          IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                              NO. 2016-CA-00702-COA

RICHARD COLL                                                           APPELLANT

v.

WAL-MART STORES EAST, L.P.                                               APPELLEE

DATE OF JUDGMENT:                       02/26/2016
TRIAL JUDGE:                            HON. LISA P. DODSON
COURT FROM WHICH APPEALED:              HARRISON COUNTY CIRCUIT COURT,
                                        SECOND JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANT:                ROBERT ELLIOTT BRIGGS III
                                        MYLES ETHAN SHARP
ATTORNEYS FOR APPELLEE:                 WILBUR PEMBLE DELASHMET
                                        ASHLEY POWELL GRIFFIN
                                        MIGNON MESTAYER DELASHMET
                                        CHAD CHRISTOPHER MARCHAND
NATURE OF THE CASE:                     CIVIL - PERSONAL INJURY
TRIAL COURT DISPOSITION:                GRANTED SUMMARY JUDGMENT IN
                                        FAVOR OF APPELLEE
DISPOSITION:                            AFFIRMED: 05/30/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

      FAIR, J., FOR THE COURT:

¶1.   Richard Coll brought a slip-and-fall claim against Wal-Mart Stores, East L.P. and

Coca-Cola Bottling Company United Inc. after allegedly falling on a Coca-Cola display.1

Wal-Mart moved for summary judgment, arguing that there was no evidence that Wal-Mart



      1
       Coll later amended his complaint to include Coca-Cola employee Stephen Irby.
Between the filing of the original complaint and the amended complaint, the case was
removed to federal court and then remanded to state court.
was negligent in creating a dangerous condition or that Wal-Mart had any actual or

constructive knowledge of a dangerous condition. The circuit court granted Wal-Mart’s

motion.2 Finding no error, we affirm.

                                            FACTS

¶2.    On September 16, 2013, Coll went shopping at a Wal-Mart in Biloxi, Mississippi. In

the main “action alley,” there was a Coca-Cola display with Coca-Cola products stacked on

pallets. Coll stepped into the display to grab some drinks. As he exited the display, he

slipped and fell on his left side, fracturing his hip. One of the display signs was near him on

the floor. Coll stated in his deposition that he did not see anything on the floor when he

entered the display. He admitted he was not sure what caused him to fall, but concluded it

was the sign because he “had to slip on something.”

¶3.    Stephen Irby, a senior merchandiser for Coca-Cola, testified that he was responsible

for designing and building the display. He was restocking the display when Coll approached.

Irby said he stepped away from the display to let Coll grab some drinks. He further stated

that Coll accidentally kicked the sign when he was exiting the display, causing the sign to

fall. Irby testified that Coll did not slip on the sign. He also testified that there were still at

least two cases of drinks on that corner of the display (where Coll fell). After Coll’s fall, Irby

continued restocking the display.



       2
        Due to Coll’s settlement with Coca-Cola, the circuit court dismissed all his claims
against Coca-Cola.

                                                2
¶4.    Two Wal-Mart employees – Amanda Campisi and Zena Mullins – testified by

deposition, although neither witnessed Coll’s fall. Mullins was the first Wal-Mart employee

to arrive after Coll’s fall. Coll was still on the floor. Contrary to Coll and Irby’s testimony,

Mullins stated that the corner of the display had no drinks on it when she arrived. When

asked whether that was the way it was supposed to be, she said no. Mullins also stated that

it was not her responsibility to determine what happened.

¶5.    Campisi was an assistant store manager at the time of Coll’s fall and was assigned to

investigate the incident. She stated, like Mullins, that the corner of the display had no drinks

on it when she arrived. Campisi recalled that Irby and Mullins were there. She saw Coll on

the floor and noticed some cardboard sitting near him. About thirty minutes after Coll was

taken away in an ambulance, Campisi took pictures of the area. Since Irby had continued

restocking the display, the pictures were not helpful for trial.

¶6.    Wal-Mart provided a DVD recording of the incident, but, due to technical difficulties,

the court was unable to review the DVD. At the summary judgment hearing, both parties

agreed that viewing the video was unnecessary.

                                STANDARD OF REVIEW

¶7.    “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


                                               3
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).

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

Davis, 869 So. 2d at 401 (¶10). Still, “an adverse party may not rest upon the mere

allegations or denials of his pleadings, but his response . . . must set forth specific facts

showing that there is a genuine issue for trial.” M.R.C.P. 56(e). Furthermore:

       [W]hen a party, opposing summary judgment on a claim or defense as to
       which that party will bear the burden of proof at trial, fails to make a showing
       sufficient to establish an essential element of the claim or defense, then all
       other facts are immaterial, and the moving party is entitled to judgment as a
       matter of law.

Galloway v. Travelers Ins., 515 So. 2d 678, 684 (Miss. 1987).

                                      DISCUSSION

¶9.    There is no dispute that Coll was a 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; rather, 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).

