author: DICKINSON, Justice, SMITH, Chief Justice,

text:
    UNIVERSITY OF MISSISSIPPI MEDICAL CENTER v. Melba POUNDERS.
    No. 2006-CA-01371-SCT.
    Supreme Court of Mississippi.
    Dec. 6, 2007.

      Anastasia G. Jones, James A. Becker, Jr., Corey Donald Hinshaw, Jackson, attorneys for appellant.
    George F. Hollowell, Jr., Greenville, attorney for appellee.
    Before DIAZ, P.J., DICKINSON and LAMAR, JJ.
   DICKINSON, Justice,

for the Court.

STATEMENT OF THE CASE

¶ 1. This is a Mississippi Tort Claims Act suit filed against the University of Mississippi Medical Center (“UMC”). The court awarded the plaintiff $150,000, together with pre-judgment interest. We affirm the award of damages, but reverse the award of pre-judgment interest.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. On April 12, 1998, Melba Pounders was admitted to UMC, complaining of difficulty in walking and maintaining balance. A magnetic resonance imaging scan (MRI) revealed a brain tumor as the cause of her physical problems. After the tumor was surgically removed, Pounders seemed to be recovering well. Although she had no problem breathing, she experienced some difficulty swallowing. She underwent a chest X-ray, which indicated that her lungs were normal. Due to her difficulty with swallowing and the risk of aspiration, Pounders was given a feeding tube for nutrition. She was transferred from the intensive care unit to a regular hospital room on April 16,1998.

¶ 3. According to the testimony of several witnesses, Pounders was alert, oriented, talking, and in good spirits between April 16 and April 19. She was scheduled to be discharged from the hospital and admitted to the Methodist Rehabilitation Center within a few days.

¶ 4. On April 19, Danny Teague, an employee of UMC, escorted Pounders from her room to the ultrasound department. Although Pounders was receiving oxygen at the time, Teague had no training in transporting patients who were receiving oxygen, nor had he received training in how to connect or disconnect a patient’s oxygen apparatus.

¶ 5. When Pounders returned from the ultrasound department, Jerry and Barbara Gibson and Pounder’s husband, Gorman Pounders, were waiting in her room. According to these witnesses, Teague put the humidifier bottle, which was connected to Pounders’s oxygen line, on the bed. The humidifier bottle turned upside down, allowing water to enter the oxygen line. When Gorman Pounders realized water was running into his wife’s nose and mouth, he removed the nasal tube to stop the water from continuing to run into her body.

¶ 6. Later that night, a nurse attempted to suction the water from Pounders’s lungs. Although this attempt appeared to be successful in part, Pounders still experienced respiratory distress. On April 21, Pounders suddenly developed a fever. A chest x-ray revealed that she had contracted pneumonia. Her conditioned worsened, and she was transferred back to the ICU for treatment. At this time, oxygen saturation tests showed that her lungs were deprived of oxygen.

¶ 7. Pounders filed suit against UMC alleging medical negligence. At trial, Dr. Ravi Pande, a neurologist, testified that when sterile water passes through the throat and oral areas, it becomes unsterile and contaminated with bacteria, and if water contaminated with bacteria enters a patient’s lungs, it can cause aspiration pneumonia. Dr. Pande testified that, to a reasonable degree of medical certainty, Pounders aspirated some of the liquid that got into her oxygen tube, and the aspiration of this fluid caused her pneumonia. Dr. Pande explained that, although other factors related to her surgery and medication made her more susceptible to developing pneumonia, the aspiration was the event which triggered the pneumonia.

¶ 8. UMC’s expert, Dr. William Pink-ston, disagreed. He opined that complications from surgery, rather than the aspiration of fluid, caused the pneumonia. Dr. Pinkston admitted, however, that the high fever and low oxygen saturation Pounders experienced were symptoms of respiratory distress. In a bench trial, Judge Winston Kidd found Dr. Pande’s opinions were more consistent with the medical records and other evidence, and determined that UMC was negligent in its care of Pound-ers.

¶ 9. The trial court then addressed damages. Dr. Pande testified that as a result of aspirating the fluid, Pounders’s condition deteriorated, she developed pneumonia, and her treatment took longer than it otherwise would have. He also testified to the amount of her medical bills at the time of the alleged incident and the increase in her bills as a result of her pneumonia. In addition, evidence was presented that before the incident, Pounders was doing well and was about to be released from the hospital.

¶ 10. After the incident, Pounders was readmitted to ICU, was treated with antibiotics, underwent a tracheotomy, was placed on a ventilator, experienced pain and discomfort, and feared that she would lose her life. The trial court found that prior to the incident, Pounders incurred only $88,000 in medical bills. After the incident, her medical bills increased to $152,000. In addition, her medical records indicate that she was in considerable pain following the incident, and that she was prescribed powerful pain medications. The trial court found that because Pound-ers was about to be discharged from the hospital before the incident, her increased medical bills and pain were a direct result of the incident. The court awarded Pounders damages in the amount of $150,000 plus legal interest from the date of judicial demand. After being denied relief through post-trial motions, UMC appealed.

ANALYSIS

I.

¶ 11. In bench trials, a circuit judge’s findings are subject to the same standard of review as those of a chancellor. Kight v. Sheppard Bldg. Supply, Inc., 537 So.2d 1355, 1358 (Miss.1989). Accordingly, the standard of review is the manifest error/substantial evidence rule. Miss. State Tax Comm’n v. Med. Devices, 624 So.2d 987, 989 (Miss.1993). UMC argues that the findings of fact and conclusion of law adopted by the trial court were copied virtually verbatim from the proposed findings of fact submitted by the Plaintiff, and thus, a heightened level of scrutiny should apply. Kerr-McGee Chem. Corp. v. Buelow, 670 So.2d 12, 16 (Miss.1995). Mississippi courts have applied heightened scrutiny only in two circumstances. First, heightened scrutiny is applied when a party’s entire proposal is adopted verbatim. Delta Reg’l Med. Ctr. v. Venton, 964 So.2d 500, 504 (Miss.2007); Miss. Dept. of Transp. v. Johnson, 873 So.2d 108, 111 (Miss.2004). Heightened scrutiny also is applied when the court makes only minor alterations to a party’s proposed findings. Smith v. Orman, 822 So.2d 975, 977-78 (Miss.Ct.App.2002).

