Peter J. Patricola v. Imperial Palace of Mississippi, LLC

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2016-CA-01043-COA

PETER J. PATRICOLA, ADMINISTRATOR OF APPELLANT
THE ESTATE OF LANITIA PATRICOLA

v.

IMPERIAL PALACE OF MISSISSIPPI, LLC APPELLEE
D/B/A IMPERIAL PALACE CASINO, RESORT &
SPA

DATE OF JUDGMENT: 06/24/2016
TRIAL JUDGE: HON. LAWRENCE PAUL BOURGEOIS JR.
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT,
SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: CATHERINE H. JACOBS
ATTORNEY FOR APPELLEE: PATRICK R. BUCHANAN
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: REVERSED AND REMANDED: 08/08/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE IRVING, P.J., FAIR AND GREENLEE, JJ.

FAIR, J., FOR THE COURT:

¶1. Lanitia Patricola slipped and fell on a small puddle in the lobby of the Imperial Palace

Casino in Biloxi, Mississippi. Patricola alleged that the puddle was created by condensation

dripping from an air conditioning vent overhead; she testified that the ceiling around it was

stained and that there were drops of water still hanging from the vent immediately after her

fall. The trial court granted summary judgment against her based on its conclusions that

Patricola1 had failed to show condensation created the puddle or that Imperial Palace had

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Patricola died from unrelated causes during the pendency of the suit, and her estate
was substituted as a party. For convenience, we will refer to the estate as “Patricola.”
notice of the puddle’s existence. But, on summary judgment, Patricola must be given the

benefit of every inference that can reasonably be drawn from the evidence. After our de

novo review of the record, we disagree with the circuit court on both points. We reverse the

grant of summary judgment and remand the case for trial.

DISCUSSION

¶2. The record evidence consists of the depositions of Patricola, her husband, two

employees of Imperial Palace, an incident report created the day of the accident, and several

photographs of the vent in question taken by Patricola and her husband several weeks after

her fall.

¶3. Patricola and her husband essentially testified to the same things – that, on September

14, 2007, they ate breakfast at the casino. As they were leaving, Patricola slipped on a small

puddle of water. The puddle was located at the junction between the casino itself, which was

a barge, and the land-based entrance. At the junction, the floor transitioned from carpet to

marble tile; the puddle was on the marble. Patricola slipped and fell as she was stepping

from the carpet to the tile.

¶4. Above the puddle was a long, narrow vent,2 which at the time was carrying cold air

from the air conditioning system. The vent had visible condensation on it, and the ceiling

around the vent was stained by water damage. The Patricolas admitted that they did not

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Patricola herself thought this was the seam between the building and the barge, but
other testimony established that it was a “linear diffuser,” a long, narrow vent from which
chilled or heated air flowed into the room.

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actually see drops of water falling from the vent onto the floor. Both testified that they

returned to the lobby several weeks later and photographed the vent, where they again found

visible condensation.3 Patricola’s husband testified that he also saw water on the floor on

that second visit.

¶5. Employees of the Imperial Palace admitted that condensation sometimes formed on

the vents in the lobby, though they had no specific recollection of the particular vent in

question. One employee admitted that condensation formed on the vents “every now and

then” and that he cleaned it from the floor and vents, apparently routinely. He had a specific

tool he used for cleaning condensation from the vents, which were about twelve feet above

the floor. The employee added that cleaning condensation from the floor alone would not

fix the problem, as it would continue to drip from the vents if it was not removed. Another

employee admitted that water condensed on the air vents in the lobby when outdoor

temperatures and humidity were high, because of the influx of air from outside, though he

denied that it was a regular problem.

¶6. An incident report prepared by Imperial Palace employees on the day of Patricola’s

fall stated that one of the employees “observed a small amount of condensation leaking from

the ceiling onto the carpet.”

¶7. Turning to the law of premises liability, there is no dispute that Patricola was a

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As they appear in the record, the photographs are of rather poor quality, and there
is a dispute as to whether they support the Patricolas’ description of the vent. Regardless,
their testimony must be taken as true for summary judgment purposes.

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business invitee. See Grammar v. Dollar, 911 So. 2d 619, 624 (¶12) (Miss. Ct. App. 2005)

(defining business invitee as “someone who enters onto another’s premises at the invitation

of the owner for the purpose of benefitting both parties”). The owner of a business is not

required to insure against all injuries, even for an invitee; instead, he “owes a duty to an

invitee to exercise reasonable or ordinary care to keep the premises in a reasonably safe

condition or [to] warn of dangerous conditions not readily apparent, which the owner or

occupant knows of, or should know of, in the exercise of reasonable care.” Robinson v.

Ratliff, 757 So. 2d 1098, 1101-02 (¶12) (Miss. Ct. App. 2000). The owner has no duty to

warn of a defect or danger that is as well known to the invitee as to the owner, of dangers that

are known to the invitee, or of dangers that are obvious or should be obvious to the invitee

in the exercise of ordinary care. Grammar, 911 So. 2d at 624 (¶12).

¶8. “We employ a de novo standard of review of a trial court’s grant or denial of summary

judgment and examine all the evidentiary matters before it . . . .” Davis v. Hoss, 869 So. 2d

397, 401 (¶10) (Miss. 2004). Summary judgment is proper when “the pleadings, depositions,

answers to interrogatories and admissions on file, together with the affidavits, if any, show

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).

