BRIEF OF APPELLEE, WAL-MART STORES EAST, L.P., (ORAL ARGUMENT NOT REQUESTED)

Transcription

1 E-Filed Document Dec :29: CA Pages: 32 IN THE SUPREME COURT OF THE STATE MISSISSIPPI RICHARD COLL v. WAL-MART STORES EAST, L.P., COCA COLA BOTTLING COMPANY UNITED, INC., STEPHEN IRBY, JOHN DOES 2-3, AND ABC CORPORATIONS A-C, APPELLANT No.2016-CA APPELLEES BRIEF OF APPELLEE, WAL-MART STORES EAST, L.P., (ORAL ARGUMENT NOT REQUESTED) On Appeal from the Circuit Court of the First Judicial District of Harrison County, Mississippi No. A CV-l A CV W. Pemble DeLashmet (MS# 8840) Chad C. Marchand (MS# ) Mignon M. DeLashment (MS# 2896) DeLashmet & Marchand, P.C. 462 Dauphin Street Mobile, AL Telephone(251) Attorneys for Appellee Wal-Mart Stores East, L.P.

2 CERTIFICATE OF INTERESTED PARTIES The undersigned counsel of record certifies that the following listed persons may 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. Honorable Lisa Dodson - Circuit Court Judge, Harrison County, MS; W. Pemble DeLashmet, Chad C. Marchand, and Mignon M. DeLashmet, DeLashmet and Marchand, P.C., attorneys for Defendant!Appellee Wal-Mart Stores East, L.P.; Wal-Mart Stores, Inc.; Wal-Mart Stores East, L.P.; WSE Investment, LLC; WSE Management, LLC; Wal-Mmi Stores East, LLC; Robeli E. Briggs and Myles E. Sharp, Sharp, Dummer & Briggs, PLLC, attorneys for the Plaintiff! Appellant Richard ColI; Richard ColI, Plaintiff! Appellant.

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PARTIES....i TABLE OF CONTENTS....ii TABLE OF AUTHORITIES....iii STATEMENT OF THE ISSUES... 1 STATEMENT OF ASSIGNMENT... 2 STATEMENT OF THE CASE... 3 STATEMENT OF THE FACTS... 5 SUMMARY OF THE ARGUMENT ARGUMENT THE TRIAL COURT PROPERLY GRANTED WAL-MART'S MOTION FOR SUMMARY JUDGMENT, WHICH DECISION SHOULD NOW BE AFFIRMED. 1. PREMISES LIABILITY LAW AND THE SUMMARY JUDGMENT STANDARD WAL-MART DID NOT CREATE THE ALLEGED HAZARD WAL-MART DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE ALLEGED HAZARD CONCLUSION CERTIFICATE OF SERVICE ii

4 TABLE OF AUTHORITIES Almond 11. Flying J Gas Co., 957 So.2d 437 (Miss. Ct. App. 2007)... 23,26 Burress v. Belk Stores of Mississippi, LLC, 2015 WL (N.D. Miss. June 15,2015)...20,21 Day v. Ocean Springs Hosp. Sys., 923 So.2d 246 (Miss. Ct. App. 2006) Downs v. Choo, 656 So.2d 84 (Miss. 1995) Hardy v. K Mart Corp., 669 So.2d 34 (Miss. 1996)...15, 16, 17, 18, 19 Jones v. Imperial Palace of Miss., LLC, 147 So.3d 318 (Miss. 2014)... 22, 25 K-Mart COlp. v. Hardy, 735 So.2d 975 (Miss. 1999)...15, 16, 19 Karpinsky v. Am. Nat 'I Ins., 109 So.2d 84 (Miss. 2013) Kiihnl v. Family Dollar Stores of Miss., Inc., 197 So.2d 920 (Miss. Ct. App. 2016)... 25, 27 Robinson v. Martin Food Stores, Inc., 2016 WL (Miss. Ct. App. July 19,2016)...25, 27 Sullivan v. Skate World, Inc., 946 So.2d 828 (Miss. Ct. App. 2007) Wilson v. Wal-MartStores, Inc., 161 So.3d 1128,1131 (Miss. Ct. App. 2015) iii

5 STATEMENT OF THE ISSUE WHETHER THE TRIAL COURT PROPERL Y GRANTED W AL-MART'S MOTION FOR SUMMARY JUDGMENT, WHICH DECISION SHOULD NOW BE AFFIRMED. 1

6 STATEMENT OF ASSIGNMENT Appellee, Wal-Mart Stores East, L.P., submits that although it is not imperative that this Court retain jurisdiction, it requests that it do so in order to give the Court an opportunity to reaffiml the long-standing law of Mississippi that a premises owner can only be potentially liable to an invitee for hazards it creates, hazards of which it has actual notice, or hazards that have existed for so long that notice is imputed to it and to clarify that a premises owner cannot be strictly liable for a display designed, constructed, and maintained by a third-party vendor. 2

7 STATEMENT OF THE CASE This appeal is from the trial court's Order granting Wal-Mart's Motion for Summary Judgment. (R ) Plaintiff, Richard CoIl, filed his Complaint against Wal-Mart Stores, East, L.P. (hereinafter referred to as "Wal-Mmi") and Coca-Cola Bottling Company United, Inc. on April 2,2014, and later filed an Amended Complaint adding Coke's employee, Stuart Irby (hereinafter both referred to as "Coke) on February 23, 2015, alleging he (ColI) fell on part of a Coca-Cola display that had been negligently caused to be on the floor, creating a dangerous condition on the premises. (R ,52-55.) Between the filing of the original complaint and the amended complaint, the case was removed to federal court on May 13, 2014, (R ), and then remanded to state court on January 26, (R ) Coke and Irby answered the amended complaint on April 1,2015. (R ) and Wal-Mart answered the amended complaint on April 3, 2015, (R ). On February 5, 2016, Wal-Mart filed a Motion for Summary Judgment (R ), Brief In SuppOli ofits Motion for Summmy Judgment (R ) with accompanying exhibits (R ), and Undisputed Findings of Fact and Conclusions of Law (R ).Plaintiff filed a Response in Opposition to Wal-Mart's Motion (R ) with accompanying exhibits (R ), as well as a Memorandum Brief (R ) and Response to Wal-Mart's Undisputed Findings of Fact and Conclusions of Law (R ). Thereafter, Wal-Mart filed a Rebuttal in Support of its Motion (R ), and a hearing on Wal-Mart's Motion for Summary Judgment was held on Februm'y 26, (R. 454; Transcript, pp ) On April 12,2016, the trial court entered an Order granting summary judgment. (R ) Because of a settlement reached 3

