IN THE COURT OF APPEALS OF MISSISSIPPI NO CA-00702

Transcription

1 E-Filed Document Jun :14: CA COA Pages: 9 IN THE COURT OF APPEALS OF MISSISSIPPI NO CA RICHARD COLL APPELLANT VERSUS WAL-MART STORES EAST, L.P., COCA COLA BOTTLING COMPANY UNITED, INC., STEPHEN IRBY, JOHN DOES 2-3, AND ABC CORPORATIONS A-C, APPELLEE APPEAL FROM THE CIRCUIT COURT OF HARRISON COUNTY APPELLANT RICHARD COLL S MOTION FOR REHEARING COMES NOW, Appellant Richard Coll, by and through his attorneys of record, Sharp, Dummer & Briggs, PLLC, and files this his Motion for Rehearing pursuant to Rule 40 of the Mississippi Rules of Appellate Procedure, and in support thereof, would show unto the Court as follows: I. The decision from the Court of Appeals contains several incorrect statements about the facts developed in discovery. Rehearing pursuant to Rule 40 of the Mississippi Rules of Appellate Procedure is sought in the present matter because the Court of Appeals overlooked and/or misapprehended significant facts developed during discovery of this case. These findings by the Court of Appeals are outlined and discussed below. 1

2 A. Stephen Irby testified that he was solely responsible for designing and building the display. (Page 6, paragraph 14 of Court of Appeals decision). The undersigned counsel, who took the deposition of Stephen Irby, did not recall Mr. Irby ever testifying that he was solely responsible for designing and building the display at issue. Upon the decision being issued by the Court of Appeals in this matter, Mr. Irby s deposition was reviewed and no testimony to that effect could be found. This will be discussed in more detail in section I-B below, but Mr. Irby testified that he was involved with both the design and construction of the display at issue but that Walmart also had involvement in the design, placement and maintenance of the display and based on the undersigned s recollection and review of the record, Irby never said that he was solely responsible for the display. B. There was no evidence presented showing that Wal-Mart had any involvement in constructing or maintaining the Coca-Cola display (page 6, paragraph 14 of Court of Appeals decision). This is perhaps the most remarkable portion of the Court of Appeals opinion. In both Coll s initial Brief and his Reply Brief, multiple facts from the record were outlined showing Wal-Mart s involvement with the design, construction and maintenance of the subject display; a display which is actually a Wal-Mart display that contains Coke products. Stephen Irby, the Coke merchandiser working on the display when Mr. Coll fell, testified that both he and Coke decided which products would be placed on the display, but it was Wal-Mart who provided the pallet and decided where the display would go within the store. (R., pg.317). Mr. Irby also testified that Wal-Mart decides where the displays will go and the spacing, for I guess, a safety issue. (R., pg.318). 2

3 Mr. Irby further testified that Wal-Mart provides instruction on how high the display is to be built, where the pricing information will go, and that it is not to overhang the pallet. (R., pg.319). Irby also testified that Wal-Mart had the authority and responsibility to move the display off the sales floor and to the stock room if it got too low. (R., pg.322). Irby further testified that a Wal-Mart employee had the authority to approach him when he arrived at the store and ask him to tend to the display if needed. (R., pg.323). And most importantly, Mr. Irby testified that Wal-Mart has final input on what signs are chosen for the display and where they are to be placed on the display. (R. pg.336). Q. So the displays and signage that are on them are dictated by Coke. A. Coke and Wal-Mart. 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 that 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. And the extent of that conversation was that Walmart tell me the extent of that conversation. A. That Walmart wants the corner boards up to like, draw attention to the display. This last piece of evidence is very important because it shows Wal-Mart s involvement with placement of the very sign that ultimately led to Mr. Coll s fall and this fact, by itself, precludes summary judgment. These corner board signs on the display at issue also contain the logo of Wal-Mart, another strong indication of Wal-Mart s involvement in and control of the display at issue. (R., pg.165, R.E., pg.0020). None of 3

4 these very important facts were disputed in any way by Wal-Mart with evidence or testimony. This Court cannot allow a business like Wal-Mart to actively participate in the design, construction and/or maintenance of a defective display on their sales floor, in a section of the store that the store calls action alley because of the high volume of traffic running through it, and then escape all potential liability on a theory that they did not have immediate notice that the very portion of the display that was dangerous had actually fallen on the floor. This display, because of its poor design, was just an accident waiting to happen and Wal-Mart knew or certainly should have known it. The scenario at issue in the present case is exactly the scenario that one Mississippi federal district court envisioned. Burress v. Belk, 2015 U.S. Dist. LEXIS (N.D. Miss. 2015). The Burress decision has been discussed in Coll s prior briefs but it discusses a situation where a defective display causes injury to a store customer and the premises owner was involved in the design, construction or maintenance of the display. In that scenario, actual or constructive knowledge of the particular defective condition at issue is not needed for the plaintiff to go to the jury on the negligence of the premises owner because the owner, by virtue of its involvement with the display, bears responsibility for allowing the defective display to be on its premises. In the Burress case, the plaintiff offered no proof or evidence of Belk s (premises owner) role in the construction of the display at issue. But here, in our case, Mr. Coll has presented significant evidence of Wal-Mart s involvement in the construction, design and placement of the display at issue. Mr. Coll has also shown Wal-Mart s knowledge of the problem with this display through the testimony of Coke and Wal-Mart employees that 4

