                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2016-CA-01255-SCT

JOHN RENNER

v.

RETZER RESOURCES, INC. AND VELENCIA
HUBBARD, INDIVIDUALLY AND IN HER
CAPACITY AS MANAGER OF MCDONALD’S


DATE OF JUDGMENT:                          08/02/2016
TRIAL JUDGE:                               HON. W. ASHLEY HINES
TRIAL COURT ATTORNEYS:                     ROBERT F. STACY, JR.
                                           ROBERT ALLEN SMITH, JR.
COURT FROM WHICH APPEALED:                 WASHINGTON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   DAVID NEIL McCARTY
                                           ROBERT ALLEN SMITH, JR.
ATTORNEY FOR APPELLEE:                     ROBERT F. STACY, JR.
NATURE OF THE CASE:                        CIVIL - PERSONAL INJURY
DISPOSITION:                               REVERSED AND REMANDED - 12/07/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       BEFORE RANDOLPH, P.J., COLEMAN AND MAXWELL, JJ.

       RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶1.    The instant case arises from a trip-and-fall at a McDonald’s restaurant in Winona,

Mississippi. The circuit court granted summary judgment in favor of defendants. The

plaintiff appeals, arguing that summary judgment was not proper because (1) he established

each element of a premises-liability claim, and (2) the defendants lost or destroyed key video

evidence, which he argues forecloses the grant of summary judgment. The plaintiff has
established several triable issues of fact. Accordingly, summary judgment was inappropriate,

and the Court reverses and remands.

                        FACTS AND PROCEDURAL HISTORY

¶2.    According to the plaintiff, on August 13, 2012, seventy-six-year-old John Renner

(“Renner”) was traveling from Jackson, Mississippi, to his home in St. Louis, Missouri. He,

his wife, and two other family members stopped at a McDonald’s in Winona around 9:30

a.m. After he received his order, Renner set his food down at a table and walked to the

condiment station. Renner picked up some condiments. Before returning to his table, he

thought one of the McDonald’s employees spoke to him. Renner turned and faced the

counter before realizing the employee was speaking to another customer. As Renner turned

back around to return to his table, his left foot struck a protruding leg of a highchair, causing

him to fall and suffer injury to his face and left shoulder. After the fall, Renner heard one

of the McDonald’s employees ask another what the highchair was doing there, and to move

it.

¶3.    Two and a half years later, Renner filed suit against McDonald’s; Retzer Resources,

Inc., the owner and operator of the Winona McDonald’s; and Velencia Hubbard, the manager

of the Winona McDonald’s. During discovery, the defendants claimed that video footage

of the fall no longer existed.

¶4.    The defendants, Hubbard and Retzer, moved for summary judgment, arguing that

Renner could not demonstrate the existence of any genuine issue of material fact that: (1) the

highchair was a dangerous condition; (2) any alleged danger was hidden; or (3) defendants



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had actual or constructive knowledge of the alleged dangerous condition. Attached to the

defendants’ motion and the plaintiff’s response were the depositions of Greta Siegel, John

Renner, Renner’s wife Sherlyn, Velencia Hubbard, and Hugh Ballard, an Information

Technology (IT) employee of Retzer Resources.

¶5.    Greta Siegel was an eyewitness to the fall. Siegel, originally from Winona and a

former Dean of Students at a college in California, was a frequent patron of the Winona

McDonald’s. Siegel visited McDonald’s often in order to use its Wi-Fi connection. On the

morning of the fall, Siegel was seated in a booth catty-corner to the location of the accident.

Siegel’s attention was directed that way when she heard a loud noise. She saw Renner fall

and land on the floor. She also saw Renner’s left foot tangled in the leg of a highchair.

Siegel then heard a McDonald’s employee immediately instruct other McDonald’s employees

to move the highchairs away from that area.

¶6.    Siegel testified that she was not surprised that Renner had tripped at the condiment

station, because the highchairs are obscured from view behind a “half wall,” and because the

legs of the highchairs protrude out farther than the tops of the highchairs. When questioned

about the visibility of the highchairs, Siegel testified that, “[w]hat is hidden is the way that

bottom juts out, because as you walk up to the chairs, obviously, they are there, but what you

wouldn’t expect is for a . . . piece of it to be sticking out.” When asked about the particular

morning of Renner’s fall and whether the highchairs were sticking out into the aisle, Siegel

confirmed that they were and described the placement of the chairs as a “big hazard.”