8 between the parties, the trial court dismissed con's claims against Coke on April 15,2016. CR. 464.) ColI filed his Notice of Appeal on May 9, (R ) 4

9 STATEMENT OF THE FACTS On September 6, 2013, 78-year-old Plaintiff, Richard Coll, tripped and fell on a piece of cardboard inside the Biloxi, Mississippi Wal-Mart next to a Coca-Cola display in the center of Action Alley in the Grocery Department. (R , 52-55, 93.) Plaintiff alleges that he fell on a cardboard sign, which was part of the Coca-Cola display, and was injured. (R , 52-55, 101.) Although Coll consistently mischaracterizes the display as a "Wal-Mart display" throughout his appellate brief, the facts are undisputed, and Mr. Irby (the Coke employee in charge of the display) testified, that the display was Coke's, constructed, maintained, and stocked by Coke; and the cardboard sign at the heart of this matter was manufactured by Coke and affixed to the display by Coke. (R ,118-19, 131, ) Mr. Coll testified that on the day of his incident, he went to Wal-Mart to shop for groceries. (R ) He ultimately made his way to the Coke display located in Action Alley to select his drinks. R ) When he got to the display, Mr. Coll noticed the Defendant, Coca Cola Bottling Company United, Inc.'s, employee/vendor, Defendant Stephen Irby, stocking the Coke display. (R. 96.) According to Mr. Coll, it appeared that the Coke products were on sale, and at their lowest height on the pallet were stacked at least three cases high. (R. 96, 98.) Mr. Coll testified that he parked his cart next to the display, picked up a 12-pack of drinks (which he placed on top of the display) and then got a second 12-pack. (R ) Carrying thetwo 12- packs of drinks, Mr. Coll then stepped backwards to go back to his cart but then, according to him, he stepped on part of Coke's display, a cardboard sign that had fallen while he was getting his drinks, and he fell. (R )1 1 After the accident, a Wal-Mart Assistant Manager, Amanda Campisi, took pictures of Coke's display which show the location, size, and type of cardboard sign at the center of this dispute. (R ) The pictures do not depict the "three-case-high" condition described by Mr. Coll as he approached the display. 5

10 Mr. Coll testified that when he walked from his cart to retrieve his drinks, the floor was clean and there was no sign on the floor. (R ) Mr. Coll does not know how the sign got on the floor, but was positive the sign was not on the floor when he was walking toward the drinks because, as he explained, "I would have stepped on it if it was on the floor before I walked down there." (Id) When asked how much time lapsed from the time he parked his cart until the time he fell, Mr. Coll stated: "It couldn't have been over, you know, like, about two minutes, minute and a half, something like that, if it was even that long...i guess a minute would be-you know". (R. 104.)2 He further testified "I didn't know what I slipped on until I was laying on the floor. And then I saw that-the signwhen I was laying on the floor, so I figured that's what I slipped on. But I didn't see that sign when I walked through that little area between those skids. I didn't see it". (R ) As for whether Wal-Mart was aware of the Coke display's sign on the floor, which fell inexplicably while he was retrieving his drinks, Mr. Coll stated he had no opinion one way or the other. (R. 105.) The importance of Mr. Coll's testimony, which will be discussed in detail below, is that: 1. The Coke display was not empty; nor had the Coke products been sold all the way down; 2. The Coke sign was not on the floor when Mr. Coll parked his buggy and went to retrieve his merchandise; (R ) Rather, they depict Coke's display after Mr. Irby had finished re-stocking it which occurred after Mr. Coll's incident as the paramedics were attending to him. (R , ) 2 It is undisputed that the actual elapsed time between when Mr. Coll went to get his drinks and when he fell was seventeen (17) seconds. Wal-Mart attached as exhibits to its summary judgment motion two (2) videos of the incident for the trial court's consideration but the trial court could not open either video and did not rely on them in reaching its decision. (R. 106; Transcript, pp. 1-3, 23.) However, no one disputes that both videos show that at 1 :50:55, Mr. Coll approached the Coke display from the left as Mr. Irby was working, that at 1:51:20, Mr. Coll appeared to begin to get his Coke products, and that at 1:51:37 he appeared to fall. 6

