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

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1 E-Filed Document Jul :23: CA SCT Pages: 18 IN THE SUPREME COURT OF MISSISSIPPI JOHN RENNER APPELLANT v. No CA RETZER RESOURCES, INC., et al. APPELLEES REPLY 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 12th day of July, 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 Summary of Reply Argument... 1 Statement Regarding Oral Argument... 2 Reply Argument... 2 I. John Met the Elements of Premises Liability... 2 A. McDonald s Had Actual Knowledge of a Dangerous Condition and Failed to Warn... 3 B. McDonald s Had Constructive Knowledge of the Hidden Hazard... 4 C. McDonald s Negligence Caused John Harm... 8 II. The Spoliation of the Security Tapes Forbids Summary Judgment Conclusion Certificate of Service ii

4 TABLE OF AUTHORITIES Cases Anderson v. B. H. Acq., Inc., 771 So. 2d 914, 919 (Miss. 2000)... 3 Aundrea Robinson v. Martin Food Stores, No CT SCT Downs v. Choo, 656 So. 2d 84, 86 (Miss. 1995)... 3, 4, 8 Drennan v. Kroger Co., 672 So. 2d 1168, 1170 (Miss. 1996)... 4, 6 Elston v. Circus Circus Mississippi, Inc., 908 So. 2d 771, 775 (Miss. Ct. App. 2005)... 7 Kroger, Inc. v. Ware, 512 So.2d 1281, 1282 (Miss.1987)... 9 McClain v. State, 625 So.2d 774, 778 (Miss. 1993)... 7 Tharp v. Bunge Corp., 641 So. 2d 20, 25 (Miss. 1994)... 9 Thomas v. Isle of Capri Casino, 781 So. 2d 125, 133 (Miss. 2001) Ware v. Frantz, 87 F. Supp. 2d 643, 646 (S.D. Miss. 1999)... 9, 10 Wilson v. Baptist Meml. Hosp., 93 So. 3d 48, (Miss. Ct. App. 2011)... 5 Rules MRAP MRE Other Sources David Neil McCarty, Evidence, 4 MS Prac. Encyclopedia MS Law 33: iii

5 Summary of the Reply Argument Summary judgment should have never been granted in this case where a man tripped over a hidden but fixable hazard and smashed his shoulder. There are two important reasons why: because the McDonald s knew they had a hidden and dangerous condition, knew this could hurt people, and didn t fix it. Second, the McDonald s had recorded footage of the fall, but either allowed it to be deleted or intentionally scrubbed it creating the presumption the evidence would have shown its negligence. There was uncontested proof from an eyewitness that the McDonald s in Winona had a hidden danger a highchair that could protrude out into the aisle and cause people to stumble and trip. The eyewitness had seen three separate people stagger into this hidden danger, and repeatedly warned the staff at the McDonald s that they needed to fix it. Yet the staff never cured this known condition, and so John Renner ended up crashing to the floor and suffering terrible harm to his shoulder with pain which left him initially unable to even put his pants on. This evidence created at least a genuine issue of material fact that McDonald s was either directly negligent in causing John Renner s fall, or had actual or constructive knowledge that allowed it to happen. This knowledge by the restaurant mandates reversal of summary judgment and a remand trial. Second, longstanding precedent explains that when evidence is destroyed or lost, and a party refuses to produce it as a result, we must be presume the evidence was unfavorable to the party responsible for its loss. McDonald s own computer tech testified the company had footage of John s fall, and agreed that tape would have shown exactly what happened to him that day in Winona. However, the IT person could not explain if the footage had been lost or intentionally destroyed by McDonald s. Applying this Court s precedent on spoliation, this loss of crucial evidence forbids 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. Eyewitness testimony showed three critical things: that there was a hidden danger in the form of a highchair which could cause people to trip and stumble, that the McDonald s knew about the problem, and that even after being warned, the restaurant did not fix the dangerous condition. Oral argument will assist in exploring these genuine issues of material fact which precluded summary judgment. Oral argument is also important to illuminate that even though McDonald s had recorded footage of the fall in its restaurant, and employees of the McDonald s agreed it would have shown exactly what happened, the company 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. REPLY 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 the staff knew these problems existed, summary judgment should have never been granted. 1 There was a hidden hazard, it caused John damages, and this proof allows him to proceed to trial. All sides agree that the law is clear that 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, 1 For ease of reading, the defendants are collectively referred to as McDonald s. 2