¶ 12. In this case, the court made substantial alterations to the proposed findings submitted by the plaintiff. These alterations indicate the trial court gave the case careful review and formed its own opinion. This Court has specifically stated that trial judges are allowed to adopt portions of proposed findings submitted by parties so long as the findings are not adopted verbatim. City of Greenville v. Jones, 925 So.2d 106, 116 (Miss.2006). Because the trial judge did not adopt the proposed findings verbatim, the manifest error/substantial evidence standard of review will apply. Miss. State Tax Comm’n v. Med. Devices, 624 So.2d 987, 989 (Miss.1993).

¶ 13. The standard of review for the admission or exclusion of evidence is abuse of discretion. Church of God Pentecostal, Inc. v. Freewill Pentecostal Church of God, Inc., 716 So.2d 200, 210 (Miss.1998). A trial judge’s decision as to whether a witness is qualified to testify as an expert is given the widest possible discretion. Smith v. State, 925 So.2d 825, 834 (Miss.2006).

¶ 14. The issues before this Court may be summarized as follows: (1) Whether the trial court erred in admitting the testimony of Plaintiffs expert, Dr. Pande; (2) whether the trial court erred in relying solely on the expert opinion of Dr. Pande; (3) whether a finding of fact made by the trial court was based on substantial evidence; (4) whether the trial court’s order is supported by substantial evidence; (5) whether the order of the trial court should be reversed because the plaintiff failed to establish an applicable standard of care; (6) whether the final judgment of the trial court should be reversed because it awarded prejudgment interest.

II.

Did the trial court err in admitting the testimony of Plaintiff’s expert, Dr. Pande?

¶ 15. Mississippi law requires the trial court to ensure that proposed testimony satisfies Rule 702 of the Mississippi Rules of Evidence. Donaldson v. Covington County, 846 So.2d 219, 226 (Miss.2003). Rule 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of rehable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Miss R. Evid. 702.

¶ 16. The only evidence offered by UMC to attack the basis of Dr. Pande’s opinion is the statement by its own expert, Dr. Pinkston, that medical journals have stated that aspiration of sterile water does not cause pneumonia. The trial judge, not finding this testimony persuasive, admitted Dr. Pande’s testimony. A trial judge’s decision as to whether a witness is qualified to testify as an expert is given the widest possible discretion. Smith v. State, 925 So.2d 825, 834 (Miss.2006).

¶ 17. UMC also argues that, because Dr. Pande is not a pulmonologist, he should not be allowed to opine on matters concerning aspiration pneumonia. However, a witness need not be a specialist in any particular profession to testify as an expert. Hubbard v. Wansley, 954 So.2d 951, 957 (Miss.2007). The scope of the witness’s knowledge and experience, and not any artificial classification, governs the question of admissibility. West v. Sanders Clinic for Women, P.A., 661 So.2d 714, 719 (Miss.1995).

¶ 18. Dr. Pande testified he had the necessary knowledge to opine as to the diagnosis and causes of pneumonia. He further testified that, although he was not a pulmonologist, he was qualified as a neurologist, and that he had treated patients similar to Pounders.

¶ 19. Dr. Pande also testified that, as a neurologist, he was qualified to provide the opinions included in his testimony. Given the specialized training and knowledge Dr. Pande acquired through his medical-school instruction and past experience with patients similar to Pounders, we cannot say that the trial court was manifestly wrong in allowing Dr. Pande to opine as to the diagnosis and causes of Pounders’s pneumonia. Thus, this assignment of error is without merit.

III.

Did the trial court err in relying solely on the expert opinion of Dr. Pande?

¶ 20. The trial court has the sole authority in determining credibility of witnesses when sitting as a trier of fact in a bench trial. Pride Oil Co. v. Tommy Brooks Oil Co., 761 So.2d 187, 193 (Miss.2000). Therefore, the judge had the prerogative to place whatever weight he chose on Dr. Pande’s testimony.

¶21. Dr. Pande testified that he reviewed the entire record in preparation for his testimony. He stated that if a patient has difficulty swallowing, and water enters her mouth, it becomes contaminated with bacteria. He testified that if the contaminated water then entered the lungs, it could cause pneumonia. Dr. Pande opined that if Pounders aspirated the fluid from her oxygen tube, it caused her pneumonia. In addition, he testified that the problems Pounders experienced after the water-bottle incident were a result of her developing pneumonia.

¶ 22. Dr. Pande’s opinions were based upon facts in Pounders’s medical records. Dr. Pande gave reasonable opinions baséd upon these facts. Because the trial judge is the sole judge of the credibility of witnesses and may place whatever weight he feels appropriate on testimony, the trial court did not abuse its discretion by relying on Dr. Pande’s testimony. Thus, this assignment of error is without merit.

IY.

Was a finding of fact made by the trial court based on substantial evidence?

¶23. UMC asserts that the trial court’s finding that Pounders was doing well and was about to be released from the hospital before the water-bottle incident is not supported by the medical records and thus not based on substantial evidence. A trial judge’s findings of fact are afforded deferential treatment. City of Greenville v. Jones, 925 So.2d 106, 109 (Miss.2006). The trial judge’s findings of fact are not to be disturbed unless manifestly wrong or clearly erroneous. Morley v. Jackson Redevelopment Auth., 874 So.2d 973, 975 (Miss.2004).

¶ 24. In this case, the physician’s notes stated that Pounders was doing well. Pounders’s husband testified that he was present when rehabilitation staff visited Pounders to prepare for her transfer to a rehabilitation facility within a few days. Pounders’s son testified that he observed therapists engaged in planning Pounders’s move to rehabilitation. The records include a nurse’s note to call the rehabilitation center to inform them that discharge consultations would need to be postponed due to the deterioration in Pounders’s condition.

¶25. These facts amply support the trial court’s conclusion that Pounders was doing well and was about to be discharged before the water-bottle incident. Thus, the trial judge’s finding on this issue was not clearly erroneous.

Y.

Was the trial court’s order supported by substantial evidence?

¶ 26. A court’s ruling is not based on substantial evidence if glaringly obvious evidence is ignored. Gonzalo v. Oakes, 740 So.2d 312, 315 (Miss.1999). UMC claims that the testimony of its expert, Dr. Pinkston, was ignored. However, because a judge may place whatever weight he or she chooses on expert testimony, the failure to acknowledge or rely upon the testimony of a particular expert is not error. Univ. of Miss. Med. Ctr., v. Johnson, — So.2d -, -, 2007 WL 1470469, *5, 2007 MissApp. LEXIS 345, *7 (Miss.Ct.App. May 22, 2007).