¶9. Patricola must prove either (1) that Imperial Palace’s negligence injured her, (2) that

it had knowledge of the dangerous condition and failed to warn her, or (3) that the condition

existed for a sufficient amount of time so that Imperial Palace should have had knowledge

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or notice of the condition (constructive knowledge). See Anderson v. B.H. Acquisition Inc.,

771 So. 2d 914, 918 (¶8) (Miss. 2000) (citation omitted).

¶10. Here, there are essentially two issues upon which it is argued that the proof is

insufficient to amount to a genuine issue of material fact – the source of the water on the

floor and whether there was evidence that it was there long enough for Imperial Palace to

have constructive knowledge of its existence.

¶11. “The evidence is viewed in the light most favorable to the party opposing the motion.”

Davis, 869 So. 2d at 401 (¶10). “Summary judgment is improper when the plaintiff has

advanced enough circumstantial evidence to take [her] claims out of the realm of ‘mere

conjecture’ and plant them in the solid ground of ‘reasonable inference.’” Buckel v. Chaney,

47 So. 3d 148, 156 (¶26) (Miss. 2010) (citation omitted).

¶12. As to where the water came from, the Patricolas both testified that they saw water on

the vent directly above the floor, but that during the time they observed it after Patricola’s

fall, they did not actually see water falling from the duct. Imperial Palace’s incident report

states that water had fallen from the duct, but onto the nearby carpet rather than the marble

floor where Patricola slipped. Imperial Palace’s employees also admitted that condensation

sometimes fell to the floor from the ducts in the lobby. There was no evidence of any other

source for the water.

¶13. Imperial Palace offers a curious argument on this point – that Patricola was required

to produce expert testimony to explain the physical process that would allow condensation,

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which was present along the length of the long, narrow vent, to have dripped down onto the

floor in only one or two places. This assertion, although presented as self-evident, seems to

fly in the face of common experience with dripping water. We certainly cannot say that the

testimony was so improbable as to be unbelievable without expert testimony in support.

¶14. Given that the Patricolas are entitled to the benefit of every reasonable inference, this

evidence was more than sufficient to create a genuine issue of material fact on Patricola’s

contention that the water on the floor came from the vent overhead.

¶15. As to whether Imperial Palace had notice of the dangerous condition, the first question

we must answer is what, exactly, is alleged to be the dangerous condition. The Patricolas

seem to contend that the vent itself was the dangerous condition because it was regularly

subject to condensation. On that point, we disagree – the dangerous condition of the property

here was the wet floor; the vent itself did not cause Patricola injury. Still, to the extent that

the vent was shown to regularly put water on the floor, our supreme court has held:

[W]hen plaintiff has shown that the circumstances were such as to create a
reasonable probability that the dangerous condition would occur, he need not
also prove actual or constructive notice of the specific condition, in this
instance a specific puddle of water.

F.W. Woolworth Co. v. Stokes, 191 So. 2d 411, 416-17 (Miss. 1966) (citations omitted); see

also Lockwood v. Isle of Capri Corp., 962 So. 2d 645, 649 (¶13) (Miss. Ct. App. 2007). The

evidence here as to the regularity of the dripping condensation problem was mixed –

Patricola’s husband testified to seeing water on the floor on the two occasions he visited and

looked for it. Imperial Palace’s employees denied that it was a problem, but they also

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admitted it occurred with some regularity. Condensation was said to be tied to outside

weather conditions; it would occur when hot, humid air from outside met the cold vent. And

it was conceded that hot and humid weather was a regular occurrence in Biloxi where the

casino was located. Given our summary judgment standard, that we must view this evidence

in the light most favorable to Patricola and give her the benefit of all reasonable inferences

from the evidence, this was sufficient evidence to create a genuine issue of material fact as

to whether there was a reasonable probability that the dangerous condition would occur,

obviating the need for Patricola to show that Imperial Palace had knowledge of the particular

puddle that injured her.

¶16. Moreover, even assuming that the Patricolas would have to show constructive

knowledge of the puddle itself, there is a genuine issue of material fact on that point as well.

The inference from the evidence is that the puddle came from water dripping from the vent.

Condensation was seen hanging from the vent but not actually falling during the time it was

observed. There was no evidence that the condensation would or could have quickly

produced a puddle like the one described here, which was approximately twelve inches in

diameter. A reasonable inference from these facts is that the puddle accumulated gradually,

and thus that sufficient time elapsed to put Imperial Palace on constructive notice of its

existence. See Wal-Mart Stores Inc. v. Tinsley, 998 S.W.2d 664, 669 (Tx. Ct. App. 1999).

¶17. Finally, we address Patricola’s contention that Imperial Palace is subject to liability

based on the fact that the various employees who testified admitted the casino had no policy

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in place to report condensation, which would have led to the condensation issue being fixed.

Essentially, this is a contention that Imperial Palace created the dangerous condition by

negligently installing or failing to maintain the air conditioner. We agree that if it was shown

that the dangerous condition was caused by Imperial Palace’s negligence, there would be no

need to show that it knew of the existence of the puddle. See, e.g., Jerry Lee’s Grocery Inc.

v. Thompson, 528 So. 2d 293, 295 (Miss. 1988). But Patricola just begs the question of

whether the condensation issue could have been fixed; she has offered no evidence that the

air conditioner, vent, or some other aspect of the property was negligently constructed or

maintained.

CONCLUSION

¶18. Viewing the evidence in the light most favorable to Patricola and giving her the

benefit of all reasonable inferences from that evidence, there are genuine issues of material

fact that preclude summary judgment on her claim.

¶19. REVERSED AND REMANDED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, WILSON,
GREENLEE AND WESTBROOKS, JJ., CONCUR. CARLTON, J., DISSENTS
WITHOUT SEPARATE WRITTEN OPINION.

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