Racheal Harris v. Casino Vicksburg, LLC d/b/a Waterview Casino

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2023-CA-00959-COA

RACHEAL HARRIS APPELLANT

v.

CASINO VICKSBURG, LLC D/B/A APPELLEE
WATERVIEW CASINO

DATE OF JUDGMENT: 08/17/2023
TRIAL JUDGE: HON. TONI DEMETRESSE TERRETT
COURT FROM WHICH APPEALED: WARREN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: TREMARCUS D’RAY KESHON ROSEMON
ATTORNEYS FOR APPELLEE: W. BRIGGS HOPSON III
ROBERT WILLIAM ARLEDGE
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED - 03/18/2025
MOTION FOR REHEARING FILED:

EN BANC.

WEDDLE, J., FOR THE COURT:

¶1. Racheal Harris fell while attempting to sit in a chair at Casino Vicksburg LLC d/b/a

Waterview Casino (Waterview) in Vicksburg, Mississippi. Harris filed a premises-liability

lawsuit against Waterview in the Warren County Circuit Court. Waterview successfully

moved for summary judgment. After considering Harris’s appeal, we find no error. We

therefore affirm the circuit court’s order granting summary judgment in favor of Waterview.

FACTS

¶2. On May 15, 2021, Harris and her husband visited Waterview. Video footage of

Waterview’s casino floor showed that shortly before her fall, Harris sat at the end of a row

of four slot machines. Each slot machine faced a single chair. As Harris played her slot
machine, a patron moved a chair from another part of the casino floor, placed his chair beside

an occupied seat on the opposite end of the row of slot machines, and seated himself.

Although the chairs placed in front of the four slot machines were situated on carpet, the

chair moved by the unknown patron straddled a portion of the casino floor that changed from

carpet to synthetic tile. A band of metal edge trimming delineated the boundary between the

two types of flooring.

¶3. The patron sitting in front of the slot machine farthest from Harris and the patron

sitting in the extra chair beside that slot machine eventually left their seats. Harris’s husband

then sat down in the chair directly in front of the open slot machine. Shortly afterward,

Harris approached the vacant chair beside her husband’s seat. Unfortunately, as Harris

attempted to sit down, the chair slid out from underneath her, and Harris fell backward onto

the casino floor.

¶4. Harris’s husband helped her get up from the floor, and a security guard approached

and asked if she wanted him to call for an ambulance to take her to the hospital. Harris

declined the security guard’s offer and went to a nearby hospital the following morning. On

October 12, 2021, Harris filed a negligence lawsuit against Waterview for the injuries she

sustained while on the casino’s premises. Harris initially claimed that the chair she had

attempted to sit on was defective.

¶5. After conducting discovery and reviewing Waterview’s video footage of her fall,

Harris amended her complaint to allege that the chair in question had slipped from beneath

her due to its placement on the part of Waterview’s floor that changed from carpet to

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synthetic tile. Harris designated Dr. Jeffrey Lolli as an expert in the fields of “Business,

Tourism, Hospitality Management, Housekeeping/Maintenance, and Casino and Resort

Operations and Management.” According to Harris, Dr. Lolli planned to testify that allowing

“a chair to be in a place where it did not belong . . . constituted a hazardous/dangerous

condition.” In addition, Dr. Lolli planned to testify that Waterview breached its duty of care

to Harris “by allowing patrons to move chairs around the casino without having a formal,

written policy and proper employee training regarding protocols for proper slot machine chair

placement and the actions to take when chairs are moved, misplaced, congregated, or not in

the proper location.”

¶6. Waterview moved for summary judgment, and Harris moved for partial summary

judgment as to Waterview’s liability. After a hearing on the parties’ motions, the circuit

court found that the chair at issue failed to create a dangerous condition and that Waterview

had not breached its duty to Harris. The circuit court therefore denied Harris’s motion for

partial summary judgment and granted Waterview’s motion for summary judgment.