¶ 27. UMC points out that the court failed to consider evidence that Pounders was aspirating her own saliva prior to the water-bottle incident. However, Dr. Pande testified that the water-bottle incident, and not the aspiration of saliva, caused Pounders’s pneumonia. In addition, Dr. Pinkston testified that Pounders was aspirating her own saliva, but did not take into account the fact that Pounders’s swallowing was irregular because the nerves causing that motion were paralyzed during her surgery. Because there was conflicting testimony and evidence regarding the cause of Pounders’s pneumonia, the trial judge’s findings of fact will not be overruled, because they were not clearly erroneous. Miss. State Tax Comm’n v. Med. Devices, 624 So.2d 987, 989 (Miss.1993).

VI.

Should the order of the trial court be reversed because Plaintiff failed to establish an applicable standard of care?

¶ 28. UMC argues that, because the standard of care for an escort handling oxygen was never established, Pounders failed to establish a prima facie case of negligence. The standard of care is to be determined by the finder of fact. Donaldson v. Covington County, 846 So.2d 219, 226 (Miss.2003). A trial judge’s findings of fact should not be reversed unless clearly erroneous. Puckett v. Stuckey, 633 So.2d 978, 982 (Miss.1993).

¶ 29. In most lawsuits against hospitals, the issue of negligence involves the determination of an applicable professional standard of care. In this case, however, the person alleged to have committed a negligent act was neither a doctor nor a nurse. The escort’s conduct must be evaluated using traditional negligence/reasonable-care standards. Furthermore, a hospital owes its patients a duty to exercise reasonable care. McMillan v. King, 557 So.2d 519, 522 n. 1 (Miss.1990). When a doctor notifies a hospital that a patient is at high risk for a particular type of complication, the hospital must take reasonable precautions to reduce or eliminate the risk, if possible. Clark v. St. Dominic-Jackson Memorial Hosp., 660 So.2d 970, 972-73 (Miss.1995).

¶ 30. The trial judge easily could have concluded that UMC was aware of Pounders’s risk for aspiration. Pounders’s doctor noted in the medical records that Pounders should not receive anything by mouth. In addition, testimony of the escort established that he received no medical training and that he was not aware of Pounders’s condition. Also, it is undisputed that actions of the escort caused Pound-ers to receive water orally, which was a direct violation of her doctor’s orders. The trial judge was fully justified in finding that UMC knew of Pounders’s condition and did not take steps to insure that those caring for her were aware of her condition and were properly trained to address her needs. Thus, we cannot say that the trial judge abused his discretion in finding that UMC failed to use reasonable care. See McMillan v. King, 557 So.2d 519, 522 (Miss.1990); Clark v. St. Dominic-Jackson Memorial Hosp., 660 So.2d 970, 972-73 (Miss.1995).

VII.

Should the final judgment of the trial court be reversed because it awarded prejudgment interest?

¶ 31. UMC asserts that the trial judge erroneously awarded pre-judgment interest, contrary to Mississippi Code Annotated Section 11 — 46-15(2) (Rev.2002). Pounders agrees that an award of prejudgment interest was improper. Accordingly, the award of prejudgment interest is reversed and rendered.

CONCLUSION

¶ 32. Having considered the arguments set forth by the parties in their briefs to this Court, and having reviewed the record, we affirm the verdict of the Hinds County Circuit Court in favor of Pounders in the amount of $150,000, and we reverse and render the award of prejudgment interest.

¶ 33. AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

WALLER AND DIAZ, P.JJ., CARLSON, GRAVES AND LAMAR, JJ., CONCUR. EASLEY, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. SMITH, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, J.

SMITH, Chief Justice,

Dissenting.

¶ 34. The majority affirms the award of damages of $150,000 against the University of Mississippi Medical Center (UMC), holding that the trial court did not err in admitting the testimony of Melba Pound-ers’s expert, Dr. Pande. In my view, Dr. Pande never should have been allowed to testify as an expert in pulmonary medicine. Pounders fails in her burden of proof without such expert testimony, as her case rests solely on Dr. Pande’s testimony. Accordingly, I dissent.

¶ 35. The trial judge is granted the widest possible discretion, and the decision of the trial judge will stand unless this Court concludes “that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion.” Miss. Trans. Comm’n v. McLemore, 863 So.2d 31, 34 (Miss.2003) (citing Puckett v. State, 737 So.2d 322, 342 (Miss.1999)). Here, Dr. Pande could not properly be qualified as a pulmonarymedicine expert under M.R.E. 702 due to his lack of “knowledge, skill, training, experience, or education” in this highly specialized area. This area of medicine was clearly outside the scope of Dr. Pande’s expertise. Dr. Pande himself stated that he was not a pulmonary specialist, had never served as a primary treating physician for a patient with pulmonary problems, that his practice had never involved treating patients with lung problems, and that he had never researched pulmonary medicine. Dr. Pande had no knowledge concerning aspiration pneumonia or the risks associated with this area of expertise under M.R.E. 702. “Only if the witness possesses scientific, technical, or specialized knowledge on a particular topic will he qualify as an expert on that topic.... ” Sheffield v. Goodwin 740 So.2d 854, 857 (Miss.1999) {quoting Thompson v. Carter, 518 So.2d 609, 615 (Miss.1987) (emphasis added)). This Court also has held that a proffered expert must be familiar with the facilities, resources, services and options available at the location in question. Palmer v. Biloxi Reg. Med. Ctr. 564 So.2d 1346, 1358. Dr. Pande fails to qualify as an expert under this requirement also.