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¶7.    Siegel previously had seen other McDonald’s customers bump into the highchairs at

the same location where Renner fell. Siegel testified that she had seen approximately three

customers stumble against the chairs and had seen other customers accidently kick the chairs.

She described the customers’ reactions to the chairs as being confused about what they had

kicked, “because the top seems to be what you would hit first . . . [b]ut with that bottom

sticking out, it is something that people hit and they don’t realize what they are kicking.”

¶8.    Siegel had complained several times about the location of the highchairs to a manager

and to other McDonald’s employees prior to this accident. Siegel testified that after

complaining about the chairs, the employees would move them away from the corner, but

still leave them on the same wall. However, Siegel also testified that, since the accident, the

chairs remain in the same location.

¶9.    Velencia Hubbard, the shift manager of McDonald’s at the time of the accident, did

not dispute any of Siegel’s testimony. She opined that she thought the chairs were properly

stored and did not believe they were out of place. Throughout her deposition testimony,

Hubbard testified the she did not know or did not remember key facts. For example,

Hubbard testified that she was not sure whether the legs of the highchairs protruded into the

aisle at the time of the accident. Hubbard testified that she saw Renner fall and saw that his

feet were caught in the highchair. She remembered speaking with the Renners, completing

an incident report, and calling the insurance company, which was standard procedure after

a slip and fall. Valencia testified that the placement of the chairs did not change after

Renner’s fall, and that they always remained in the same location. Valencia also testified that



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there was a video recording of Renner’s fall, though she could not remember if she had ever

seen it.

¶10.   Sherlyn and Renner both provided affidavits relating events after the accident.

Sherlyn and Renner testified that, two days after the fall, a risk management company for

McDonald’s called to check on Renner’s condition. Sherlyn spoke with a woman from the

company, who told Sherlyn that McDonald’s had provided them with videotapes of the

incident and that they would review the tapes to see what happened. Renner testified that

about four to five weeks later, he called an “800 number” on a McDonald’s incident form

that he was provided. Renner spoke with a representative who told him that security tapes

would have to be reviewed before they could speak about the accident with Renner. Another

four to five weeks later, Renner called again. He was told the tapes had still not been

reviewed. No video footage was produced per requests in discovery.

¶11.   Hugh Ballard, the IT employee in charge of video surveillance at the Winona

McDonald’s, testified that a video camera faces the location where Renner fell. The video

camera is motion-activated and does not record constantly. Ballard testified that the

recordings are kept temporarily on a computer hard drive for approximately sixty-three to

sixty-four days, depending on how quickly the hard drive fills up. The recordings are then

recorded over. Ballard testified that he received a request from another Retzer Resources

employee on October 17, 2013—sixty-five days after the accident—to preserve the video

footage of Renner’s fall. Ballard testified that he “imagined” that he tried to retrieve the

footage, though he could not remember. Ballard testified that the video was gone. He had no



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way of knowing whether the footage was recorded over or whether it ever existed, although

there was no indication that the camera was not operational on the day of Renner’s fall.

¶12.   Renner responded to the defendant’s motion for summary judgment, arguing that the

testimony of each of the five witnesses established that McDonald’s was either directly

negligent in causing his fall, or McDonald’s had actual or constructive knowledge of the

alleged dangerous condition. Further, Renner argued that, because of the unfavorable

presumption that attaches to evidence spoliation, summary judgment would be inappropriate.

¶13.   On August 2, 2016, the trial court issued its opinion and final judgment granting

summary judgment in favor of the defendants, Hubbard and Retzer. The trial court found

that Renner was an invitee of McDonald’s, and therefore, McDonald’s owed a duty to keep

the premises reasonably safe and to warn only when there was hidden danger, not in plain

and open view. The trial court found that “[t]he presence of a high chair in a restaurant like

McDonald’s is clearly a ‘normal’ and ‘usual’ condition that an invitee could ‘expect to

encounter.’ Therefore, McDonald’s cannot be held liable for Mr. Renner’s injuries in this

case.” The trial court found that Renner had failed to produce any evidence that any

McDonald’s employee had placed the high chair in Renner’s path or had any actual or

constructive knowledge that the highchair posed a danger to Renner. The trial court’s

opinion made no reference to the missing video evidence. Renner timely appealed and raises

two issues: (1) whether summary judgment was granted erroneously because Renner had

proved each element of his premises-liability claim, and (2) whether the defendants’ loss or

destruction of key video evidence prohibited the grant of summary judgment.



