C/- of Findlaw – thankyou for this nugget of a case..

Mary Morgan was in the pool at the Golden Nugget Hotel and Casino in Biloxi when storm clouds formed and it began to rain. Morgan went to the swim-up bar to close out her tab so she could leave. Suddenly, a strong gust of wind lifted a large cushion from a poolside “daybed” and sent it airborne across the pool. The cushion was 6’8” by 6’8” by 10” thick—essentially the same dimensions as a king-size mattress. The cushion struck Morgan in the back of her head, knocking her down. As Morgan regained her footing, another strong and sudden wind gust lifted a second daybed cushion and “catapulted” it across the pool at her. The flying cushion “popped [Morgan] in the back of her neck,” causing her to hit her head on the concrete bar and go under water. Morgan’s husband pulled her out of the water and removed her from the pool.

¶2. Morgan subsequently sued Riverboat Corporation of Mississippi d/b/a Golden Nugget Biloxi Hotel and Casino (“Riverboat”) in the Harrison County Circuit Court, alleging that she suffered injuries as a result of Riverboat’s negligent failure to ensure that the large cushions were secured in a reasonably safe manner.

¶3. Riverboat answered and later moved for summary judgment, arguing that Morgan could not show (1) that the cushions were an unreasonably dangerous condition or (2) that Riverboat created or had constructive knowledge of the allegedly dangerous condition. Riverboat relied on the deposition testimony of Mac Metzler, who was Riverboat’s guest-services and pool supervisor at the time of the incident, and Riverboat’s risk manager, Patricia Nash.¹ Metzler testified that to the best of his knowledge, the large daybed cushions had never previously blown off their platforms. Nash likewise testified that she was not aware of any prior incident when the cushions had been blown from their platforms. She stated that the cushions are “very heavy and ? just lay flat and ? don’t move.”

¶4. In response, Morgan argued that the cushions were an unreasonably dangerous condition because Riverboat negligently failed to secure them to their platforms. Morgan relied in part on a purchase order that Riverboat produced in discovery for the cushions, “bolsters,” and decorative “throw pillows.” The purchase order stated in part, “Fabrication quote includes labor, outdoor foam inserts, Polv Outdoor Thread and Velcro as noted for attaching cushions to frames.” Morgan argued that the purchase order showed that velcro straps were available and intended to secure the cushions to their platforms.

¶5. In rebuttal, Riverboat submitted an affidavit from its facilities director, Matt Newman. Newman stated certain chaise lounges at Riverboat’s pool “have Velcro strapping,” but “the day beds at issue [in this case] have no strapping of any kind so that they could be tied to the platform on which they sit.”

¶6. The circuit court granted Riverboat’s motion for summary judgment. The court concluded that there were no genuine issues of material fact, that the cushions were not an unreasonably dangerous condition, and that there was no evidence that Riverboat was negligent or had constructive knowledge of the allegedly dangerous condition. Morgan filed a notice of appeal.²

ANALYSIS

¶7. We review an order granting summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party. Karpinsky v. Am. Nat’l Ins., 109 So. 3d 84, 88 (¶9) (Miss. 2013). Summary judgment “shall” be granted “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). Indeed, “the court must grant summary judgment unless ? the record demonstrates the minimum quantum of evidence sufficient to justify a determination in favor of the [non-movant] by a reasonable juror.” Glover ex rel. Glover v. Jackson State Univ., 968 So. 2d 1267, 1274 (¶19) (Miss. 2007). “When the plaintiff, as in this case, bears the burden of proof at trial, a defendant may elect to move for summary judgment by identifying deficiencies in the plaintiff’s evidence.” Carter v. C&S Canopy Inc., 381 So. 3d 399, 403 (¶9) (Miss. Ct. App. 2024) (quoting Maxwell v. Baptist Mem’l Hosp.-DeSoto Inc., 15 So. 3d 427, 433 (¶15) (Miss. Ct. App. 2008)).

¶8. In responding to a motion for summary judgment, the nonmoving party “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e). “[S]ummary judgment is appropriate when the non-moving party has failed to make a showing sufficient to establish the existence of an element essential to the party’s case, and on which that party will bear the burden of proof at trial.” Buckel v. Chaney, 47 So. 3d 148, 153 (¶10) (Miss. 2010) (quotations marks omitted). When the nonmoving party “fails to make a showing sufficient to establish an essential element of the claim or defense, then all other facts are immaterial and the moving party is entitled to judgment as a matter of law.” McClinton v. Delta Pride Catfish Inc., 792 So. 2d 968, 973 (¶9) (Miss. 2001) (quoting Wilbourn v. Stennett, Wilkinson & Ward, 687 So. 2d 1205, 1214 (Miss. 1996)). As the Mississippi Supreme Court recently reiterated,

[t]he presence of fact issues in the record does not per se entitle a party to avoid summary judgment. The court must be convinced that the factual issue is a material one, one that matters in an outcome determinative sense. The existence of a hundred contested issues of fact will not thwart summary judgment where there is no genuine dispute regarding the material issues of fact.