¶ 36. It is clear that Dr. Pande was not qualified to give an opinion as a pulmonary-medicine specialist. West v. Sanders Clinic for Women, 661 So.2d 714, 719 (Miss.1995). See also, Cheeks v. Bio-Medical Applications, Inc., 908 So.2d 117, 121 (Miss.2005). Dr. Pande’s testimony was that the water incident was the precipitating event that caused Pounders’s aspiration pneumonia. He further opined that in addition to the “water incident,” giving high doses of steroids and other factors caused Pounders’s hyperosmolar non-ke-totic diabetic coma. Dr. Pande’s opinion was based upon his view that sterile water becomes unsterile when it comes into contact with oropharyngeal bacteria in the mouth, and this caused Pounders’s aspiration pneumonia. Incredible as it may be, Dr. Pande gave no basis for his opinion as required under Daubert. Dr. Pande’s testimony is lacking as to sufficient facts or data, is not the product of reliable scientific principles and methods, and he clearly failed to apply said principles and methods reliably to the facts of this case. M.R.E. 702. Dr. Pande exhibited a significant lack of knowledge of numerous critical facts regarding Pounders’s condition: (1) Pande was unaware of the length of time after exposure of the lungs to bacteriological or foreign substance before the lungs show an infiltrate which can be infection or pneumonia (nor had he researched this issue); (2) Pande had no knowledge of the type of pneumonia Pounders had, or whether it was sensitive to the antibiotic used in her treatment; (3) Pande made no diagnosis based on any test of any particular organism that infected the lungs; (4) Pande was unaware of whether or not the water which . entered Pounders’s mouth during the “water incident” was contaminated; (5) Pande had no idea what amount of water a patient would have to aspirate into the lungs to cause aspiration pneumonia; (6) Pande had no knowledge of the volume of other contaminated fluids in Pounders’s mouth which ultimately entered her body; (7) Pande did not know that intubated and respirator patients routinely have their lungs flushed with sterile water or saline and that much remains in the lungs and cannot be removed; (8) Pande did not know Pounders’s sputum cultures were negative for aspiration pneumonia; (9) Pande failed to review Pound-ers’s medical records sufficiently to know which procedures and/or drugs were used to treat her in her recovery from surgery and which were used to treat her developing complications. Dr. Pande’s testimony is merely unsupported, rank speculation and/or conjecture, subjective belief and conclusions without any basis provided by reliable scientific methods and procedures; thus his opinion was inadmissible. McLemore, 863 So.2d at 37 (Miss.2003). Mere conclusions “devoid of factual bases” do not meet the expert-opinion criteria. Palmer v. Biloxi Reg. Med. Ctr. 564 So.2d 1346, 1358. Further, this Court has held that to be admissible, a party must show that “the testimony is the product of reliable principles and methods.” Dr. Pande’s testimony fails to meet this criterion.

¶ 37. By contrast, the hospital’s experts Dr. Badr, Dr. Bowles, and Dr. Pink-ston were critical-care specialists experienced in treating patients with pulmonary problems. Dr. Badr also was co-director of the surgical ICU unit and sole director of neurosurgical ICU and was very familiar with aspiration pneumonia, routinely dealing with aspiration-pneumonia patients. Dr. Pinkston was a pulmonologist with extensive experience treating patients with pneumonia as well as other pulmonary diseases. Dr. Bowles, who removed Pounders’s tumor, regularly and routinely treated patients with pulmonary problems, including those with aspiration pneumonia. The trial court apparently discounted the testimony of these three esteemed experts in pulmonary problems and accepted Dr. Pande’s testimony, although Pande clearly should not have been qualified under Mississippi Rules of Evidence 702 and our case law as an expert in this field.

¶ 38. The trial court ignored the hospital records and the testimony of UMC’s. experts, especially Dr. Pinkston, who testified Pounders was already aspirating her own body fluids and other fluids prior to the “water incident,” and thus, that incident could not have caused the aspiration pneumonia, if she did in fact have aspiration pneumonia. The record clearly reflects that Pounders, as early as April 14, had symptoms of infection, fever and lung congestion, had rhonchia in the lungs (abnormal sounds indicating secretions in the lungs), yellow secretions, and rales (another abnormal sound in the lungs, which can indicate pneumonia). Even more critical was Dr. Badr’s testimony that intubated and respirator patients in ICU routinely have their lungs flushed with sterile water and are suctioned with either plain water or saline. (This procedure requires 100 ccs of water to flush the lungs, yet only 20-30 ccs can be suctioned from the lungs. The large amount remaining does not cause aspiration pneumonia. Rather, it would take 300-400 ccs of water to cause an infection in the lungs.) The testimony of both Dr. Badr and Pinkston was unre-butted. It is obvious that the trial court disregarded substantial evidence from the hospital records and the three UMC experts. A trial court’s decision is not based on substantial evidence if the court has disregarded “glaringly obvious evidence” which is in conflict with its ruling. DeGeorge v. Oakes, 740 So.2d 312, 315 (Miss.1999).

¶ 39. In my view, the trial judge’s decision was arbitrary and clearly erroneous, thus the lower court abused its discretion. I respectfully dissent.

RANDOLPH, J., JOINS THIS OPINION.

      . Miss.Code Ann. § 11-46-1 et seq. (Rev.2002).


source: Caselaw Access Project

author: DIAZ, Presiding Justice,

license: Public Domain

text:
    Bobby DeMetrius HARRIS v. STATE of Mississippi.
    No. 2006-KA-01327-SCT.
    Supreme Court of Mississippi.
    Dec. 13, 2007.

      Marcus Douglas Evans, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory attorneys for appellee.
    Before DIAZ, P.J., CARLSON and RANDOLPH, JJ.
   DIAZ, Presiding Justice,

for the Court.

¶ 1. Bobby Demetrius Harris was indicted for aggravated assault (Miss.Code Ann. § 97-3-7(2) (Rev.2006)) against Keith Grant and aggravated domestic violence (Miss.Code Ann. § 97-3-7(4) (Rev.2006)) against his stepson, Jermaine Davis. A jury convicted Harris of aggravated assault, and found him guilty of the lesser included offense of simple assault on the domestic violence charge. For the aggravated assault conviction, Harris was sentenced to ten years in custody with six years suspended and five years of post-release supervision. He was sentenced to six months in custody for the simple assault conviction, to be served concurrently with the ten-year sentence. Aggrieved, Harris appeals to this Court. Finding that his claims on appeal are without merit, we affirm his conviction and sentence.

FACTS

¶ 2. Shortly after Hurricane Katrina, on September 5, 2005, Bobby Harris informed his estranged wife Cassandra that he planned to travel from Alabama to her home in Meridian, Mississippi. Cassandra testified that he warned her against having anyone at the house when he arrived and threatened harm to anyone there. She said that she interpreted this to mean that she was not to have any other men in her home when he got there. Cassandra also testified that Harris called her cell phone about twenty times throughout the day. Worried for her safety, she went to the police station to get a restraining order. She was told that she would not be able to obtain one until the following day.

