        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2015-CA-00028-COA

JANET EVANS                                                                 APPELLANT

v.

MOSLEH AYDHA D/B/A JB’S CONVENIENCE                                           APPELLEE
STORE

DATE OF JUDGMENT:                          11/18/2014
TRIAL JUDGE:                               HON. JAMES LAMAR ROBERTS JR.
COURT FROM WHICH APPEALED:                 PONTOTOC COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   GEORGE E. DENT
                                           WILLIAM LOWERY SNEED
ATTORNEY FOR APPELLEE:                     CHRIS H. DEATON
NATURE OF THE CASE:                        CIVIL - PERSONAL INJURY
TRIAL COURT DISPOSITION:                   SUMMARY JUDGMENT GRANTED IN
                                           FAVOR OF APPELLEE
DISPOSITION:                               REVERSED AND REMANDED: 04/19/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       FAIR, J., FOR THE COURT:

¶1.    This is a premises-liability case. While pumping gas at JB’s Convenience Store in

Pontotoc, Janet Evans slipped and fell, hitting her head on the pavement. Evans sued the

owner and manager, Mosleh Aydha, claiming he had failed to properly maintain the service

station in a reasonably safe condition based on the presence of an oily spot on the concrete

where she fell. The trial court granted JB’s summary judgment after finding that there was

“no evidence of what [the] spot was, how it got there, how long it had been there, or whether

or not the Defendant knew or should have known about [it].” But after our own de novo
review of the record, we conclude that, giving Evans the benefit of reasonable inferences,

she produced sufficient circumstantial evidence to survive summary judgment. We reverse

and remand.

                               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). “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).

¶4.    “[A]n 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

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       matter of law.

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

                                       DISCUSSION

¶5.    There is no dispute that Evans 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 . . .”). 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).

¶6.    Evans must prove either (1) that JB’s negligence injured her, (2) that JB’s 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 JB’s 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). Evans takes the third path, alleging that she slipped and

fell on a black, oily spot on the pavement, knowledge of which could be imputed to JB’s


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based on its weathered, dirty condition.

¶7.    JB’s devotes much of its brief to arguing that Evans failed to show she was injured

by a dangerous condition of its property in the first place. In the alternative, it contends she

failed to prove the oily spot had been there long enough to constructively impart knowledge

of its existence to JB’s.

¶8.    According to JB’s, Evans never actually claimed to have slipped on the black spot in

her deposition. She stated that she was standing at the pump, waiting for the attendant inside

the store to turn it on, when she slipped and fell. The following exchange occurred when

Evans was deposed by the defense attorney:1

       Q.      Now, what did you slip on?

       A.      I don’t know what it was. It just looked like a black spot . . . on the
               pavement.

       Q.      Did you later figure out what it was?

       A.      I have no idea.

       ....

       Q.      Do you know how long that block [sic] spot had been on the ground?

       A.      I have no idea.

       Q.      Do you know how it came to be there?

       A.      No, sir.


       1
           For clarity, we have omitted repeated verbal acknowledgements made by the
attorney.

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       Q.     While you were on the ground, did you figure out what the black spot
              was?

       A.     No. I looked and I could not tell you.

       Q.     Had you seen the black spot before you slipped on it?

       A.     I did not.

       Q.     When did you see it?

       A.     After I hit the ground.

¶9.    JB’s argues that Evans’s initial statement “I don’t know what it was” was an

admission that she did not know what she had slipped on. The trial judge does not seem to

have found this argument compelling, and neither do we. Considering the entire response

and the exchange that followed, we are of the opinion that, at the very least, Evans’s

testimony can be interpreted to mean that she had slipped on the black spot, and that she did

not know what it was composed of. Even the attorney for JB’s appears to have reached that

conclusion – at the time, at least – as evidenced by his subsequent questions, particularly:

“Had you seen the black spot before you slipped on it?” Since the evidence must be viewed

in the light most favorable to Evans’s case, a genuine issue of material fact exists here.

