Pete Walker v. Cellular South Inc. d/b/a C Spire

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2019-CA-00276-COA

PETE WALKER APPELLANT

v.

CELLULAR SOUTH INC. D/B/A C SPIRE APPELLEE

DATE OF JUDGMENT: 11/27/2018
TRIAL JUDGE: HON. ALBERT B. SMITH III
COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT,
SECOND JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANT: EDWARD D. LAMAR
FRANK J. DANTONE JR.
ATTORNEYS FOR APPELLEE: SHELDON G. ALSTON
ROBERT LANE BOBO
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED - 06/23/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE CARLTON, P.J., GREENLEE AND McCARTY, JJ.

CARLTON, P.J., FOR THE COURT:

¶1. Pete Walker brought a premises liability action against Cellular South Inc. in the

Bolivar County Circuit Court seeking damages for injuries he allegedly suffered when he fell

as he was attempting to sit in a tall (bar-height) chair at the C Spire store. After discovery,

Cellular South moved to exclude the opinions of Walker’s safety expert as irrelevant and

improper under Rule 702 of the Mississippi Rules of Evidence and moved for summary

judgment, claiming that Walker failed to raise any disputed issues of material, genuine fact

in support of his premises liability claim. Walker moved for sanctions against Cellular

South, alleging spoliation of evidence because Cellular South did not retain the store
surveillance videotape from the day of Walker’s fall. The circuit court granted Cellular

South’s motion to exclude Walker’s liability expert and granted summary judgment in

Cellular South’s favor. In the same order, the circuit court denied Walker’s motion for

sanctions. Walker appeals. For the reasons addressed below, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2. The record reflects that on June 4, 2014, Walker, who was seventy-one at the time,

went to Cellular South’s C Spire store in Cleveland, Mississippi, to have his cell phone’s

voicemail fixed. According to Walker’s complaint and his deposition testimony, when it was

his turn at the counter to meet with a Cellular South representative, he tried to sit on a tall

(bar-height) chair when it suddenly slipped from underneath him, causing him to fall to the

floor. Walker alleges that he was injured as a result of the fall.

¶3. Cellular South employee Steadman Hunter completed an incident report later that day

and reviewed the store surveillance videotape as part of providing a description of the

accident for the report. In describing the fall, Hunter indicated in the report that “[w]hile in

the chair, [Walker] had the chair tilted forward the entire time leading up to the fall at

5:18 p.m. The fall happened quickly and he made a loud sound as he fell slightly to the

floor.” Hunter reported that at 5:20 p.m. Walker got back up on his feet with the help of a

customer and a Cellular South representative, Zach Stallings. Stallings then took Walker’s

phone-bill payment and fixed his voicemail issues. According to the incident report, Walker

was asked several times if he needed medical assistance, and he declined; so Stallings called

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Walker’s daughter, Lara, and she came and got her father. When she got there, she said that

Walker was “known for having sudden seizures and blacking out.” The incident report

reflects that Lara then “collected business cards from the representatives that witnessed the

accident. She said this [was] only to get a list of names of witnesses to see how severe the

accident was that took place today.” The record reflects that after three weeks, the video

cameras at the C Spire store record over themselves.

¶4. Approximately two months after the incident, a medical bill for Walker, dated July

23, 2014, was delivered to the Cleveland, Mississippi C Spire store. In a letter dated January

22, 2015, Walker’s counsel notified Cellular South that Walker had retained the Dantone

P.A. law firm with respect to the June 4, 2014 incident and in that letter counsel requested

“a copy of any incident reports, written or taped statements regarding the incident,

photographs and the surveillance videotape of the incident.” The record also includes

correspondence dated March 13, 2015, from the claims specialist for Cellular South’s insurer

informing Walker’s counsel that there was “no video surveillance nor taped statements to

provide.”

¶5. On July 19, 2016, Walker filed his complaint, claiming as follows:

[Cellular South] breached its duty when it allowed customers and invitees to
sit in chairs with legs that did not properly grip the floors when customers and
invitees attempted to sit in them. [Cellular South] breached its duty when it
failed to remedy said dangerous condition by failing to make the premises safe
by removing the chairs with poor grips, installing flooring with more slip
resistance and/or failing to warn [Walker] of the known hazardous condition
then and there existing on the premises, which was known or should have been
known to [Cellular South].

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¶6. Walker served discovery, and in Cellular South’s supplemental response to Walker’s

request for any video of the incident, Cellular South informed Walker that the cameras at the

C Spire store “record over themselves after three weeks. Cellular South did not know of a

claim, and therefore did not retain the videos.”