¶ 3. When Harris arrived around 11:00 p.m., he called Cassandra from her front yard and asked if her electricity, which had been knocked out by the hurricane, had been restored. Although Cassandra did have power, she told Harris that it was still off. Since Harris was in the front yard, he could see her lights were on, and he became angry with Cassandra for lying to him. There were several people in the home, including Jermaine Davis, Cassandra’s eighteen-year-old son; Katrina Morris, Cassandra’s roommate; Katrina’s two young daughters; and Keith Grant, a friend.

¶4. Harris asked Cassandra to come outside so they could talk. When Cassandra refused, explaining that there were children in the house and it was not a good time, Harris threatened to come in. He then broke a window pane in the front door with his hand, reached in, unlocked the door, and entered the house. Katrina Morris called 9-1-1. Harris grabbed Cassandra and put his arm around her neck, at which point the other people in the house began to scream.

¶ 5. Grant testified that when Harris grabbed Cassandra, his shirt rose up, revealing a gun tucked into the waistband of his pants. Grant punched Harris in the face and then quickly ran out of the house. Jermaine Davis ran out as well, and testified that he heard Harris say, ‘Tall are fixing to die now.” Once outside, the two men separated, with Grant bolting to the right and Jermaine to the left.

¶ 6. Harris then recovered from the punch and began firing his weapon. Cassandra testified that Harris was standing in the yard when he was shooting, but Katrina Morris stated that she witnessed him shooting from inside the house. Specifically, Morris testified that Harris “stood on the inside of the house and aimed that gun at [Grant and Jermaine] and unloaded ... at least five rounds.”

¶ 7. A short time later, Officer Kevin Boyd arrived on the scene. He found Harris in the yard talking on his cell phone and questioned him as to the whereabouts of the gun. Harris told him the gun was in his vehicle. The weapon held one live round and four spent shell casings.

¶ 8. At the time of his arrest, Harris was a police officer with the York, Alabama, Police Department; the weapon he discharged was his department-issued sidearm. He had served with the Army National Guard for three years and the Army Reserve for six, and had no previous criminal record.

DISCUSSION

¶ 9. The defendant raises four issues on appeal: (1) the trial court allowed the admission of impermissible hearsay; (2) there was insufficient evidence to support a conviction; (3) the verdict was against the weight of the evidence; and (4) the presence of cumulative errors warrants reversal.

I. Hearsay Testimony.

¶ 10. Harris argues that the trial court erred in admitting hearsay testimony from both Cassandra and Jermaine Davis. The standard of review governing the admissibility of evidence is whether the trial court abused its discretion. Peterson v. State, 671 So.2d 647, 655 (Miss.1996) (citing Baine v. State, 606 So.2d 1076, 1078 (Miss.1992); Wade v. State, 583 So.2d 965, 967 (Miss.1991)). This Court must first determine if the proper legal standards were applied. Peterson, 671 So.2d at 655-56 (citing Baine, 606 So.2d at 1078). If the trial court incorrectly applied the rules of evidence, resulting in prejudice to the accused, then a reversal is warranted. Peterson, 671 So.2d at 656 (citing Parker v. State, 606 So.2d 1132, 1137-1138 (Miss.1992)).

A. Cassandra’s Testimony.

¶ 11. Upon direct examination, Cassandra stated that when she went to the Meridian Police Department to obtain a restraining order, she was told to wait until the next day. The defense objected to the testimony on the basis of hearsay. The court overruled the objection.

¶ 12. The Mississippi Rules of Evidence define hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” M.R.E. 801(c). However, “[i]f the significance of a statement is simply that it was made and there is no issue about the truth of the matter asserted, then the statement is not hearsay.” Tanner v. State, 764 So.2d 385, 406 (Miss.2000) (quoting Michel v. State, 602 So.2d 1160, 1162 (Miss.1992)).

¶ 13. In this case, the State was not offering this statement to prove the truth of the matter asserted, but to demonstrate why Mrs. Harris did not get a restraining order that day. Cassandra’s statement was simply a recitation of what the officers told her when she sought a restraining order against Harris. Therefore, the statement was not hearsay, and it was not error for the trial court to overrule the objection.

B. Jermaine’s Testimony.

¶ 14. Harris’s stepson Jermaine offered testimony about the events leading up to the night in question.

Q: During that day, were you aware of any phone calls that were coming into your house or in to your mother?
A: Well, I didn’t — we didn’t see, but when they — they got back, that’s what the — the subject they was talking about.

(emphasis added). The defense counsel objected to the testimony, arguing hearsay, and the trial court overruled the objection.

¶ 15. On appeal, Harris argues that this testimony went to prove “what was stated to [Cassandra] by the defendant.” However, Jermaine never testified as to what Harris might have said to Cassandra. If anything, the testimony was evidence that phone calls had been made to the house that day, and Cassandra had already testified that Harris had called several times. Because this information was already in evidence, any error could not have prejudiced the defendant. See Tanner, 764 So.2d at 407 (Miss.2000) (holding that hearsay testimony regarding information already in evidence was not prejudicial to the accused). Therefore, this assignment of error is without merit.

II. Sufficiency of the Evidence.

¶ 16. A motion for a directed verdict and a motion for a judgment notwithstanding the verdict challenge the sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843 (Miss.2005). When reviewing a case for sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush, 895 So.2d at 843 (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The evidence must show “beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” Bush, 895 So.2d at 843 (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). If, keeping in mind the reasonable-doubt standard, “reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,” the evidence will be deemed to have been sufficient. Bush, 895 So.2d at 843 (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

¶ 17. Harris argues that the State failed to present sufficient evidence to support his conviction of aggravated assault. He argues that the alleged victim never apprehended any danger, as Grant never saw him point or fire a weapon at him.

¶ 18. Harris has confused the common law definition of assault in tort, which requires the element of apprehension, with the statutory definition set forth in Mississippi Code Section 97-3-7(2)(a) (Rev.2006). Under the common law, assault occurs where “a person ... acts intending to cause a harmful or offensive contact with the person of the other ... or an imminent apprehension of such a contact.” Webb v. Jackson 583 So.2d 946, 951 (Miss.1991) (quoting Restatement (Second) of Torts § 21 (1965)); see also Robert A. Weems and Robert M. Weems, Mississippi Law of Torts, § 2:1 (2002) (“the cause of action for the tort of assault protects a person’s interest in being free from an imminent apprehension of a harmful or offensive bodily contact”). The criminal statute, on the other hand, does not require an apprehension of danger; a person can be convicted of aggravated assault if he is found to have attempted “to cause serious bodily injury to another, or causes such injury purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life.” Miss. Code Ann. § 97-3-7(2)(a) (Rev.2006).

