Wilson Ex Rel. Purser v. Wal-Mart Stores, Inc.

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2014-CA-00589-COA

SETH WILSON, BY AND THROUGH HIS APPELLANT
MOTHER AND NEXT FRIEND, SUZETTE
WILSON PURSER

v.

WAL-MART STORES, INC. APPELLEE

DATE OF JUDGMENT: 04/04/2014
TRIAL JUDGE: HON. SMITH MURPHEY
COURT FROM WHICH APPEALED: PANOLA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: D. BRIGGS SMITH JR.
ATTORNEYS FOR APPELLEE: THOMAS M. LOUIS
LEO JOSEPH CARMODY JR.
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
TRIAL COURT DISPOSITION: GRANTED SUMMARY JUDGMENT FOR
DEFENDANT/APPELLEE
DISPOSITION: AFFIRMED - 04/21/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE LEE, C.J., BARNES AND MAXWELL, JJ.

LEE, C.J., FOR THE COURT:

¶1. In this premises-liability case, we must determine whether summary judgment was

appropriately granted in favor of Wal-Mart Stores Inc. We find summary judgment was

proper; thus, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On April 29, 2012, ten-year-old Seth Wilson, his brother, Wyatt Purser, and his step-

father, Jim Purser, went to a Wal-Mart store in Batesville, Mississippi, to purchase a
basketball. While Jim was paying for the basketball at a nearby register, Seth and his brother

started looking at the bicycles. They both got on bicycles that were on the bicycle rack, and

started riding up and down the aisles nearby. The bicycle Seth rode was on the ground when

he found it, with its front wheel pushed under the rack and its back wheel in the aisle. Seth

was following Wyatt on his bicycle when Wyatt slowed down to put the bicycle he was

riding away. Seth was forced to go around him because he was “going real fast” and “[could

not] figure out how to stop.” He tried to brake using the pedals, but the bicycle only had

handbrakes. Unable to stop, Seth ran into a wall and cut his leg on a shelf. The cut was deep

and required stitches. The employee assigned to the department was outside at the time of

the accident, and no signs were posted prohibiting the use of the bicycles or otherwise

warning of any danger.

¶3. Suzette Purser, Seth’s mother, filed suit on his behalf on September 14, 2012, alleging

negligence on the part of Wal-Mart in failing to keep the premises reasonably safe and warn

of danger. After discovery was completed, Wal-Mart filed a motion for summary judgment.

Seth filed a response, and Wal-Mart replied. After a hearing, the trial court granted Wal-

Mart’s motion, finding that no genuine issue of material fact existed because Seth failed to

show the existence of a dangerous condition. Seth filed a motion to reconsider, which was

denied. Seth now appeals asserting the trial court erred in granting Wal-Mart’s motion for

summary judgment.

STANDARD OF REVIEW

¶4. In considering a trial court’s grant of a motion for summary judgment, this Court

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conducts a de novo review and “examines all the evidentiary matters before it – admissions

in pleadings, answers to interrogatories, depositions, affidavits, etc.” City of Jackson v.

Sutton, 797 So. 2d 977, 979 (¶7) (Miss. 2001) (citation omitted). The Mississippi Supreme

Court recently clarified the summary-judgment standard, explaining that “[t]he 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 [a] judgment as a matter of law.”

Karpinsky v. Am. Nat’l Ins. Co., 109 So. 3d 84, 88 (¶11) (Miss. 2013) (citation omitted). The

supreme court further stated that “[t]he movant bears the burden of production if, at trial, he

would bear the burden of proof on the issue raised. In other words, the movant only bears

the burden of production where [he] would bear the burden of proof at trial.” Id. at 88-89

(¶11) (citations omitted). The supreme court again clarified that “while [d]efendants carry

the initial burden of persuading the trial judge that no issue of material fact exists and that

they are entitled to summary judgment based upon the established facts, [the plaintiff] carries

the burden of producing sufficient evidence of the essential elements of [his] claim at the

summary-judgment stage, as [he] would carry the burden of production at trial.” Id. at 89

(¶13).

DISCUSSION

¶5. To determine whether Wal-Mart is entitled to summary judgment on Seth’s premises-

liability claim, this Court must (1) determine the status of the injured person as either an

invitee, licensee, or trespasser, (2) assess, based on the injured party’s status, what duty the

landowner or business operator owed to the injured party, and (3) determine whether the

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landowner or business operator breached the duty owed to the injured party. Titus v.

Williams, 844 So. 2d 459, 467 (¶28) (Miss. 2003).

¶6. It is undisputed that Seth was a business invitee. “A business owner/operator owes

to invitees 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.” Rod v.