¶7. In December 2017, Walker filed his expert designation, identifying Russell J.

Kendzior as his expert witness and attaching Kendzior’s expert report. Kendzior opined that

Walker fell because of insufficient traction between the chair legs and the store’s Vinyl

Composite Tile (VCT) floor. He further opined that Cellular South “failed to provide a safe

walking or seating surface which was in direct violation of [The American Society of Testing

and Materials (ASTM)] F-1637-13 and [ASTM] D-2047-04.” To avoid repetition, we will

discuss additional details relating to these opinions below.

¶8. One month later, Cellular South filed its expert designation, identifying Dan Roig of

Packer Engineering Group as its expert and attached Roig’s report to its expert designation.

¶9. In June 2018, after conducting written discovery and taking fact- and expert-witness

depositions, Cellular South filed a motion to exclude Kendzior, Walker’s expert witness.

Cellular South asserted that Kendzior’s opinions should be excluded as irrelevant under

Mississippi Rule of Evidence 702 because Kendzior was inappropriately attempting to use

walking standards as the basis for his opinions, which did not apply to a stool or chair

slipping on a floor. Walker opposed Cellular South’s motion to exclude Kendzior’s opinions,

arguing that Kendzior was qualified to offer the opinions given in his report and that these

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opinions would be helpful to the jury in determining whether a dangerous condition existed

within the store.

¶10. In September 2018, Walker filed a motion for sanctions, asserting that Cellular South

had engaged in spoliation of evidence because the surveillance videotape from the C Spire

store on the day of Walker’s fall had not been retained. Walker argued that this conduct

warranted an instruction to the jury “that whatever the videotape would have revealed would

have been adverse to [Cellular South’s] contention that it was not negligent.” In response,

Cellular South asserted that sanctions were not warranted because it did not intentionally

destroy or lose the video surveillance through means of gross negligence. Cellular South

further argued that in any event the spoliation issue was irrelevant because Walker could not

prove his theory of negligence against Cellular South.

¶11. Cellular South also moved for summary judgment in September 2018, asserting that

Walker, as an undisputed business invitee, could not set forth specific, disputed, and material

facts that would establish his premises liability claims against Cellular South. In response,

Walker asserted that summary judgment was precluded because Kendzior’s opinions

established that an allegedly dangerous condition existed in the store and that “[b]y failing

to put forth any proof that it had tested the floor’s coefficient of friction[,] . . . [Cellular

South] certainly concedes that it had constructive knowledge, if not actual knowledge[,] of

the slipperiness of its floor.”

¶12. Cellular South’s motion to exclude Kendzior was heard by the circuit court on

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October 17, 2018. The court announced at the end of the hearing that it was taking the

motion under advisement. A month later, the circuit court heard Cellular South’s summary

judgment motion and Walker’s motion for sanctions.

¶13. On November 27, 2018, the circuit court entered its final judgment excluding

Kendzior’s opinions, denying Walker’s motion for sanctions, and granting Cellular South’s

summary judgment motion. Walker filed a motion to alter or amend the judgment, which the

circuit court denied. Walker appeals.

DISCUSSION

I. Exclusion of Walker’s Expert, Kendzior

¶14. “The standard of review for the admission or exclusion of evidence, such as expert

testimony, is an abuse of discretion.” Inv’r Res. Servs. Inc. v. Cato, 15 So. 3d 412, 416 (¶2)

(Miss. 2009). “[T]he decision of a trial judge will stand unless we conclude that the

discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion.” Miss.

Transp. Comm’n v. McLemore, 863 So. 2d 31, 34 (¶4) (Miss. 2003); Townsend v. Doosan

Infracore Am. Corp., 3 So. 3d 150, 154 (¶7) (Miss. Ct. App. 2009) (“Absent an abuse of

discretion, a judge’s determination as to the qualifications of an expert witness will remain

undisturbed on appeal.”).

¶15. The test for the admissibility of expert testimony is set forth in Mississippi Rule of

Evidence 702, as follows:

A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:

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(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence
or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and
methods; and

(d) the expert has reliably applied the principles and methods to
the facts of the case.

M.R.E. 702; see McLemore, 863 So. 2d at 35 (¶6).

¶16. In McLemore, 863 So. 2d at 38 (¶16), the Mississippi Supreme Court adopted the

“analytical framework” set forth in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S.