11 3. The amount oftime which lapsed from the time Mr., Coll parked his buggy until the time that he fell was between one to two minutes at the most. Stephen Irby, the senior merchandiser employed by Defendant Coca Cola, was stocking the display at the time of the incident and witnessed Mr. Coll's fall. (R. 126.) When Mr. Irby saw Mr. Coll approach the display, he stopped stocking the pallet and stepped away so Mr. Coll could get his drinks; Mr. Irby was looking directly at Mr. Coll when he fell. (R ) Mr. Irby watched Mr. Coll pick up a case of drinks and when Mr. Coll turned to walk back to his caii, he kicked the sign off and fell. (R. 122.) Mr. Irby believes that Mr. Coll's view was impaired by the case of drinks he was carrying, and when he stepped forward to go back to his grocery caii, he kicked the sign down and fell. (R. 124.) Mr. Irby also testified that there were enough Coke products on the pallet to hold the sign in place (two-cases-high) and it was correctly attached to the display until Coll walked into the display and kicked the sign. (R ) The undisputed facts about the construction and assembly of the display were provided by the Coca Cola employee and co-defendant, Stephen Irby. (R , ) Mr. Irby testified in his deposition that his/coke's display where Mr. Coll fell consisted of two pallets stacked with cases of drinks. (R ) Coke's promotional signs, provided by Coca-Cola, were placed on opposite corners of the pallet, with cases of Coke products stacked on top of the display signs' "flaps" which held the signs in place. (R , 138.)3 Mr. Irby specifically testifiedthat the Coke displaywhere this incident occurred was built by Coke and that Wal-Mart employees do not build the Coke displays. (R. 134.) In addition, he testified that the Wal-Mart employees had no oversight over the building of the Coke displays; 3 According to Mr. Irby, the signs have "flaps" that sit on top of the pallet and have Coke products stacked on top of them which then hold the sign in place. (R ) 7

12 that no one from Wal-Mart would "stand over him" while he built or stocked displays; and that Wal-Mart did not "dictate what [he] did or how [he] did it. (R.134, 136.) Other than providing the pallets, according to Mr. Irby, Wal-Mart had no involvement with the display, i.e., "they don't touch the display or fill it or anything." (R. 121.) In fact he stated that the procedure was for him to place an order for Coke products on his computer, and then the order would be "built" for him at the Coke warehouse on pallets that were then delivered to the store by Coke. (R. 115, 131.) The first time the display at issue was built, either he or someone with Coke would have done the construction. (R. 114, ) However, this particular display was not brand-new. (R ) Once the display was set up, Mr. Irby controlled what was on the Coke display at any given time. (R ) Mr. Irby and/or other Coke representatives were the only ones who would stock/re-stock it. (R. 113.) Not only did Coke do this during the day, but Coke also did it at night as well. (R ) As for the sign at issue, Mr. Irby testified that it would have been mailed by Coke to the distribution plant where Irby worked, that he (Irby) would have gotten it from the Coke warehouse, and that he would have brought it with him to Wal-Mart at some point. (R. 115,118-19, ) Prior to Mr. CoIl's accident, Mr. Irby had no previous problems with the display, nor had there ever been any prior problems with the Coke display or its signs being on the floor. (R. 132, ) It is true that Wal-Mart provided the pauet(s) on which to stock the Coke products for the display(s), (Appellant's Brief, p. 3); however, there is no evidence that the pallet was defective or otherwise was a contributing cause of the sign falling to the floor. Wal-Mart also dictated where the Coke display was to be placed in the store (Id.); but, again, the location of the Coke display is not at issue in this case. (R. 317.) Wal-Mart does provide pricing, (Appellant's Brief, 8

13 p. 3), since the product is being sold at Wal-Mart, but the actual sign at issue is Coke's, made by Coke, brought to the store by Mr. Irby, and placed on the display by him. (R. 115,118-19,137-39, 319.) There is no evidence that the price of the products had anything to do with this accident. Wal-Mart asks that the Coke product not overhang the pallet. (R. 319; see Appellant's Brief, p. 3.) There is no evidence that Coke/lrby stacked the product so that it was overhanging the pallet in the instant case or that overhanging product had anything to do with this accident. According to Irby, Wal-Mmi could move Coke's display off of the sales floor if "it got too low." (R. 322; see Appellant's Brief, p. 3.) There is no evidence as to what constituted "too low" in the instant case or that Coke's display should have been moved off of the sales floor prior to ColI's accident. Wal-Mart also had the authority to ask Irby to attend to the display once he arrived at the store, (R ; see Appellant's Brief, p. 3), but that did not occur on the day in question and had nothing to do with this accident. (R ) ColI argues that "Wal-Mmi was intimately involved with the display, and in particular the sign and where it goes", because, according to ColI, Wal-Mmi had "input on what signs are chosen for the display and where they are to be placed on the display. (Appellants Brief, pp. 4, 7.) Plaintiff accurately -- but oilly partially -- quotes Mr. Irby's testimony, omitting the portions ofmr. Irby's testimony indicating that his beliefs were based on inadmissible hearsay. (R. 336.) The entirety of the quote, with the omitted poliions in bold, is as follows: Q. And that's what I'm getting at. At what point in the process does Walmart tell you, as a Coke employee, where to put the signage? A. Well, Walmart doesn't tell me where to put it, Coke told me where to put it. But, to my knowledge, they've been told from Walmart to put them up to kind of bring attention to the corners of the displays. 9

14 Q. Have you been privy to any of those conversations? A. No. Q. Have you seen documents that dictate something to the effect? A. No. Q. Has anyone told you that specifically? A. Yes. Q. Who has told you that? A. My supervisor. Q. And the extent of that conversation with Walmart - tell me the extent of that conversation. A. That Walmart wants the corner boards up to, like, draw attention to the display. (R. 336) (Emphasis added to the portions omitted by ColI.) Accuracy and inadmissibility aside, the design of the signs is not at issue. Color and verbiage had nothing to do with this incident. This is not a product liability action where it is alleged that the signs were somehow designed or manufacture incorrectly. And Coke/lrby -- not Wal-Mart -- decided how they were to be attached to the display. (R.336.) Nowhere in this lawsuit, by lay testimony, expert testimony, or otherwise, has a single fact been submitted that the location of the cardboard sign on the corners of the display, as opposed to the center of the display or elsewhere, had any relation to the fact, according to CoIl, that the sign ultimately fell to the floor. There were no Wal-Mart Associates who witnessed the incident. The first Wal-Mart Associate who got to the scene was Zena Mullins, the Ladies' Wear department manager. (R. 10