¶ 19. The defendant admitted to discharging his weapon with the intent to scare Grant, and aggravated the conditions of the crime by employing a deadly weapon. There were discrepancies in the testimony as to whether Harris intended to harm Grant. Harris testified that he shot into the air at an angle, intending only to scare Grant. However, Cassandra and Katrina both testified that from their vantage point within the home, Harris appeared to be shooting directly toward Grant, not away from him.

¶ 20. “[Wjhere the physical facts and circumstances in evidence materially contradict the defendant’s version of what happened, the circuit court is not required to direct a verdict.... Rather, the matter then becomes a question for the jury.” Watts v. State, 717 So.2d 314, 321 (Miss.1998) (quoting Wetz v. State, 503 So.2d 803, 809 (Miss.1987)). It is well established that the jury is the sole judge of the credibility of the witness. Gathright v. State, 380 So.2d 1276, 1278 (Miss.1980). “[W]hen the evidence is conflicting, the jury will be the sole judge of the credibility of witnesses and the weight and worth of their testimony. This wise rule applies with equal force to the state’s witnesses and the appellant’s witnesses, including the appellant himself.” Id.

¶ 21. Because there was evidence that Harris attempted “to cause serious bodily injury” to Grant, this argument is without merit. We also find that there was sufficient evidence to support a conviction of simple assault against Davis. Accordingly, the trial court did not err in denying the motion for a directed verdict.

III. Weight of the Evidence.

¶ 22. Harris also argues that the verdict was against the weight of the evidence. We will only disturb a jury verdict when “it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). This Court acts as a “thirteenth juror” and views the evidence in the light most favorable to the verdict. Bush, 895 So.2d at 843 (citing Herring, 691 So.2d at 957). A decision to reverse and order a new trial, “unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict.” Bush, 895 So.2d at 844 (quoting McQueen v. State, 423 So.2d 800, 803 (Miss.1982)).

¶ 23. Viewing the evidence in the light most favorable to the verdict, the defendant is not entitled to a new trial. While there was conflicting evidence regarding Harris’s intent, the weight of the evidence supports the State’s claim that Harris was firing his gun at Grant. As noted above, the jury is the sole judge of the credibility of the witness. Gathright, 380 So.2d at 1278. Accordingly, the trial court did not err in denying the defendant’s motion for a new trial.

IV. Cumulative Errors.

¶ 24. The defendant argues that the cumulative effect of the various errors in the trial, even if harmless alone, requires reversal and remand. “The cumulative error doctrine stems from the doctrine of harmless error ... [which] holds that individual errors, which are not reversible in themselves, may combine with other errors to make up reversible error, where the cumulative effect of all errors deprives the defendant of a fundamentally fair trial.” Ross v. State, 954 So.2d 968, 1018 (Miss.2007) (quoting Byrom v. State, 863 So.2d 836, 847 (Miss.2003)). However, where there is no error in part, there can be no reversible error to the whole. Gibson v. State, 731 So.2d 1087, 1098 (Miss.1998) (citing McFee v. State, 511 So.2d 130, 136 (Miss.1987)). Because there were no errors regarding the conviction which would warrant reversal, this issue is without merit.

CONCLUSION

¶ 25. The State presented sufficient evidence to support a conviction of aggravated assault against Keith Grant and simple assault against Jermaine Davis, and viewing the evidence in the light most favorable to the verdict, the defendant is not entitled to a new trial. Additionally, because there were no errors that would warrant reversal, the judgment of the trial court is affirmed.

¶ 26. COUNT I: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. THE EXECUTION OF THE LAST SIX (6) YEARS OF THE SENTENCE IMPOSED IN COUNT I IS STAYED AND THAT PORTION OF THE SENTENCE IS SUSPENDED AND THE APPELLANT SHALL BE RELEASED ON SUPERVISED PROBATION FOR A TERM OF FIVE (5) YEARS, WITH CONDITIONS, UNDER THE SUPERVISION OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS. COUNT II: CONVICTION OF SIMPLE ASSAULT AND SENTENCE OF SIX (6) MONTHS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTION, AFFIRMED. SENTENCE IN COUNT II SHALL RUN CONCURRENTLY TO THE SENTENCE IN COUNT I.

SMITH, C.J., WALLER, P.J., EASLEY, CARLSON, DICKINSON AND LAMAR, JJ., CONCUR. GRAVES AND RANDOLPH, JJ., CONCUR IN RESULT ONLY.

      . Harris argues that the trial court erred in failing to grant his motion for a new trial and/or a judgment notwithstanding the verdict on his convictions of aggravated assault and aggravated domestic violence. However, as noted above, the jury did not find Harris guilty of aggravated domestic violence.


author: IRVING, J.,

text:
    Stephen W. MILLER, Appellant, v. R.B. WALL OIL COMPANY, INC., Appellee.
    No. 2005-CA-01966-COA.
    Court of Appeals of Mississippi.
    Dec. 12, 2006.
    Rehearing Denied May 1, 2007.

      David N. Gillis, Wayne E. Ferrell, Jackson, attorneys for appellant.
    Roy A. Smith, Melton James Weems, Jackson, attorneys for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   IRVING, J.,

for the Court.

¶ 1. This appeal arises out of a slip-and-fall claim initiated against R.B. Wall Oil Co. (Wall Oil) by Stephen Miller. According to Miller, he slipped and fell at a gas station leased to Mary Jo Bueto by Wall Oil. This appeal concerns only Wall Oil’s liability for Miller’s injuries. After discovery, the Hinds County Circuit Court granted summary judgment on Wall Oil’s behalf. Miller appeals, and asserts that the grant of summary judgment was in error. Miller also challenges the trial court’s determination that he is not entitled to an award of punitive damages, and claims that he is entitled to reasonable expenses for his appeal.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On January 12, 1995, while fueling his truck, Miller slipped and fell in oil on the ground at the Bogue Chitto Truck Stop. The oil was on the ground prior to Miller’s arrival at the truck stop. Miller allegedly fell in the oil as he went to shut off the fuel being pumped into the other side of his truck. Miller claims that the automatic shut-off feature of the pump fueling the other side of his truck was inoperative, and he fell as he went to manually shut off the pump.

