Ienry Loving v. MS Eye Care, P.A. d/b/a Louisville Eye Care

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2023-CA-00566-COA

IENRY LOVING APPELLANT

v.

MS EYE CARE, P.A. D/B/A LOUISVILLE EYE APPELLEE
CARE

DATE OF JUDGMENT: 04/12/2023
TRIAL JUDGE: HON. JOSEPH H. LOPER JR.
COURT FROM WHICH APPEALED: WINSTON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: LAMPTON O’NEAL WILLIAMS JR.
CORY MORRIS WILLIAMS
ATTORNEYS FOR APPELLEE: ROBERT P. THOMPSON
LAURA WALSH GIVENS
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED - 03/12/2024
MOTION FOR REHEARING FILED:

BEFORE BARNES, C.J., GREENLEE AND McDONALD, JJ.

GREENLEE, J., FOR THE COURT:

¶1. In 2021, Ienry Loving filed a lawsuit in the Winston Count Circuit Court against MS

Eye Care, P.A. d/b/a Louisville Eye Care (MS Eye Care). The circuit court granted MS Eye

Care’s motion for summary judgment, and Loving appealed. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On April 13, 2021, Loving filed a complaint against MS Eye Care, John Does 1-5, and

XYZ Corporations 1-5. The complaint alleged that on June 24, 2019, Loving went to MS

Eye Care for an eye examination. While being positioned for the examination, a chair rolled

backward and caused Loving to fall. Loving claimed that the defendants were negligent in
maintaining the premises, and he further alleged that the defendants knew or should have

known “that the premises, including the chair . . . , created hazards to business

customers . . . .” Loving specifically claimed that the defendants

(a) Negligently fail[ed] to provide a safe chair without rollers . . . ;

(b) Negligently fail[ed] to hold the chair in position so it would not
roll . . . ;

(c) Negligently plac[ed] or allow[ed] to be placed a defective and
extremely dangerous chair on their premises . . . ;

(d) Negligently fail[ed] to remove the defective and extremely dangerous
chair from the premises . . . ;

(e) Negligently fail[ed] to supervise and oversee the premises and chairs
therein as to warn [him] of the defective and extremely dangerous
condition of the chair . . . ;

(f) Fail[ed] to warn customers/patrons of the business (in general) and
. . . Loving (in particular) of the unreasonably dangerous condition
caused by the inadequate and/or defective chair;

(g) [Were generally] guilty of any and all other acts of negligence which
may be discovered at the trial . . . as having been the proximate cause
of this incident; and

(h) Generally fail[ed] to exercise the required degree of care commensurate
with the existing situation.

¶3. In his deposition, Loving indicated that he was obese and described the incident as

follows:

They put me in the first room, in the first examiner chair. And then after I got
through in that room, they carried me to the next room where the roll[ing]
chair was at. They asked me to take a seat in front of the eye examiner
machine. I properly seated myself down carefully . . . in the examiner chair.
And the eye examiner . . . asked me to look down into the eye machine where
the red laser light was shining in my eyes. I attempted to look down into the

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machine, and . . . I come back up and I told her, I said, ‘Ma’am, I’m not able
to look down into the machine . . . can you raise it up a little bit?’ And she
said, ‘It doesn’t raise up. Just try your best . . . to get your eyes where you can
see.’ So as I bent myself down as far as I could go to look into . . . the
machine, that’s when the chair with the rollers rolled from under me.

Loving admitted that he noticed that the chair had wheels when he first sat down. He stated

that the chair was “improper” because it had wheels, and he noted that the wheels did not

have locks. But Loving stated that he did not notice any defects with the chair “other than

it has rollers, which is improper for an eye exam.”

¶4. After filing an answer to the complaint, MS Eye Care filed a motion for summary

judgment and a memorandum in support of the motion. Loving filed a response in

opposition and attached his own affidavit. MS Eye Care then filed a reply.

¶5. In April 2023, the circuit court granted MS Eye Care’s motion for summary judgment

and dismissed the case with prejudice. Then Loving appealed.

STANDARD OF REVIEW

¶6. The grant of summary judgment is reviewed de novo, viewing the evidence in the

light most favorable to the non-moving party. Keckley v. Estes Equipment Co., 276 So. 3d

1230, 1235 (¶14) (Miss. Ct. App. 2018). Summary judgment is proper when “the pleadings,

depositions, answers to interrogatories and admissions on file, together with the affidavits,

if any, show that there is no genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). Still, “the non-moving party

‘may not rest upon the mere allegations or denials of his pleadings, but by affidavits or as

otherwise provided by Rule 56, must set forth specific facts showing that there is a genuine

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issue for trial.’” Hood v. A & A Excavating Contractors Inc., 338 So. 3d 145, 148 (¶6) (Miss.

Ct. App. 2022) (quoting M.R.C.P. 56(e)).

DISCUSSION

¶7. We must decide whether the circuit court erred by granting MS Eye Care’s motion for

summary judgment. On appeal, Loving claims in his statement of the issues that MS Eye

Care “created a dangerous condition,” and therefore a genuine issue for trial existed.

¶8. In this case, Loving was an invitee. Under Mississippi law, “[t]he 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 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.” Goff v. Coe, 933 So. 2d 992, 993-94 (¶4) (Miss. Ct. App. 2006) (quoting

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

dangerous condition is caused by the premises owner’s or business operator’s own

negligence, it is not required that a plaintiff show that the owner/operator had knowledge of

such condition.” Id.

¶9. The circuit court found that the facts in this case were indistinguishable from the facts

in Goff—another case involving a patient who fell from a rolling chair while at an eye clinic.

In Goff, the plaintiff “was provided a stool to sit on [during] the preexamination screening.”