Mere proof “of the occurrence of a fall on a floor within [the] business premises is


                                              4
insufficient to show negligence on the part of the proprietor.” Stanley v. Boyd Tunica Inc.,

29 So. 3d 95, 97 (¶8) (Miss. Ct. App. 2010) (quoting Byrne v. Wal-Mart Stores Inc., 877 So.

2d 462, 465 (¶6) (Miss. Ct. App. 2003)).

¶10.   Coll must prove either (1) that Wal-Mart’s negligence injured him, (2) that Wal-Mart

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

existed for a sufficient amount of time so that Wal-Mart should have had knowledge or

notice of the condition (constructive knowledge). Anderson v. B.H. Acquisition Inc., 771 So.

2d 914, 918 (¶8) (Miss. 2000) (citation omitted). We address each contention below.

       1.     Negligent Act

¶11.   Coll claims that Wal-Mart defectively designed the display. He relies on Hardy ex.

rel. Hardy v. K Mart Corp., 669 So. 2d 34 (Miss. 1996) (“Hardy I”), and K-Mart Corp. v.

Hardy ex. rel Hardy, 735 So. 2d 975 (Miss. 1999) (“Hardy II”), in support of his argument.

Both cases involved customer Marion Hardy, who slipped and fell in spilled paint near a

paint display at K-Mart. Hardy I, 669 So. 2d at 36; Hardy II, 735 So. 2d 975 (¶2).

¶12.   In Hardy I, the circuit court granted summary judgment, finding that Hardy failed to

show that K-Mart was negligent in stocking the paint cans or that K-Mart had actual or

constructive notice of the spill. Hardy I, 669 So. 2d at 37. The Mississippi Supreme Court

reversed on the negligence issue, finding there was a genuine issue of material fact as to

whether the paint display was unstable, causing the spill. Id. at 38. On remand, the jury

found that K-Mart was negligent and awarded Hardy $250,000. Hardy II, 735 So. 2d at 978


                                             5
(¶1). In Hardy II, K-Mart appealed the jury verdict, and the supreme court affirmed. Id. at

980 (¶41).

¶13.   In both cases, the K-Mart assistant store manager testified about his involvement with

the paint display. He stated that he was in charge of the display configurations and that K-

Mart’s corporate offices constructed the displays. Hardy II, 735 So. 2d at 979 (¶6). He

further stated that any display with paint cans stacked higher than three layers without

cardboard would be unsafe, and that the open paint can on the floor was the same color as

the cans of the display.3 Hardy I, 669 So. 2d at 38-39; Hardy II, 735 So. 2d at 979 (¶6).

¶14.   The Hardy cases are readily distinguishable from the present case. Contrary to the

store manager in Hardy, Irby did not work for the store at issue. Further, he testified that he,

as a Coca-Cola employee, was solely responsible for designing and building the display.

There was no evidence presented showing Wal-Mart had any involvement in constructing

or maintaining the Coca-Cola display. Nor was there testimony indicating that the Coca-Cola

display was somehow faulty.

¶15.   Even though Wal-Mart cannot be liable under the theory of defective design, it still

had a responsibility to maintain its premises in a reasonably safe condition. However, Coll

has failed to present any evidence as to how any Wal-Mart employee created the condition



       3
         The assistant manager based his testimony on a photograph (allegedly taken within
three weeks of the accident) of the display showing the paint stacked in five layers. Hardy
I, 669 So. 2d at 38. There was conflicting evidence as to when the cans were stacked above
three layers and whether a K-Mart employee or customer stacked the cans that high. Id.

                                               6
that allegedly caused his fall. Thus, we find Coll failed to create a genuine issue of material

fact as to Wal-Mart’s negligence.

       2.     Actual or Constructive Knowledge

¶16.   Coll argues that Wal-Mart had actual or constructive knowledge of “dangers

associated with the display.” As discussed above, Coll failed to show how Wal-Mart had any

input with the design or construction of the display. So the question is whether Wal-Mart

had actual or constructive notice that the sign had fallen.

¶17.   Coll testified that he was in the store for about two minutes. He said that the sign was

there when he entered the display. He also said he did not see the sign before he fell but it

was on the floor afterward. Irby testified that he saw Coll accidentally kick the sign. So the

sign either fell or was knocked off as Coll exited the display. Based on the testimony, Coll’s

arrival and his fall happened within a matter of seconds. We were able to review the DVD

(not viewed at the summary judgment hearing), which showed merely seventeen seconds

between Coll’s entering the display and his fall. After reviewing the record, we find that Coll

failed to present any evidence showing that any Wal-Mart employee knew or should have

known that the sign had fallen onto the floor.

¶18.   We find the circuit court’s grant of summary judgment in favor of Wal-Mart was

proper. Therefore, we affirm.

¶19. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT,
SECOND JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF THIS APPEAL
ARE ASSESSED TO THE APPELLANT.


                                              7
    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON,
WILSON AND WESTBROOKS, JJ., CONCUR. GREENLEE, J., NOT
PARTICIPATING.




                                8
