Ainslie Babin v. Wendelta, Inc. d/b/a Wendy's 242

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2022-CA-00341-COA

AINSLIE BABIN APPELLANT

v.

WENDELTA, INC. D/B/A WENDY’S #242 APPELLEE

DATE OF JUDGMENT: 03/18/2022
TRIAL JUDGE: HON. LAWRENCE PAUL BOURGEOIS JR.
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: LAUREN ELIZABETH CAVALIER
ATTORNEY FOR APPELLEE: KRISTI ROGERS BROWN
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: REVERSED AND REMANDED - 07/25/2023
MOTION FOR REHEARING FILED:

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

McDONALD, J., FOR THE COURT:

¶1. Ainslie Babin filed suit against Wendelta Inc. d/b/a Wendy’s #242 (“Wendy’s”) in the

Circuit Court of Harrison County for injuries she sustained from a fall at the restaurant.

After discovery, Wendy’s filed a motion for summary judgment, which the circuit court

granted. Babin appeals and argues, among other things, that there were material facts in

dispute that precluded a grant of summary judgment. After reviewing the record and

arguments of the parties, we reverse the circuit court’s judgment and remand for further

proceedings.

FACTS AND PROCEDURAL HISTORY

¶2. On May 14, 2019, Babin, a disabled and retired teacher’s assistant and librarian, and
her family headed home to Louisiana from a family vacation in Pensacola, Florida. Babin

and her husband, Brad, traveled with their adult son, Reece, and his wife, Cassie, in one

vehicle. Babin and Brad’s daughter, Macy, her husband, and their one-year-old traveled in

a separate car. The group stopped for lunch at Wendy’s on Highway 49 in Gulfport,

Mississippi.

¶3. The store had two entrances that each opened to small vestibules. From there, patrons

entered the restaurant through another door. Wendy’s placed rubber mats in each vestibule

in front of the door closest to the outside exit. Inside the lobby itself, Wendy’s placed a

larger mat. The vestibules were not ventilated and had ceramic tile flooring.

¶4. Babin, who wore leg braces for a congenital neurological condition, entered one of

the outer vestibules and stepped on the mat. As she did, the mat slipped from under her,

causing her to fall back, and her right foot hit the door used for entering the restaurant.

Cassie and Reece, who were behind Babin, witnessed the mat slip and Babin fall. Brad, who

on their arrival had gone to Macy’s car to see if Macy’s husband needed help with the baby,

came to assist his wife. Brad said that he kept slipping on the mat as well, so he threw it

outside to get his wife up. Reece confirmed this, though photographs taken of Babin after

she was lifted to a chair show a mat in the area. Brad described the mat that he picked up as

“wore out” on the bottom “where if you step on it, it would slide.” Babin said that when her

husband picked the mat up, she saw the back, and it was smooth. Reece described the mat

as having “crinkles” and that it did not lie flat.

¶5. After Babin was transported to a local hospital, Reece and Cassie remained at

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Wendy’s with other family members. Cassie said that she saw the manager and someone else

put the mat back where it was. She observed the two employees step on the mat to see if it

moved, and it did. Reece saw the same thing, saying that the black female manager he had

spoken with and “a bald white man in a blue button down [shirt]” were messing with the rug:

And when they put it back, they were running their foot over it, seeing how it
slid, and then they put it back vertical with the door. And when we left, I ran
my foot over it and it still moved.

Cassie, Brad, and Babin said the floor in the vestibule was not wet.

¶6. As a result of the fall, Babin suffered a right ankle fracture and underwent surgery to

insert hardware to piece the broken bones back together.

¶7. On October 11, 2019, Babin filed a complaint in the Circuit Court of Harrison County

against Wendy’s, claiming that Wendy’s was negligent and breached its duty to the public

to exercise reasonable care in maintaining its premises in a reasonably safe condition for

customers entering the restaurant. On November 8, 2019, Wendy’s filed an answer to

Babin’s complaint, denying any liability.

¶8. During discovery, depositions of Babin’s family members and Wendy’s employees

were taken, and documents were produced.

¶9. Wendy’s district manager Riche Karl testified that he would occasionally visit various

Wendy’s locations to work alongside the general managers, and he was at the restaurant on

the day that Babin fell. Karl admitted that one of the main purposes of the mats on the floor

was

so their [patrons’] first step into the restaurant is not on tile. If they’re coming
in from outside and they’ve got wet feet, their first step into the restaurant you

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don’t want it to be on tile.