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                                       DISCUSSION

¶14.   “Summary judgment shall be rendered if 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 judgment as

a matter of law.’” Miss. R. Civ. P. 56(c). “Summary 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.”’” Karpinsky v. American Nat’l Ins. Co., 109 So. 3d 84, 88 (Miss. 2013) (citing

Buckel v. Chaney, 47 So. 3d 148, 153 (Miss. 2010). We review the grant of summary

judgment de novo and will view evidence “in the light most favorable to the party against

whom the motion has been made.” Id. (citing Pratt v. Gulfport-Biloxi Reg’l Airport Auth.,

97 So. 3d 68, 71 (Miss. 2012)).

                                I. Premises-Liability Claim

¶15.   Renner argues that the trial court erred in granting summary judgment because he

proved each element of his premises-liability claim. The parties do not dispute that Renner

was an invitee of McDonald’s. “A landowner owes an invitee 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.” Mayfield v. The Hairbender, 903 So. 2d 733, 737

(Miss. 2005) (citations omitted). To recover in a trip-and-fall case, a plaintiff must “(1) show

that some negligent act of the defendant caused his injury; or (2) show that the defendant had

actual knowledge of a dangerous condition and failed to warn the plaintiff; or (3) show that



                                               7
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.” Anderson v. B.H. Acquisition, Inc., 771 So. 2d 914, 918 (Miss. 2000) (citing

Downs v. Choo, 656 So. 2d 84, 86 (Miss. 1995)).

¶16.   Renner established sufficient facts, which, if believed, would defeat a motion for

summary judgment. It would be a question for the finder of fact whether the defendants had

actual knowledge of the alleged dangerous condition and failed to warn Renner, or whether

the defendants had constructive knowledge of the alleged dangerous condition (another issue

for a jury). Renner offered the deposition testimony of Siegel, who testified that the legs of

the highchairs protrude into the aisle and are obscured from view behind a “half wall.”

Siegel claimed personally to have witnessed at least three customers bump into or kick the

highchairs. Siegel testified that she repeatedly had alerted several McDonald’s employees

about her concerns regarding the alleged hidden nature and dangerous condition of the

highchairs. This testimony regarding McDonald’s knowledge was undisputed by Valencia

Hubbard or any other witness.

¶17.   The defendants take issue with Siegel’s testimony and affidavit, arguing that she

offered inadmissible opinions. Mississippi Rule of Evidence 701 sets forth the rules

regarding lay witness opinion: “If a witness is not testifying as an expert, testimony in the

form of an opinion is limited to one that is: (a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue;

and (c) not based on scientific, technical, or other specialized knowledge within the scope



                                              8
of Rule 702,” which sets forth the rules for expert testimony. The Advisory Committee Note

to the rule states that Rule 701 favors the admission of lay opinion when the opinion is based

on first-hand knowledge or observation, and when the opinion is helpful in resolving the

issues. The defendants’ argument is without merit. Siegel’s testimony and affidavit are based

wholly on her own observations, and they certainly are helpful in deciding the issues of

Renner’s premises-liability claim.

¶18.   The defendants also argue that Siegel offered inadmissable expert testimony because

she opined that the highchair’s design constituted a hazard. This argument is without merit.

Siegel simply testified that the she physically saw that the legs of the highchairs protruded

into the aisle and that several customers had bumped into or kicked the highchairs. She

stated that, in her opinion, the highchairs were a “big hazard” because they were obscured

behind a “half wall,” and the legs jutted out farther than the tops of the highchairs. Siegel did

not offer a scientific or technical opinion as to the highchair’s design, but rather testified

about her observations of the highchairs based on the many hours she has spent patronizing

the Winona McDonald’s.

