                    IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2007-CA-01801-SCT

BRIEAH S. PIGG, INDIVIDUALLY AND ON
BEHALF OF GARRETT KADE PIGG, A MINOR

v.

EXPRESS HOTEL PARTNERS, LLC d/b/a
HOLIDAY INN EXPRESS

DATE OF JUDGMENT:                            08/01/2007
TRIAL JUDGE:                                 HON. LEE HOWARD
COURT FROM WHICH APPEALED:                   CLAY COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                    VICTORIA HARDY RUNDLETT
                                             B. STEVENS HAZARD
ATTORNEYS FOR APPELLEE:                      DAVID L. SANDERS
                                             ROSAMOND H. POSEY
NATURE OF THE CASE:                          CIVIL - PERSONAL INJURY
DISPOSITION:                                 REVERSED AND REMANDED - 10/02/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE WALLER, P.J., DICKINSON AND RANDOLPH, JJ.

       DICKINSON, JUSTICE, FOR THE COURT:

¶1.    This is a premises liability case in which the Circuit Court – finding the plaintiff failed

to provide proof of negligence – granted defendants’ motion for summary judgment. We

reverse.

                             STATEMENT OF THE FACTS

¶2.    Brieah S. Pigg, her husband and their two-year-old son, Garrett, rented a hotel room

at the Holiday Inn Express in West Point, Mississippi. The next morning, after Mr. Pigg left

for work, while Mrs. Pigg was in the shower, Garrett came through the bathroom’s open
door. Mrs. Pigg claims that, just seconds after she saw Garrett attempt to close the door, she

heard the mirror on the door shatter. As a result of the fallen mirror, Garrett’s cornea was

cut and required medical attention.

¶3.    Mrs. Pigg filed suit on behalf of herself1 and Garrett against Holiday Inn,2 alleging

negligence. The circuit court granted Holiday Inn’s Motion for Summary Judgment, finding

that the plaintiffs “[have] no proof whatsoever that the injury was due to the negligence of

the Defendant.” Mrs. Pigg presents the following assignments of error on appeal: (1) that

the trial court erred when it determined that summary judgment was proper, as a genuine

issue of material fact existed; and (2) the trial court erred when it determined that the doctrine

of res ipsa loquitur was not applicable.

                                            ANALYSIS

¶4.    This court reviews a trial court’s grant of summary judgment de novo. Smith v.

Clement, 2008 Miss. LEXIS 160 (Miss. Apr. 3, 2008) (citing Croft v. Grand Casino Tunica,

Inc., 910 So. 2d 66, 72 (Miss. 2005)). In evaluating a grant of summary judgment, this Court

views all evidentiary matters, including admissions in pleadings, answers to interrogatories,

depositions, admissions, and affidavits. Glover v. Jackson State Univ., 968 So. 2d 1267,

1275 (Miss. 2007) (citing Miss. R. Civ. P. 56 (c)). The existence of a genuine issue of

material fact will preclude summary judgment. Massey v. Tingle, 867 So. 2d 235, 238 (Miss.


       1
         Although Mrs. Pigg claims she suffered lost wages and mental anguish as a result of the
mirror falling on her child, the issue of a parent’s right to recover such damages was not briefed, and
we decline to address it.
       2
        The defendants were Express Hotel Partners, LLC d/b/a Holiday Inn Express, Express Hotel
Partners, LLC, Bharat R. Patel, ABC, DEF and GHI, collectively referred to herein as “Holiday
Inn.”

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2004). The facts must be viewed in the light most favorable to the non-moving part. Id.

(citing Robinson v. Singing River Hosp. Sys., 732 So. 2d 204, 207 (Miss. 1999)). “The non-

moving party may not rest upon mere allegations or denials in the pleadings but must set

forth specific facts showing that there are genuine issues for trial.” Id. (citing Richmond v.

Benchmark Constr. Corp., 692 So. 2d 60, 61 (Miss. 1997)). Summary judgment is

mandated where the non-movant fails to establish the existence of an essential element of

that party’s claim. Smith v. Gilmore Mem’l. Hosp., Inc., 952 So. 2d 177, 180 (Miss. 2007)

(citing Galloway Travelers Ins. Co., 515 So. 2d 678, 683 (Miss. 1998) (quoting Celotex

Corp. v. Catrett, 477 U.S. 317, 322 106 S. Ct. 2548, 91 L. Ed. 2d 265(1986))).