He agreed that moisture could get on the floor from condensation inside the vestibule. He

said that managers were not required to purchase any particular type of mat for the entryways

to the store and that nothing is placed underneath the mats. Karl said that a week before the

incident, he instructed the store manager, Monique Reed, to purchase some new mats. On

the day of the incident, Karl testified that around 9:00 a.m., he placed the mat inside the

vestibule. He said the mat did not move or slide around at that time. But he also said that

when he moved the mat closer to the threshold, he “just slid it over.” He never personally

spoke to Babin, nor did he ever personally examine the mat after the accident.

¶10. Reed, who had worked for Wendy’s for seventeen years and was the general manager

of the store that day, testified that she was responsible for replacing the mats and buying new

mats. She said that Wendy’s has no official policies or procedures concerning the mats,

except that employees were to make sure that the floor is dry and to place a wet floor sign

down if needed. Employees also watched a safety video during orientation. Concerning the

purchase of new mats, Reed testified that no standard mat was required, and she had bought

the mats either from a catalog provided by Wendy’s or from the local Lowe’s store when they

needed the mat quickly. Reed said she bought the mat Babin slipped on at Lowe’s a week

before.

¶11. On the day of the incident, Reed said she did a “walk through” inspection before the

store opened, and she did not notice the mat slipping or moving. According to the incident

report, the floors had been wet-mopped the night before. The day of the incident (a Tuesday)

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was what Reed called a “truck day” when trucks made deliveries and only simple

maintenance, like sweeping the parking lots and wiping windows, was performed. Reed also

testified that nothing was placed underneath the rugs to keep them from slipping. Neither

she nor Karl witnessed Babin’s fall because both of them were in different parts of the

restaurant at the time. When Reece was called, Babin was already on her feet, leaning in the

doorway of the vestibule. Reed instructed another employee, Rodney Weston, to take Babin

a chair. Reed testified that the mat Babin slipped on was placed in a bag and put in a storage

area.

¶12. Weston testified that at the time he was employed as a grill cook and did general

maintenance in the restaurant, which included mopping floors and clearing trash from the

parking lot. At the time of Babin’s fall, Weston was at the front counter working the cash

register. He testified that Babin fell in the area between the first threshold and the second

door. He said that she stepped on the mat and that the mat “just slipped from under her and

she fell.” Weston testified that he usually dry-mopped the dining area when he opened the

store because it would have dew from the overnight air conditioning. He further stated:

But in that doorway because there’s no, like, ventilation in it, it’s like it’s
going to hold the moisture in it, so the rug is real slippery I guess.

Weston testified that after Babin’s fall, the mats were replaced. He also testified that he

usually put “wet floor” signs inside the doorways because

[t]here’s no like ventilation inside those -- inside that little doorway. So I keep
that there just in case -- because only air comes in when people open the door
and close. So it’s not the air -- the dew is not soaking it up. So I leave those
in there. The wet floor signs.

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Photographs taken at the time of Babin’s fall show no “wet floor” signs in the area.

¶13. Wendy’s employee Cherri Trotter, who worked the drive-through on the day of

Babin’s fall, testified that she moved to the edge of the counter so she could see what was

happening. Babin had already fallen, and people were lifting her into a chair. Trotter said

that the mat was not worn, but she also said that “those rugs slid a little bit anyway but when

they were placed longways they didn’t slide as much.” Trotter also said Karl was not at work

that day, but they called him after Babin fell.

¶14. Babin retained a safety expert named Dennis Howard, who examined the subject mat

that Wendy’s had preserved. As a board-certified safety professional, Howard had

experience in recognizing, evaluating, and controlling hazards to provide a reasonably safe

walking surface for pedestrians. Howard was also experienced in studying and analyzing

causation and contributions to causes of slips, trips, and falls. On December 17, 2021,

Howard inspected the mat as well as the vestibule where it had been placed. In his affidavit,

Howard described the mat as a two-foot by three-foot utility mat manufactured by Mohawk

Home as part of their Walk-off Collection. The receipt for the purchase Wendy’s provided

confirmed that mats with these dimensions were purchased from Lowe’s for $12.98 each.