¶ 4. Donnie McWilliams was at the truck stop fueling his own truck at the time of Miller’s fall. After McWilliams saw Miller slip, he went to help Miller up. At that time, both men went inside and Miller informed an employee of the truck stop that he had fallen in some oil. According to Miller, the employee told him that they were aware of a problem with the non-functioning automatic shut-off, and that someone had already been called to deal with the problem.

¶ 5. McWilliams testified at his deposition that he had had a problem with a malfunctioning automatic shut-off pump about a week before Miller’s accident. McWilliams testified that he had informed the truck stop about the problem. Although he initially testified that he was not sure whether the pump he had used was the same pump that Miller was using on the day of the accident, he later recalled that the pump that had malfunctioned during his use was missing the handle-lock that allows a customer to pump gas without holding the pump. By contrast, the pump that allegedly overflowed at the time of Miller’s accident had a functioning handle-lock, because McWilliams agreed that Miller was not at the pump at the time of the alleged malfunction of the automatic shut-off. Therefore, the pump that malfunctioned on McWilliams roughly a week prior to Miller’s accident was not the same pump that allegedly malfunctioned at the time of Miller’s accident.

¶ 6. According to Bueto’s deposition, the pumps at the gas station were inspected every four hours by the fuel station attendant. The inspections began at six in the morning. Bueto testified that, although she could not remember the time of the accident, she was certain that the accident had not occurred at night. Bueto testified that these inspections specifically included looking for spills and other dangerous conditions. Bueto indicated that she had no knowledge of any problem with the shut-off feature of any of the pumps in the time leading up to Miller’s accident. As she noted, she had “to pay for all the fuel that comes out of the pump. If it’s on the ground, I got to pay for it. I mean, you know, I don’t want it spilled.” Bueto also testified that she examined the pump that Miller had been using after Miller’s accident, and could find nothing wrong with it. The truck stop continued to use the allegedly malfunctioning pump without any complaints by other customers. Bueto indicated that, to the best of her recollection, Miller told her that he had slipped and had fallen in some oil as he ran to shut off the pump he was using, which was overrunning onto the ground. Bueto testified that she went outside to look around after Miller’s fall and observed “some fuel spilled out on the concrete.” She qualified, however, that the spill “wasn’t very wide.”

¶ 7. Jason Miller (no relation to Stephen Miller), the employee that Miller spoke to immediately after his fall, testified in his deposition that he remembered Miller coming in to say that he had fallen, but Jason could remember little else about their exchange. Jason testified that he did not remember what he had said back to Miller after Miller told him that he had fallen. Jason indicated that Miller had simply told him that Miller had fallen. Jason testified that he did not recall Miller saying anything about falling in oil or about a malfunctioning pump. Jason testified that he went outside after Miller left the truck stop, but could not find any significant oil spills, although he saw “little spots” of oil. Jason also testified that he had received no other complaints of oil on the ground prior to Miller’s accident.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 8. When reviewing a trial court’s grant or denial of a motion for summary judgment, our standard of review is de novo. Webb v. Braswell, 930 So.2d 387, 395(¶ 12) (Miss.2006). The party moving for summary judgment bears the burden of showing that no genuine issue of material fact exists, while “the non-moving party is given the benefit of the doubt as to the existence of a material fact.” Id. (citing McCullough v. Cook, 679 So.2d 627, 630 (Miss.1996)). When reviewing the record, we will “view the evidence in the light most favorable to the party opposing the [summary judgment] motion.” Id. (citing Stallworth v. Sanford, 921 So.2d 340, 341-42(¶ 5) (Miss.2006)). If there is no genuine issue of material fact as to any element of a claim, summary judgment is proper. Id.; see also Cothern v. Vickers, Inc., 759 So.2d 1241, 1245(¶ 6) (Miss.2000).

1. Agency

¶ 9. Miller claims that the evidence introduced at trial shows a genuine issue regarding whether Bueto acted as Wall Oil’s agent in the operation of her truck stop. Wall Oil claims that it did not exercise sufficient control over Bueto to make her its agent.

¶ 10. In 1931, the Mississippi Supreme Court expounded a non-exclusive list of factors that are to be used in determining whether an agency relationship exists:

Whether the principal master has the power to terminate the contract at will; whether he has the power to fix the price in payment for the work, or vitally controls the manner and time of payment; whether he furnishes the means and appliances for the work; whether he has control of the premises; whether he furnishes the materials upon which the work is done and receives the output thereof, the contractor dealing with no other person in respect to the output; whether he has the right to prescribe and furnish the details of the kind and character of work to be done; whether he has the right to supervise and inspect the work during the course of the employment; whether he has. the right to direct the details of the manner in which the work is to be done; whether he has the right to employ and discharge the subemployees and to fix their compensation; and whether he is obliged to pay the wages of said employees.

Kisner v. Jackson, 159 Miss. 424, 428-29, 132 So. 90, 91 (1931) (emphasis added). Although several of these factors do not weigh in favor of a determination of agency in this case, others weigh strongly toward a determination of agency. For example, there is significant evidence that Wall Oil regularly inspected Bueto’s operation of the gas station. According to Bue-to, official inspections were made at least weekly, and unofficial visits by Wall Oil employees occurred almost every day. Bueto testified that she believed that the purpose of these daily visits was to observe and inspect her operation of the truck stop. More troubling is Bueto’s clear testimony that Wall Oil set the price of her gasoline. Bueto testified that she had regular, frequent contact with Wall Oil regarding the price she could set for her gas. Bueto indicated that she could not change the price of her gas without permission from Wall Oil. Furthermore, we note that Wall Oil received half of the profits from Bueto’s sale of gas to customers of the truck stop.