579 (1993), and modified in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), as the test

to be used when determining whether an expert witness’s testimony is admissible under Rule

702. The modified Daubert standard “involves a two-prong inquiry . . . : (1) whether the

expert opinion is relevant in that it must ‘assist the trier of fact’ and (2) whether the proffered

opinion is reliable.” Thomas v. Lewis, 289 So. 3d 734, 740 (¶17) (Miss. 2019).

¶17. Walker asserts that the circuit court abused its discretion in granting Cellular South’s

motion to exclude Kendzior. As detailed below, we find no abuse of discretion in the circuit

court’s decision to do so. Accordingly, we find that this assignment of error is without merit.

¶18. Walker’s expert, Kendzior, opined that Walker fell because “of insufficient traction

between the stool’s feet and the VCT flooring surface.” Kendzior further opined that “[t]he

interaction between the plastic stool foot caps and the polished VCT did not provide an

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adequate level of slip resistance for the stool to be safely used.”

¶19. Kendzior supported these opinions by taking coefficient-of-friction (COF) test

measurements from six locations within the store. Kendzior determined that in the location

where Walker fell, the average dry COF value was 0.43, which is less than the 0.50 dry COF

that is the slip-resistant threshold for walking surfaces. The standards Kendzior used to

support these opinions are ASTM F-1637-13 and ASTM D-2047.

¶20. ASTM F-1637-13 is entitled “Standard Practice for Safe Walking Surfaces.” Section

5.1.4 of this standard requires that “[w]alkway surfaces shall be slip resistant under expected

environmental conditions and use.” ASTM D-2047-04 establishes a standard test method

for determining the static COF of polish-coated flooring surfaces. Section 4.1 of this

standard specifically provides: “Test Method D 2047 establishes a compliance criterion

relating static coefficient of friction measurements of flooring surfaces with human

locomotion safety.” (Emphasis added). Section 4.2 provides that “polishes and other floor

maintenance coatings having a static coefficient of friction of not less than 0.5, as measured

by this test method, have been recognized as providing nonhazardous walkways.”

¶21. In short, the 0.5 slip resistance that Kendzior relies upon is a guideline for walking.

As these standards plainly provide, ASTM F-1637-13 is a standard for “Safe Walking

Surfaces,” and ASTM D-2047 establishes measurements “with respect to human locomotion

safety.” In his deposition, Kendzior confirmed that these standards setting out the 0.5 COF

limit do not mention resistance between a chair’s feet and the floor:

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[COUNSEL FOR
CELLULAR SOUTH:] Does it [F-1637-13] talk anywhere in there does
it talk about slip resistance of chairs or stools?

[KENDZIOR:] No.

....

[COUNSEL FOR
CELLULAR SOUTH:] Nowhere in the [D-2047] standard does it talk
about . . . chairs or stools or the bottom of
their . . . [f]eet . . . .

[KENDZIOR:] No.

Kendzior further admitted, “Well, there’s no chair standard . . . ; there’s no published

nationally recognized consensus standard for measuring the slip resistance of a chair foot.”

Similarly, Kendzior testified:

COUNSEL FOR
CELLULAR SOUTH:] But the standard, there’s not a standard as far as
chairs and stools are concerned.

[KENDZIOR:] That’s correct . . . . Now, you’re right, it’s not a
standard written for chairs, and I’m not holding it
out as one.
....

COUNSEL FOR
CELLULAR SOUTH:] But there’s no standard you know of that says
what the coefficients should be between those feet
and the floor.

[KENDZIOR:] You mean the chair—is there a standard for chair
feet and floors?
COUNSEL FOR
CELLULAR SOUTH:] Yes.

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KENDZIOR:] No, not to my knowledge.

¶22. As the circuit court found, the standards Kendzior relied upon were not designed to

be used in measuring the slip resistance of a chair sliding across a floor, and there was no

evidence that they had been used in this manner before. The circuit court further found “that

[Kendzior’s] stance in regards to the coefficient of friction between the chair and the floor

is part of an untested methodology and would be more confusing to a jury than helpful.”

Continuing, the circuit court found:

[Kendzior] himself indicates that there is no standard for chair slip cases and
that the standard used is one to test the friction between walking and the
contact . . . with the floor[,] not friction between the chair and a floor[.]
[T]herefore the standard proposed is one untested in the manner in which the
expert is trying to apply [it in this case].