7 656 So. 2d 84, 86 (Miss. 1995). 2 There was ample evidence that McDonald s was liable to John for his fall for any one of these three paths. A. McDonald s Had Actual Knowledge of a Dangerous Condition and Failed to Warn. There was sworn proof that McDonald s knew that the highchairs could trip people because eyewitness Greta Siegel had repeatedly told the staff there was just such a hazard. 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. When there is a split in the testimony, a jury should determine whether a defendant either created the dangerous condition or had actual or constructive knowledge that the condition existed on the date of the incident. Anderson v. B. H. Acq., Inc., 771 So. 2d 914, 919 (Miss. 2000) (ruling that there was enough constructive knowledge of a possible oil spill at a hotel to allow a jury to resolve the dispute). Unlike many slip and fall cases, there was direct proof that McDonald s not only knew it had a dangerous condition, but refused to fix it. Eyewitness Greta Siegel testified she saw at least three people bump or trip from the highchairs at the McDonald s either because it had a flared out base, or because it was negligently stored by the restaurant. Ms. Siegel testified I always notice those chairs, and I have asked them about it before. 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. None of the employees ever responded to Greta s warnings about the hidden hazards. Despite these repeated warnings, the Winona McDonald s never moved the hidden highchairs to protect its customers from falling. This led Greta to testify that the chairs are always there. Still now they are there. 2 All parties agree with the trial court s ruling that [u]nder the facts of this cases, Mr. Renner was an invitee of McDonald s. 3

8 The eyewitness described seeing people hit the chairs with their foot and their knee. While the other scrapes were not as serious as the one that hurt John, it was serious enough she had repeatedly told staff she thought it was a problem. Importantly, the McDonald s worked to protect patrons like John from these types of problems. The store manager testified there had been at least 10 falls in her time as a manager, and that employees were trained to keep the aisles clean and to use special care with highchair. Summary judgment should have never been granted in such a situation, because there was sworn proof that McDonald s knew it had a problem, had experienced other customers stumbling and tripping in the area, and never resolved it. 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. Even though it is enough to show that McDonald s had actual knowledge of the danger in the aisle, there was evidence that McDonald s also had constructive knowledge. This second route to liability forbids summary judgment. The second path to liability is 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. As the Supreme Court has made clear, No proof of the operator s knowledge of the condition is necessary where the condition is created by his negligence or the negligence of someone under his authority. Drennan v. Kroger Co., 672 So. 2d 1168, 1170 (Miss. 1996). That situation is like the one found here where McDonald s was told time and again by 4

9 eyewitness Greta Siegel that it had a problem with the way people would stumble and trip in the aisle over the protruding foot of the highchair. In one recent case the Court of Appeals scrutinized a slip and fall at a hospital where the trial court had granted summary judgment. Wilson v. Baptist Meml. Hosp., 93 So. 3d 48, (Miss. Ct. App. 2011). A woman was visiting a friend in the hospital, and she claim[ed] she slipped on a puddle of water as she was leaving her friend's hospital room. Id. at 50. She testified that immediately after her fall, she overheard an attending nurse say the water must have been spilled when nurses were delivering it to patients. Id. After first dealing with whether the woman was a licensee or invitee, the Court turned to whether summary judgment was proper. Id. at 52. The hospital argued that there is no evidence in the record as to the amount of time the floor had been wet and, consequently, no proof to impute constructive knowledge of the dangerous condition to the hospital. Id. at The Court of Appeals noted that it agreed, but would impute knowledge to the owner/occupier where it created the dangerous condition. Id. at 53. The reality that the puddle of water was dangerous was ratified by the conduct of hospital staff, since after she fell, three nurses responded immediately. Id. at 53. In fact, [the plaintiff] overheard one of the nurses say the water must have been spilled while the nurses had been delivering water to the patients. Id. The Court of Appeals held that This statement was not hearsay, as it is either a party admission, or it is admissible under the excited utterance hearsay exception. Id. Consequently, we find sufficient evidence that an issue of genuine material fact exists of a breach of duty, the Court ruled, and reversed the grant of summary judgment. Id. This case echoes Wilson in several ways. First, in its Response, McDonald s attempted to explain away the statements of its employees, and pretend they were hearsay. See Response 5

