Rod v. Home Depot USA, Inc.
| Docket Number: | 2004-CA-02018-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 06-13-2006 Opinion Author: ISHEE, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Personal injury - Premises liability - Business invitee - Negligence - Duty of care - Striking of affidavit Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES AND ROBERTS, JJ. Procedural History: Summary Judgment Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 09-07-2004 Appealed from: Harrison County Circuit Court Judge: Robert H. Walker Disposition: HOME DEPOT’S MOTION FOR SUMMARY JUDGMENT GRANTED Case Number: A2401-02-0700 |
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| Party Name: | Attorney Name: | |||
| Appellant: | GEORGINA ROD |
HARRY B. WARD |
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| Appellee: | HOME DEPOT USA, INC. | DORRANCE DEE AULTMAN |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Personal injury - Premises liability - Business invitee - Negligence - Duty of care - Striking of affidavit |
| Summary of the Facts: | Georgina Rod filed a complaint for damages against Home Depot USA, Inc., asserting that she sustained injuries during a fall in the store, which was caused by a dangerous and hazardous condition created by Home Depot. The court granted Home Depot’s subsequent motion for summary judgment, and Rod appeals. Home Depot cross-appeals. |
| Summary of Opinion Analysis: | Issue 1: Premises liability Rod argues that genuine issues of material fact existed in this case because the following facts were not known: what object caused her to trip and fall; whether the object that caused her to trip and fall constituted a dangerous condition; whether she had actual or constructive knowledge of the dangerous condition. Rod was a business invitee, as she entered Home Depot in answer to the express or implied invitation of the owner or occupant for their mutual advantage. A business owner/operator owes to invitees the duty to keep the premises reasonably safe, and when not reasonably safe, to warn only where there is hidden danger or peril that is not in plain and open view. In order to survive the motion for summary judgment, Rod needed to provide evidence that a negligent act of Home Depot caused her injury because the basis of liability is negligence and not injury. The fact that Rod fell while in Home Depot is not adequate proof of Home Depot’s negligence, as proof merely of the occurrence of a fall on a floor within business premises is insufficient to show negligence on the part of the proprietor. Rod offered insufficient evidence that Home Depot breached its duty of care. Rod repeatedly stated during her deposition that she could not remember what caused her to fall. Thus, Rod offered no proof that her injury was the result of an affirmative act of negligence by Home Depot, or that Home Depot had actual or constructive knowledge of a dangerous condition on the floor. Issue 2: Striking of affidavit Rod filed an affidavit more than two months after Home Depot filed its motion for summary judgment. Home Depot argues on cross-appeal that the affidavit should have been stricken because it failed to contain the phrase that it is was based upon personal knowledge, there was no interpreter’s certificate accompanying the affidavit, and the affidavit was made in bad faith. Although Rod stated in her affidavit that she tripped on a pallet and fell to the floor, she testified on numerous occasions during her deposition that she did not remember what caused her to fall. It is well-established that a nonmovant cannot defeat a motion for summary judgment by submitting an affidavit which directly contradicts, without explanation, his previous testimony. Therefore, the trial court correctly found that Home Depot’s motion to strike was moot, as Rod’s affidavit had no practical effect on its determination of the motion for summary judgment. |
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