¶23. We find no abuse of discretion in the circuit court’s determination. Kendzior’s

opinions are simply not based on any standard that measures the friction between the legs of

a chair and the floor. Because the very crux of this case is Walker’s allegations that the chair

slipped—not that Walker, himself, slipped as he was walking—Kendzior’s opinions, and the

standards he relies upon to reach them, are irrelevant in deciding the facts at issue in the case.

For this reason, Kendzior’s opinions would not “assist the trier of fact” and were therefore

properly excluded. M.R.E. 702; see Watts v. Radiator Specialty Co., 990 So. 2d 143, 147

(¶12) (Miss. 2008) (citing Daubert, 509 U.S. at 593) (“Relevance, as defined by our standard

for admitting expert testimony, depends upon whether the reasoning or methodology

employed by the expert witness may be properly applied to the facts at hand.”).

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¶24. Walker asserts the testing performed by Roig (Cellular South’s expert) corroborated

Kendzior’s testing, and thus Kendzior’s opinions were not irrelevant. Walker points out that

Roig calculated the static COF of the subject chair moving across the floor (the ratio of the

sliding force over the vertical force (gravitational weight)), and determined that it equaled

0.3045, which was less than the .43 COF Kendzior obtained. Walker, however, ignores the

rest of Roig’s report, in which Roig explained that “[f]ocusing attention on the floor’s

friction/slip resistance is misleading.” As Roig further explained, “[C]hairs are built with

everything from rolling casters, with a coefficient of friction close to zero, to soft rubber feet,

with a coefficient of friction close to one. All these chairs are safe if used properly. The 0.5

slip resistance is a guideline for walking.”1 Indeed, the idea of having a national standard

for the COF for chairs across floor does not make sense because moveable furniture’s

physical relationship to the floor is different depending on the feet utilized in the specific

chair. We find no merit in Walker’s assertions on this point.

¶25. Both experts have agreed that there is not a national standard for the COF of chairs

in relation to the floor. Because the standards Kendzior relied upon admittedly do not apply

to the facts of this case, they are irrelevant to the facts at issue and would not assist the trier

of fact, as required under Rule 702. Walker’s contention that the circuit court abused its

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Roig conducted forty-eight tests of the slip resistance of the C Spire store floor “to
determine the general safety of this floor as compared to other floors.” The average
measured slip coefficient was 0.57. Because the slip coefficient was above .50, Roig
conclusively found that the COF of the floor was adequate per industry standards for
individuals walking.

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discretion in granting Cellular South’s motion to exclude Kendzior’s opinions is without

merit.

II. Summary Judgment

¶26. “An appeal from summary judgment is reviewed de novo[,] and we view the evidence

in the light most favorable to the non-movant.” Parson v. Go Knightrider LLC, 282 So. 3d

609, 613 (¶14) (Miss. Ct. App. 2019). Pursuant to Mississippi Rule of Civil Procedure 56,

“[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to

interrogatories and admissions on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the moving party is entitled to a judgment

as a matter of law.” M.R.C.P. 56(c). “The non-movant . . . ‘carries the burden of producing

sufficient evidence of the essential elements of his claim at the summary-judgment stage, just

as he would carry the burden of production at trial.’” Parson, 282 So. 3d at 613 (¶14)

(quoting Karpinsky v. Am. Nat’l Ins. Co., 109 So. 3d 84, 88 (¶9) (Miss. 2013)). If a non-

movant fails “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,

109 So. 3d at 89 (¶11), “[s]ummary judgment is appropriate.” Id. at 88 (¶10).

¶27. Under Mississippi law, “a three-step process” is used to determine premises liability

cases, as follows: “First, we must determine whether the injured party was an invitee,

licensee, or a trespasser at the time of the injury. Next, we must determine what duty was

owed to the injured party by the business owner/operator. Finally, we must determine

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whether that duty was breached.” Haggard v. Wal-Mart Stores Inc., 75 So. 3d 1120, 1124

(¶9) (Miss. Ct. App. 2011).

¶28. The record reflects that Walker was at the C Spire store to get help in fixing the

voicemail on his cell phone. We find that Walker was a business invitee—he entered the

store “in answer to the express or implied invitation of the owner or occupant for their mutual

advantage.” Rod v. Home Depot USA Inc., 931 So. 2d 692, 694 (¶10) (Miss. Ct. App. 2006).

A business owner or operator owes an invitee the “duty to exercise ordinary care to keep the

premises in a reasonably safe condition or to warn the invitee of dangerous conditions, not

readily apparent, which the owner or occupier knows of or should know of in the exercise

of reasonable care.” Anderson v. B. H. Acquisition Inc., 771 So. 2d 914, 918 (¶7) (Miss.