15 142.) Ms. Mullins testified that she had no responsibility for the grocery Action Alley where the incident occurred, but responded to the Code White (customer incident) because she happened to be working in the area. (R ) She remembered little about the incident, and did not remember whether she asked Mr. Coll what happened; she did not remember seeing a Coke vendor in the area, a sign on the floor, anyone talking about Mr. Coll slipping on a sign,or anyone working on the display from Coke. (R ) Coll testified that at the time of the accident, the product on the display was "three high," (R. 96, 98), and Irby testified that it was two-high, (R. 123), yet Ms. Mullins, who arrived after the accident, testified that when she arrived, a corner of the display was empty; everyone agrees, however, that when Mr. Coll approached the display to retrieve the Coke products, the Coke promotional sign was not on the floor. (R. 100, 103, ,346.) Amanda Campisi, an Assistant Manager, also responded to the Code White after Ms. Mullins. (R ) Ms. Campisi testified that when she got to the area she found Mr. CoIl on the floor sitting near a piece of cardboard. (R. 159.) She took photographs of the display after Mr. ColI left with the paramedics, (R. 160, ), but the photos do not show the condition of the Coke display at the time since Mr. Irby continued to restock the display while the paramedics attended to Plaintiff. (R )As for Wal-Mart's policies with regard to Coke displays, Ms. Campisi testified that Wal-Mart did not re-stock Coke displays that were low on product, but would remove empty pallets which had no product. (R. 363.)Likewise, if something had fallen off of the display onto the floors and there were no Coke employees there, she stated "If we see something on the floor that we think is a hazard in any way, regardless of what it is, I would think someone would move it, pick it up, whatever needs to be done in order to try and make it safe." (R. 364.) Ms. Campisi testified: "It is in all of the Associates' training from cashiers on up 11

16 to always be on the lookout for any kind of safety issues at all times. It's everybody's job to always have their head on a swivel, watching the floor and making sure if there's any kind of a safety issue you either handle it or call somebody who can." (R. 364.)However, Ms. Campisi had no knowledge of how long the cardboard on which Mr. ColI said he slipped had been on the floor or how it had gotten there. (R ) ColI misinterprets the record in several instances, primarily characterizing the display as "Wal-Mart's," (Appellant's Brief, p. 3), contrary to the evidence and to Mr. Irby's statement that the display was Coke's. (R. 116.) CoIl states that it (Wal-Mart) "never submitted" any evidence in support of its position that the display was Coke's and that material decisions about the display were made by Coke/lrby, and it (Wal-Mart) had, in turn, argued that CoIl had produced no evidence disputing its lack of involvement with the display. (Appellant's Brief, p. 7.) The record is replete with evidence Wal-Mart submitted to support its position (see, e.g., R , , , , supra). As for ColI meeting his burden of producing facts sufficient to create a question of material fact, the undersigned did argue that CoIl had not met his burden, first arguing that ColI had never indicated in response to written discovery that Wal-Mati had done anything wrong (Transcript, pp. 6-7) and then arguing that the evidence, take as a whole, supported its position. (Jd. at 7-10.) Apparently, Wal-Mart did submit evidence in support of its position and CoIl failed to meet his burden, at least as the trial court interpreted it, since the trial court found in favor of Wal-Mart and granted its Motion for Summary Judgment. (R ; Transcript, pp ) 12

17 SUMMARY OF THE ARGUMENT The trial court correctly granted summary judgment in favor ofwal-mart. The display at issue was designed, constructed, and maintained by Coke. The sign on which Coll tripped/slipped was a Coke sign, shipped to Coke's warehouse by Coke, taken by Irby from the Coke warehouse to Wal-Mart by Irby, and installed on the display by Irby (or another Coke employee). Prior to CoIl falling, there had never been another incident ever involving a Coke display sign falling off of one of its displays and causing injury. Wal-Mart did not cause the sign to fall or have any involvement in the same occurring. And the undisputed testimony is that this sign, regardless of how it got on the floor, was only on the floor for between seventeen (17) seconds and two (2) minutes and no one with Wal-Mart knew it was there. Wal-Mart did not build the Coke display. Wal-Mati employees had no oversight over the building of the Coke display and no one from Wal-Mart dictated what or how Coke employees did their job in building and maintaining the display. According to Mr. Irby, Wal-Mart had no involvement with the display, i.e., "they don't touch the display or fill it or anything," and only Mr. Irby controlled what was on the Coke display at any given time, stocking/re-stocking it when it was necessary, both during the day and at night as well. Wal-Mart did not create the alleged hazard, the cardboard display sign on the floor, and had nothing to do with its installation or attachment to the Coke display. Wal-Mart had no actual notice of the sign being on the floor, and the sign had not been on the floor long enough to impute constructive notice to it of the sign's presence. The trial court properly granted Wal Mart's summary judgment. 13

18 ARGUMENT THE TRIAL COURT PROPERLY GRANTED WAL-MART'S MOTION FOR SUMMARY JUDGMENT, WHICH DECISION SHOULD NOW BE AFFIRMED. 1. Premises liability law and the summary judgment standard. The summary judgment standard is well known and correctly cited by Coll in his brief.yet in this case, it is important to recall a key component of the law, i.e.: This Court has explained that in a summary judgment hearing, the burden of producing evidence in support of, or in opposition to, the motion is a function of Mississippi rules regarding the burden of proof at trial on the issues in question. The movant bears the burden of persuading the trial judge that: (1) no genuine issue of material fact exists, and (2) on the basis of the facts established, he is entitled to [a] judgment as a matter of law. The movant bears the burden of production if, at trial, he would bear the burden of proof on the issue raised. In other words, the movant only bears the burden of production where [the movant] would bear the burden of proof at trial. Furthermore, summary judgment is appropriate when the non-moving party has failed to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial. Karpinsky v. Am. Nat'! Ins., 109 So.2d 84, ( ) (Miss. 2013) (internal quotation marks and citations omitted{ Wal-Mart produced substantial, material evidence that it did not create the hazard (the cardboard sign on the floor (R , 53-54(117-8))) or have notice of its presence. In fact, it produced substantial, material evidence that Coke was solely responsible for those portions of the Coke display at issue in the instant case. Furthermore, Wal-Mart demonstrated to the trial court that Coll had not met his burden at the summary judgment stage of coming forth with substantial evidence sufficient to create a question of material fact as will again be demonstrated herein. Summary judgment was proper. 4 Coll maintains that he, "never had the burden of 'setting fo1th specific facts showing that there are indeed genuine issues for trial,"' (Appellant's Brief, p. 11 ), yet Mississippi summary judgment law quoted above dictates otherwise since Coll would have had the burden at trial of proving each and every element of his premises liability case. 14

