McCullar v. Boyd Tunica, Inc.
| Docket Number: | 2009-CA-00616-COA Linked Case(s): 2009-CA-00616-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 09-14-2010 Opinion Author: Maxwell, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Personal injury - Premises liability - Duty to invitee - Dangerous condition - Standard of care Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Griffis, Barnes, Ishee, Roberts and Carlton, JJ. Procedural History: Summary Judgment Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 03-23-2009 Appealed from: TUNICA COUNTY CIRCUIT COURT Judge: Kenneth L. Thomas Disposition: SUMMARY JUDGMENT GRANTED IN FAVOR OF DEFENDANT/APPELLEE Case Number: 2005-0279 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Wallace B. McCullar, Spouse of Decedent, Mary F. McCullar, Personally and on Behalf of all Statutory Wrongful Death Beneficiaries |
DANIEL M. CZAMANSKE JR. |
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| Appellee: | Boyd Tunica, Inc. d/b/a Sam's Town Hotel and Gambling Hall | SCOTT BURNHAM HOLLIS, ROBERT TUBB JOLLY | ||
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| Topic: | Personal injury - Premises liability - Duty to invitee - Dangerous condition - Standard of care |
| Summary of the Facts: | Wallace McCullar filed a premises-liability lawsuit against Boyd Tunica, Inc. d/b/a Sam’s Town Casino and Gambling Hall, after his wife, Mary Frances McCullar, slipped and fell in the bathroom of their hotel room at the casino. The circuit court granted summary judgment in favor of Sam’s Town. McCullar appeals. |
| Summary of Opinion Analysis: | It is undisputed in this case that McCullar was an invitee. With respect to an invitee, the owner is required 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 knows of, or should know of, in the exercise of reasonable care. Mere proof that a slip and fall occurred is insufficient to show negligence on the part of the proprietor. Here, McCullar focuses on Sam’s Town’s alleged negligence in creating the condition he alleges caused Frances to fall. He specifically claims Sam’s Town failed to properly inspect, maintain, and/or construct the bathroom facilities in the McCullars’ room. McCullar fails to raise a jury question regarding Sam’s Town’s negligence in creating the allegedly dangerous condition. There is no evidence of an affirmative act by Sam’s Town that created a dangerous condition. The water leaked from the plumbing above a ceiling panel in the McCullars’ bathroom, and McCullar presented no evidence to show that Sam’s Town had prior notice of the leak. Nor did he show any act by Sam’s Town that caused the leak. McCullar presented no evidence that Sam’s Town had violated its internal procedures regarding maintenance or inspection. McCullar has not shown that plumbing deficiencies existed prior to the time Frances used the bathroom. McCullar argues that circumstantial evidence exists that Sam’s Town failed to inspect and maintain the plumbing in the bathroom ceiling. While the doctrine of res ipsa loquitur is inapplicable in cases of this kind, the plaintiff may prove circumstances from which the jury might reasonably conclude that the condition of the floor was one which was traceable to the proprietor’s own act or omission. It is unclear whether Sam’s Town inspected the plumbing on prior occasions. But regardless, McCullar offered no expert testimony to show what Sam’s Town should have done – for example, what type of inspection it should have performed – to keep the plumbing in its hotel bathrooms in a reasonably safe condition for its patrons. McCullar made no attempt to articulate the standard of care regarding inspection or maintenance of hotel bathrooms. And it follows that there has been no showing as to how Sam’s Town’s inspection practices deviated from the applicable standard of care. Thus, McCullar did not present circumstantial evidence of adequate probative value to survive summary judgment. |
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