2000).

¶29. There are three theories under which Walker can prove a breach of the duty owed a

business invitee under Mississippi law:

[Walker] 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.

Id. at (¶8) (emphasis added). If Walker cannot furnish sufficient evidence under at least one

of these theories, then his premises liability claim fails as a matter of law. See Karpinsky,

109 So. 3d at 89 (¶13); Bonner v. Imperial Palace of Miss. LLC, 117 So. 3d 678, 682 (¶13)

(Miss. Ct. App. 2013) (“[Because] Bonner had the burden of proof at trial, she must have

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provided sufficient evidence on one of the above three types of premises liability to

withstand a motion for summary judgment.”).

¶30. In granting Cellular South’s summary judgment motion, the circuit court found that

after having excluded Kendzior’s opinions regarding the slipperiness of the floor, Walker

was left with no evidence of a dangerous condition or that Cellular South had any actual or

constructive knowledge of a dangerous condition at the store. The circuit court specifically

found that there was no evidence of other incidents similar to Walker’s fall / slipping-chair

incident at the C Spire store and that there was no evidence or testimony that Cellular South

caused the alleged dangerous condition. For the reasons addressed below, we agree.

A. Proof of a “Dangerous Condition”

¶31. We begin with the principle that “regardless of the invitee’s precise theory of premises

liability, proof that [his] injury was caused by a ‘dangerous condition’ is an essential element

of [his] claim.” Jones v. Wal-Mart Stores E. LP, 187 So. 3d 1100, 1104 (¶12) (Miss. Ct.

App. 2016); see also Patterson v. Mi Toro Mexican Inc., 270 So. 3d 19, 21 (¶7) (Miss. Ct.

App. 2018). “A property owner cannot be found liable for the plaintiff’s injury where no

dangerous condition exists.” Bonner, 117 So. 3d at 682 (¶12); see Martin v. Trustmark

Corp., 292 So. 3d 245, 248 (¶11) (Miss. Ct. App. 2019) (“[A]n invitee’s premises liability

claim . . . requires proof of a dangerous condition.” (citing cases)), cert. denied, 290 So. 3d

753 (Miss. 2020). Further, “‘[p]roof merely of the occurrence of a fall on a floor within a

business is insufficient to show negligence on the part of the proprietor. . . .’” Jacox v. Circus

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Circus Miss. Inc., 908 So. 2d 181, 184 (¶7) (Miss. Ct. App. 2005) (quoting Sears, Roebuck

& Co. v. Tisdale, 185 So. 2d 916, 917 (Miss. 1966)).

¶32. In this case, Walker sought to establish that an alleged “dangerous condition” existed

at the C Spire store through the testimony of his expert, Kendzior. Kendzior opined that “the

cause [of Walker’s fall] was that of insufficient traction between the stool’s feet and the VCT

flooring surface. The interaction between the plastic stool foot caps and the polished VCT

did not provide an adequate level of slip resistance for the stool to be safely used.” As

addressed above, the circuit court properly excluded these opinions. Walker alleges that the

chair slipped—not that he slipped as he was walking—and thus Kendzior opinions, based

upon inapplicable walking standards, are irrelevant to deciding the facts at issue in the case.

M.R.E. 702.

¶33. There is also no evidence that the chair, itself, was defective. In fact, Kendzior

testified that it was not, as follows:

[T]he overall condition of the chair when I inspected it was good. The chair
was not broken. There was no cracks in the plastic. The legs were firmly
mounted. The feet—the plastic or I should say nylon feet that were at the
bottom of the chair legs were worn but in good condition, they were not
defective.

¶34. We find that after Kendzior’s opinions were properly excluded, Walker was left with

no evidence of a dangerous condition. Walker’s premises liability theories fail because he

has no proof of a dangerous condition at the C Spire store. We now turn to address Walker’s

additional contentions with respect to each of the three premises liability theories.

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B. Negligent-Act Premises Liability Theory

¶35. As to the “negligent-act” premises liability theory, other than allegations relating to

the slipperiness of the floor as related to the nylon feet of the subject chair (the alleged

dangerous condition on the premises), Walker does not assert that Cellular South committed

any other act or omission that caused his fall. On the contrary, Walker testified that the store

floor was dry and there was no debris in the area that could have caused him to slip and fall:

[COUNSEL FOR
CELLULAR SOUTH]: Was there anything on the ground . . . a substance
on the ground, to your knowledge? . . . .