¶10.   JB’s also seems to argue that Evans’s testimony should be disregarded because she

testified that she had been looking where she was going, yet she did not see the black spot

until after she fell. This is, at best, a subject for cross-examination. “[E]ven when the

statements [of the plaintiff] are conflicting it is a jury question to determine which, in fact,

is true.” Seymour v. Gulf Coast Buick Inc., 246 Miss. 805, 809, 152 So. 2d 706, 708 (1963)

                                               5
(citations omitted). “Contradictory statements by a witness go to the weight and credibility

of that [witness’s] testimony, not its sufficiency.” Jamison v. Barnes, 8 So. 3d 238, 245

(¶17) (Miss. Ct. App. 2008). “[A] summary judgment motion does not place the trial court

in the role of weighing testimony and determining the credibility of witnesses.” Id.

¶11.   The question of causation being resolved, the real issue in this case is whether there

was proof the black spot had been there long enough to impute constructive knowledge of

its existence to JB’s. For that, Evans offered the affidavit of her daughter, who said that she

was notified after the accident. She went to the scene and found her mother’s car still parked

at the pump. She noticed a spot of “black oily residue or sludge” near the pump, where her

mother had fallen.2 The spot was “mostly black, dirty, and it was obvious to me that the oily

residue had been on the pavement for an extended period of time, at least several days.” The

spot “looked slippery.”

¶12.   JB’s contends that the daughter’s affidavit is a sham and should be disregarded. It is

true that a party cannot defeat summary judgment “with an affidavit of a witness that

contradicts facts asserted in that witness’s prior deposition testimony, unless the affidavit

explains the discrepancy.” Id. (citing Foldes v. Hancock Bank, 554 So. 2d 319, 321 (Miss.

1989)). But as we explained in Jamison, there has to be an actual, material contradiction.

See id. at 244-45 (¶¶16-20). Here, only a few pages of the daughter’s deposition were made


       2
         The daughter testified by deposition that she had seen a surveillance video recording
of the fall. The video was not preserved, apparently because the owner of JB’s, Aydha, did
not know about the incident.

                                              6
a part of the record, and nowhere was she ever asked directly whether she had personally

seen the black spot in question, whether she had visited the scene of her mother’s fall that

day, etc.

¶13.   The closest JB’s comes to arguing an actual contradiction is its suggestion that the

daughter learned of the black spot from her mother in the hospital, but that she later claimed

in her affidavit to have gone to the scene of the accident and seen the black spot herself. JB’s

argues that the daughter could not go to the hospital, visit her mother, and then go to the

scene to be there “a matter of minutes” after the fall.3 But the daughter never stated she first

learned of the black spot from her mother; she was asked in the deposition what her mother

had told her. And the daughter did not say she had been told of the black spot when she

observed it at the gas station; she did not say what, if anything, she had been told about what

had occurred there other than that she had been “notified.” She simply stated that she

observed the black spot when she went there. We see no contradiction that exposes the

daughter’s affidavit as a sham.

¶14.   Next, JB’s presents a rather cursory argument that the spot described by the daughter

was not necessarily the same spot upon which Evans slipped. The argument is based on the

questionable assertion that the daughter’s description of the spot “does not in any way match

the description of the spot as testified to by Evans.” Obviously, they are both black and in



       3
       The short timeframe appears to be an assertion of Evans’s counsel and is
unsupported by the actual record.

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the same place. It is true that the daughter’s description is more specific, describing it as

slippery, dirty, and oily. But Evans had just fallen so hard that, it was observed, her head

literally bounced off the ground and hit the pavement twice. It is certainly within the realm

of reasonable inferences that the daughter was describing the same spot, and her description

is more detailed because she was in a better position to make detailed observations.

¶15.   As to whether the black spot observed by the daughter could have been created after

the fall, it is true that the daughter did not state exactly how long it had been since her mother

fell, other than it apparently occurring on the same day. But she described the spot as old,

and she testified that her mother’s car was still parked next to the pump when she arrived.