Aggrieved, Harris appeals.

DISCUSSION

¶7. On appeal, Harris asserts “that no genuine issue of material fact exists regarding

Waterview’s liability to [her].” As a result, Harris contends that the circuit erred by denying

her motion for partial summary judgment and granting Waterview’s motion for summary

judgment. Accordingly, she asks this Court to reverse the circuit court’s grant of summary

judgment in favor of Waterview and to remand the matter for further proceedings.

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¶8. When a party requesting summary judgment sufficiently supports his motion, “the

nonmovant ‘may not rest upon the mere allegations or denials of his pleadings . . . .’”

Walters Invs. Inc. v. Spell, 333 So. 3d 61, 68 (¶15) (Miss. Ct. App. 2021) (quoting M.R.C.P.

56(e)). Instead, the party opposing summary judgment “must rebut by producing significant

probative evidence showing that there are indeed genuine issues for trial.” Brown Lakeland

Props. v. Renasant Bank, 243 So. 3d 784, 791 (¶18) (Miss. Ct. App. 2018) (quoting Miller

v. Myers, 38 So. 3d 648, 651 (¶13) (Miss. Ct. App. 2010)). “A fact is neither material nor

genuinely contested merely because one party proclaims it so.” Walters Invs., 333 So. 3d at

68 (¶15) (quoting Brown Lakeland Props., 243 So. 3d at 790 (¶17)). Rather, we consider a

dispute to be “genuine” when “the evidence is such that a reasonable jury could return a

verdict for the nonmovant.” Id. “[S]ummary judgment is appropriate when the non-moving

party has failed 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.”

Keckley v. Estes Equip. Co., 276 So. 3d 1230, 1236 (¶15) (Miss. Ct. App. 2018) (quoting

Karpinsky v. Am. Nat’l Ins. Co., 109 So. 3d 84, 89 (¶11) (Miss. 2013)).

¶9. Because Harris was an invitee on Waterview’s premises, the casino owed her “the

duty to keep the premises reasonably safe and when not reasonably safe to warn only where

there is hidden danger or peril that is not in plain and open view.” Rhodes v. RL Stratton

Props. LLC, 376 So. 3d 385, 389 (¶11) (Miss. Ct. App. 2023). To prevail on her

premises-liability claim, Harris first “must show that a dangerous condition exists.” Keckley,

276 So. 3d at 1236 (¶18) (quoting McCullar v. Boyd Tunica Inc., 50 So. 3d 1009, 1012 (¶13)

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(Miss. Ct. App. 2010)). “A property owner cannot be found liable for the plaintiff’s injury

where no dangerous condition exists.” Walker v. Cellular S. Inc., 309 So. 3d 16, 25 (¶31)

(Miss. Ct. App. 2020) (quoting Bonner v. Imperial Palace of Miss. LLC, 117 So. 3d 678, 682

(¶12) (Miss. Ct. App. 2013)).

¶10. “[M]ere proof . . . the [plaintiff] fell and was injured while on the premises is

insufficient to establish liability” without additional evidence to show “that a dangerous

condition actually caused the . . . injury . . . .” Carroll v. Singing River LLC, 309 So. 3d 567,

570 (¶¶6-7) (Miss. Ct. App. 2020) (quoting Patterson v. Mi Toro Mexican Inc., 270 So. 3d

19, 21 (¶7) (Miss. Ct. App. 2018)). Here, the parties dispute whether the chair at issue was

placed in such a way on Waterview’s floor so as to rise to the level of a dangerous condition.

“With the benefit of hindsight, it is easy to say that [Harris’s] injury possibly could have been

prevented if” the chair had not been situated on an area of Waterview’s floor that changed

from carpet to synthetic tile. Morgan v. Riverboat Corp. of Miss., 395 So. 3d 1026, 1030

(¶11) (Miss. Ct. App. 2024). “But the Court is not justified in standing on the vantage

ground of what did happen on the occasion complained of and look back in the direction

from effect to cause. Rather, we must go back and view the situation from the standpoint of

foreseeability before the accident occurred.” Id. (citation and internal quotation marks

omitted).