10 Brief at page As Wilson makes clear, these were either admissions by party opponents, or excited utterances which are excepted from the general ban on hearsay. Furthermore, the statements by the McDonald s employees about moving the highchair out of the way and questioning why they were there echoes the statements by the nurses about how they may have spilled the water in the Wilson case. After the fall, Greta heard the manager tell the employees to move the highchairs out of the way. 2:157, 163. Likewise, by the time she saw what had happened to her husband, Mrs. Renner testified that McDonald s employees were moving chairs by the time I got there. They were actually moving chairs. 2:174. Like in Wilson, the fact that this was a recurring problem in the McDonald s, the store knew it was a problem, and had been warned of the problem means there was constructive knowledge. That constructive knowledge means that summary judgment must be reversed. The Wilson case is not an outlier in our jurisprudence; indeed, there are several cases where our appellate courts have made the point that summary judgment is improper when there is proof of the premises owner s constructive knowledge of the condition. In one case, a plaintiff had produced evidence demonstrating that Kroger should have been aware from past conditions, occurrences, and stains on the ceiling that the area above aisle four leaked in periods of heavy rain, and buckets were placed on the floor to catch the water drips. Drennan, 672 So.2d at After a day of heavy rain, the plaintiff slipped in water. Id. She introduced a photograph of water stains in the ceiling tiles directly above aisle four, and [a]n engineer for Kroger testified that the roof had required a considerable amount of repairs in the past. Id. All told, the Court ruled that [t]hese circumstances created an inference that the Kroger store should have been aware of the leaks in the roof. Id. This made the case one for a jury to resolve. Id. 6

11 Like the leaky roof in Kroger, which dripped so much when it rained that buckets had to be put out on the floor, the McDonald s in Winona had a history of problems. The staff knew customers would stumble and trip in the aisle due to either the negligent storage of the highchairs or the fact that they didn t really fit in the place they were jammed. Regardless of what exactly caused John to fall, like the plaintiff in the Kroger case, the store was on notice of a problem and this is enough to bring the issue to the jury. In another case the Court of Appeals reversed the grant of summary judgment when there was proof that a casino knew or should have known that there was water in its lobby right next to where it normally watered live plants. Elston v. Circus Circus Miss., Inc., 908 So. 2d 771, 775 (Miss. Ct. App. 2005). In that appeal, the Court ruled that the family had presented enough proof to allow a reasonable jury to decide whether the water came from the plants and was present on the floor for a long enough time to establish that Gold Strike had constructive notice of a dangerous condition. Id. Like the Elston appeal, John presented sworn testimony that McDonald s knew that it had a dangerous condition because of the way the highchairs protruded into the aisle, knew that people had a history of stumbling or tripping on them in that area, had a customer tell them it was a problem, and never fixed it. In accord with Elston, summary judgment should not have been granted. Much of the Response Brief by McDonald s is occupied by what it casts as conflicts in eyewitness testimony. None of that matters at summary judgment, since any credibility determination is for a jury to weigh. See McClain v. State, 625 So.2d 774, 778 (Miss. 1993) ( Matters regarding the weight and credibility of the evidence are to be resolved by the jury ). If there is a conflict or inconsistency in testimony, the Court has made clear that the jury is who determines the facts, since [t]he jury is charged with the responsibility of weighing and 7