¶5.    There is no dispute in this case that the Piggs were business invitees of Holiday Inn,

which consequently owed them a duty of reasonable care in keeping their premises in a

reasonably safe condition. Thomas v. The Columbia Group, LLC, 969 So. 2d 849, 852

(Miss. 2007) (citing Little ex rel. Little v. Bell, 719 So. 2d 757, 760 (Miss. 1998)). While

a premises owner is not an insurer of the safety of invitees, the premises owner does have a

duty of reasonable care, to maintain its premises is a reasonably safe condition. Wilson v.

Allday, 487 So. 2d 793, 795-96 (Miss. 1986) (citing Downs v. Corder, 377 So. 2d 603 (Miss.

1979)). That duty includes not only the duty to keep its premises in a reasonably safe

condition, but the duty to “warn of any dangerous conditions not readily apparent which the

owner knew, or should have known, in the exercise of reasonable care and the duty to

conduct reasonable inspections to discover dangerous conditions existing on the premises.”

Gaines v. K-Mart Corp., 860 So. 2d 1214, 1216 (2003) (citing Moore v. Winn-Dixie Stores,

Inc., 252 Miss. 693, 173 So. 2d 603 (1965)). The Gaines Court’s use of “or” in “or should

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have known” does not absolve a premises owner who warns of a dangerous condition from

“the duty to use reasonable care to keep the premises in a reasonably safe condition.” See

Tharp v. Bunge Corp., 641 So. 2d 20, 25 (Miss. 1994) (overrules the language in previous

cases to the extent “or” is construed to denote two mutually exclusive duties).

¶6.    We have set forth a two-part test requiring two separate inquiries: (1) whether the

owner kept the premises reasonably safe, and (2) whether the owner warned of hidden

dangers of which the owner knew or, in the exercise of reasonable care, should have known.

Mayfield v. The Hairbender, 903 So. 2d 733, 738 (Miss. 2005). The breach of either duty

supports a claim of negligence. Id.

¶7.    Mrs. Pigg claims that the loosely-attached mirror constituted a hidden, dangerous

condition, and that the Holiday Inn knew, or reasonably should have known, of the danger,

but failed to warn of it. She further contends that, by not properly inspecting and repairing

the mirror, Holiday Inn failed in its duty to keep its premises in a reasonably safe condition.

¶8.    To survive summary judgment, Mrs. Pigg must produce more than evidence of an

injury. Sears, Roebuck & Co. v. Tisdale, 185 So. 2d 916, 917 (Miss. 1966) (holding that the

basis of liability is negligence and not injury). She claims she met this burden by proffering

evidence of loosely-attached mirrors in two adjacent rooms. Furthermore, Mrs. Pigg claims

that the location of the glass on the floor is circumstantial evidence that the mirror did not

fall because the door was slammed open or shut by her son. On the other hand, Holiday Inn

claims it regularly inspects all areas in its premises in addition to the random, unannounced

inspections conducted by the Holiday Inn Corporation.




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¶9.    For purposes of summary judgment, this Court finds that there is a genuine issue of

material fact as to whether Holiday Inn knew or should have known of the loose mirror, and

whether it was negligent in inspecting its premises. Accordingly, a jury must be allowed to

decide whether Holiday Inn breached its duty to keep the premises reasonably safe and

whether its inspections of its rooms was reasonable. We have held that “it is generally for

the trier of fact to say whether circumstantial evidence meets the test.” Miss. DOT v.

Cargile, 847 So. 2d 258 (Miss. 2003) (citing Miss. Valley Gas Co. v. Estate of Walker, 725

So. 2d 139, 145 (Miss. 1998))

                                      CONCLUSION

¶10.   We reverse the trial court’s grant of summary judgment, and remand this case for trial.

¶11.   REVERSED AND REMANDED.

    SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY, CARLSON, GRAVES,
RANDOLPH AND LAMAR, JJ., CONCUR.




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