¶11. In its order granting summary judgment in favor of Waterview, the circuit court relied

on the testimony of Rosia Wilson, Waterview’s designated corporate representative. Wilson

explained multiple times during her deposition that Waterview allows customers to move

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chairs as long as the chairs remain on the casino floor. Wilson also explained that Waterview

employees would return chairs to their original location as the need arose. The circuit court

noted Wilson’s testimony that Waterview had gaming areas other than the casino floor where

the chairs were not situated on carpet. As an example, the circuit court referenced Wilson’s

testimony about Waterview’s bar area, which not only was “composed of tile” but also had

chairs that “sit a little higher than the one from which [Harris] slipped.”

¶12. The record reflects no evidence that accidents similar to Harris’s fall had ever

occurred on Waterview’s premises. Thus, “[t]here was no reason for [Waterview’s]

employees to anticipate such an unprecedented event on the day in question.” Morgan, 395

So. 3d at 1031 (¶12). Moreover, even as an invitee, Harris was “still required to use in the

interest of [her] own safety that degree of care and prudence which a person of ordinary

intelligence would exercise under the same or similar circumstance.” Stephens v. City of

Gulfport, 379 So. 3d 399, 407 (¶27) (Miss. Ct. App. 2024) (quoting Campbell v. Harrison

Cnty. Bd. of Supervisors, 269 So. 3d 1269, 1275 (¶19) (Miss. Ct. App. 2018)). Harris

acknowledged that she previously had sat in the same type of chair on Waterview’s casino

floor without any problems. During her deposition, Harris testified that she had been a

patron of Waterview for years, and she estimated that she had made at least fifty trips to the

casino. Not long before her fall, Harris had been playing Waterview’s slot machines and, as

acknowledged, had sat on the same type of chair as the one at issue. As a result of her

familiarity with Waterview and its casino chairs, though, Harris agreed that she simply did

not pay close attention to the subject chair as she attempted to sit beside her husband.

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¶13. Despite her admissions, Harris maintains that the casino chair’s placement over the

metal edge trimming and the two types of flooring transformed an otherwise innocuous

object into an unreasonably dangerous condition. Previously, this Court has found that

circumstances can transform a routine object into a dangerous condition. In Keckley, the

claimant suffered injuries when she tripped on a piece of yellow caution tape lying across a

sidewalk outside a convenience store. Keckley, 276 So. 3d at 1233 (¶1). Although the

caution tape appeared to be lying loosely on the ground, Keckley realized after her fall that

the tape was actually “tied to a pole on one side of the sidewalk and a brick pillar on the

other.” Id. As Keckley attempted to step over the piece of caution tape, a gust of wind lifted

the tape off the ground, creating a sudden tripwire-like effect that resulted in Keckley’s fall.

Id. In considering the defendants’ argument in Keckley that the caution tape was the type of

danger a patron might reasonably expect to encounter on a business’s premises, we

concluded that such objects could become an “unreasonable or unusually dangerous

condition” if circumstances “suddenly and without warning” transformed the nature of the

object in “hidden and surprising” ways. Id. at 1237-38 (¶¶21-23) (quoting Cox v. Wal-Mart

Stores East L.P., 755 F.3d 231, 235 (5th Cir. 2014)).