[WALKER:] No, sir. I . . . beg pardon. I was—I was thinking.
No, it wasn’t nothing. I never saw no debris of no
kind over there on that floor.

[COUNSEL FOR
CELLULAR SOUTH:] And it wasn’t wet or anything?

[WALKER:] No, sir.

Walker cannot prove his premises liability claim based on the first “negligent-act” theory of

recovery.

C. Actual-Knowledge Premises Liability Theory

¶36. Under the actual-knowledge premises liability theory, Walker must show that Cellular

South had actual knowledge of a “dangerous condition” and failed to warn the plaintiff of

that condition. Haggard, 75 So. 3d at 1125 (¶11). As addressed above, Walker cannot prove

the essential “dangerous condition” element of this theory.

¶37. Walker also asserts, however, that “Cellular South breached the standard of care by

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acting unreasonably and imprudently . . . by failing to measure the floor’s coefficient of

friction and . . . the coefficient of friction between the nylon feet of the high chair/stool and

[Cellular South’s] showroom floor.” We find no merit in this argument. Setting aside our

determination that Walker is without evidence of a “dangerous condition,” Mississippi law

also provides that a defendant is not liable for failure to warn of a “harm resulting from

conditions from which no unreasonable risk was to be anticipated, or those which the

occupier did not know and could not have discovered with reasonable care.” Jones v.

Imperial Palace of Miss. LLC, 147 So. 3d 318, 321-22 (¶14) (Miss. 2014).

¶38. Our review of the record reflects that there was no evidence presented of any prior

incidents occurring under similar circumstances. All three C Spire employees testified that

they had never seen an incident at the store where a chair had slipped causing a customer to

fall, and there was no other evidence that such an event had occurred or that there had even

been any incident involving a customer slipping on the floor at all. Without evidence of a

“dangerous condition,” or proof of any similar incidents, “no reasonable jury could conclude

the [chair in relation to the flooring] was unreasonably dangerous.” Patterson, 270 So. 3d

at 22 (¶8) (quoting Vivians v. Baptist Healthplex, 234 So. 3d 304, 310 (¶23) (Miss. 2017)

(Dickinson, P.J., specially concurring)) (affirming summary judgment where plaintiff failed

to present evidence of a dangerous condition or proof of similar incidents occurring on the

ramp where plaintiff had fallen).

D. Constructive-Knowledge Premises Liability Theory

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¶39. Under the constructive-knowledge premises liability theory, Walker must show that

he was injured due to a “dangerous condition” that existed for a long enough period of time

that the defendant should have known of its existence. Haggard, 75 So. 3d at 1125 (¶11).

Without proof of a “dangerous condition,” this liability theory likewise fails. Patterson, 270

So. 3d at 21 (¶7).

¶40. In sum, after our review of the record, we agree with the circuit court’s conclusion

that Walker did not offer any proof of a negligent act on Cellular South’s part or that it had

actual or constructive notice of an alleged dangerous condition on the premises. Indeed,

without Kendzior’s opinions, which we determined were properly excluded by the circuit

court, Walker failed to establish a genuine issue of material fact as to the existence of a

dangerous condition on the C Spire store premises. The record is also devoid of any prior

similar incidents. Accordingly, we find that the circuit court correctly granted Cellular

South’s summary judgment motion.

III. Motion for Sanctions Regarding Recorded-Over Surveillance
Videotape

¶41. Walker asserts that the circuit court erred because it did not “sanction Cellular South

for failing to . . . retain the videotape of Walker’s visit as a business invitee.” Walker

contends that the circuit court should have sanctioned Cellular South by denying summary

judgment in its favor, and granting, pretrial, a negative-inference jury instruction that the

recorded-over surveillance videotape contained evidence unfavorable to Cellular South.

¶42. Under Mississippi law, we “employ[] an abuse of discretion standard in reviewing the

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trial judge’s grant or denial of sanctions.” Ill. Cent. Gulf R.R. Co. v. McLain, 174 So. 3d

1279, 1284 (¶12) (Miss. 2015). Further, “[w]e will affirm a trial court’s decision unless we

have a definite and firm conviction that the court below committed a clear error of judgment

in the conclusion it reached upon weighing of relevant factors.” Jones v. Jones, 995 So. 2d

706, 711 (¶13) (Miss. 2008).