5 Wal-Mart has the responsibility to move the display from the sales floor when the product has gotten too low. Why else would Wal-Mart be responsible for moving the display other than their knowledge of the dangers associated with the display (and falling corner board sign) when the product has been sold down? These facts establish that Wal-Mart should not have been granted summary judgment. The jury may or may not believe that Wal-Mart had a significant enough role in the design, placement or maintenance of the display at issue to be liable, but it is a jury who should decide that issue. This theory of the case by Richard Coll is also fully supported by both of the Hardy decisions cited by the Court of Appeals in their decision. Mr. Coll certainly understands that in Hardy, it was a store employee who had constructed the defective display at issue, but that is a distinction without a difference when the store owner is proven to have involvement in the design, construction and/or maintenance of the subject display. Richard Coll asks again for this Court to extend the rationale of Hardy and hold that Wal-Mart and other premises owner cannot rely on a notice defense when a defective display has either: (1) been designed or constructed by the premises owner, or (2) when, as exists in Mr. Coll s case the premises owner has involvement with the design, construction or maintenance of a defective display built by one of their vendors. At a minimum, this should be a jury question when a plaintiff, such as Richard Coll has done in the present case, establishes through deposition testimony, direct and circumstantial evidence that the premises owner had this involvement. 5

6 C. Nor was there testimony that the Coca Cola display was somehow faulty (pg. 6, paragraph 14 of Court of Appeals opinion). This is likewise a rather interesting conclusion in light of the evidence uncovered during discovery. Mr. Irby testified that the sign at issue is put on the display with product then placed on top of the sign to hold it in place; the very product that is intended to be sold. Irby said that some people tape it down, others do not tape it down, and he is not sure if it was taped down on the day of Mr. Coll s fall. (R., pg.321). Of course, we know with 100% certainty that the sign was not taped down or otherwise secured on the day of Mr. Coll s fall because it ended up on the floor as soon as that corner of the display had been sold all the way down. Mr. Irby himself acknowledged the danger caused by the sign when not taped down, admitting that once the product was sold all the way down, nothing would hold the sign up and it would fall to the floor. (R., pg.321). The only precaution taken against this danger is stocking the product on top of the display sign, product which is intended to be sold. However, the Coke employees are not there 24 hours a day to monitor, and there are times when the product is sold all the way down, wherein the sign could fall from the pallet and onto the floor; exactly what happened in this case. (R., pg.321). On more than one occasion when Mr. Irby has visited this particular Wal-Mart as part of his route, the product has been sold all the way down at least in one section of the display. (R., pg.321). The danger associated with this sell down situation occurring was known to Wal-Mart and is why they maintained the right to remove the entire display from the sales floor when a Coke employee was not present. (R., pg.322). 6

7 Perhaps this Court does not think that the Wal-Mart display at issue was defectively designed, but the Court would have to admit that reasonable jurors might disagree. The corner board sign at issue was being held up only by the very product that was on the display to be sold and once the product had been sold down, nothing would prevent the sign from falling onto the floor and becoming a hazard (exactly what happened in the present case). At any rate, there was certainly testimony and evidence in this case to support a conclusion that the display was faulty and poorly designed and this Court s conclusion to the contrary is an error of fact. II. CONCLUSION There is both direct and circumstantial evidence that Wal-Mart was intimately involved with the design, construction and maintenance of the display at issue and importantly, dictated to Coke that the sign upon which Mr. Coll fell be placed on the display in the exact location where it was placed and with the Wal-Mart logo prominently shown. Stephen Irby s testimony about Wal-Mart s involvement with both the display and the sign has not be disputed in any way with evidence by Wal-Mart. Additionally, it is undisputed that Wal-Mart knew that the display should be removed from the sales floor when the product had been sold down, which at a minimum creates circumstantial evidence that Wal-Mart was aware of the dangers that this display and sign created. It is undisputed that Wal-Mart did absolutely nothing to make this display safer or to remove the known and obvious dangers it created. Plaintiff Richard Coll submits that the design of a display which allows a sign to fall onto the floor with nothing other than normal customer activity is certainly problematic and 7

8 dangerous. It should have been obvious to Wal-Mart that customers are going to remove the Coke products from the Wal-Mart display located in what Wal-Mart themselves calls action alley and it is a bad design and bad construction. A display designed and constructed so that nothing other than normal activities of customers in removing products will cause a portion of the display to fall onto the floor is without question a negligently constructed display. At a minimum, it should be for a jury to decide if the display was dangerous and if Wal-Mart s involvement in the design, construction and maintenance of the display was significant enough to impose liability and summary judgment should not have been granted. The Court of Appeals opinion contains errors of both fact and law and Richard Coll respectfully requests that the Court grant his Motion for Rehearing, reverse the circuit court s grant of summary judgment and remand the case for trial. RESPECTFULLY SUBMITTED, this the 6th day of June, RICHARD COLL, Plaintiff/Appellant SHARP, DUMMER, & BRIGGS, PLLC Attorneys for Plaintiff/Appellant By: /s/ Robert E. Briggs (MSB# 99527) 8

9 CERTIFICATE OF FILING AND SERVICE Pursuant to Rule 25(a) of the Mississippi Rules of Appellate Procedure, I, Robert E. Briggs, attorney for the Appellees, do hereby certify that I have this date delivered via the court s ECF filing system, a true and correct copy of Appellant s Brief to the following: Pemble DeLashment, Esq. Delashment & Marchand, Esq. P.O. Box 2047 Mobile, AL And by U.S. Mail, postage pre-paid to the following: Honorable Judge Lisa P. Dodson Harrison County Circuit Court P.O. Box 1461 Gulfport, MS This the 6th day of June, By: /s/ Robert E. Briggs (MSB# Robert E. Briggs, Esq. (MB#99527) Sharp, Dummer, & Briggs, PLLC 1635 Popps Ferry Road, Suite D Biloxi, MS Telephone: (228) Facsimile: (228) rbriggs@sdb-law.com michelle@sdb-law.com 9