¶14. More recently, this Court considered the potential tripwire-like effect of an unsecured

baby gate propped against the doorway between a home’s kitchen and living room. Georgen

v. Estate of Brown-Barrett, No. 2023-CA-00344-COA, 2024 WL 4209619, at **4-5 (¶¶21-

25) (Miss. Ct. App. Sept. 17, 2024), reh’g denied (Jan. 14, 2025), pet. for cert. filed (Jan. 27,

2025). In discussing the issue, we noted that the homeowner had set up the baby gate while

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the claimant faced the opposite direction. Id. at *5 (¶25). As a result, the claimant, who had

been “living at her friend’s home for an extended period of time[,]” had no expectation that

when she turned around, the baby gate would suddenly be blocking her path from the living

room to the kitchen. Id. at **1, 3 (¶¶1, 17). In addition, the claimant stated she had been

unaware that the baby gate was left “unsecured and merely leaning” in the doorway. Id. at

*4 (¶21). After finding that genuine issues of material fact existed as to whether the

unsecured baby gate created an unreasonably dangerous condition, we reversed the circuit

court’s order granting summary judgment and remanded the matter for further proceedings.

Id. at *5 (¶28).

¶15. Upon review, we find the circumstances of Harris’s fall are distinguishable from the

facts provided in Keckley and Georgen. In both Keckley and Georgen, the complained-of

condition arose unexpectedly either at the exact moment the claimant attempted to walk over

the item or while she faced the other direction from the obstruction. Keckley, 276 So. 3d at

1233 (¶1); Georgen, 2024 WL 4209619, at *5 (¶25). And in both prior cases, the claimant

appeared to lack sufficient time to process the sudden change of circumstances and to react

accordingly to avoid the potentially dangerous condition. We conclude, however, that the

same reasoning does not apply to Harris’s fall.

¶16. As with the caution tape in Keckley, the chair Harris attempted to sit on was in plain

view. But unlike the hidden and suddenly changing nature of the caution tape in Keckley,

the danger of which Harris complains (i.e., the casino chair’s placement on the floor) was not

hidden, nor did its nature suddenly change so as to convert a routinely encountered object

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into an unusually dangerous condition. Instead, the chair sat for several minutes on

Waterview’s casino floor in full view of everyone—including Harris.

¶17. Waterview’s video footage clearly showed that Harris had an unobstructed view of

the chair and its placement on the casino floor as she approached, circled around to the front

of the chair, and then attempted to seat herself. While the caution tape Keckley stepped over

unexpectedly transformed into a tripwire, and while Georgen lacked any prior knowledge of

the placement of the baby gate or its unsecured state, the condition of Harris’s chair and its

placement on Waterview’s floor remained the same at all relevant times as Harris approached

and attempted to sit down. Keckley, 276 So. 3d at 1233 (¶1); Georgen, 2024 WL 4209619,

at *5 (¶25). Moreover, as Waterview reiterates on appeal, all casino patrons, including

Harris, are permitted to place or reposition chairs however they choose to do so on the casino

floor. Thus, nothing would have prevented Harris herself from moving a casino chair to the

same area of the floor beside her husband if she had wished to do so.

¶18. With regard to this point, Harris’s expert, Dr. Lolli, opined that Waterview’s practice

of allowing patrons to move chairs around the floor and permitting employees to return the

chairs to their original location on an as-needed basis constituted a breach of the standard of

care. According to Dr. Lolli, Waterview further breached the standard of care owed to

patrons because the casino lacked a formal internal policy that dictated the proper placement

of the casino chairs. Essentially, Dr. Lolli asserts that Waterview’s mode of operation as to

the placement of its casino-floor chairs was negligent.

¶19. “The advantage of this theory of liability is that ‘when an owner of a self-service

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establishment has actual notice that his mode of operation creates certain risks of harm to

customers, and those risks are foreseeable, it is not necessary for the plaintiff to prove notice

of the hazard that caused the injury.’” Bonner, 117 So. 3d at 683 (¶16) (quoting Sullivan v.

Skate Zone, 946 So. 2d 828, 832 (¶12) (Miss. Ct. App. 2007)). “Proponents of the mode-of-

operation theory . . . argue that a business could operate in such a way that creates risks to

customers.” Daniels v. Fam. Dollar Stores of Miss. Inc., 351 So. 3d 964, 968 n.4 (Miss. Ct.