Two other larger mats were also purchased that day. Howard stated that the mat he inspected

was irregularly buckled and had a four-inch rip on its outer edge. He added that the bottom

of the mat had very few slip-resistant properties. Howard also observed that the surface of

the vestibule was covered with ceramic tiles. Because of the mat’s properties, Howard stated

in his affidavit/report:

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[I]t is my expert opinion that the mat in question does not conform with
American National Standard B101.6 (ANSI/NFSI B101.6 Standard) Standard
Guide for Commercial Entrance Matting in Reducing Slips, Trips, and Falls.
The mat in question was not designed to be used in a high traffic commercial
setting and presented an unreasonably dangerous condition. . . .

Even though Wendy’s knew that the mat had a tendency to migrate, Wendy’s
failed to comply with industry safety standards such as ANSI/NSFI B101.6
Standard Section 8.8 which provides, “when mats migrate a considerable
distance, they shall be secured in place or another mat shall be selected that
reduces or eliminates migration. Areas where mat migration may take place
shall be monitored and the hazard corrected.”

[Further] the quality and condition of the mat on this [vestibule] tile surface,
particularly when damp, was such that it should have been replaced with a mat
designed for commercial purpose prior to Mrs. Babin stepping on it. Wendy’s
failure to replace said mat constitutes a dangerous condition.

Wendy’s did not contest Howard’s credentials as an expert witness, nor did Wendy’s retain

any expert to rebut Howard’s opinions. Moreover, Wendy’s never moved to strike Howard’s

opinions as being irrelevant or unreliable.

¶15. On November 29, 2021, Wendy’s filed a motion for summary judgment and argued

there was no genuine issue of material fact in dispute and that Babin could not establish that

the mat was a dangerous condition, an element necessary to sustain her claim. To support

its motion, Wendy’s submitted a Lowe’s receipt dated May 8, 2019, showing that two mats

of different sizes and types were purchased a week before the incident. Wendy’s also

submitted a description of a mat on Lowe’s website to argue that the mat was commercially

reasonable. The mat described on Lowe’s website was a “Mohawk Home Utility Bay Black

Door Mat” that measured three feet by four feet. It sold for $19.98 and was noted to be

either a residential or commercial mat. However, the receipt also included the purchase of

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two smaller two-foot by three-foot mats at $12.98 each. The mat that was preserved after

Babin’s fall that was provided to Babin’s expert for inspection measured two feet by three

feet. No website information for this size mat was produced. Moreover, neither the receipt

nor Lowe’s website information was authenticated by any Wendy’s witness during

depositions or by affidavit.

¶16. In response to Wendy’s motion for summary judgment, Babin submitted deposition

testimony from Babin’s family and Wendy’s employees, as well as the affidavit and report

from safety expert Howard.

¶17. On February 17, 2022, the circuit court heard arguments on Wendy’s motion for

summary judgment during which the court asked to be provided the ANSI standards (the

American National Standards Institute Inc.). The parties complied and submitted the

“American National Standard, B101.6 Standard Guide for Commercial Entrance Matting in

Reducing Slips, Trips and Falls,” which had been approved by ANSI on June 5, 2012.

¶18. On March 9, 2022, the circuit court granted Wendy’s motion and entered a written

opinion. The circuit court found that Babin could not “prove that any negligence of Wendy’s

created a dangerous condition that caused the Plaintiff's injury.” Furthermore, the circuit

court found there was no “dangerous condition that existed for a sufficient amount of time

so that the Defendant should have known of the existence of the dangerous condition.”

Referencing Howard’s affidavit, the circuit court reviewed the “ANSI/NFSI Standard Guide”

for “Commercial Entrance Matting in Reducing Slips, Trips, and Falls” and found it was

“unpersuasive as such standards are completely voluntary and do not preclude anyone from

8
buying items outside the standard.” The court found that the standards did not create a

question of fact and entered a final judgment in favor of Wendy’s on March 18, 2022.

¶19. On April 6, 2022, Babin filed her notice of appeal. Babin presents the following

issues: (1) whether Wendy’s failure to use commercially reasonable mats created an

unreasonably dangerous condition; (2) whether the mat in the vestibule was unreasonably

dangerous was a question for the jury; (3) whether there is a dispute of material fact about

whether Wendy’s knew or should have known of the unreasonably dangerous condition; (4)

whether there is a dispute of fact concerning Wendy’s failure to train employees; (5) whether

there is a dispute of fact concerning Wendy’s failure to warn Babin of the dangerous

condition; (6) whether the circuit court erred in accepting the unauthenticated Lowe’s receipt

and website information; and (7) whether the circuit court erred in weighing testimony and

making credibility decisions.

