2012) (citing MRCP 56(c)). According to the Supreme Court, All evidentiary matters must be viewed in the light most favorable to the nonmoving party. Id. (emphasis added). In that case, the Court emphasized that when there is any material evidence in favor of the nonmoving party, summary judgment must be denied. Id. at In Alfonso, a small publisher sued a larger company alleging that it had intentionally interfered with a contract to publish a local newspaper. Id. at The small publisher argued it had two letters that supported its claim for interference. Id. at Nonetheless, the trial court granted summary judgment. Id. On appeal, a unanimous Mississippi Supreme Court reversed. When looking at the two letters in the light most favorable to [the small publisher], there were genuine issues of material 17

22 fact for trial. Id. at Summary judgment was reversed and the case remanded for trial. Id. at This case far exceed the mere two letters mustered by the plaintiffs in Alfonso. There was direct eyewitness evidence that McDonald s knew it had a hazard, they were told repeatedly it was a hazard, and they failed to cure or warn. John can travel to trial in three separate ways, and as a result, the grant of summary judgment must be reversed. II. The Spoliation of the Security Tapes Forbids Summary Judgment. Because there is a heavy presumption there was favorable evidence in favor of John Renner, the grant of summary judgment must be reversed. The lost or destroyed footage from McDonald s should have been considered in the summary judgment analysis, and summary judgment can never be granted in the face of the loss of such critical evidence. It is uncontested in this case that McDonald s had footage of John s fall in the store footage that was routinely kept and provided in other slip and falls, of which the store had had ten or more in just 4 years. It is equally uncontested that McDonald s lost or destroyed this digital footage, as admitted by Hugh Ballard, the IT person. It is likewise uncontested that the restaurant s risk management company even called John and Sherlyn, said they had the footage, and that it was being reviewed. Yet by the time it was asked for in discovery, they were told it s gone. In Mississippi, [w]hen evidence is lost or destroyed by one party (the spoliator ), thus hindering the other party s ability to prove his case, a presumption is raised that the missing evidence would have been unfavorable to the party responsible for its loss. Thomas v. Isle of Capri Casino, 781 So. 2d 125, 133 (Miss. 2001). This presumption that the lost evidence was unfavorable is wide-ranging: the inference thus does not necessarily apply to any specific fact 18

23 in the cause, but operates indefinitely though strongly against the whole mass of alleged facts constituting his cause. Id. (quoting 2 J. Wigmore, Evidence 278, at 133). As the Supreme Court decreed in Thomas, courts should sweep aside any protests to the application of the rule, and even disregard contrary evidence. Id. Because the presumption of unfavorability is not solely confined to the specific issue of what information was contained in the missing evidence, the fact finder is free to draw a general negative inference from the act of spoliation, regardless of what the spoliator s rebuttal evidence shows. Id. While some states only allow spoliation to apply when there has been evidence of bad faith, as a matter of public policy Mississippi applies the presumption of unfavorable evidence regardless if the destruction was merely negligent or in bad faith. Id. Requiring an innocent litigant to prove fraudulent intent on the part of the spoliator would result in placing too onerous a burden on the aggrieved party. Id. To hold otherwise would encourage parties with weak cases to inadvertently lose particularly damning evidence and then manufacture innocent explanations for the loss. Id. In this way, the spoliator could essentially destroy evidence and then require the innocent party to prove fraudulent intent before the destruction of the evidence could be used against it. Id. The Supreme Court effectively created a balancing offset to destruction of evidence. If a party loses or destroys information, it will suffer from the loss by a presumption that the lost information was favorable to its opponent. It is well settled that the Thomas rule applies regardless of whether the spoliation was negligent or intentional. See Wallace v. Ford Motor Co., 2013 WL , at *5 (S.D. Miss. June 28, 2013) ( In Mississippi, the loss or destruction of evidence need not be intentional; negligent losses can also constitute spoliation, as opposed to the Fifth Circuit s requirement of bad faith); Whalen v. The Kroger Co., 2007 WL , at *3-4 (N.D. Miss. July 10, 2007) 19