App. 2022). [I]n essence[,]” the theory “creates strict liability.” Id. “However, Mississippi

appellate courts have consistently declined to adopt this theory [of mode of operation], and

we are bound by those holdings.” Id. at 971 (¶21); see also Byrne v. Wal-Mart Stores Inc.,

877 So. 2d 462, 467 (¶13) (Miss. Ct. App. 2003); Bonner, 117 So. 3d at 685 (¶23); Hearn

v. Square Prop. Invs. Inc., 297 So. 3d 292, 298 (¶24) (Miss. Ct. App. 2020). Thus, based on

clearly established precedent, we find that the circuit court properly rejected Dr. Lolli’s

mode-of-operation theory of negligence and correctly held that his opinions on the matter

failed to create any genuine issues of material fact sufficient to survive summary judgment.

¶20. In his report documenting his findings and opinions, Dr. Lolli cited the National

Institute of Occupational Safety and Health (NIOSH) for the principle that carpet generally

has a greater coefficient of friction, or resistance to slipping, than hard-floor surfaces. Dr.

Lolli opined that carpet provided a higher degree of coefficient of friction for Waterview’s

chairs, allowing the chairs to remain firmly in place when patrons attempted to sit down. By

contrast, Dr. Lolli opined that the coefficient of friction for the chair that Harris attempted

to sit in was greatly reduced because the chair was partially on a hard-floor surface.

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¶21. Despite Dr. Lolli’s opinions regarding the coefficient of friction, Harris’s attorney

specifically confirmed during oral arguments before this Court that Harris’s theory of liability

against Waterview was not premised on the alleged lack of friction between her chair and the

casino’s synthetic tile. We therefore find that on appeal Harris has waived any claims

alleging insufficient traction between her chair and the synthetic-tile flooring.

¶22. Notwithstanding this waiver, the record contains no evidence that Dr. Lolli provided

sufficient scientific support for his coefficient-of-friction opinions. Other than his own

subjective opinions, Dr. Lolli provided no testimony or evidence to establish that placing a

casino chair on a synthetic-tile floor constitutes a substandard industry practice. Dr. Lolli

also never testified that he personally inspected Waterview’s floor or employed reliable

testing or methodology before concluding that the partial placement of the casino chair on

synthetic tile created insufficient traction. See Thomas v. Shed 53 LLC, 331 So. 3d 66, 75

(¶¶29-31) (Miss. Ct. App. 2021) (affirming the circuit court’s exclusion of expert testimony

where “there was no scientific basis to the experts’ conclusion that a restaurant’s outside use

of wooden picnic tables [was] a substandard practice that could result in safety issues”);

Walker, 309 So. 3d at 22 (¶18) (affirming the exclusion of expert testimony about insufficient

traction between a store’s stool and floor because the expert admitted “there [was] no

standard for chair[-]slip cases[,]” and he had used an “untested methodology”).

¶23. Upon review of the record as a whole, including the clear and indisputable video

footage of Harris’s fall, we conclude that Harris has not met her threshold burden of proof.

Harris has failed to establish by significant probative evidence that Waterview’s chair was

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not simply a routinely encountered object but rather a dangerous condition. As we have

previously explained, “[w]ithout 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.’” Walker, 309 So. 3d at 26 (¶38) (quoting Patterson, 270 So. 3d

at 22 (¶8)). Viewing the record evidence in the light most favorable to Harris, we find that

no genuine issues of material fact exist with regard to the “dangerous condition” element of

Harris’s premises-liability claim. Because no genuine issues of material fact remain in

dispute, we affirm the circuit court’s grant of summary judgment in favor of Waterview.

CONCLUSION

¶24. After finding that Harris has failed to show the existence of a dangerous condition and

that Waterview is entitled to judgment as a matter of law, we affirm the circuit court’s order

granting summary judgment in favor of Waterview and denying Harris’s motion for partial

summary judgment.

¶25. AFFIRMED.