19 "In order for a plaintiff to recover in a slip-and-fall case, he must (1) show that some negligent act of the defendant caused his injury; or, (2) show that the defendant had actual knowledge of a dangerous condition and failed to warn the plaintiff; or, (3) show 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." Doyvns v. Chao, 656 So.2d 84, 86 (Miss. 1995). Wal-Mart produced substantial evidence that it did not act negligently and, therefore, was not responsible for the cardboard sign being on the floor, that it had no actual notice of the cardboard sign being on the floor, or that the cardboard sign had not been on the floor long enough such that notice should be imputed to it. 2. Wal-Mart did not create the alleged hazard. The Court will recall that it was Coke - not Wal-Mart - which constructed, configured, set up, stacked, and maintained the subject display and it was Coke who brought, installed, attached, and maintained the subject sign on the display. According to Mr. Irby, it was Coke's display and Wal-Mart, "don't touch the display or fill it or anything."(r. 116, 121.) CoIl argues that he produced evidence that Wal-Mart created the hazard, relying on Hardy v. K Mart Corp., 669 So.2d 34 (Miss. 1996) ("Hardy F') and K-Mart Corp. v. Hardy, 735 So.2d 975 (Miss. 1999) ("Hardy IF') but his dependence and reliance on those two cases is misplaced. In Hardy I and II, Plaintiff, Hardy, went to K-Mart to buy paint. Hardy went down an aisle and, arriving at the end, stepped in a puddle of spilled paint approximately three (3) feet in diameter and fell. After helping Hardy to stand, a witness with Hardy saw an open can of paint lying on the floor in front of a stack of paint cans that were displayed at the end of the aisle where Hardy had slipped and surmised that the open can of paint was the same as those that were stacked on the display and had fallen off. Hardy I, 669 So.2d at

20 Over the course of Hardy I and II, Robert Reuter, the assistant manager in charge of the store's display configurations, testified that the construction of the merchandise displays came from K-Mart's corporate offices in Michigan, (Hardy II, 735 So.2d at 979 (i!6)), that he would not stack paint cans on a floor display higher than three (3) layers, (Hardy I, 669 So. 2d at 38; Hardy II, 735 So.2d at 979 (i!6)), that any display with paint cans stacked higher than three (3) layers without cardboard of Formica in between the layers would be unsafe, (Hardy I, 669 So. 2d at 38; Hardy II, 735 So.2d at 979 (iii! 6, 7)), that photographs that were presumably of the subject display showed the paint cans stacked higher than three (3) cans high possibly without cardboard or Formica between the layers, (Hardy I, 669 So.2d at 38-39; 5 Hardy II, 735 So.2d at 979 (i!7)), and that the open paint can on the floor likely fell off of the display, (Hardy I, 669 So.2d at 38; Hardy II, 735 So.2d at 979 (i!6)). 5 In Hardy I, the trial court had granted K-Mart's Motion for Summary Judgment and the Mississippi Supreme Court reversed and remanded the casebased, in part, on what it perceived to be a question of material fact as to whether K-Mart, by and through its employees' actions, had created the hazard. In doing so, the Court noted that a key material fact, i.e., whether the paint can display was more than three (3) cans high, was not sufficiently developed such that the trial court could adequately rule on the motion, holding: However, no one ever expressly stated how many cans were stacked on the display at the time of the accident. It was never ascertained if K Mart actually stacked the cans above three layers in the first place or if customers came along and stacked them above three layers. Reuter testified that he checked the display after the accident and found it to be stable; therefore, he did not change it. But his testimony about checking the display is confusing. He stated "The display, if that picture shows the display, looked stable to me, and we didn't alter it." He made this statement after testifying that stacking paint cans higher than three levels created an unsafe display. Furthermore, no evidence was presented to show the likelihood that a sealed paint can would pop open if it fell from such a display. Accordingly, had the facts in this matter been more fully developed, Hardy might have raised a reasonable inference that an unstable display could have caused the paint spill. In our opinion, the trial judge could not have said with reasonable confidence that the full facts of this matter had been disclosed, thus the granting of the motion was reversible error. 639 So.2d at

21 In addition to these facts, and at the trial of the matter after the remand of Hardy I, Hardy testified that the paint in which he slipped, the can and the lid, were by the paint can display at issue and the color was the same color as the cans that were displayed, that a picture taken of the end cap display by an investigator approximately one week after the accident accurately depicted the display at the time of his fall 6, and that he could not "discern any shelving material between the stacked layers of paint cans." Hardy II, 735 So.2d at 981 (if 16). First, unlike Hardy (in which a K-Mart manager testified that cans stacked more than 3 high needed some sort of insert between layers or the display would be unsafe), there has been no testimony in the instant case that the design or construction of the Coke display was somehow faulty which the Mississippi Court of Civil Appeals has deemed necessary in the past: "[Plaintiff! provided no evidence of the industry's standards, no expert reports, and no evidence [that a Wal-Mart policy was violated]." Wilson v. Wal-Mart Stores, Inc., 161 So.3d 1128, 1131 (if 10) (Miss. Ct. App. 2015) 7. Ce11ainly, proof of Mr. Coll's accident does not support such a conclusion: "[I]n a premises liability case, merely proving that an accident occurred is not sufficient to establish liability." Day v. Ocean Springs Hosp. Sys., 923 So.2d 246, 250 (,r 13) (Miss.Ct.App.2006). No one and nothing indicates that there was anything wrong with the design and construction of the display, a conclusion supp011ed by the complete absence of any incidents involving the display or sign(s). Second, and of particular significance to this case, the Supreme Court of Mississippi noted the following facts which it held justified the submission of Hardy II to a jury, facts completely absent in the instant case: 6 Hardy had first testified that he had no independent recollection of how the end cap display was stacked. Hardy II, 735 So.2d at 981 (ii 16). 7 The trial comt concurred. See Transcript, pp

