JACKSON, Miss. (Legal Newsline) - A jury doesn’t need to decide whether day-bed cushions that took to the air during a squall and “popped” a casino customer in the back of the head represented a dangerous condition, a Mississippi appeals court ruled, upholding a trial court’s dismissal.
There was no evidence the Golden Nugget Hotel and Casino in Biloxi could have foreseen a sudden gust of wind lifting the mattress-size cushions and hurling them at a woman trying to pay her bill at a swim-up bar in the hotel pool, the Mississippi Court of Appeals said. Three judges dissented, saying plaintiffs don’t need to prove a property owner had advance knowledge of a dangerous condition.
Mary Morgan sued the Golden Nugget claiming two of the nearly 7-foot-long cushions flew across the pool and hit her, driving her head under water and into the concrete bar. She argued evidence showed the hotel purchased Velcro straps to hold down the mattresses but they were never installed.
Harrison County Judge Louis Schmidt dismissed the case, ruling there were no material questions of fact for a jury to decide, since there was no evidence the hotel should have known the mattresses could be lifted in the air by a gust of wind. The Mississippi Court of Appeals affirmed the dismissal in a Nov. 5 opinion by Judge Jack L. Wilson.
“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,” the appeals court ruled. But the cushions had been in use for three years without incident and so there was no reason Golden Nugget employees should have anticipated them flying loose on the day Morgan was hit, the court said.
The hotel argued the Velcro straps referenced in a purchase order were for different cushions, but the appeals court said it didn’t matter. The presence or absence of straps wouldn’t transform the mattresses into a dangerous condition, the court said.
Judge Latrice Westbrooks dissented, joined by judges Deborah McDonald and Anthony Lawrence. Mississippi premises-liability law holds property owners to a higher standard, she said, where juries can conclude a dangerous condition was caused by “a proprietor’s act or omission,” regardless of whether it should have been anticipated.
Judge Westbrooks said the appeals court reversed summary judgment in another case where a woman claimed to have stepped over yellow caution tape lying on the ground when it rose up on a gust of wind and tripped her. The same court last year found a jury might conclude a loose mat could have caused a woman to trip and fall at a Wendy’s restaurant, even though the store manager testified she had purchased the mat the week before and had inspected it the day of the accident.
Morgan was represented by Rogen Chhabra and Kathryn Caroline Boyd, while Golden Nugget was represented by Sheldon Alston and Robert Lane Bobo.