BARNES, C.J., WILSON, P.J., LAWRENCE, McCARTY, EMFINGER AND
ST. PÉ, JJ., CONCUR. WESTBROOKS, J., DISSENTS WITH SEPARATE
WRITTEN OPINION, JOINED BY CARLTON, P.J., AND McDONALD, J.

WESTBROOKS, J., DISSENTING:

¶26. I find that a genuine issue of material fact exists regarding whether Waterview

exercised reasonable care in maintaining a safe gaming area for its patrons. Harris’

testimony, the video of the accident, and Dr. Lolli’s report provided sufficient evidence to

create a jury question about whether the misplaced chair constituted a dangerous condition.

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The chair was positioned in a dangerous manner, and it was not in its proper area. Several

Waterview employees passed by the chair numerous times and allowed it to remain there for

seven minutes. To substantiate her claim, Harris presented an expert in casino and resort

operations and management. This expert found that Waterview had a duty to take reasonable

steps to prevent foreseeable hazards caused by misplaced chairs and that Waterview breached

this duty by not implementing written policies or procedures to relocate chairs to their proper

place. Waterview presented no evidence or expert testimony to refute Harris’ expert’s

findings and opinion. Accordingly, I would reverse and remand this case to the circuit court

for a trial on the merits. Thus, I respectfully dissent.

¶27. We employ a three-step process in premise liability cases. “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 whether that duty was breached.” Walker v.

Cellular S. Inc., 309 So. 3d 16, 24 (¶27) (Miss. Ct. App. 2020) (quoting Haggard v.

Wal-Mart Stores Inc., 75 So. 3d 1120, 1124 (¶9) (Miss. Ct. App. 2011)). “Regarding the

duty element, ‘the owner or operator of business premises owes a duty to an invitee to

exercise reasonable care to keep the premises in a reasonably safe condition.’” Thomas v.

Shed 53 LLC, 331 So. 3d 66, 70 (¶13) (Miss. Ct. App. 2021) (quoting Jones v. Wal-Mart

Stores E. LP, 187 So. 3d 1100, 1103 (¶12) (Miss. Ct. App. 2016)).

¶28. “Additionally, if a plaintiff proves circumstances from which the jury might

reasonably conclude that the dangerous condition was one that was traceable to the

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proprietor’s own act or omission, no proof of notice is necessary.” Babin v. Wendelta Inc,

368 So. 3d 363, 370 (¶23) (Miss. Ct. App. 2023) (quoting 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.

¶29. “An invitee is a person who enters the premises of another in response to an ‘express

or implied invitation of the owner or occupant for their mutual advantage.’” St.

Dominic-Jackson Mem’l Hosp. v. Martin, 386 So. 3d 359, 364 (¶15) (Miss. 2024) (quoting

Double Quick Inc. v. Moore, 73 So. 3d 1162, 1166 (Miss. 2011)). There is no dispute that

Harris was an invitee. Accordingly, Waterview owed her a duty to exercise reasonable care

to keep the premises in a reasonably safe condition. To prove a breach of the duty, Harris

must show that a dangerous condition existed. See McCullar v. Boyd Tunica Inc., 50 So. 3d

1009, 1012 (¶13) (Miss. Ct. App. 2010). Additionally, she must prove one of the theories

of premises liability. To do this, she must either:

(1) show that some negligent act of the defendant caused [her] 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.

Walker, 309 So. 3d at 24 (¶29). “[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.” Thomas, 331 So. 3d at 71 (¶17) (quoting Jones, 187 So. 3d at 1104 (¶12)).

¶30. Harris contends that the chair’s being in an area where it was not supposed to be was

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the dangerous condition that caused her injuries. “There is no specific definition of a

‘dangerous condition.’ A condition may be considered ‘dangerous’ in even the simplest of

circumstances.” Babin, 368 So. 3d at 370 (¶24). Wilson admitted that Waterview did not

have any written policies or procedures regarding the proper placement of chairs and the

removal of dangerous conditions. She also admitted that employees should move misplaced

chairs to their proper location:

Q. Okay. So you would agree with me that just naturally there would be
one chair in front of each slot machine. Would that be correct?

