Karpinsky v. Amer. Nat'l Ins. Co., et al.


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Docket Number: 2010-CA-02084-COA
Linked Case(s): 2010-CA-02084-COA ; 2010-CT-02084-SCT ; 2010-CT-02084-SCT
Supreme Court: Opinion Link
Opinion Date: 03-07-2013
Court of Appeals: Opinion Link
Opinion Date: 04-10-2012
Opinion Author: Irving, P.J.
Holding: Reversed and Remanded
Additional Case Information: Topic: Personal injury - Premises liability - Business invitee - Actual knowledge - Affidavit - M.R.C.P. 56(e)
Judge(s) Concurring: Lee, C.J., Roberts, Carlton, Russell and Fair, JJ.
Concur in Part, Concur in Result 1: Maxwell, J., concurs in part and in the result without separate written opinion
Procedural History: Summary Judgment
Nature of the Case: CIVIL - PERSONAL INJURY
Appealed from Court of Appeals
Trial Court: Date of Trial Judgment: 12-01-2010
Appealed from: Harrison County Circuit Court
Judge: Lawrence P. Bourgeois, Jr.
Disposition: SUMMARY JUDGMENT GRANTED IN FAVOR OF APPELLEES
Case Number: A2402-08-139
Note: The Supreme Court reversed this opinion on 3/7/2013, The SCT opinion can be found at http://courts.ms.gov/Images/Opinions/CO82584.pdf
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Laura Karpinsky




 WILLIAM CARL MILLER



  
  • Appellant #1 Brief
    		•
    Appellee: American National Insurance Company and Oraclean, Inc. MARK EDWARD NORTON SCOTT DERRICK SMITH VICK K. SMITH  
    Appellee #2:  
    Synopsis provided by:

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    Topic: Personal injury - Premises liability - Business invitee - Actual knowledge - Affidavit - M.R.C.P. 56(e)
    Summary of the Facts: Laura Karpinsky filed a complaint against American National Insurance Company and OraClean, Inc., seeking damages as a result of a slip-and-fall accident at Edgewater Mall in Biloxi. OraClean moved for summary judgment, which the circuit court granted. Karpinsky appeals.
    Summary of Opinion Analysis: It is uncontested that Karpinsky was a business invitee on the day of the accident. Karpinsky never claimed that OraClean caused the spill or that anyone connected to it did. Karpinsky’s only claim was that OraClean had actual knowledge of the spill and had sufficient time to clean it up prior to her fall but failed to do so. Thus, to be entitled to summary judgment, OraClean carried the burden of producing credible evidence that it had neither actual nor constructive knowledge of the spill, or if it had knowledge of it, that it did not have sufficient time to clean it up prior to Karpinsky’s fall. It failed to produce such evidence. Attached to OraClean’s motion for summary judgment were the following items: Karpinsky’s complaint, a portion of her deposition, Clark’s deposition, and an itemization of facts. Based on the depositions, OraClean proved that the spill could not have been on the floor for more than five minutes and that Karpinsky did not know who caused the spill. OraClean did not offer any evidence that it lacked actual knowledge of the spill. It simply contended at the summary-judgment hearing that Karpinsky could not meet her burden of proof at trial. However, whatever evidence Karpinsky could or could not produce at trial was not an issue until OraClean produced credible evidence at the summary-judgment stage that there were no genuine material issues for trial. Karpinsky filed the affidavit of Dempsey M. Levi, her former attorney. Attached to the affidavit as exhibits were an Incident Report of Karpinsky’s fall, prepared by an employee of Edgewater Mall, and the transcript of a statement that Clark had given to Levi regarding the incident. In the statement, Clark said that it appeared to her that the spill had been on the floor for quite some time because it had spread and had been tracked through. The Incident Report does not indicate the time that the customer reported the spill. It is clear that Clark’s statement to Levi and the Incident Report create a genuine issue of fact that requires resolution by a jury. While Levi’s affidavit was objectionable because it did not comport with the requirements of M.R.C.P. 56(e), OraClean did not file a motion to strike it. If a party fails to move to strike a noncomplying affidavit, he waives the matter. Therefore, for purposes of summary judgment, the affidavit should have been considered.


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