The spot was in a rather confined space between Evans’s vehicle and the pump – a place it

would be unlikely for a third person to come along in the meantime and create another black

spot, so long as Evans’s vehicle remained parked at the pump. Evans must be given the

benefit of reasonable inferences, and the inference that the two spots were one and the same

is reasonable.

¶16.   We are also quite convinced that the length of time the spot had existed can be

reasonably inferred from the daughter’s testimony describing it as “sludge,” “dirty,” and, in

her judgment, at least a few days old. Circumstantial evidence may be used to prove the

length of time a dangerous condition has existed, so long as it “creates a legitimate inference

that places it beyond conjecture.” Herrington v. Leaf River Prods. Inc., 733 So. 2d 774, 777

(¶8) (Miss. 1999). In Ducksworth v. Wal-Mart Stores Inc., 832 So. 2d 1260, 1262 (¶4) (Miss.


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Ct. App. 2002), this Court found that a directed verdict was erroneously entered for the

defendant in a case where spilled liquid “was dirty, with shoe prints and cart tracks in it.”

Similarly, in Moore v. Winn Dixie Stores Inc., 252 Miss. 693, 697, 173 So. 2d 603, 604

(1965), our supreme court reversed a directed verdict in a case where a banana peel was

found after the fall to be “black in color,” “soiled up,” and “must have been there a little

while.” We are satisfied that from the daughter’s description of the spot, a reasonable

inference can be made that it existed long enough to place JB’s on constructive notice of its

existence.

¶17.   Finally, with all due respect to the dissent, the daughter did not need to personally

witness the fall to testify that the black spot was in the same place the fall was alleged to have

occurred, as the location of the fall was established by other evidence the daughter was

undoubtedly familiar with. She testified to speaking with her mother about the incident, to

observing her mother’s vehicle parked at the pump afterwards, and to watching a surveillance

video of her mother’s fall.

¶18.   The daughter was required to have personal knowledge only of the material facts

asserted in her affidavit – the location of the black spot, its appearance, and its composition.

She had personal knowledge of these things because she went to the scene of the fall and

personally observed them.

¶19. We find a genuine issue of material fact exists as to all the elements of Evans’s slip-

and-fall claim, and so we reverse the summary judgment against her and remand the case for


                                                9
a trial on the merits.

¶20. THE JUDGMENT OF THE CIRCUIT COURT OF PONTOTOC COUNTY IS
REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLEE.

    LEE, C.J., IRVING, P.J., BARNES, ISHEE, JAMES, WILSON AND
GREENLEE, JJ., CONCUR. GRIFFIS, P.J., DISSENTS WITH SEPARATE
WRITTEN OPINION, JOINED BY CARLTON, J.

       GRIFFIS, P.J., DISSENTING:

¶21.   The majority reverses and remands the trial court order granting summary judgment

to Aydha. I disagree and respectfully dissent.

¶22.   The majority finds each of Evans’s issues on appeal involves genuine issues of

material fact. However, I am of the opinion that no genuine issue of material fact exists as

to every element of Evans’s claim, and the trial court correctly granted summary judgment.

I would find that Evans failed to present sufficient evidence that Aydha had constructive

knowledge of the spot.

¶23.   The majority correctly notes the elements for Evans’s premises-liability claim. Evans

must specifically prove: “(1) a negligent act by the defendant caused the plaintiff’s injury;

or, (2) that defendant had actual knowledge of a dangerous condition, but failed to warn the

plaintiff of the danger; or, (3) the dangerous condition remained long enough to impute

constructive knowledge to the defendant.” Byrne v. Wal-Mart Stores Inc., 877 So. 2d 462,

465 (¶5) (Miss. Ct. App. 2003) (quoting Downs v. Choo, 656 So. 2d 84, 86 (Miss. 1995)).