¶19.   The trial court’s opinion fails to account for the testimony of Siegel and concluded

that, because highchairs normally are present in restaurants, an invitee could expect to

encounter them. The trial judge’s opinion erroneously supplanted the facts in the record with

his own opinion regarding the location of the highchairs. This is a role for jurors. See

Prescott v. Leaf River Forest Prods., Inc., 740 So. 2d 301, 309 (Miss. 1999) (“The trial




                                               9
court’s function on a Rule 56 motion for summary judgment is not to resolve disputed factual

issues, but rather to determine whether issues of fact exist to be tried.”)

¶20.   At the very least, genuine issues of material fact remain for trial. Siegel testified that

she did not know of any person moving the highchairs at any time before the fall. Hubbard

testified that she could not remember whether the highchairs had been moved. Further,

Hubbard testified that Renner was walking from the counter with a tray in his hands, while

the Renners and Siegel all testified that Renner did not have a tray, and that he was walking

from the condiment station to the dining area. The number of highchairs stored behind the

“half wall” also is in dispute, as Hubbard testified that there were only two, while Siegel

testified that there were five or six.

¶21.   “The moving party has the burden of demonstrating that [no] genuine issue of material

fact[s] exists, and the non-moving party must be given the benefit of the doubt concerning

the existence of a material fact.” Duckworth v. Warren, 10 So. 3d 433, 437 (Miss. 2009)

(quoting One South, Inc. v. Hollowell, 963 So. 2d 1156, 1160 (Miss. 2007)) (citation

omitted). Renner produced sufficient testimonial evidence establishing that genuine issues

of material fact exist, and Renner should be given the benefit of every reasonable doubt.

Ladnier v. Hester, 98 So. 3d 1025, 1028 (Miss. 2012) (citation omitted) (emphasis added).

In any case “[w]here doubt exists as to whether there is a genuine issue of material fact, the

trial judge should err on the side of denying the motion and permitting a full trial on the

merits.” Prescott, 740 So. 2d at 309. It was error for the trial court to grant summary

judgment in favor of the defendants because triable issues of fact remain.



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                             II. Spoliation of Video Evidence

¶22.   Renner argues that the defendants’ loss or destruction of video evidence forbids

summary judgment. An examination of the record reveals that this issue has not been fully

developed in discovery. The facts, as they are available now, indicate only that the IT

employee claims no video of the fall exists. Whether the risk management company has or

had the video is in dispute. If further discovery indicates that spoliation occurred, the trial

court should approve a spoliation jury instruction, if appropriate. See Copeland v. City of

Jackson, 548 So. 2d 970, 973 (Miss. 1989) (“[J]ury instructions should only be granted

where there is evidence presented to support the giving of those instructions.”)

¶23.   This Court has held that where there is proof of spoliation, the nonoffending party is

entitled to a “spoliation inference.” Dowdle Butane Gas Co., Inc. v. Moore, 831 So. 2d

1124, 1127 (Miss. 2002) (citing Bott v. Wood, 56 Miss. 136 (1878)). “The inference entitles

the non-offending party to an instruction that the jury may infer that spoliated evidence is

unfavorable to the offending party.” Id. (citing DeLaughter v. Lawrence County Hosp., 601

So. 2d 818, 822 (Miss. 1992)). In other words, the jury is not required to draw an adverse

inference that the evidence would have been unfavorable, but the innocent party is entitled

to an instruction permitting the jury to draw a negative inference from spoliated evidence.

See Krosnich v. U.S., 150 F.3d 112, 126 (2d Cir. 1998). To prove that spoliation occurred,

the innocent litigant is not required to show fraudulent intent on the part of the spoliator.

Thomas v. Isle of Capri Casino, 781 So. 2d 125, 133 (Miss. 2001). Even where evidence

is unavailable due to negligence, an inference arises that the evidence would have been



                                              11
unfavorable, and the jury should be so instructed. Id. (citation omitted). Accordingly, if the

evidence reveals that the video was lost intentionally or negligently, Renner is entitled to a

spoliation jury instruction.

                                      CONCLUSION

¶24.   The trial court erroneously granted summary judgment because triable issues of fact

remain. The Court reverses the judgment of the Washington County Circuit Court and

remands for proceedings consistent with this opinion.

¶25.   REVERSED AND REMANDED.

    WALLER, C.J., KITCHENS, P.J., KING, COLEMAN, MAXWELL, BEAM,
CHAMBERLIN AND ISHEE, JJ., CONCUR.




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