     Case: 09-60579     Document: 00511117356          Page: 1    Date Filed: 05/20/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            May 20, 2010

                                       No. 09-60579                         Lyle W. Cayce
                                                                                 Clerk

JANICE DORSEY,

                                                   Plaintiff – Appellant
v.

SIMON PROPERTY GROUP, L.P., formerly known as Mills Corporation;
NORTHPARK MALL OPERATING COMPANY, LLC; NORTHPARK MALL
LIMITED PARTNERSHIP; NORTHPARK MALL RESIDUAL 1, L.L.C.;
NORTHPARK MALL RESIDUAL 1 LIMITED PARTNERSHIP, also known
as Delaware Northpark Mall Residual 1 Limited Partnership; JOHN DOES
A, B AND C; KONE, INC.; COMPANIES Y AND Z,

                                                   Defendants – Appellees




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:08-CV-398


Before BENAVIDES, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Janice Dorsey fell while riding on an escalator in a shopping mall. The
district court granted summary judgment in favor of the mall owners and the
company responsible for escalator maintenance. We AFFIRM.



        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 09-60579    Document: 00511117356      Page: 2    Date Filed: 05/20/2010

                                  No. 09-60579

                    FACTS AND PROCEDURAL HISTORY
      On August 2, 2006, Janice Dorsey fell while riding on an escalator located
in Northpark Mall in a suburb of Jackson, Mississippi. A time ticket showed
that on July 13 and 14, 2006 the handrail had stopped moving and the
mechanism began to smoke. Kone, Inc., repaired the drive sprocket and replaced
the chain on the escalator on July 24, 2006. From then until Dorsey’s accident,
there were no reported problems with the escalator.
      In a deposition, Dorsey stated that she remembered holding onto the left
handrail, but that she would defer to whatever the video of the incident revealed.
She stated that after her escalator step rose for ten or fifteen steps, the handrail
started jerking and caused her to fall.           Kone performed preventative
maintenance on the escalator after the accident, but no problems were found.
      Kone’s elevator expert reached these conclusions: there was nothing
conclusive to indicate whether Dorsey ever held onto the handrail; several people
who rode the escalator prior to and at the same time as Dorsey and used the
right handrail encountered no slipping, stalling, or jerking.
      The video of the incident does not clearly show Dorsey, as another rider
blocked the view. Dorsey’s expert thought it likely she was holding onto the
right handrail, not the left.    In a written report, the expert concluded the
accident was “most probably the result of a stall by the right hand handrail.” In
his deposition, however, he testified that there were more than eleven theories
as to why a handrail could slide. He also agreed that based on the video, the
other patrons were moving synchronously at the time that Dorsey fell. He did
not provide a sworn affidavit.
      Dorsey filed suit in Mississippi state court on June 2, 2008.         It was
removed to the United States District Court for the Southern District of
Mississippi based on diversity. Dorsey alleged that Simon Property Group, L.P.;
Northpark    Mall   Operating     Company,     LLC;   Northpark     Mall   Limited

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Partnership; Northpark Mall Residual 1, L.L.C.; and Northpark Mall Residual
1 Limited Partnership (collectively “Northpark Mall”) negligently failed to
exercise reasonable care in protecting invitees. Moreover, she asserted that
Kone, who was responsible for all repairs and maintenance of the escalator, was
negligent in failing to properly maintain the escalator.
      The district court granted summary judgment in favor of Kone and
Northpark Mall upon finding a lack of credible record evidence demonstrating
negligence or explaining the cause of Dorsey’s fall. The doctrine of res ipsa
loquitur did not apply because Dorsey’s fall could have happened absent any
negligence by the Defendants.
                                 DISCUSSION
      We review a district court’s grant of summary judgment de novo and apply
the same legal principles as the district court. Stover v. Hattiesburg Pub. Sch.
Dist., 549 F.3d 985, 991 (5th Cir. 2008). Summary judgment is proper if the
pleadings and evidence show there is no genuine issue of material fact and the
moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P.
56(c)(2). The evidence is viewed and the inferences are drawn “in the light most
favorable to the nonmovant.” Minter v. Great Am. Ins. Co. of N.Y., 423 F.3d 460,
465 (5th Cir. 2005). The moving party bears the burden of showing there is no
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
Once the moving party carries its burden, the nonmovant must present evidence
that there is a genuine issue for trial. Id. at 323-24.
      A. Negligence
      Dorsey claims the district court erred in concluding that she must present
“specific substantive evidence” to prove the Defendants’ negligence. Rather,
Dorsey claims the circumstantial evidence was sufficient to present a fact issue.
      For negligence, the plaintiff must prove by a preponderance of the
evidence that the defendant owed her a duty, the defendant breached that duty,