¶43. As an initial matter, we find that Walker’s request for a pretrial, negative-inference

jury instruction regarding the recorded-over videotape was premature. In Clinton Healthcare

LLC v. Atkinson, No. 2017-IA-00946-SCT, 2019 WL 153906, at *4 (¶16) (Miss. Jan. 10,

2019), the supreme court found that the trial court’s pre-trial order that “a spoliation

instruction be given at trial before a trial even happens . . . was inappropriate, as the trial

court does not know what evidence regarding spoliation will be presented to the jury, and

thus cannot know whether the evidence at trial will support the instruction.” Likewise, it

would have been “inappropriate” for the circuit court to grant the relief Walker sought in his

motion for sanctions prior to trial.

¶44. Walker also asserts on appeal that the videotape was an “integral component” of his

ability to show that Cellular South failed to provide him a reasonably safe place to sit and

that the appropriate sanction for Cellular South’s failure to preserve the videotape should

have been that the circuit court deny summary judgment and invoke the negative-inference

rule at trial. Walker relies on DeLaughter v. Lawrence County Hospital, 601 So. 2d 818

(Miss. 1992), and Thomas v. Isle of Capri Casino, 781 So. 2d 125 (Miss. 2001), to support

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his contention. We find that both cases are wholly distinguishable and do not apply in this

case.

¶45. DeLaughter v. Lawrence County Hospital was a wrongful death action. After the

patient’s death, the defendant hospital lost her medical record that the hospital was required,

by law, to maintain. DeLaughter, 601 So. 2d at 821. The supreme court recognized that the

patient’s hospital record was “an integral component” in plaintiff’s malpractice action against

the hospital,” id., and thus held that the circumstances under which it was lost created a jury

question whether the hospital could demonstrate an adequate reason for why the record was

unavailable. Id. at 821-22. The supreme court held that if the jury found that no adequate

reason was offered, and that the hospital “deliberately or negligently brought about by the

actions of the hospital, the jury could infer that the missing original medical record contained

information unfavorable to the hospital.” Id.

¶46. In Isle of Capri, 781 So. 2d at 126 (¶1), Thomas claimed to have won two

multi-million dollar progressive slot machine jackpots, but the casino refused to pay the

jackpots. Thomas filed a complaint with the Gaming Commission, then appealed the

unfavorable ruling he received. Id. at 126-27 (¶¶1-2). After learning that Thomas had

appealed the gaming commission’s denial of his claim, the casino removed the slot machine

at issue and removed a computer central processing unit (CPU) from the machine. Id. at 130

(¶¶20-21). The CPU was not tested prior to its removal, and its removal made the CPU

inoperable and untestable. Id. at (¶22).

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¶47. Similar to the DeLaughter decision, the supreme court explicitly recognized that “[t]he

information contained in the CPU of slot machine 2947 would have conclusively established

whether Thomas had in fact won any jackpots on the night in question, and how much time

had elapsed since it occurred.” Id. at 133 (¶36). The supreme court also found that the

casino failed to follow its own policies in handling claims, and also violated specific statutory

procedures under the Mississippi Gaming Control Act. Id. at 131, 134 (¶¶25-26, 43). Under

these circumstances, the supreme court found that the casino’s actions, “if not intentional

[were] at least grossly negligent.” Id. at 133 (¶39). The supreme court further found that the

casino’s failure “to follow the dictates of the Gaming Control Act, and [its] . . . failure to

preserve the slot machine . . . resulted in a presumption that the evidence contained in the

CPU of machine 2947 was unfavorable to those responsible for its destruction.” Id. at 134

(¶43).

¶48. In comparison to these cases, we find no abuse of discretion or “clear error” in the

circuit court’s determination that Cellular South’s failure to preserve the videotape did not

amount to such “intentional” or “grossly negligent” conduct so as to warrant a negative

inference in this case. Cellular South employee, Hunter, completed an incident report the

same day the incident occurred, and reviewed the videotape as part of providing a description

of the accident for the report. Although Cellular South’s cameras automatically recorded

over the incident three weeks after the incident, doing so was not contrary to statutory law,

nor did it occur during pending litigation as in the Isle of Capri case. Indeed, Walker

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declined medical assistance, several times, after he fell, and Cellular South received no

further communication about the incident until two months later when a medical bill for

Walker was delivered to the C Spire store.