A. Yes.

Q. Okay. Now, if chairs are moved to where there are multiple chairs in
front of one machine, who would take that extra chair and put it back
to where it’s supposed to be?

A. Okay. If no one is sitting in the chairs or if we think that the guest is
completely, like, gone from that area, if housekeeping is -- is walking
through there they would probably move it around. If the slot
attendants are walking through or even if I’m walking through as the
HR person or any employee, you know, they would probably push it up
to the slot machines that they’re out of place.

Q. Okay. So based on what you just said, if there were multiple chairs in
front of a single machine and really any employee that walked by saw
it and nobody’s playing there, that employee will probably move that
chair to another location?

A. They should.

Harris’ designated expert, Dr. Jeffrey C. Lolli, submitted an affidavit arguing that Casino

Vicksburg breached the standard of care owed to Harris “by failing to have formal policies

and procedures and employee training protocols for proper slot machine chair placement.”

He further opined:

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Waterview Casino should not have allowed a chair to exist in a place where it
did not belong for a period of seven (7) minutes, without an employee moving
the subject chair to its proper location. Because Waterview allowed a chair to
exist in a location where it did not belong, the chair constituted an unsafe,
dangerous condition. Additionally, Waterview did not provide any warnings
to Mrs. Harris.

Dr. Lolli’s report highlights a significant deficiency in this approach to seating management:

the lack of formal, documented policies and training regarding chair placement. Although

casino management expected employees to notice and relocate misplaced chairs, there were

no written protocols or structured training programs to ensure consistency in hazard

prevention. Dr. Lolli emphasizes that if a casino permits patrons to move chairs, it must also

implement a strict policy ensuring that chairs are regularly monitored and returned to their

designated locations. Dr. Lolli’s report provides that by failing to adopt such policies,

Waterview exposed its patrons to preventable risks.

¶31. Dr. Lolli’s report also draws attention to relevant safety standards that Waterview

Casino failed to meet. He references guidelines from the Occupational Safety and Health

Administration (OSHA) and the National Institute for Occupational Safety and Health, which

emphasize the importance of maintaining hazard-free walking surfaces. These standards are

“relevant to the issue of whether a party used reasonable care.” Babin, 368 So. 3d at 373

(¶31). We have previously held:

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. The 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.

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Id. (quoting Fairley Constr. Servs. Inc. v. Savage, 265 So. 3d 203, 212 (¶35) (Miss. Ct. App.

2019)). Dr. Lolli explains that while carpeted areas generally provide better slip resistance,

the transition between carpet and hard flooring can create dangerous conditions, particularly

when objects such as chairs are improperly positioned. Waterview’s failure to account for

these hazards—despite its knowledge that chairs were frequently moved—further

demonstrates a lack of reasonable care in ensuring a safe environment for its guests.

¶32. Ultimately, Dr. Lolli’s expert testimony creates a question of fact as to whether

Waterview had a duty to take reasonable steps to prevent foreseeable hazards caused by

misplaced chairs, particularly given its policy of allowing patrons to move them. He

concludes that Waterview breached this duty by failing to implement adequate safety

protocols, failing to train employees on hazard recognition and response, and failing to

promptly address an obvious risk that directly led to Harris’ injury. Waterview failed to

present any evidence or expert testimony to refute Dr. Lolli’s findings and opinion.