STANDARD OF REVIEW

¶20. Appellate courts apply a de novo standard of review when considering a trial court’s

ruling on summary judgment. Satchfield v. R.R. Morrison & Son Inc., 872 So. 2d 661, 663

(¶5) (Miss. 2004). “The movant bears the burden of persuading the trial judge that: (1) no

genuine issue of material fact exists, and (2) on the basis of the facts established, he is

entitled to judgment as a matter of law.” Palmer v. Biloxi Reg’l Med. Ctr. Inc., 564 So. 2d

1346, 1355 (Miss. 1990). The evidence must be viewed in the light most favorable to the

party against whom the motion has been made, and the non-movant will “be given the benefit

of every reasonable doubt.” Clinton Healthcare LLC v. Atkinson, 294 So. 3d 66, 72 (¶12)

9
(Miss. 2019) (emphasis omitted) (quoting Renner v. Retzer Res. Inc., 236 So. 3d 810, 815

(¶21) (Miss. 2017)). When doubt is present about whether any genuine issues of material

fact exist, the trial court should deny the motion for summary judgment and permit a full trial

on the merits. Id.

DISCUSSION

¶21. “Premises liability is a theory of negligence that establishes the duty owed to someone

injured on a landowner’s premises as a result of ‘conditions or activities’ on the land.”

Fairley Constr. Servs. Inc. v. Savage, 265 So. 3d 203, 208 (¶10) (Miss. Ct. App. 2019)

(quoting Doe v. Jameson Inn Inc., 56 So. 3d 549, 553 (¶11) (Miss. 2011)). The extent of the

duty owed depends on the status of the injured party, i.e., whether he or she is an invitee,

licensee, or trespasser. Id. at (¶11). In this case, it is undisputed that Babin was a business

invitee when the incident occurred on Wendy’s premises. As such, the “operator of business

premises owes a duty to an invitee to exercise reasonable care to keep the premises in a

reasonably safe condition and, if the operator is aware of a dangerous condition, which is not

readily apparent to the invitee, he is under a duty to warn the invitee of such condition.”

Jerry Lee’s Grocery Inc. v. Thompson, 528 So. 2d 293, 295 (Miss. 1988).

¶22. “[A] property owner cannot be found liable for the plaintiff’s injury where no

dangerous condition exists.” Stanley v. Boyd Tunica Inc., 29 So. 3d 95, 97-98 (¶10) (Miss.

Ct. App. 2010). Merely showing that a party on the property fell and was injured is not

sufficient to establish liability. Green v. Supermarket Ops. Inc., 330 So. 3d 434, 438 (¶12)

(Miss. Ct. App. 2021). Therefore, in order to recover, Babin must prove (1) that some

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negligent act of Wendy’s caused her injury; or (2) that Wendy’s had actual knowledge of a

dangerous condition and failed to warn the public; or (3) show that the dangerous condition

existed for a sufficient amount of time to impute constructive knowledge to Wendy’s, such

that Wendy’s should have known of the dangerous condition. Anderson v. B. H. Acq. Inc.,

771 So. 2d 914, 918 (¶8) (Miss. 2000). “[R]egardless of the invitee’s precise theory of

premises liability, proof that her injury was caused by a ‘dangerous condition’ is an essential

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

Ct. App. 2016).

¶23. Additionally, if a plaintiff proves circumstances from which the jury might reasonably

conclude that the dangerous condition was one that was traceable to the proprietor’s own act

or omission, no proof of notice is necessary. Miss. Winn-Dixie Supermarkets v. Hughes, 247

Miss. 575, 156 So. 2d 734, 736 (1963). “When a dangerous condition on the premises is

caused by the operator’s own negligence, no knowledge of its existence need be shown.” Id.1

¶24. There is no specific definition of a “dangerous condition.” A condition may be

considered “dangerous” in even the simplest of circumstances. For example, in Keckley v.

