A McComb woman lost her bid for a new trial in a slip-and-fall lawsuit against McComb Market after the Mississippi Court of Appeals affirmed a lower court ruling this week.
Cassandra Jackson Green went shopping with her daughter at McComb Market when she slipped and fell in front of the ice machine in May 2015.
At first she believed the injuries were not substantial but filed an accident report at the request of store manager Gene Moak. Three years later, Green filed a complaint, claiming she sustained “serious injuries” from the fall and asked for damages for past, present and future disability, pain and suffering, mental anguish, punitive damages and attorneys’ fees.
The market pushed back and after two years locked in the court system, Judge David Strong issued a summary judgement in the store’s favor in April 2020, saying Green had failed to demonstrate the Market either “caused a wet spot on the floor” or had actual knowledge of the wet spot.
Green appealed but the Court of Appeals refused to take up the case. She argued there was substantial evidence of negligence and that the store lost the original surveillance video, but Judge Donna Barnes, writing for the court, said there was no admissible evidence of water or liquid on the floor.
In the issue of the lost footage, Barnes said that in testimony, Moak noted that it is policy to save the accident video and that he would usually send it to the central office after he would hear back from the person who was injured. Green never reached back out following the accident.
“Green waited three years to notify the store regarding her alleged injuries — when she filed her complaint just within the applicable statute of limitations,” Barnes wrote. “We therefore cannot say that the Market had notice of any pending litigation requiring the preservation of the relevant video evidence.
“Accordingly, we find the unavailability of the video, coupled with Green’s failure to demonstrate that the Market was negligent, does not allow her claim of spoliation to survive summary judgment.”
Judges Virginia Carlton, Jack Wilson, Jim Greenlee, Anthony Lawrence, Joel Smith and John Emfinger concurred with Barnes. Judges Deborah McDonald, Neil McCarty and Latrice Westbrooks dissented.
Westbrooks, in a written dissent, said Green did present sufficient evidence to the trial court, noting that her testimony included someone telling her to “watch out,” that she noticed a puddle under her after she fell and that her daughter saw a trail of liquid from the ice machine.
The Market’s counter to that evidence was that Moak would have checked the area at least 10 minutes before the fall and seen water on the ground.
“I disagree and find that the trial court erred by granting summary judgment,” she said. “Green submitted ample circumstantial evidence of the Market’s negligence related to the dangerous condition on the floor. ... I believe the testimony set forth by the parties ‘produced sufficient evidence such that a jury could infer’ that the Market was negligent.”