24 (allowing spoliation inference even though defendant claimed photos were only lost in the mail ). In this case, the record is mostly silent on whether McDonald s intentionally destroyed or only negligently destroyed the footage which showed John s terrible fall. The record contains multiple admissions the footage is now long deleted, and a troubling passage where Hugh Ballard admits that it could have been intentionally destroyed: Q And you can t tell me if it was, if it [the footage] did survive and was destroyed by somebody at a later date; is that correct? A I can t tell you. he record is also clear that even though the IT person knew the footage would auto-destruct at the 63rd or 64th day, the internal preservation request only came after 65 days. This further shows the problem with the destroyed tapes, as the inference is that McDonald s consciously waited to preserve the footage until the point it knew they were deleted. Furthermore, then-store manager Valencia Hubbard was also sophisticated about falls in the store, since there had been more than 10 on her watch. She testified that video was the best evidence in such a situation, and that it was important to preserve. According to Thomas, it does not matter if the loss was innocent or intentional: the spoliation presumption attaches. As Hugh Ballard admitted, there was digital footage of the exact place where John Renner fell. That video footage would have revealed exactly what happened that day in Winona. It is uncontested that McDonald s had a recording or recordings of John s fall, that McDonald s employees had access to this footage, and that slip and falls were common at the store and tapes had been preserved in the past. Furthermore, the policies and procedures of the store had previously included turning over footage to the insurance company, and there were detailed policies over what to do in one of the many instances where a customer fell. An incident report would be executed and 20

25 immediately sent to the insurer. This would have happened for a routine fall, but especially so for the brutal injuries suffered by John that day with the store having to call 911 and a customer removed on a gurney. In other words, McDonald s was on high alert of the fall, and its insurer would have been on high alert as well. Any evidence should have been meticulously maintained. Indeed, in the 21st century, to store or preserve this footage would have been easy and inexpensive, when each person has the ability to carry hours of video footage on their mobile device or in the cloud. There was actually a digital recording of every single thing that happened relevant to the truth. That conclusive evidence is gone. Under clear Mississippi law, set in stone for 15 years, this lost evidence must be considered as unfavorable to McDonald s. This presumption forbids the grant of summary judgment. As the Thomas Court declared, spoliation is so powerful that it does not necessarily apply to any specific fact in the cause, but operates indefinitely though strongly against the whole mass of alleged facts constituting his cause. 781 So. 2d at 133; see also Rowe v. Albertsons, Inc., 116 Fed. Appx. 171, 176 (10th Cir. 2004) (when trial court did not consider whether a spoliation presumption applies to the recycled videotape, a federal appeals court reverse[d] the grant of summary judgment ). The presumption in this case should have been the following: that the tape conclusively showed that the Winona McDonald s actually created the dangerous situation; that the highchair had been there for a terribly long period of time; that McDonald s knew this; that the store let the highchairs stay that way, until John smashed to the ground. This presumption is incredibly broad, incredibly powerful, and incredibly important to any case where there is lost or destroyed evidence. Coupled with the uncontested eyewitness testimony of Greta Siegel that the high 21

26 chairs were a known hazard, were hidden, and directly caused John s fall, summary judgment should have never been granted. The lost or destroyed footage is the key which helps unlock this entire case. That key was thrown away, or melted down, or swallowed, or simply lost. Under established precedent, the loss of that evidence must be considered as unfavorable to McDonald s. The absence of any discussion of the lost or destroyed footage condemns the trial court s order to reversal. The Thomas case was about the influence spoliation might have on a factfinder or jury and it is so influential that there is no limit to the weight it is given. This presumes spoliation is enough to proceed to a jury, regardless of other evidence, and the Thomas Court was clear that if we allowed parties to innocently lose critical evidence then the integrity of the judicial process would be sabotaged. It follows logically that if there is no end to the un-favorability considered in the wake of spoliation, it is more than enough to hurdle the low bar of summary judgment. Summary judgment should not have been granted at this stage due to the presumption that the tape showed McDonald s was fully liable for John s injuries. As the Thomas Court proclaimed, there are also important public policy reasons why summary judgment can never be granted in cases like this. To hold otherwise would encourage parties with weak cases to inadvertently lose particularly damning evidence and then manufacture innocent explanations for the loss. 781 So. 2d 133. In this way, the spoliator could essentially destroy evidence and then require the innocent party to prove fraudulent intent before the destruction of the evidence could be used against it. Id. That case was written years before the low cost of physical storage for data, let alone a world where billions of hours of information can be easily held in the cloud. Even then, the Supreme Court was clear do not destroy evidence, or you will suffer for it. This Honorable 22