Federinko v. Forrest County, 381 So. 3d 343, 351 (¶35) (Miss. 2024) (citations, brackets, and quotation marks omitted) (quoting Shaw v. Burchfield, 481 So. 2d 247, 252 (Miss. 1985)).

¶9. In all negligence cases, “the plaintiff must show duty, breach, causation, and damages.” Clinton Healthcare LLC v. Atkinson, 294 So. 3d 66, 71 (¶9) (Miss. 2019). In a premises liability case, the nature of the defendant’s duty depends on whether the plaintiff was an invitee, licensee, or trespasser at the time of the injury. Leffler v. Sharp, 891 So. 2d 152, 156 (¶10) (Miss. 2004). Here, there is no dispute that Morgan was an invitee. “The owner or operator of business premises owes a duty to an invitee to exercise reasonable care to keep the premises in a reasonably safe condition ?” Jerry Lee’s Grocery Inc. v. Thompson, 528 So. 2d 293, 295 (Miss. 1988). However, a business “is not an insurer against all injuries,” id., and “mere proof” that an invitee “was injured while on the premises is insufficient to establish liability.” Jones v. Wal-Mart Stores E. LP, 187 So. 3d 1100, 1104 (¶12) (Miss. Ct. App. 2016). The business has a “duty to keep the premises in a reasonably safe condition” but “is not required to keep the premises absolutely safe, or in such a condition that no accident could possibly happen to a customer.” Stanley v. Morgan & Lindsey Inc., 203 So. 2d 473, 476 (Miss. 1967). Therefore, “regardless of the invitee’s precise theory of premises liability, proof that her injury was caused by a ‘dangerous condition’ is an essential element of her claim.” Jones, 187 So. 3d at 1104 (¶12). “In every premises-liability case, the plaintiff must show that a dangerous condition exists.” McCullar v. Boyd Tunica Inc., 50 So. 3d 1009, 1012 (¶13) (Miss. Ct. App. 2010).

¶10. Morgan alleges that the Riverboat’s large daybed cushions were an unreasonably dangerous condition because they were not fastened to their platforms. The cushions were 6’8” by 6’8” by 10” thick. Riverboat’s risk manager testified that the cushions are “very heavy and ? just lay flat and ? don’t move.” The cushions had been in use for about three years at the time of this incident and had never before blown off their platforms.

¶11. With the benefit of hindsight, it is easy to say that Morgan’s injury possibly could have been prevented if the cushions had been fastened to their platforms with velcro straps. But “the Court is not justified in standing on the vantage ground of what did happen on the occasion complained of and look back in the direction from effect to cause.” Paramount-Richards Theatres v. Price, 211 Miss. 879, 886, 53 So. 2d 21, 22 (1951). Rather, “we must go back and view the situation from the standpoint of foreseeability before the accident occurred.” Id. “The owner of the premises is not required to anticipate an unusual and improbable result, such as the injury sustained by the plaintiff in this case.” Id. at 887, 53 So. 2d at 22. “[A] defendant must only take reasonable measures to remove or protect against foreseeable hazards that he knows about or should know about in the exercise of due care.” Donald v. Amoco Prod. Co., 735 So. 2d 161, 175 (¶48) (Miss. 1999) (quotation marks omitted). “The question in negligence cases is whether the party charged with negligence acted as a reasonable and prudent person would have under the same or similar circumstances. If a defendant’s conduct is reasonable in light of the foreseeable risks, there is no negligence and no liability.” Buffalo Servs. Inc. v. Smith, 227 So. 3d 1096, 1101 (¶11) (Miss. 2017) (emphasis added) (quotation marks omitted) (quoting Donald, 735 So. 2d at 175 (¶48)).

¶12. The large cushions at issue here had never once blown off their platforms—let alone “catapulted” across the pool with such force as to cause injury. There was no reason for Riverboat’s employees to anticipate such an unprecedented event on the day in question. Accordingly, the circuit court was correct to conclude that there were no genuine issues of material fact,³ that the daybed cushions were not an unreasonably dangerous condition,⁴ that there was no evidence of negligence on the part of Riverboat’s employees, and that Riverboat was entitled to summary judgment.