12 considering the conflicting evidence and credibility of the witnesses and determining whose testimony should be believed. Id. at 78. In this case, there was evidence McDonald s had constructive notice of a condition which could cause patrons to trip and fall. It did not cure that condition. As a result, summary judgment must be reversed. C. McDonald s Negligence Caused John Harm. The sworn testimony of an eyewitness showed how McDonald s directly caused harm which means summary judgment must be reversed. The precedent allows recovery for a slip-and-fall when one show[s] that some negligent act of the defendant caused his injury. Downs, 656 So. 2d at 86. As set out amply above, the restaurant had knowledge that customers had stumbled, tripped, and fumbled on the protruding feet of the high chair. The staff was also trained to keep aisles clean and make sure the highchairs were put back correctly. The eyewitness to the trip and the fall was Greta Siegel, who explained how the highchairs had a flare to the base, and then another flare to the foot, which would then protrude and pose a tripping danger. She had seen at least three people stumble into the same problem, and she figured this was a problem 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. Under the rule articulated in Downs, this is enough to hurdle summary judgment. Additionally, McDonald s complains that Greta was not an expert pursuant to MRE 702, but our Rules have never required a lay person to study mechanical engineering and be qualified as an expert before saying that part pokes out and can trip you. Instead, our Rule on lay testimony clearly allows Greta to say the bottom juts out since it is rationally based on [her] 8

13 perception, it is helpful to clearly understanding the witness's testimony or to determining a fact in issue, and that testimony is not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. See MRE 701. It is just what she observed, and was based on seeing person after person trip on the same thing in the same McDonald s. As one treatise puts it, Mississippi precedent is stuffed with wide-ranging examples of the topics fit for lay testimony. David Neil McCarty, Evidence, 4 MS Prac. Encyclopedia MS Law 33:67. For instance, a lay person is competent to offer an opinion as to the rate of speed of a moving car, whether they believe someone had too much alcohol to drink, the value of their own property, and the amount of damages they want for pain and suffering. Id. (internal quotations and footnotes omitted). Also, a lay person who has prior familiarity can identify a person s handwriting and can testify that they think it is possible for two people to kill one person. Id. (internal quotations and footnotes omitted). The eyewitness fits square within these confines. Greta had seen people trip at that spot, on the same chair, over and again enough that she had repeatedly warned staff of the danger. Nonetheless, McDonald s did not correct the condition. This was negligence, and enough proof to survive summary judgment. McDonald s also relies upon a case about a trip and fall to protest negligence but the facts and law are readily distinguishable. In that federal case, the district court ruled that under Mississippi law that there is no liability for injuries, where the condition is not dangerous, or where the condition is, or should be, known or obvious to the invitee. Ware v. Frantz, 87 F. Supp. 2d 643, 646 (S.D. Miss. 1999) (quoting Kroger, Inc. v. Ware, 512 So.2d 1281, 1282 (Miss.1987)). 3 3 Notably, the Kroger case cited by the federal court was overruled in part in 1994, when the Mississippi Supreme Court abolish[ed] the so-called open and obvious defense and apply our true comparative negligence doctrine. Tharp v. Bunge Corp., 641 So. 2d 20, 25 (Miss. 1994). 9