22 a. "Hardy argues that the dangerous condition in this case, the spilled paint on the floor, can be traced to the negligent manner in which Kmart stacks its paint cans on an end-cap display." 735 So.2d at 981 (115) (emphasis added); b. "[I]t would be reasonable for a jury to conclude that a Kmart employee constructed the end-cap display in a faulty manner." 735 So.2d at 981 (117) (emphasis added); c. "It is true that one explanation for the paint spill being present on the floor is that an employee's configuration of the end-cap display was faulty which resulted in a paint can falling from the display." Id. (emphasis added); d. "However, concerning the issue of whether the paint spill was created through negligent acts of Kmart employees, there was additional sufficient evidence presented, other than Hardy's own testimony, which would have allowed the jurors to conclude that the fallen paint can was caused by Kmart's employees' setting up a faulty end-cap display." 735 So.2d at 982 (1 18) ( emphasis added); e. "According to Reuter [the store's assistant manager in charge of the store's display configuration 8 ], the paint cans were placed on the end-cap by Kmart's employees. He fitrther stated that the end-cap display as depicted in the two photographs was unsafe because the end-cap appeared to be missing the necessary shelving material." 735 So.2d at 982 (1 18) ( emphasis added); and, f. "[I]t was also possible that the jury having heard Hardy's testimony, Reuter's testimony and viewed their credibility found a Kmart employee improperly stacked the end-cap display or failed to place shelving material between the necessary levels of paint cans causing the paint can to fall from the display." 735 So.2d at 982 (118) (emphasis added). According to the Mississippi Supreme Court, material factual questions existed regarding the manner in which K-Mart stacked the paint cans, constructed the end-cap display, configured the display, set up a faulty end-cap display, placed the paint cans on the end-cap in an unsafe manner, improperly stacked the paint cans, and failed to place shelving material between the paint can levels such that (a) judgment as a matter of law was improper and (b) a jury rightfully 8 See Hardy v. K Mart Corp., 669 So.2d 34, (Miss. 1996). 18

23 decided the outcome of the case. In each instance in Hardy JI, the Supreme Court of Mississippi noted what Kmart employees did nor did not do. 9 Wal-Mart had no such involvement. In the instant case, it was Coke - not Wal-Mart - which arguably constructed, configured, set up, and stacked the subject display, including the cardboard sign which fell seventeen (17) seconds before Plaintiff stepped on it and fell. Were this appeal about Coke's potential liability, Hardy I and II may be persuasive but Coke settled its part of the case and Wal-Mari, as the premises owner, did not construct the subject Coke display, had nothing to do with the design and the configuration of the display or the placement and attachment of the subject cardboard sign, it had no actual notice that something may be amiss with the display or that the cardboard sign may fall, leading a customer to trip (it had never occurred before), and there is no evidence that the condition had existed for such a length of time that Wal-Mart had constructive notice of it. Paraphrasing Hardy I and II, it was Coke - not Wal-Mart - that stacked the display, constructed the display, configured the display, set up the display, and placed the product and signs on the display Coll's own brief demonstrates that it was, "[a Kma1t] employee's configuration of the end-cap display [which] was faulty which resulted in a paint can falling from the display," which created an issue of fact. (Appellant's Brief, pp (quoting Kmart v. Hardy, 735 So.2d 975, (Miss. 1999)). In the instant case Coke - not Wal-Mart- configured the subject display. Hardy "was still allowed to go to the jury on the question of Kmart' s negligence solely on the basis of circumstantial evidence," that Kmart's employees had been negligent in the construction of the paint display, something glaringly absent in the instant case. (See Appellant's Brief, p. 15.) There is no evidence that Wal-Mart's Associates had been negligent in their construction of the Coke display. 10 In granting summary judgment, the trial court noted the same material differences between Hardy I and II and the instant case: Coll's case differs from Hardy's case. In Hardy's case, K-mart was both the premises owner/possessor and the designer and builder of the display at issue. In Coll's case, Irby designed and built the display at issue. There is nothing to indicate that Wal Mart had any input into the design or construction of the display. Specifically, there is nothing to indicate that Wal-Mmt had anything to do with where this sign was placed or how it was affixed to the display. 19