Estes Equipment Co., 276 So. 3d 1230, 1233-34 (¶6) (Miss. Ct. App. 2018), a customer at

a convenience store was injured when she tripped over partially detached caution tape

surrounding a construction site on the premises. In considering Keckley’s appeal of the

1
In addition to the defense of notice, the business operator has no duty to warn an
invitee of dangers that are “open and obvious.” Mayfield v. The Hairbender, 903 So. 2d
733, 738 (¶21) (Miss. 2005). But the fact “that a condition is ‘open and obvious’ is not a
defense to an operator’s alleged negligence in allowing the hazard to remain on the
premises.” Id. at 739 (¶27). Nor does it “eliminate the [operator’s] duty to maintain the
premises in a reasonably safe condition.” Id.

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circuit court’s grant of summary judgment to Estes Equipment, this Court quoted Cox v. Wal-

Mart Stores East LP, 755 F.3d 231, 235 (5th Cir. 2014), where a patron tripped on a

threshold of a sliding door that “rocked” slightly. Keckley, 276 So. 3d at 1237-38 (¶22). We

noted that “although the defect alleged in Cox’s complaint is a minor defect, the hidden and

surprising nature of the defect could remove it from the ‘normally encountered dangers’

patrons expect to encounter when crossing a threshold.” Id. The Cox court emphasized that

at the summary judgment stage, it was required to accept the sworn testimony presented by

Cox, which combined with the fact that the defective condition appeared suddenly and

without warning was “sufficient for a reasonable jury to conclude that it creates an

unreasonable or unusually dangerous condition.” Id. Applying Cox to the facts alleged by

Keckley, we held:

According to Keckley’s testimony, the caution tape in this case is similar to the
defective threshold in Cox. Keckley testified that the tape suddenly,
unexpectedly, and without warning rose up slightly and caused her to trip and
fall. The tape appeared to have been discarded and was lying flat on the
ground. However, according to Keckley, the tape was actually secured on
either side of the sidewalk, creating a “tripwire” during a sudden gust of wind.
The caution tape itself was not “hidden.” But neither was the door threshold
in Cox. According to Keckley’s testimony, the tripwire-like effect of the
caution tape was “hidden and surprising”—just like the unexpected “rocking”
of the door threshold in Cox. Id. Like the Fifth Circuit in Cox, we emphasize
that on a motion for summary judgment, we must accept the plaintiff’s sworn
testimony as true. Id. And we hold that “[t]he fact that the alleged defective
condition changed suddenly and without warning . . . is sufficient for a
reasonable jury to conclude that it creates an unreasonable or unusually
dangerous condition.” Id.

Keckley, 276 So. 3d at 1238 (¶23) (emphasis added).

¶25. Witness testimony can establish sufficient disputed facts on the question of a

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dangerous condition that precludes summary judgment. In Renner, 236 So. 3d at 811 (¶2),

the plaintiff tripped over the protruding lower leg of a stack of highchairs that the restaurant

had placed near the condiments counter. Siegel, an eyewitness to the fall, said that the

highchairs were obscured from view behind a half-wall, but the legs protruded out farther.

Id. at 812 (¶6). She said that she had seen other customers bump into the highchairs at the

same location and that she had complained to the manager and other McDonald’s employees

about the hazard. Id. at (¶7). In reversing the circuit court’s grant of summary judgment to

the restaurant, the Mississippi Supreme Court stated:

The trial court’s opinion fails to account for the testimony of Siegel and
concluded that, because highchairs normally are present in restaurants, an
invitee could expect to encounter them. The trial judge’s opinion erroneously
supplanted the facts in the record with his own opinion regarding the location
of the highchairs. This is a role for jurors. See Prescott v. Leaf River Forest
Prods., Inc., 740 So. 2d 301, 309 (Miss. 1999) (“The trial court’s function on
a Rule 56 motion for summary judgment is not to resolve disputed factual
issues, but rather to determine whether issues of fact exist to be tried.”).

Renner, 236 So. 3d at 815 (¶19).

¶26. In the case at hand, the circuit court held that “Babin had failed to create a question

of fact regarding the existence of a dangerous condition,” finding that “the mat [Babin

slipped on] was not a dangerous condition and Wendy’s had no knowledge of any condition

that may have caused it to be dangerous.” But the record contains ample proof that

contradicts the circuit court’s finding and creates questions of fact for the jury to decide.

A. The Mat

¶27. Although Wendy’s argued that the mat in question was a new, commercially

reasonable mat purchased a week before the incident, the evidence indicated the opposite.