Home Depot USA Inc., 931 So. 2d 692, 694 (¶10) (Miss. Ct. App. 2006) (citation and internal

quotation marks omitted). To succeed in a premises-liability action, Seth must prove one of

the following: “(1) a negligent act by [Wal-Mart] caused [his] injury; or, (2) that [Wal-Mart]

had actual knowledge of a dangerous condition, but failed to warn [him] of the danger; or,

(3) the dangerous condition remained long enough to impute constructive knowledge to

[Wal-Mart].” Byrne v. Wal-Mart Stores Inc., 877 So. 2d 462, 465 (¶5) (Miss. Ct. App. 2003)

(citation omitted). A business owner, however, is not an insurer of an invitee’s injuries. Id.

at (¶6).

¶7. Whether Wal-Mart breached its duty to keep the premises reasonably safe or

otherwise warn of a hidden danger necessarily depends on whether a dangerous condition

existed. Seth argues that whether an unlocked or readily available bicycle on the sales floor

constituted a dangerous condition was a genuine issue of material fact that should have been

submitted to a jury. To avoid summary judgment, however, Seth must produce sufficient

evidence of the essential elements of a claim of negligence – duty, breach, causation, and

damages.

¶8. Seth contends that leaving unlocked or readily accessible bicycles on the sales floor

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created a dangerous condition. He argues that (1) Wal-Mart’s possession of a rack on which

to clamp the bicycles, (2) the assignment of an employee to the toy department, and (3)

evidence of other children on bicycles in the same aisle at the same Wal-Mart show that

unlocked or readily accessible bicycles created a dangerous condition, and that Wal-Mart

knew about it and failed to warn its patrons. He cites to no authority to support his position,

and nothing in the record supports these allegations.

¶9. Seth refers to the rack where the bicycles could be clamped as a safety rack, but there

is nothing in the record to indicate that the purpose for the rack was to protect its patrons

from the alleged danger posed by unlocked or readily accessible bicycles. The record

contains installation instructions for the rack, which were prepared by VIDIR Machine Inc.,

a vertical storage company, and refers to the rack as a carrier or bike-merchandising system

only. The rack does not contain a locking mechanism, and holds bicycles in place utilizing

a tire clamp. While the bicycles are still accessible to patrons, Seth argues that the rack was

designed to make it difficult for patrons to remove the bicycle from the rack, prompting a

need for employee assistance, but fails to offer sufficient evidence of this assertion.

¶10. Additionally, there is nothing in the record to indicate the assignment of an employee

to the toy department was for the purpose of guarding against any known danger; and

evidence that other children rode bicycles in the same aisle in the same Wal-Mart without

incident does not, in and of itself, tend to show that unlocked or readily accessible bicycles

pose a danger. Seth provided no evidence of the industry’s standards, no expert reports, and

no evidence of Wal-Mart’s policy regarding who may remove the bicycles from the rack and

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whether its employees were required to return the bicycles to the rack immediately after each

use. Because Wilson failed to produce sufficient evidence that unlocked or readily accessible

bicycles on the sales floor created a dangerous condition, this issue is without merit.

¶11. Seth also argues that the trial court erred in finding that Seth’s age was immaterial.

This appears to be an attack on the applicability of Orr v. Academy Louisiana Co., No. 23-

1411, 2013 WL 1809878 (La. Ct. App. May 1, 2013), an unpublished opinion the trial court

cited in support of its conclusion that an unlocked or readily accessible bicycle does not

constitute a dangerous condition. In Orr, a woman was injured when she was struck by an

adult male riding a bicycle in Academy Sports and Outdoors. Id. at *1.

¶12. It is not disputed that Seth was an invitee at the time of his injury, and he

acknowledges that the duty owed him was not in any way heightened due to his status as a

minor. What Seth appears to be arguing is that the trial court incorrectly considered evidence

of contributory negligence in determining whether a dangerous condition existed. Seth had

learned how to ride a bicycle by the age of five and had been involved in other bicycle

accidents prior to the one at Wal-Mart. Again, Seth’s argument necessarily depends on

whether an unlocked or readily available bicycle constitutes a dangerous condition. If an

unlocked or readily accessible bicycle does not constitute a dangerous condition, it does not

matter whether a person of Seth’s age, experience, and intelligence could have perceived the

danger because the danger did not exist. Because Seth failed to show how an unlocked or

readily available bicycle constituted a dangerous condition, this issue is without merit.

¶13. THE JUDGMENT OF THE PANOLA COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE

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APPELLANT.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL,
FAIR AND JAMES, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.

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