14 Yet in Ware, the plaintiff was walking through a Wal-Mart, and turned at an intersection of aisles and upon so doing struck a free-standing display shelf with her shopping cart. Id. at 645. As the shopping cart struck the corner of the display shelf, plaintiff lost her balance and fell to the floor. Id. However, in her deposition the plaintiff stated that she could not see the display shelf Because the package that I had would have blocked it... The sprinkler was in the basket part, and there's no way that I could have seen it. Id. at 646. As the trial court summarized, Plaintiff made abundantly clear in her deposition testimony that the reason she had failed to see the shelf of the display was either that she had not been looking where she was going, or because the item in her shopping cart had obstructed her view. Id. at In light of that testimony, the district court ruled that Plaintiff has offered no evidence that the display in question was unreasonably dangerous or that the defendants otherwise failed to maintain the store in a reasonably safe condition. Id. at 647. The facts in this case are dramatically different than Ware. First, it wasn t that John was just distracted or confused by the environment there was a hidden danger with a history of causing falls. There was nothing near the same level of granular detail from an eyewitness in the Ware case that was provided here, where Greta Siegel explained how she saw people stumble, fumble, and trip against the jutted-out base of the highchair. Similarly, in Ware there was no record that a customer had complained again and again about a hidden danger, as there was here. As a result, this also meant the staff was on notice there was a problem with aisle at that point, but never cured it. None of that was present in Ware, which does not apply to this case at all. Greta the eyewitness, plus Mrs. Renner, and even the store manager all stated that John tripped on the highchair. Whether the way it was improperly stored, whether it was always set in the wrong place, or whether it did not fit there does not matter what matters is that it was the 10

15 restaurant that was negligent, and there was proof of this negligence. That requires reversal of summary judgment. II. The Spoliation of the Security Tapes Forbids Summary Judgment. Summary judgment should not have been granted because the trial court was bound to presume that the missing or destroyed footage at the McDonald s in Winona showed negligence which would have established John s claim. Mississippi law has been clear since the turn of the century that if a party loses or destroys evidence, that evidence is presumed to have been unfavorable to them. When 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). As that case explains, the rule is broad, and must apply in order to safeguard the public policy against destroying evidence. Id. Nonetheless, McDonald s either lost or destroyed the footage of John s fall. This is not speculation, but uncontested there is no longer a tape. McDonald s own tech person, Hugh Ballard, could not explain whether the tape was intentionally deleted or even what happened to it all. 4 The wide-ranging presumption established in Thomas should have been applied to prevent summary judgment in this case alone or in concert with the wealth of other evidence produced at that stage. Applying Thomas correctly, the trial court should have presumed: That McDonald s had the tape, but destroyed it That the tape showed direct negligence by employees at the McDonald s 4 In the Record, the IT person admits the tape could have been intentionally destroyed. He was asked 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? Ballard responded I can t tell you. R.E. 19, 2:

16 That the tape showed actual knowledge by the restaurant of the dangerous condition That the tape showed McDonald s could have prevented the harm John suffered Instead of suffering a sanction, monetary or evidentiary, for its loss or destruction of crucial evidence, McDonald s benefitted from it. Summary judgment was granted. To allow this to stand shatters the Thomas rule against spoliation and how it is applied. Importantly, the Supreme Court has recently granted certiorari review of a case which also involved the destruction of footage of a slip and fall, and where summary judgment was also granted. On April 27, 2017, a unanimous Supreme Court granted review in the matter of Aundrea Robinson v. Martin Food Stores, No CT SCT. If the Court issues a decision in that appeal on certiorari review, it will inform the resolution of this appeal. Because McDonald s either intentionally or negligently destroyed critical information in this case, the grant of summary judgment must be reversed. CONCLUSION For the reasons above, the Appellant John Renner respectfully requests that the grant of summary judgment be REVERSED and this case REMANDED, as there were genuine issues of 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. 12

17 For these reasons, the Appellant respectfully requests that the Court REVERSE and REMAND the order granting summary judgment. Respectfully submitted, this the 12th day of July, s/ David Neil McCarty David Neil McCarty Miss. Bar No DAVID NEIL MCCARTY LAW FIRM, PLLC 416 East Amite Street Jackson, Miss T: E: W: R. Allen Smith, Jr. Miss. Bar No THE SMITH LAW FIRM, PLLC 681 Towne Center Blvd., Suite B Ridgeland, Miss

18 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 July 12, s/ David Neil McCarty David Neil McCarty 14