¶24.   In Byrne, the plaintiff (Byrne) claimed she fell on an unidentified substance, which

                                             10
she believed was a cookie, in a store aisle. Id. at 464 (¶2). Byrne, however, could not

identify the particular substance, prove the store knew of the substance, or show how long

the substance was in the aisle to impute constructive knowledge to the store. Id. at 465-66

(¶¶7, 9). This Court stated that “[p]roof merely of the occurrence of a fall on a floor within

[a] business premises is insufficient to show negligence on the part of the proprietor. Proof

that the floor on which the fall occurred had present thereon litter and debris is similarly

insufficient.” Id. at 465 (¶6) (quoting Sears, Roebuck & Co. v. Tisdale, 185 So. 2d 916, 917

(Miss. 1966)). Therefore, this Court affirmed the summary-judgment order because Byrne

failed to meet her burden under Downs. Id. at 466 (¶10).

¶25.   Similar to Byrne, Evans did not demonstrate that Aydha had actual or constructive

knowledge of the spot to meet the knowledge requirement under Downs. Evans admits she

cannot prove actual knowledge, but relies on the constructive-knowledge prong.

¶26.   “Constructive knowledge is established where the condition is shown to have existed

for such a length of time that the operator, through the exercise of reasonable care, should

have known of . . . its existence.” Almond v. Flying J Gas Co., 957 So. 2d 437, 439 (¶8)

(Miss. Ct. App. 2007) (citing Munford Inc. v. Fleming, 597 So. 2d 1282, 1284 (Miss. 1992)).

Evans testified in her deposition that she could not identify the substance or the length of

time the substance stayed on the concrete. In rebuttal to Aydha’s motion for a summary

judgment, Evans proffered the affidavit of her daughter, Loyd.

¶27.   Loyd stated that when she arrived at the scene, she noticed her mother’s car, and


                                             11
observed a black spot “where my mother slipped and fell near the gas pump.” Loyd further

attested that “[t]he oily residue was mostly black, dirty and it was obvious to me that the oily

substance had been on the pavement for an extended period of time, at least several days.”

Loyd’s affidavit establishes the presence of a spot and her opinion of the length of time the

spot was on the concrete. Loyd, however, did not observe her mother’s fall and could not

attest to personal knowledge of whether Evans fell on the spot identified by Loyd, especially

in light of Evans’s failure to describe the condition of the spot herself.

¶28.   The Almond court stated that “[this] court will not indulge presumptions for the

deficiencies in [the] plaintiff’s evidence as to the length of time the hazard existed[;]

therefore, the plaintiff must produce admissible evidence as to the time period in order to

establish the operator’s constructive knowledge. The plaintiff must present specific proof

as to the relevant actual length of time.” Id. (citations omitted). Almond is comparable.

¶29.   Like here, Almond claimed she fell on a slick spot at a gas station. Id. at 438 (¶1).

Almond could neither identify the substance nor how long the substance was on the ground.

Id. at (¶3). This Court affirmed the summary-judgment order and found that Almond failed

to offer admissible evidence to establish the length of time the substance was there in order

to establish constructive knowledge. Id. at 440 (¶10).

¶30.   Evans attempts to distinguish her case from Almond because the defendant in Almond

produced an affidavit regarding the cleaning practices of the gas station, unlike Aydha, who

had no cleaning policy in place. This difference, however, is not dispositive. Aydha does


                                              12
not bear the burden to disprove Evans’s assertion of constructive knowledge. Rather the

burden falls to Evans to prove the condition of the spot in order to establish constructive

knowledge.

¶31.   This case is distinguishable from Almond in one sense. Evans did produce Loyd’s

affidavit as evidence of the spot’s condition, in contrast to Almond. But the persuasiveness

of Loyd’s affidavit depends on the inference that the spot Loyd identified was the same spot

Evans slipped on. This Court, however, rejected Almond’s argument based on similar

inferences. Id. Therefore, Evans failed to produce sufficient evidence to support the

constructive-knowledge element of her claim to withstand the summary-judgment challenge.

¶32.   Based on the precedents in Byrne and Almond, I would find Evans did not present

sufficient evidence for all of the elements of her claim to establish a genuine issue of material

fact to overcome summary judgment. Thus, I would affirm the trial court’s grant of summary

judgment to Aydha.

       CARLTON, J., JOINS THIS OPINION.




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