Id. at 994 (¶7). “[T]he stool . . . had rollers on the bottom, and was otherwise an ordinary

stool.” Id. The plaintiff had difficulty sitting on the stool due to her short stature and

obesity. Id. Despite this difficulty, “no one warned [the plaintiff] about sitting on the stool

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or assisted her in sitting on the stool.” Id. The plaintiff alleged that the stool “scooted” out

from underneath her “when she attempted to sit on it, allegedly causing her to fall to the floor

and receive injuries . . . .” Id. This Court affirmed the grant of summary judgment in favor

of the eye examiner and eye clinic. Id. Specifically, this Court found that “[t]here was no

evidence that the stool was defective or unreasonably dangerous.” Id. “Nor was there any

evidence that some other unreasonably dangerous condition existed which caused the stool

to move from underneath [the plaintiff] when she attempted to sit on it.” Id.

¶10. Similarly, there was no evidence that the chair in this case was defective or

unreasonably dangerous. During his deposition, Loving was asked why the chair was

defective, and he responded, “I don’t see any defects on the chair, other than it has rollers,

which is improper for an eye exam.” Like the stool in Goff, the chair in this case had wheels,

and it was otherwise an ordinary chair. Additionally, Loving was aware that the chair had

wheels on it. We have held that “the existence of a dangerous condition cannot be shown

merely because an accident occurred.” Trull v. Magnolia Hill LLC, 171 So. 3d 518, 521

(¶10) (Miss. Ct. App. 2014) (quoting Penton v. Boss Hoggs Catfish Cabin LLC, 42 So. 3d

1208, 1210 (¶6) (Miss. Ct. App. 2010)).

¶11. Loving asserts that this case is analogous to Keckley. In Keckley, the plaintiff “was

injured when she tripped and fell outside of the ‘Flying J’ convenience store . . . .” Keckley,

276 So. 3d at 1233 (¶1). The plaintiff alleged “that she tripped on a piece of yellow caution

tape that was lying flat on the ground across a sidewalk.” Id. “She claim[ed] that as she

stepped over the tape, a sudden ‘gust of wind’ blew the tape off the ground, creating a

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‘tripwire.’” Id. Only after she fell did she notice “that the tape was tied to a pole on one side

of the sidewalk and a brick pillar on the other.” Id. Before she fell, “she did not perceive

that the tape was attached to anything.” Id. The circuit court “held as a matter of law that

the caution tape was not an unreasonably dangerous condition” and granted summary

judgment in favor of the defendants. Id. at (¶2). The plaintiff appealed, and the defendants

asserted that the caution tape was “a common feature routinely encountered on a business

premises.” Id. at 1237 (¶20). This Court stated, “We would agree with the defendants’

argument if Keckley alleged that she had been injured by ordinary caution tape that was

strung three or four feet off the ground for the purpose of limiting customers’ access to an

area of the premises.” Id. at 1237 (¶21). But “that [was] not what [the plaintiff] allege[d]

she encountered.” Id. This Court held, “A customer does not expect to encounter tripwires

on a business premises[, and a] reasonable jury could find that a tripwire is a dangerous

condition.” Id. Ultimately, this Court reversed the circuit court’s grant of summary

judgment. Id. at 1233 (¶3).

¶12. As discussed, Loving was allegedly injured when he fell from an ordinary rolling

chair. We find that the facts of this case are more analogous to Goff. Loving argues that

Goff is distinguishable because the plaintiff in Goff was attempting to sit when she was

injured; he was already seated and fell when he did not receive assistance with the chair.

However, we find this argument unpersuasive as to the issue of whether the chair was

defective or unreasonably dangerous.

¶13. Loving also relies on Sims v. Graystone Ophthalmology Associates P.A., 757 S.E.2d

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925 (N.C. Ct. App. 2014), a decision from the North Carolina Court of Appeals, suggesting

that he should have received assistance with the rolling chair. In Sims, the 86-year-old

plaintiff sat on a rolling chair for a vision examination and then fell from the chair. Id. at

925-28. Summary judgment was granted in favor of the defendant, and the plaintiff

appealed. Id. at 926. The North Carolina Court of Appeals noted that the issues to be

decided were “whether the chair was a dangerous condition” and “whether [the] defendant

was negligent in placing [the] plaintiff on the rolling chair from which she fell.” Id. at 927.

In reversing the grant of summary judgment, the North Carolina Court of Appeals noted that

the defendant had assisted the plaintiff with the chair at previous appointments. Id. at 927-

28. Additionally, the evidence showed that the defendant was aware of the dangers of the

rolling chair as there was a prior incident in which a patient fell from a rolling chair. Id. at

928. Finally, it was the technician’s “usual practice to hold the chair and place her foot on

the bottom of the chair while a patient is being seated in order to keep the chair from rolling,”

but she was facing away from the plaintiff at the time of the fall. Id.

¶14. The instant case is distinguishable. Here, MS Eye Care could not possibly have

assisted Loving with the chair at previous appointments because Loving stated in his

affidavit that this was his first visit to MS Eye Care. Additionally, there was no evidence of

the technician’s usual practice. Nor was there evidence that MS Eye Care was aware of any

danger associated with the chair. Furthermore, this Court noted in Goff that the plaintiff had

not received any assistance in sitting on the stool, yet the circuit court’s grant of summary

judgment was affirmed. Goff, 933 So. 2d at 994-95 (¶7).

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¶15. For these reasons, we find that the circuit court did not err by granting summary

judgment in favor of MS Eye Care. Therefore, we affirm.

¶16. AFFIRMED.

BARNES, C.J., CARLTON, P.J., WESTBROOKS, McDONALD, LAWRENCE,
McCARTY, SMITH AND EMFINGER, JJ., CONCUR. WILSON, P.J., NOT
PARTICIPATING.

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