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Karl, the regional manager, admitted that Wendy’s had no policy or directive about the type

of mat that should be used in high-traffic areas like the entryways. The store manager, Reed,

only noted that managers could purchase mats from a catalog Wendy’s provided or purchase

mats themselves from Lowe’s if they needed them quickly. But neither Karl nor Reed

testified under oath what type of mat was used in the entryways or provided any information

as to why such a mat was commercially reasonable. Wendy’s attached to its summary

judgment motion a Lowe’s receipt dated May 8, 2019, and Lowe’s website description of a

3'x4' Mohawk Home Utility Bay Black Door Mat, which sold for $19.98. But the mat that

was preserved and inspected by Babin’s expert did not match the description of the allegedly

commercially reasonable 3'x4' mat on the Lowe’s website. Instead, the mat in question,

which was also purchased the week before, measured two feet by three feet and cost $12.98.

According to the undisputed expert testimony, “the mat in question was not designed to be

used in a high traffic commercial setting and presented an unreasonably dangerous

condition.” Thus, the circuit court’s finding that the mat in question was commercially

reasonable is not supported by the evidence in the record and is a fact clearly in genuine

dispute.2

2
We agree with Babin that the website information that Wendy’s attached to its
motion without authenticating deposition testimony or affidavit constitutes hearsay and was
not admissible at trial and should not have been considered by the court. See Mar-Jac
Poultry MS LLC v. Love, 283 So. 3d 34, 43 (¶22) (Miss. 2019) (“[S]ummary-judgment
evidence must be admissible at trial. Hearsay statements that would not be admissible at trial
are incompetent to support or oppose summary judgment.” (citation omitted)). However,
the receipt dated May 8, 2019, correlates with Reed’s testimony that the mat in question had
been purchased a week before Babin’s May 14, 2019 fall. This receipt also establishes that
mats other than 3'x4' mats (that allegedly were commercially reasonable mats) had been
purchased as well, which supports Babin’s case.

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B. The Mat’s Sliding

¶28. Whether the mat was slippery on that day, creating a dangerous condition, is also in

dispute. Wendy’s argued that Karl testified he had placed the mat in position that morning,

and it did not slip.3 In addition, Manager Reed testified that she performed a premises

inspection before opening the restaurant on May 14, 2019, and the mat was not slippery. But

Babin presented testimony to dispute this evidence. Not only did Babin herself testify the

mat slipped,4 Babin’s husband, Brad, testified that the mat was slippery when he tried to help

Babin up. Babin’s daughter, Macy, testified that she saw both Brad and Babin slip on the

mat. Both Macy and her husband also testified that after Babin had left for the hospital, they

observed Karl and Reed in the vestibule testing the mat and confirming that the mat had slid.

¶29. Significantly, two of Wendy’s employees testified that the mats in the vestibule slid.

Trotter admitted that the “rugs” slid and that employees placed them longways so “they

didn’t slide as much.” Weston said that because the vestibules held condensation and the

floors became moist, the “rugs” became slippery.

3
Karl’s presence at the restaurant at the time of Babin’s fall is also in dispute since
Wendy’s employee Trotter testified that he was not there and that he had only been called
later.
4
The circuit court relied on Babin’s testimony that the floor was not wet to preclude
her recovery. However, there was testimony in the record that the floor did not have to be
“wet” (as on a rainy day) but that it could also be moist from condensation and cause the mat
to slip. Wendy’s employee Weston said that the vestibule where Babin fell had no
ventilation and held moisture, creating a condition where the mats would slide. Weston
noted that because the condensation in the vestibule builds up and causes the floors to be
moist, he usually placed wet-floor signs as cautionary measures, but photographs showed
no wet floor signs out at the time Babin fell. Thus, Babin’s single statement that the floor
was not “wet,” without further explanation of her meaning of the word, should not be
considered in isolation and used to defeat her claim.

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C. Expert Testimony

¶30. In addition, Babin presented unopposed expert testimony that Wendy’s had created

a dangerous condition with its choice of mats to place in its vestibules. Howard, who

examined the subject mat that Wendy’s preserved, found that it was not the 3'x4' alleged

commercially reasonable mat described in Lowe’s website materials. Rather it was a 2'x3'

mat made for home use that he found was irregularly buckled, had a four-inch rip on its outer

edge, and the bottom had very few slip-resistant properties. Wendy’s presented no evidence

to contradict these physical findings, nor did Wendy’s present any expert testimony to rebut

Howard’s findings and opinions.