¶49. Most significant, however, is that in both DeLaughter and Isle of Capri, the missing

evidence was an “integral component” of the plaintiff’s case, DeLaughter, 601 So. 2d at 821,

or was “conclusive evidence,” Isle of Capri, 781 So. 2d at 129 (¶17), that would have

resolved the plaintiff’s case. Although Walker makes the same contention here, we do not

agree. Walker asserted before the circuit court, for example, that the recorded-over videotape

would have shown how he fell and the circumstances of his fall, and it would have shown

other customers in the C Spire store that may have witnessed the incident. But we have

found that summary judgment was correctly granted in this case because Walker was unable

to present evidence that a dangerous condition existed at the C Spire store once Kendzior’s

opinions were properly excluded by the circuit court. Nor did Walker have evidence of any

similar prior incidents that may have made his fall reasonably foreseeable to Cellular South.

¶50. In short—in the light of Walker’s inability to provide evidence that a dangerous

condition existed at the store, or notice to Cellular South—facts pertaining to how Walker

fell are not relevant. These facts, which the videotape would have demonstrated, would not

create a “genuine issue . . . [of] material fact,” M.R.C.P. 56(c) (emphasis added), and would

do nothing to assist Walker in overcoming summary judgment against him.

¶51. Page v. Biloxi Regional Medical Center, 91 So. 3d 642 (Miss. Ct. App. 2012), is

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instructive on this issue. In that case, Page was injured when he fell from a chair after it

collapsed. Id. at 643 (¶4). Immediately after he fell, hospital representatives asked Page if

he needed medical attention and he declined. Id. The hospital kept the chair at issue in a

back room, but during a routine sweep, the chair was inadvertently discarded. Id. Over two

years later Page brought a premises liability claim against the hospital. Id. at 643-44 (¶5).

The hospital moved for summary judgment, and at the hearing Page argued that because the

chair was discarded, he should receive a negative presumption that the chair was discarded

either intentionally or with gross negligence. Id. at 644 (¶6). The circuit court granted

summary judgment in the hospital’s favor, “finding that Page failed to raise a genuine issue

of material fact as to BRMC’s negligence.” Id. (¶9).

¶52. This Court affirmed the circuit court’s decision, first determining that Page was not

entitled to a negative inference because unlike the casino in Isle of Capri the defendant

hospital in Page did not discard the chair intentionally, or through gross negligence, and

discarding the chair did not violate a State statute. Id. at 645 (¶17).

¶53. Most importantly, however, is that this Court in Page also found that the chair was

“irrelevant” because even if Page had been able to examine the chair, it would not have

prevented summary judgment in the hospital’s favor. Id. at 645-46 (¶17). In particular, the

Court found:

[H]ad Page obtained the chair during the discovery process, it is very unlikely
an examination of the chair would have conclusively proven that it was broken
before his fall. Moreover, even if the chair was broken before Page sat in it,
he still failed to show [the hospital] had notice of the defect or failed to inspect

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the chair. Therefore, because Page failed to present evidence showing that
[the hospital] breached its duty of reasonable care, he is unable to establish
negligence, making the defectiveness of the chair and the spoliation of
evidence irrelevant.

Id.

¶54. Similarly, for the reasons detailed above, even if Walker had the surveillance

videotape, it would not have prevented summary judgment in Cellular South’s favor. We

therefore find no error in the circuit court’s decision to deny Walker’s motion for sanctions

and grant summary judgment in Cellular South’s favor.

IV. Motion to Alter or Amend the Judgment

¶55. Walker asserts that the circuit court erred in denying his motion to alter or amend the

judgment brought pursuant to Mississippi Rule of Civil Procedure 59(e). “[T]o succeed on

a Rule 59(e) motion, the movant must show: (i) an intervening change in controlling law, (ii)

availability of new evidence not previously available, or (iii) need to correct a clear error of

law or to prevent manifest injustice.” Brooks v. Roberts, 882 So. 2d 229, 233 (¶15) (Miss.

2004). We “review[] a trial court’s denial of a Rule 59 motion under an abuse of discretion

standard.” Id.

¶56. We find no abuse of discretion in the circuit court’s decision to deny Walker’s motion

to alter or amend the judgment. He presented no new evidence in his motion, nor did he cite

to “an intervening change in controlling law.” Rather, Walker’s motion consisted of a

reiteration of facts and arguments previously made before the circuit court. We do not find

that this demonstrated any “manifest errors of law or fact” in the circuit court’s

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judgment—indeed, we affirm the circuit court’s judgment in all respects. We find that this

assignment of error is without merit.

¶57. AFFIRMED.

BARNES, C.J., J. WILSON, P.J., GREENLEE, WESTBROOKS AND
LAWRENCE, JJ., CONCUR. McCARTY, J., CONCURS IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION. McDONALD, J.,
CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN
OPINION. C. WILSON, J., NOT PARTICIPATING.

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