¶33. I find that the circumstances surrounding the chair are akin to those involving the baby

gate in Georgen v. Estate of Brown-Barrett, No. 2023-CA-00344-COA, 2024 WL 4209619

(Miss. Ct. App. Sept. 17, 2024), reh’g denied (Jan. 14, 2025), pet. for cert. filed (Jan. 27,

2025), where the plaintiff, while staying at her friend’s home, tripped over a wooden gate

propped up against the doorway between the kitchen and the living room. Id. at *1 (¶3). The

gate was unexpectedly placed, which created a tripping hazard. When the plaintiff attempted

to step over the gate, it fell—tripping her and causing her to fall and suffer injuries. Id. at

*4 (¶¶20-22). We relied on comparable facts in Keckley v. Estes Equipment Co., 276 So. 3d

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1230 (Miss. Ct. App. 2018). In Keckley, a customer sued a convenience store after tripping

over a piece of yellow caution tape as she walking toward the store’s entrance and attempted

to step over a piece of yellow caution tape. She tripped when a gust of wind blew the tape

up and created a “tripwire.” Id. at 1234 (¶6). In those cases, the dangerous condition arose

because of the altering of the objects—the propped-up gate or the windblown

tape—transformed their ordinary, original state into a hazardous condition. There was no

evidence that there had been a similar incident that foreshadowed the injuries of either

plaintiff. Similarly, as in Keckley and in Georgen, a jury could find that the misplaced chair

on an uneven, transitional floor transformed into a dangerous condition, especially when left

unattended and unmoved by security or staff.

¶34. Harris also contends that the misplaced chair remained in the area long enough to

impute constructive knowledge to Waterview. “If the dangerous condition was created by

someone not associated with the operation of the store, the plaintiff must produce evidence

demonstrating that the operator had actual or constructive knowledge of the condition.”

Drennan v. Kroger Co., 672 So. 2d 1168, 1170 (Miss. 1996) (citing Downs v. Choo, 656 So.

2d 84, 86 (Miss. 1995)). “Constructive knowledge is established where the condition is

shown to have existed for such a length of time that the operator, through the exercise of

reasonable care, should have known of its existence.” Hearn v. Square Prop. Inv., 297 So.

3d 292, 296 (¶14) (Miss. Ct. App. 2020). Several slot attendants and waitresses passed by

the chair and failed to move it to its proper location. Wilson admitted that the property was

being constantly monitored with over 450 security cameras, which were recording at all

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times. Moreover, Wilson admitted that if the security guard, who was standing near the

misplaced chair, was “paying attention,” he either saw or should have seen the chair out of

place. Waterview’s staff had constructive notice of the misplaced chair, as it remained in an

unsafe position for approximately seven minutes in a well-trafficked area. Given the

constant movement of slot attendants, housekeeping staff, and security personnel throughout

the gaming floor, a reasonable inspection would have revealed the chair’s improper

placement. Dr. Lolli’s report emphasizes that employees are expected to patrol assigned

zones and address safety concerns, yet no staff member took corrective action despite the

chair being visibly out of place and positioned unevenly between carpet and the hard tile.

Waterview’s failure to identify and remedy this dangerous condition within a reasonable

period demonstrates a lack of reasonable care, further supporting the conclusion that

summary judgment was improperly granted.

¶35. We must keep in mind that “[w]hen 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.” Our Supreme Court has held:

[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.

Kilhullen v. Kan. City S. Ry., 8 So. 3d 168, 174 (¶14) (Miss. 2009). As held in Keckley and

followed in Georgen, “it is not our duty to weigh the competing evidence; it is our duty to

determine if there is conflicting evidence for trial,” Keckley, 276 So. 3d at 1241 (¶26), and

“[i]f the undisputed facts can support more than one interpretation, then this Court, will not

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hesitate to reverse and remand for a trial on the merits.” Georgen, 2024WL 4209619, at *5

(¶26). Harris’ testimony, the video, and Dr. Lolli’s report provided sufficient evidence to

create a genuine issue of material fact regarding whether the casino exercised reasonable care

in maintaining a safe gaming area for its patrons. I find that the court erred in granting

summary judgment in favor of Waterview. Therefore, I respectfully dissent.

CARLTON, P.J., AND McDONALD, J., JOIN THIS OPINION.

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