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a causal connection between the defendant’s conduct and her injuries, and
damages. Simpson v. Watson, 14 So. 3d 86, 88 (Miss. App. 2009). To recover,
the plaintiff must prove “causation in fact and proximate cause.” Gulledge v.
Shaw, 880 So. 2d 288, 293 (Miss. 2004). The question in this case is whether any
cause for the injuries was ever shown.
      The defendant in one of the authorities on which the district court relied
was a repair company that inspected an elevator that had become stuck between
floors.   Rudd v. Montgomery Elevator Co., 618 So. 2d 68, 69 (Miss. 1993) (en
banc). Nothing was found in need of repair. Id. at 70. Later the same day,
plaintiff Rudd entered the elevator. The elevator descended a few inches below
his floor, stalled, and then fell. Rudd’s alleged injuries are not described in the
opinion. After the incident, the defendant again inspected the elevator but found
nothing wrong with it. Id. At trial, Rudd’s expert claimed that the repairman
had failed to detect a misalignment. Id. at 71-72. After a jury verdict for Rudd,
a judgment notwithstanding the verdict was granted. Id. at 72.
      On appeal, the supreme court held that “[a]ll things mechanical are
subject to breakdown upon occasion even with the best maintenance.” Id. To
make a jury issue on liability, the plaintiff has to show “competent evidence that
[the defendant] was somehow negligent in its maintenance and repair” and that
“this negligence caused it to malfunction that day.” Id. The court concluded that
misalignment was simply conjecture. “It was incumbent upon Rudd, however,
to offer something beyond pure speculation that there was negligence of this
nature and that it in fact caused the malfunction.” Id. at 73.
      Dorsey argues that the better analysis would focus on the validity of the
use of circumstantial evidence to prove her claim. In one precedent, a broken
pipeline was leaking natural gas. Miss. Valley Gas Co. v. Estate of Walker, 725
So. 2d 139, 143 (Miss. 1998), implied overruling on other grounds recognized by
Adams v. U.S. Homecrafters, Inc., 744 So. 2d 736 (Miss. 1999). The repairs made

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on the leak failed to follow the defendant gas company’s own procedures, and
there was evidence from residents that the smell of gas was in the area the
entire weekend after the repair. Id. at 146. The court held that “negligence may
be proved by circumstantial evidence where the circumstances are such as to
remove the case from the realm of conjecture and place it within the field of
legitimate inference.” Id. at 145 (quoting Kussman v. V&G Welding Supply, Inc.,
585 So. 2d 700, 703 (Miss. 1991)). If circumstantial evidence is used, “it must be
sufficient to make plaintiff’s asserted theory reasonably probable, not merely
possible, and more probable than any other theory based on such evidence, and
it is generally for the trier of fact to say whether circumstantial evidence meets
this test.” Id. (quoting 57A Am. Jur. 2d Negligence § 461 (1989)).
      We disagree with Dorsey’s claim that she has presented circumstantial
evidence of relevant causation. There is no evidence of a mechanical failure.
Another passenger on the escalator with her arm on the same handrail that
allegedly stalled did not experience any jerking. Even Dorsey’s expert did not
pinpoint a specific cause.
      The Rudd decision is the instructive one. Dorsey’s own expert agreed that
one of the possible causes for the fall was that Dorsey simply lost her balance.
Moreover, Dorsey’s expert evidence was deficient in form, as there was no sworn
affidavit. “[A]n unsworn affidavit is incompetent to raise a fact issue precluding
summary judgment.” Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1306 (5th
Cir. 1988). In addition, the expert’s deposition was contrary to some of the
information in his written findings.
      B. Res Ipsa Loquitur
      Dorsey argues that because handrails do not stall when properly
maintained, the doctrine of res ipsa loquitur applies.
      The doctrine of res ipsa loquitur is a form of circumstantial evidence “that
allows negligence to be inferred in certain fact situations.” Winters v. Wright,

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869 So. 2d 357, 363 (Miss. 2003). To apply the doctrine, the plaintiff must prove:
(1) the defendant had control and management of the instrumentality that
caused the injury, (2) the injury is one that “in the ordinary course of things []
would not occur if those in control of the instrumentality used proper care,” and
(3) the injury was not the result of the plaintiff’s own voluntary act. Powell v.
Methodist Health Care-Jackson Hosps., 876 So. 2d 347, 349 (Miss. 2004).
      Res ipsa loquitur applies “only when the accident is such that, according
to ordinary human experience, it could not have happened without such
negligence.” Winters, 869 So. 2d at 364 (quoting Yazoo & M.V.R. Co. v. Skaggs,
179 So. 274, 277 (Miss 1938)).
      Though Dorsey testified that the escalator suddenly jerked, she also
testified that she would defer to the video surveillance over her memory. From
the video, the synchronous ride of the other patrons on the escalator did not
show signs of jerking. Further, Dorsey’s expert testified that he could not tell
from the surveillance that there was any slippage.
      This is not an accident that could only have happened due to the
Defendants’ negligence. The doctrine of res ipsa loquitur does not apply.
      AFFIRMED.




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