¶31. The circuit court erroneously concluded that Howard’s expert opinion was not

supported by the ANSI standards because the standards are voluntary. However, even if

these standards are voluntary and their violation does not establish negligence per se, the

ANSI standards are relevant to the issue of whether a party used reasonable care. We have

held this when considering the relevancy of Occupational Safety and Health Administration

(OSHA) regulations, specifically stating:

OSHA regulations are not admissible to show negligence on the part of the
defendant. However, Mississippi Rule of Evidence 105 provides that evidence
not admissible for one purpose may be admissible for another purpose
provided a proper limiting instruction is given. . . . [T]he Mississippi Supreme
Court [has] held that OSHA regulations were not admissible to show
negligence but could be used as a measure of reasonable care consistent with
industry standards.

Fairley Constr. Servs., 265 So. 3d at 212 (¶35) (citations and internal quotation marks

omitted). In this case, the Forward to the ANSI Standards indicates that they were developed

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by a subcommittee of the National Floor Safety Institute (NFSI) B101 Main Standards

Committee. The Forward further notes:

As a standards-developing organization, NFSI sought and was accredited by
the Executive Council of ANSI on June 6, 2006, to develop standards to
address the prevention of slips, trips and falls.

Under “Section 8. Reduction of Hazards Related to Matting,” the standard created for mat

movement provides:

8.8 Mat Movement Across Floor

When mats migrate a considerable distance, they shall be secured in place or
another mat shall be selected that reduces or eliminates migration.

Areas where migration may take place shall be monitored and the hazard
corrected.

This published standard, although it may not establish negligence per se, is certainly relevant

to the facts in this case and supports fall-prevention expert Howard’s opinions.

¶32. Moreover, “[a]s a general rule, questions relating to the bases and sources of an

expert’s opinion affect the weight to be assigned to that opinion rather than its admissibility

and should be left for the jury’s consideration.’” BNJ Leasing Inc. v. Portabull Fuel Serv.

LLC, 591 F. Supp. 3d 125, 138 (S.D. Miss. 2022).

¶33. This conflicting testimony creates questions of fact for a jury to resolve. Hines v.

Moore, 124 Miss. 500, 87 So. 1, 2-3 (1921); Darby v. State, 121 Miss. 869, 84 So. 6, 7

(1920). “Conflicting testimony in the record is to be resolved by the trier of fact.”

Settlemires v. Jones, 736 So. 2d 471, 475 (¶17) (Miss. Ct. App. 1999). Accordingly, with

the witness testimony in conflict, a jury as the trier of fact should resolve the issue of whether

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the mat Wendy’s used created a dangerous condition.

¶34. The Mississippi Supreme Court stated in Kilhullen v. Kansas City S. Ry., 8 So. 3d 168,

174 (¶14) (Miss. 2009):

[S]ummary judgment is not a substitute for the trial of disputed fact issues.
Accordingly, the court cannot try issues of fact on a Rule 56 motion; it may
only determine whether there are issues to be tried . . . . [I]t cannot be used to
deprive a litigant of a full trial of genuine fact issues.

(Quoting Miss. R. Civ. P. 56 cmt). The Supreme Court has held that to establish a genuine

issue of material fact, a party must support his claim with “evidence upon which a fair-

minded jury could return a favorable verdict.” Thomas v. Boyd Biloxi LLC, 360 So. 3d 204,

213 (¶35) (Miss. 2023) (quoting Sanderson Farms Inc. v. McCullough, 212 So. 3d 69, 74

(¶12) (Miss. 2017)). In this case, Babin presented such evidence disputing a genuine issue

of material fact, namely, the existence of a dangerous condition at the time of her fall.

Accordingly, we hold that the circuit court erred in finding otherwise.

CONCLUSION

¶35. After reviewing the facts de novo and in the light most favorable to the nonmoving

party, we hold that from the record presented, there are genuine issues of material fact in

dispute as to whether the mat used by Wendy’s created a dangerous condition. Accordingly,

we reverse the circuit court’s grant of summary judgment for Wendy’s and remand for

further proceedings.

¶36. REVERSED AND REMANDED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE,
WESTBROOKS, McCARTY, SMITH AND EMFINGER, JJ., CONCUR.
LAWRENCE, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN

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OPINION.

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