24 The instant case is similar to Burress v. Belk Stores of Mississippi, LLC, in which the court granted Belk's motion for summary judgment WL (N.D. Miss. June 15, 2015). In Burress, a clothing rack fell on the plaintiff and, in moving for summary judgment, Belk relied on the following: Defendant contends that the negligent construction claim should be dismissed because Plaintiff has failed to present proof that Defendant either constructed or erected the subject clothing rack. Defendant further contends that the premises liability claim should be dismissed because Plaintiff has failed to present proof either that Defendant knew the subject clothing rack would fall or that Defendant failed to take any action to prevent the subject clothing rack from falling. In support of its contentions for dismissal, Defendant cites to and attaches Plaintiffs responses to Defendant's interrogatories, wherein Plaintiff apparently did not identify facts showing that Defendant either constructed or erected the subject clothing rack, stated that she did not know what wrong Defendant or its employees had committed that contributed to the subject clothing rack falling upon her, and stated that neither she nor anyone on her behalf had conducted an investigation into the facts and circumstances surrounding the subject incident. See Pl.'s Suppl. Answers to Def.'s First Set oflnterrogs. [32-2] at 1-2. Defendant further cites to and attaches Plaintiffs deposition testimony, wherein Plaintiff stated she had no knowledge of who manufactured or designed the subject clothing rack, that she had not talked with anyone at Belk regarding when the rack was installed or used, and that she had no knowledge of any wrong Defendant committed that contributed to or caused the subject clothing rack to fall. (R ) Moreover, the K-Mart manager acknowledged that the display in that case was unsafe as stacked if there was no shelving or cardboard between the layers and he was unable to say whether there was anything between the layers of paint cans. No evidence was presented in Coll's case to indicate that Wal-Mart knew or should have known that there was any issue with the display or the sign or similar signs. That is, there is nothing in this record to indicate that Wal-Mart was on notice that there was or ever had been any potential issue with a sign like the sign here or any sign on a Coca-Cola display in its store. There is no proof that Wal-Mart knew that a sign could or might fall from a display when drinks were removed or any other time. Nor is there any indication in this record that anyone with Wal-Mart knew or should have known of any safety issue with the display or sing. Assuming for purposes of this Motion that the sign was a dangerous condition in and of itself, Coll has provided no evidence in this record that Wal-Mart either created the condition at issue or had either actual or constructive notice of the condition. Nor is there any evidence that Wal-Mart played any role in designing or constructing the display in this case or had any information as to any potential problem or safety issue with the display or the sign. 20

25 Id. at *2. In granting summary judgment in favor of Belk, the court held: Id. at *5. However, Plaintiff offers no evidence of an affirmative act on the part of Defendant that caused the subject clothing rack to fall. Nor has she provided evidence of any knowledge or constructive knowledge on the part of Defendant as to the condition of the rack or of Defendant's role in the construction of the rack. As in Burress, there is no proof that Wal-Mart constructed or erected the subject Coke display in the instant case. There is no evidence that Wal-Mart knew the sign would fall or that, knowing it might fall, it failed to take measures to prevent the sign from falling. Like Burress, Wal-Mart demonstrated to the trial court that Coll had not been able to identify any facts in response to Wal-Mai.i's written discovery which showed how Wal-Mart caused or contributed to cause the subject incident. (R , ; Transcript, pp. 6-7.) As in Burress, Coll testified that he had no opinion about what Wal-Mart may have done wrong. (R ) And as the Comi held in Burress, applicable in this case, "[Coll] offers no evidence of an affirmative act on the part of [Wal-Mart] that caused the subject [sign] to fall." Burress, 2015 WL at* 5_11 Coll seemingly makes a public policy argument, hypothesizing that, "such a holding could create a very dangerous precedent for our state and allow business owners to evade their responsibilities simply by closing their eyes to obvious dangers in their store." (Appellant's 11 The operative word is "caused". The pallet, the pricing, the location of the pallet, etc., had nothing to do with causing the subject sign to fall. The trial court concluded the same thing: (R ) Next, there is no evidence that any Wal-Mart employee created the condition which allegedly caused the fall. There is no dispute that Irby built the display, chose which sign to use, chose the location of the sign, and placed the sign on the display. There is no evidence that any Wal-Mart employee knew how the sign was placed or had anything to do with its placement on the display. Nor is there any evidence that Wal-Mart knew if or how Irby had affixed the sign to the display. 21

26 Brief, p. 15) Again, there is no evidence that the design or construction of the display was dangerous, violated industry standards, ran contrary to an existing standard, policy, or procedure, etc. It was the cardboard sign which Coll alleges was hazardous, and it was on the ground for a brief amount of time. Had a Wal-Mart Associate seen the cardboard sign on the floor (perhaps an "obvious danger") and done nothing about it, or had it been on the floor for a sufficient amount of time, then Coll may have a point. That did not happen in the instant case. However, under Coll's present theory, it does not matter whether Wal-Mart knew or should have known anything was wrong with Coke's display; according to Coll, a premises owner is strictly liable when an unknown defect exists in a vendor's product -- period. That is not the law of Mississippi and such a result must be avoided. 12 The trial court's Order granting Wal-Mart's Motion for Summary Judgment is due to be affirmed. 12 In Jones v. Imperial Palace of Miss., LLC, 147 So.2d 318 (Miss. 2014), the Mississippi Supreme Court cautioned about such a result: With respect, the dissent erroneously attempts to analogize this to Imperial Palace's knowledge that, from time to time, some bumpers-but not necessarily the bumper involved in this case-became misaligned. Were we to adopt the dissent's view, a premises owner with prior knowledge of any type of hazard on its premises-for instance, a spill on its floor-would become liable for all similar hazards, even with no proof of any knowledge of the particular hazard. This would render a premises owner strictly liable. Id. at 321 (111). The trial court, too, perceived the unjust result Coll's interpretation would have: Listen to your argument. Your own argument is, is that Coke is a vendor only and so Wal-Mart is responsible for what's in their store for this display and, yet, there is no proof in this record that Wal-Mart set up the display, provided the sign, knew anything about the sign falling over before, knew anything about any of that. I mean, you basically are arguing strict liability that if Coke brings it in or, you know, Dairy Fresh or Borden's or anybody brings something, once it's on their property, hey, they're responsible no matter what's wrong with it.... Their vendor may have known they had some problems. That's not necessarily Wal-Mart's fault unless Wal-Mart knew there was an issue. And all the case law is in agreement on that. (Transcript, p. 64.) 22

