IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI

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1 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI THE ESTATE OF ELSIE LUSTER THROUGH ITS ADMINISTRATOR, LARRY GUSMAN VERSUS MARDI GRAS CASINO CORP. APPELLANT CAUSE NUMBER 2012-CA APPELLEE UJttItr APPEAL FROM THE CIRCUIT COURT OF HANCOCK COUNTY, MISSSISSIPPI REPLY BRIEF OF APPELLANT THE ESTATE OF ELSIE LUSTER THROUGH ITS ADMINISTRATOR, LARRY GUSMAN, J. RICHARD KANUCH J. Richard Kanuch, L.LMPC. Mississippi Bar Numb Scheuermann and Jones,.. c. 701 Poydras Street, Suite 4100 New Orleans, Louisiana Telephone: (504) Facsimile: (504) Attorney of record for the Plaintiff / Appellant, the Estate of Elsie Luster through its Administrator, Larry Gllsman

2 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI THE ESTATE OF ELSIE LUSTER THROUGH ITS ADMINISTRATOR, LARRY GUSMAN VERSUS MARDI GRAS CASINO CORP. APPELLANT CAUSE NUMBER 2012-CA APPELLEE BRIEF FOR THE APPELLANT JANUARY 22, 2013 TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF CASES AND AUTHORITIES (alphabetically arranged)... ii STATEMENT OF THE CASE... I SUMMARY OF THE ARGUMENT... :... 2 ARGUMENT... 3 I. Manifest error resulted from trial court granting summary judgment in favor of Defendant / Appellee and not allowing adrrtission of photographic evidence by Appellant / Plaintiff... 3 CONCLUSION... 6 CERTIFICATE OF SERVICE...,

3 TABLE OF CASES AND AUTHORITIES Citation of Cases 1. Brown v. Credit Center. Inc" 444 So. 2d 358, 366 (Miss. 1983)...' Byrdv. RoadwavExpress. Inc., 687 F. 2d 85, reh. den. 691 F. 2d 502 (5th Cir.1982) Drennen v. Kroger Co., 672 So. 2d 1168 (Miss. 1996)... 3, 4 4. Fairley v. George County, 871 So. 2d 713 (Miss. 2004) Palmerv. Anderson Infirmary Benev. Assn., 656 So. 2d 790 (Miss. 1995) Rudd v. Montgomery Elevator Co., 618 So. 2d 68 (Miss. 1993) Waller v. Dixieland Food Stores. Inc., 492 So. 2d 283 (Miss 1986)... 3, 4 8. Whiteheadv. Johnson, 797 So. 2d 317 (Miss. 2001) "'"'''''''''''''''''''''''''''''''''''''''''''''''''''''''''' 4 9. Williams v. Tavlor, 677 F. 2d 510 (CA5 1982) ""'"'''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''' 4 Rules / Statutes 1. Mississippi Rule of Evidence 804(b)( 5) ""'"''''''''... 5, 6 2. Mississippi Rule of Evidence

4 STATEMENT OF THE CASE On June 18, 1997, Ms. Luster was a business invitee of the Defendant's / Appellee's casino. She fell as she was walking through the gangway area of the casino, which is an interior carpeted floor area. As a result of her fall, Ms. Luster sustained various injuries, which were both physical and mental. Subsequent to the time of the fall, Ms. Luster passed away. Prior to her death, she gave deposition testimony in which she testified to the unapparent defect in the floor. During the Motion. for Summary Judgment, Plaintiff's / Appellant's counsel presented photographs and annotations taken by Ms. Luster's deceased daughter, on her behalf, demonstrating Defendant's / Appellee's knowledge of the dangerous condition in the floor. These photographs and annotations were discovered later in the case, after discovery, because they were in a file that was separated after Hurricane Katrina, and Appellant-counsel's office was destroyed. After hearing arguments for the Motion for Summary Judgment, the trial court granted the motion in the Defendant's / Appellee's favor. 1

5 S~YOFTHEARGUMENT The trial court committed manifest error in finding that as a matter of law there was no genuine issue of material fact in this case based on the Plaintiffs / Appellant's deposition testimony and ultimately granting summary judgment in favor of Defendant / Appellee dismissing all claims against it. Further, the trial court erred in not allowing the admission of armotated photographic evidence showing that a dangerous condition existed in the flooring of the premises belonging to the Defendant / Appellant and that it failed to correct it, thereby, causing Appellant / Plaintiff to fall and be injured. 2

6 ARGUMENT I. Manifest error resulted from trial court granting summary judgment in favor of Defendant I Appellee and not allowing admission of photographic evidence by Appellant I Plaintiff. This case involves a trip and fall by Elsie Luster, whose Estate through its administrator Larry Gusman is the Plaintiff I Appellant herein, on the premises of the Defendant I Appellee, Mardi Gras Casino wherein the Appellant alleges that a certain condition on the Defendant's premises caused Ms. Luster to fall and be injured. In these type cases, the Plaintiff I Appellant must allege and ultimately prove that the Defendant breached one (I) of two (2) duties owed to him: (1) the duty not to create a dangerous condition; or (2) the duty to remedy a dangerous condition after he knew or should have known about it. See, e.g. Drennen v. Kroger Co., 672 So. 2d 1168 (Miss. 1996); Waller v. Dixieland Food Stores, Inc., 492 So. 2d 283 (Miss 1986). Appellant argues strongly that both of these duties were breached by the Defendant I Appellee and thus the breach of each duty here is the equivalent of negligence. See e.g. Rudd v. Montgomerv Elevator Co., 618 So. 2d 68 (Miss. 1993). The Plaintiff I Appellant must prove by a preponderance of the evidence that the Defendant I Appellee breached the duty that he owed to the Plaintiff I Appellant. Palmer v. Anderson Infirmary Benev. Assn., 656 So. 2d 790 (Miss. 1995). To defeat a motion for summary judgrrient or a directed verdict, the Plaintiff I Appellant must present evidence from which a reasonable juror could conclude that the defendant probably committed the alleged act and that said act constituted negligence. Palmer supra. 3

