          IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                              NO. 2014-CA-01457-COA

AUNDREA ROBINSON                                                        APPELLANT

v.

MARTIN FOOD STORES, INC. D/B/A                                            APPELLEE
SUNFLOWER FOOD STORES OF MAGNOLIA

DATE OF JUDGMENT:                        09/09/2014
TRIAL JUDGE:                             HON. DAVID H. STRONG JR.
COURT FROM WHICH APPEALED:               PIKE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                 JONATHAN C. TABOR
                                         DAVID NEIL MCCARTY
                                         LEIGH-ANN TABOR
ATTORNEYS FOR APPELLEE:                  PATRICK M. TATUM
                                         WILLIAM LOCK MORTON III
                                         STEVEN CAVITT COOKSTON
NATURE OF THE CASE:                      CIVIL - PERSONAL INJURY
TRIAL COURT DISPOSITION:                 SUMMARY JUDGMENT GRANTED IN
                                         FAVOR OF APPELLEE
DISPOSITION:                             AFFIRMED: 07/19/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

      FAIR, J., FOR THE COURT:

¶1.   Aundrea Robinson was shopping in a Sunflower1 grocery store when he slipped and

fell on a puddle of clear liquid. The circuit court granted summary judgment to Sunflower

after finding that Robinson failed to produce evidence the spill had been created by

Sunflower or that it had been there long enough to impart constructive knowledge of its


      1
       Martin Food Stores Inc. was the operator of the store, but we will refer to it as
“Sunflower” for convenience.
existence to the store. On appeal, Robinson contends that he was entitled to an adverse

inference against Sunflower based on its spoliation of evidence, losing a video recording of

the spill and the fall as well as a contemporaneous incident report. But even assuming

Robinson was entitled to the inference he seeks, under Mississippi law it is not a substitute

for a prima facie case, which Robinson failed to present. We affirm the summary judgment.

                               STANDARD OF REVIEW

¶2.    “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).

¶3.    “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).


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                                          DISCUSSION

¶4.    For the purposes of summary judgment, the facts are largely uncontested. There is no

dispute that Robinson was a business invitee and that he slipped and fell on a puddle of clear

liquid while shopping in the store. 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 . . .”).

¶5.    But 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). Therefore, the plaintiff must prove either (1) that the property owner’s negligence

injured him, (2) that the property owner had knowledge of the dangerous condition and failed

to warn him, or (3) that the condition existed for a sufficient amount of time that the owner

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).

¶6.    Here, several witnesses testified about the puddle. Robinson himself admitted that the


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liquid was clear, did not have tracks or debris in it, and did not appear to have been there for

very long. A store employee, Chris Jackson, testified that he had passed the area of the spill

five or ten minutes before and that it was not there at that time. Jackson added that he had

watched a surveillance video of the area and that the puddle – which was in front of a beer

cooler – had appeared a few minutes before Robinson fell, after the “beer man,” who was not

an employee of the store, stocked the cooler. Both Jackson and Robinson testified to seeing

the beer man at the store around the time Robinson fell. For his part, the beer man, Clint

Nettles, denied that he could have left the puddle.2

¶7.    Prior to the hearing on Sunflower’s motion for summary judgment, the word

“spoliation” did not appear in the record. The issue was not raised in Robinson’s response

to Sunflower’s motion or in any other pleading. The issue was first mentioned, almost as an

afterthought, at the hearing. Specifically, just before concluding her argument at the hearing,

Robinson’s counsel stated that there was “also a serious spoliation issue” with regard to

Sunflower’s failure to produce a video or accident report. However, no further argument was

made, and no relevant authority was ever cited. To be clear, the word “spoliation” appears

once in the entire circuit court record. Because the issue was mentioned so belatedly, the

record regarding the video and incident report is undeveloped. There is evidence that a video

and incident report existed on August 1, 2011, when Robinson fell, and apparently Sunflower

did not have it over eighteen months later, when Robinson served his discovery requests.


       2
           The beer distributor was initially a defendant, but it is no longer a party to this suit.

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The record reveals little else.

¶8.    Yet on appeal, spoliation suddenly has become the only issue. Robinson argues

“spoliation . . . forbids summary judgment,” and he asserts that “the trial court disregarded

the spoliation of evidence in granting summary judgment.” We conclude that the trial judge

did not “disregard” anything; rather, Robinson waived the issue by raising it in such a belated

and offhand fashion. As this Court recently reiterated,

       “It is a long-established rule in this state that a question not raised in the trial
       court will not be considered on appeal.” Adams v. Bd. of Sup’rs of Union Cty.,
       177 Miss. 403, 170 So. 684, 685 (1936). Moreover, it is not sufficient to
       simply mention or “discuss” an issue at a hearing. The rule is that a “trial
       judge cannot be put in error on a matter which was never presented to him for
       decision.” Methodist Hosps. of Memphis v. Guardianship of Marsh, 518 So.
       2d 1227, 1228 (Miss. 1988) (emphasis added).