27 3. Wal-Mart did not have actual or constructive notice of the alleged hazard. Unable to prove that Wal-Mart created the alleged hazard or had anything to do with the cardboard sign falling on the ground, Coll must provide sufficient evidence to create an issue of material fact that Wal-Mart had actual or constructive knowledge of the sign on the floor. Almond v. Flying J Gas Co., 957 So.2d 437, 439 (~ 8) (Miss. Ct. App. 2007). However, there is no evidence that Wal-Mart had actual notice of the sign on the floor or that seventeen (17) seconds to two (2) minutes is enough time to impute constructive notice to Wal-Mart of the sign's presence on its floor. Coll puts forth fifteen (15) "facts" he asserts should preclude summary judgment because, he argues, they show Wal-Mart arguably,"had actual or constructive knowledge of the dangers associated with this display." (Appellant's Brief, p. 16.) First, as alleged in the complaint, the only danger for which Coll seeks recovery is, "a part of a Coca Cola display that had been negligently caused to be on the floor, causing a dangerous condition on the premises," i.e., the cardboard sign. (R , ) Coll has never argued, specified, or sought recovery for other "dangers associated with this display." Therefore, the focus should remain on the cardboard sign. As to "facts" (1) - (4), there is no evidence - and Coll never argued - that any of these caused or contributed to cause his accident. (Appellant's Brief, pp ) As for fact (5), ColI never developed testimony as to what "sold down" meant at Wal-Mart, at what point or under what circumstances Wal-Mart would consider moving a display to the back of the store, or if this display was in such a condition that it should have been moved to the back of the store at some point. Additionally, Coll offers no evidence that Wal-Mart had the "responsibility to move the display off the sales floor," under the circumstances present in the instant case. (Id.) 23

28 As for fact (6), no admissible evidence exists that Wal-Mart insisted on the location of the signs. Rather, this "fact" is based upon inadmissible hearsay testimony, proof of which Coll inadvertently omitted in his brief. 13 "Facts" (7) - (9) omit one key fact - tape. Irby testified that sometimes tape is used to hold the sign in place and that he uses tape to hold the sign in place, but that he could not say that there was tape on the sign on the day in question. (R. 321.) The evidence is also undisputed that as Coll went to get his products off of the display, the sign was in place and only became dislodged after he approached the display. Since the sign was upright and not on the ground, either tape or product was holding the sign in place when Coll approached the display (contrary to the assertions in fact (7)). Even if product was sold all the way down, tape would hold the sign in place (contrary to the assertions in fact (8)), and it was Irby's practice to tape the sign down, thus disproving Coll' s statement in fact (9) that product was the only precaution taken by Coke to secure the sign. Again, it is undisputed that the sign was in place when Coll approached the display. 13 As previously alluded to in Wal-Mart's Statement of Facts, the basis of this particular "fact", including the testimony indicating that it is based upon inadmissible hearsay, is as follows: Q. And that's what I'm getting at. At what point in the process does Walmart tell you, as a Coke employee, where to put the signage? A. Well, Walmart doesn't tell me where to put it, Coke told me where to put it. But, to my knowledge, they've been told from Walmart to put them up to kind of bring attention to the corners of the displays. Q. Have you been privy to any of those conversations? A. No. Q. Have you seen documents that dictate something to the effect? A. No. Q. Has anyone told you that specifically? A. Yes. Q. Who has told you that? A. My supervisor. Q. And the extent of that conversation with Walmart - tell me the extent of that conversation. A. That Walmart wants the comer boards up to, like, draw attention to the display. (R. 336) (Emphasis added to the po1iions omitted by Coll.) 24

29 There is simply no authority for "facts" (10) or (11). While Wal-Mart agrees that Coke employees do not stay in its store twenty-four (24) hours a day, seven (7) days a week, Coke does have someone monitor and maintain its displays both during the daytime and at night. (R ) There is no evidence whatsoever of previous incidents wherein product on a Coke display ( or any display) had been sold down such that the sign or any other part of the display had fallen off ("fact" (10)) and there is no evidence that "Wal-Mart was aware of this danger and knew that the display should be moved off of the sales floor," ("fact" (11).) 14 Ten (10) and eleven ( 11) are not facts; they are pure speculation and argument, unsupported in any fashion by the record before this Court. As for "facts" (12) and (14), there is no evidence - and Coll never argued - that either of these caused or contributed to cause his accident and there is no argument of an agency relationship between Coke and Wal-Mart or that respondeatsuperior is applicable in the instant case. Plus, as the facts indicate, Coke was responsible for the design and construction of the display, including the attachment of the cardboard sign, and that display (its design, its construction, and its signs) had never been called into question or resulted in an accident. 15 Finally, fact (14) has previously been addressed.ms. Mullins testified that after Coll had fallen and after a Code White ( customer incident) had been called over the radio, she then went to where Coll had fallen and, while there on the scene, noticed that a comer of the Coke display 14 Coll's burden was to show that Wal-Mart was aware of the alleged danger that signs might fall off of this particular display, i.e., "[l]n the case before us today, the plaintiff produced no evidence that Imperial knew or had reason to know that the particular bumper that caused Jones's injury was misaligned at the time of the injury." Jones v. Imperial Palace of Miss., LLC, 147 So.3d 318,321 (,r 10) (Miss. 2014). 15 Omitting "fact" (13) was not an oversight. To the extent Coll is arguing spoliation, the same is meritless. Coll did not pursue the theory in earnest in the trial court nor argue that his evidentiary shortcomings should be overlooked because the cardboard sign was no longer available. Under the present circumstances, the absence of the sign is irrelevant to the issues before this Court. See Kiihnl v. Family Dollar Stores of Miss., Inc., 197 So.2d 920, 925 (,r 18) (Miss. Ct. App. 2016); Robinson v. Martin Food Stores, Inc., 2016 WL at* 3 (,r,r 8-10) (Miss. Ct. App. July 19, 2016). 25