27 Court cannot reward the loss or destruction of the tapes in this case with the highest possible benefit to McDonald s: the dismissal of John s lawsuit. 3 This cannot stand. The law does not allow the dismissal of a lawsuit when evidence is lost or destroyed in fact, precedent requires that the person suffering from the loss receive a presumption that the information was favorable. Nor does this argument run afoul of two rulings from the Court of Appeals that hold that for purposes of summary judgment, the destruction or spoliation of evidence, standing alone, is not enough to allow a party who has produced no evidence or utterly inadequate evidence in support of a given claim to survive summary judgment on that claim. Bolden v. Murray, 97 So. 3d 710, 718 (Miss. Ct. App. 2012) (internal quotations and alterations omitted); Cofield v. Imperial Palace of Mississippi LLC, 147 So. 3d 364, 367 (Miss. Ct. App. 2014). Unlike the litigant in those cases, and as set out above, John is not relying solely on the presumption that the destroyed tapes would reveal information. He relies primarily on the eyewitness and sworn testimony of Greta Siegel, the admissions of store manager Valencia Hubbard, the admissions of the IT guy Hugh Ballard, and his and his wife s sworn testimony. The spoliation instruction heightens John s evidence, but is far from all he has. Because McDonald s either intentionally or negligently destroyed critical information in this case, the grant of summary judgment must be reversed. CONCLUSION For these two reasons, the Appellant John Renner respectfully requests that the grant of summary judgment be REVERSED and this case REMANDED, as there were genuine issues of 3 The summary judgment in favor of McDonald s also violated the longstanding principle that a litigant who abuses discovery can be sanctioned by the loss of their defense, including striking a complaint or an answer. When there are extreme violations of discovery prior to and throughout trial, the trial court should strike the answer of a defendant and enter judgment for the plaintiff. See Pierce v. Heritage Properties, Inc., 688 So.2d 1385, 1392 (Miss. 1997) (upholding dismissal of a plaintiff s complaint when she repeatedly lied throughout discovery and trial). 23

28 material fact that prohibited summary judgment. It was uncontested that an eyewitness testified that the highchair which caused John to fall was a hidden danger, that others had tripped over it, and that the staff of the McDonald s had been repeatedly warned of the danger. These genuine issues of material fact require a jury trial to resolve. Furthermore, it was uncontested that McDonald s had footage of John s terrible fall, knew it was important because it showed harm to a customer, that staff agreed it would show what happened. Nonetheless, McDonald s either lost or destroyed the tape. This spoliation of critical evidence further warranted denial of summary judgment. For these reasons, the Appellant respectfully requests that the Court REVERSE and REMAND the order granting summary judgment. Respectfully submitted, this the 24th day of March, s/ David Neil McCarty David Neil McCarty Miss. Bar No DAVID NEIL MCCARTY LAW FIRM, PLLC 416 East Amite Street Jackson, Miss T: E: dnmlaw@gmail.com W: OLIVER E. DIAZ, JR. Miss. Bar No P.O. Box 946 Madison, Miss E: oliver@oliverdiazlaw.com W: OliverDiazLaw.com 24

29 CERTIFICATE OF SERVICE I, David McCarty, certify that I have served a copy of the above and foregoing document to the following via filing with the MEC electronic filing system: Ms. Muriel B. Ellis, Clerk MISSISSIPPI SUPREME COURT Attorney for Appellee Robert F. Stacy, Jr. DANIEL COKER HORTON & BELL, P.A. And by U.S. Mail to the following: The Trial Court The Honorable Ashley Hines P.O. Box 131 Greenville, MS On March 24, s/ David Neil McCarty David Neil McCarty 25