City of Hattiesburg v. Precision Constr. LLC, No. 2014-CA-01671-COA, 2016 WL 2860742,

at *4 (¶18) (Miss. Ct. App. May 17, 2016). If spoliation were truly the reason for denying

summary judgment – as Robinson now contends on appeal – then he should have made that

argument clearly in the circuit court, not just mentioned the issue in passing. We conclude

that Robinson is barred from raising the issue on appeal because it was never properly

presented to the circuit judge for decision. Id.

¶9.    Procedural bar notwithstanding, summary judgment would have been properly granted

even if Robinson had received the spoliation inference he requests on appeal. Robinson

points to Thomas v. Isle of Capri Casino, 781 So. 2d 125, 133 (¶37) (Miss. 2001), where the

Mississippi Supreme Court stated:


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       When evidence is lost or destroyed by one party (the “spoliator”), thus
       hindering the other party’s ability to prove his case, a presumption is raised
       that the missing evidence would have been unfavorable to the party
       responsible for its loss. According to Wigmore:

              Spoliation and all similar conduct is receivable against him as an
              indication of his consciousness that his case is a weak or
              unfounded one; and from that consciousness may be inferred the
              fact itself of the cause’s lack of truth and merit. The inference
              thus does not necessarily apply to any specific fact in the cause,
              but operates indefinitely though strongly against the whole mass
              of alleged facts constituting his cause.

       2 J. Wigmore, Evidence § 278, at 133 (J. Chadbourn rev.1979). Because the
       presumption of unfavorability is not solely confined to the specific issue of
       what information was contained in the missing evidence, the fact finder is free
       to draw a general negative inference from the act of spoliation, regardless of
       what the spoliator’s rebuttal evidence shows.

According to Robinson, this is a “burden shifter” that relieves him of the burden of proving

Sunflower’s negligence. It is true that the Thomas court quoted Wigmore approvingly for

the proposition that the “fact itself of the [spoliator’s] cause’s lack of truth and merit” may

be inferred from spoliation. And, in a summary judgment, the nonmoving party is entitled

to the benefit of every reasonable inference. Partin v. N. Miss. Med. Ctr. Inc., 929 So. 2d

924, 929 (¶16) (Miss. 2007). But the Thomas court was silent on the question of whether the

inference, drawn from a presumption, is strong enough to replace a prima facie case, i.e.,

whether inference alone amounts to sufficient evidence to prevent summary judgment.

¶10.   This Court addressed that question directly in the recent cases of Cofield v. Imperial

Palace of Mississippi LLC, 147 So. 3d 364, 367 (¶11) (Miss. Ct. App. 2014), and Bolden v.

Murray, 97 So. 3d 710, 718 (¶31) (Miss. Ct. App. 2012), where we concluded: “[F]or

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purposes of summary judgment, [spoliation] of evidence, standing alone, is not enough to

allow a party who has produced no evidence – or utterly inadequate evidence – in support of

a given claim to survive summary judgment on that claim.” (quoting Kronisch v. United

States, 150 F. 3d 112, 128 (2d Cir. 1998)) (emphasis added; internal quotation marks

removed).

¶11.   Robinson argues that these decisions were in disregard of prior Mississippi law, but

that is not the case. In fact, Mississippi has followed this rule since 1878. In Bott v. Wood,

56 Miss. 136, 140-41 (1878), a will contest where the will had allegedly been destroyed

intentionally, it was held:

       The principle of the maxim Omnia proesumuntur in odium spoliatoris, as
       applicable to the destruction or suppression of a written instrument, is that
       such destruction or suppression raises a presumption that the document would,
       if produced, militate against the party destroying or suppressing it, and that his
       conduct is attributable to this circumstance, and, therefore, slight evidence of
       the contents of the instrument will usually, in such a case, be sufficient. There
       is great danger that the maxim may be carried too far. It cannot properly be
       pushed to the extent of dispensing with the necessity of other evidence, and
       should be regarded “as merely matter of inference, in weighing the effect of
       evidence in its own nature applicable to the subject in dispute.”

(Citing 2 Best on Ev., § 412 et seq.). Bott has never been overruled; instead, it has been

repeatedly reaffirmed. In DeLaughter v. Lawrence County Hospital, 601 So. 2d 818, 822

(Miss. 1992), the court recited the above quote from Bott with approval. And in the 2002

case of Dowdle Butane Gas Co. v. Moore, 831 So. 2d 1124, 1127 (¶8) (Miss. 2002), the

supreme court cited Bott as the seminal Mississippi case on the spoliation inference, without

any caveat.

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¶12.   Considering the authorities we have discussed, we can find no error in the trial court’s

grant of summary judgment to Sunflower.

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

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON AND
GREENLEE, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN
PART WITHOUT SEPARATE WRITTEN OPINION.




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