7 In the case at bar, the Defendant / Appellee had actual knowledge that a dangerous condition existed on Defendant's / Appellee's premises but failed to properly and adequately remedy the dangerous condition. Thus, the Defendant / Appellee breached duties it owed to the Plaintiff / Appellant. By failing to properly warn the Plaintiff / Appellant of the dangerous condition, i.e. the hidden defect in the floor under the carpet where Plaintiff / Appellant ultimately tripped and fell, the Defendant! Appelee demonstrates that it breached both duties it owed to Plaintiff! Appellant, namely that (I) it knew of the dangerous defect and (2) it failed to adequately remedy the dangerous defect. See Drennan and Waller, Supra. Whether the Defendant! Appelee breached the duties is a question of fact and not of law and it was improper for the trial court to grant summary judgment in favor of the Defendant / Appellee on the issue. These are triable jury issues. See Drennan, supra. In fact, it is reversible error for a trial court to substitute its summary judgment for ajury's consideration of disputed factual issues which are material to the case. Brown v. Credit Center. Inc., 444 So. 2d 358, 366 (Miss. 1983). Further, summary judgment is ouly appropriate ifthe moving party can establish his right to judgment with such clarity that the non-moving party cannot recover under any discernible circumstances. Bvrd v. Roadway Express, Inc., 687 F. 2d 85, reh. den. 691 F. 2d 502; Williams v. Taylor, 677 F. 2d 510 (CAS 1982). If a genuine issue of material fact exists, summary judgment is inappropriate. Fairley v. George County, 871 So. 2d 713 (Miss. 2004). And motions for summary judgment are to be viewed with a skeptical eye, and if a trial court should err, it is better to err on the side of denying the motion. Whitehead v. Johnson, 797 So. 2d 317 (Miss. 2001). The annotated photographic evidence introduced by Plaintiff / Appellant and entered as an exhibit herein (see record excerpts) and attached as exhibits by Plaintiff / Appellant in its original memorandum in opposition to Defendant's / Appellee's motion for summary judgment clearly 4

8 demonstrates the fact that a dangerous condition existed iii the flooring in the premises of the Defendant I Appellee in that the Defendant I Appellee posted signs warning patrons of the dangerous condition in the flooring. It should be noted that the annotation on the photos states that the signage was not directly placed over the part of the floor where she fell. The signage by its mere presence,. although improperly placed, also directly refutes Defendant's I Appellee's claims in its memorandum in support of its motion for summary judgment that no dangerous condition, existed on the premises of its casino. The photographs referred to herein are duplicates and were apparently taken by Ms. Elsie Luster's daughter, Dorothy Gusman, who, it has just been learned, is deceased. The original photographs were lost during Hurricane Katrina as part of the file was destroyed in Ms. Luster's attorney's office in New Orleans, LA. As such, the duplicates are admissible under Mississippi Rule of Evidence 1003 as there is no question raised as to the authenticity of the originals; only the admissibility is being questioned by Defendant I Appellee. Combining Rule 1003 with Mississippi Rules of Evidence 804(b)(5), the Plaintiff I Appellant hereby argues that taking the annotations on the photographs and the duplicate photographs as a whole, themselves, are admissible as evidence in this matter as they are material, trustworthy, and are more probative than not in showing the actual condition of the floor of the Defendant's I Appellee's premises at the time of the accident. It would also be in the interest of justice to allow admission, thereby allowing the truth to be known in this matter versus supposition and adversarial argument. See Mississippi Rules of Evidence 804(b)(5). 5

9 CONCLUSION Appellant reiterates its position set forth in its argument herein above that the question of what caused AppellantlDefendant to fall at Plaintiffs/Appellee's casino is a question of fact for a jury to decide; that the annotated photographic evidence is admissible under Mississippi Rule of Evidence 804(b )(5) and therefore the judgment of the trail court to grant summary judgment in favor of Defendant! Appellee was manifestly erroneous and should be reversed and also remanded to the trial court where it should be set for trial on the merits before a jury. Respectfully submitted, this 22nd day of January, FOR: the Estate of Elsie Luster through its Administrator, Larry Gusman jchard chard Kanuch, L.L.C. cheuerrnann and Jone~ Mississippi Bar Nurnb~ 6

10 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI THE ESTATE OF ELSIE LUSTER THROUGH ITS ADMINISTRATOR, LARRY GUSMAN VERSUS MARDI GRAS CASINO CORP. APPELLANT CAUSE NUMBER 2012-CA APPELLEE CERTIFICATE OF SERVICE I, J. Richard Kanuch of the law fmn of SCHEUERMANN AND JONES, L.L.C., attorney for. appellant, The Estate of Elsie Luster through Its Administrator, Larry Gusman, certify that I have filed this pleading with the clerk of the Honorable Supreme Court of Mississippi and have served a copy of this pleading by facsimile and/or mail (properly addressed and shipping paid) on the following persons at these addresses: David W. Stewart M. Jason Sumrall. COPELAND, COOK, TAYLOR & BUSH, P.A. Post Office Box 10 Gulfport, MS Facsimile: (228) The Honorable John C. Garguilo Hancock County Circuit Court Judge Post Office Box 1461 Gulfport, MS '/ NEW ORLEANS, LA, this 25th day of January,

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