¶ 11. Both Miller and Wall Oil direct our attention to Fruchter v. Lynch Oil Co., 522 So.2d 195 (Miss.1988). In that case, Fruehter was at a gas station filling her bicycle tires with air when she was burned by hot water that spewed from a car’s radiator as a gas station attendant removed the radiator’s cap. Id. at 196-97. As a result of her injuries, Fruehter sued Lynch Oil, which was leasing the gas station for operation by a third party, Robert Keel. Id. The Mississippi Supreme Court examined the issue of whether Lynch Oil could be held liable as a principal for its role in leasing the gas station to Keel. Id. at 198. The court noted that control and the right to control are the key issues that must be addressed in an agency determination. Id. at 199. Ultimately, the court determined that Fruehter had failed to prove a genuine issue of material fact regarding whether Lynch Oil could be held liable as a principal. Id. at 200-01. In so holding, the court noted several relevant facts:

Lynch Oil Company is a closely held family corporation chartered in the state of Mississippi. The company serves as a distributor for Shell Oil Company.... The real property and improvements at By-Pass Shell are owned by George Lynch, Jr., and George Lynch, III, both stockholders in Lynch Oil. The underground gas reservoirs and the pumps at By-Pass Shell are owned by Lynch Oil. Lynch Oil has owned or controlled the land, ground and buildings of By-Pass Shell for more than fifteen years but has never operated the gas station. Rather, Lynch Oil leases the pumps, tanks, land and building to the operator who under an oral agreement pays $ 1,000 a month and purchases gasoline daily. The operator “sets his oum pnces,” “hires his own people,” buys gas and some oil from [Lynch Oil], “but buys other items, e.g., filters and tires, from whomever. Lynch Oil supplies the station with all gasoline, more or less on a consignment basis, and the operator pays for the gas on a daily basis, keeping as a profit the difference between the wholesale price and the retail price.
Lynch Oil required that Keel keep ByPass Shell open seven days a week. Beyond this Keel was required to operate the station as a Shell gas station and display only Shell signs. Shell Oil dealt directly with Lynch Oil. All credit card sales were routed through Lynch Oil with credit back from Shell Oil, rather than going directly from By-Pass Shell to Shell Oil.
The oral lease from Lynch to Keel contained no termination provisions. George Lynch, president of the corporation, understood that the corporation could terminate the lease if it was dissatisfied with the way Keel was operating the station and also that it had the right to approve or refuse any sale of the operating business by Keel to a third person..

Id. at 197 (emphasis added).

¶ 12. Both Miller and Wall Oil claim that Fruchter is particularly applicable to the present case. Wall Oil discusses the case at some length in its brief, eventually concluding that “[ujnder Fruchter, no agency was created between Shell, R.B. [sic] Wall Oil Company and [Bueto].” We agree that Fruchter bears many factual similarities to the present case. Notably, in both cases, the lessors retained no control over the hiring or paying of specific employees. However, we find the cases distinguishable in one particularly significant aspect. Keel, the operator in Fruchter, set his own prices and recovered, as profit, the difference between the amount he paid to Lynch Oil for his gas and the price of the fuel’s resale to the public. Fruchter, 522 So.2d at 197. By contrast, there was significant testimony from Bueto indicating that she did not, and could not, set her own prices. Additionally, Bueto split the profits from her sale of the gasoline with Wall Oil rather than recovering the entire profit of the sale of the gasoline herself. Essentially, it appears from the record that Bueto received gasoline from Wall Oil that she then sold, providing profit for both her business and for Wall Oil. Unlike Lynch Oil in Fruchter, Wall Oil in the present case did not gain profit only on the gasoline that was initially sold to the operator of the gas station; instead, it appears that Wall Oil took its profits from the gas sold by Bueto at the truck stop.

¶ 13. Agency matters are difficult to determine, because the question of whether a particular business relationship falls under agency principles is often a gray area. However, it appears to us that there are significant, material facts present, sufficient to prevent the grant of summary judgment, which indicate that Bueto may have acted as Wall Oil’s agent in her operation of the Bogue Chitto Truck Stop. However, we find that Miller has failed to provide any genuine issue of material fact regarding another element of his claim. Therefore, a determination as to whether a genuine issue of material fact exists regarding any agency relationship is not outcome-determinative and need not be addressed further. Even if summary judgment was improperly granted on the ground of agency, summary judgment was still proper on another ground, as we explain below.

2. Notice

[1-4] ¶ 14. “A business owner or operator owes a duty to the invitee to keep its premises in a reasonably safe condition and to warn of dangerous conditions which are not readily apparent to the invitee.... If the dangerous condition was created by someone not associated with the operation of the store, the plaintiff must produce evidence demonstrating that the operator had actual or constructive knowledge of the condition.” Drennan v. Kroger Co., 672 So.2d 1168, 1170 (Miss.1996) (citations omitted). A plaintiff need not prove notice if “the condition was created by the negligence of the proprietor or an individual acting under his authority.” Id. at 1171 (citing Munford, Inc. v. Fleming, 597 So.2d 1282, 1284 (Miss.1992)).

¶ 15. Here, there was no evidence presented to indicate that the oil spill that Miller slipped in was caused by the negligence of the Bogue Chitto Truck Stop. There is no evidence whatsoever that an employee of the truck stop spilled the oil. Given that the location was a gas station, the most logical conclusion is that the oil was spilled by another customer of the gas station. Because there is no evidence that the spill was caused by the negligence of the employees of the truck stop, Miller can succeed only if he can show that there is a genuine issue of material fact regarding whether Bueto or her employees had notice of the spill.

¶ 16. There also is no evidence to indicate that the truck stop had actual or constructive knowledge of the spill. Although Bueto testified that the station’s employees inspected the pump area every four hours, there is no evidence that one of these inspections would have occurred close in time to the time of Miller’s accident. In fact, nothing in the record indicates exactly when Miller’s fall occurred. Furthermore, Miller presented no evidence to indicate that the spill must have been on the ground for any length of time such that regular inspections should have detected. Although McWilliams testified that one could tell by looking at the spill that it had been there a while, nothing in the record indicates that McWilliams has any sort of expertise with identifying and characterizing oil spills. Additionally, although McWilliams indicated that he thought that the oil spill had been there for some time, he did not present any estimate as to how long the spill had been there. We note that there is no evidence to indicate that other customers had complained to the truck stop’s employees that there was an oil spill outside. Therefore, there has been no credible evidence presented to indicate that Bueto or her employees knew or should have known about the spill in question.

¶ 17. Miller contends that the station had notice that there was a problem with one of the pumps because McWilliams had had an incident with one of the pumps approximately a week prior to Miller’s fall. However, we note that McWilliams was never able to adequately identify which pump he had used. Whatever pump it was, it is clear that the pump was not the same one that Miller was using at the time of his spill. There is no evidence to indicate that the pump that McWilliams had problems with was still malfunctioning at the time of Miller’s fall, or that it was the pump that caused the oil spill that Miller slipped in. Therefore, McWilliams’ report of a malfunctioning pump about a week prior to Miller’s accident is not sufficient to provide a genuine issue of material fact regarding notice.

¶ 18. Finally, Miller points to his testimony that Jason, an employee of the truck stop, told him that the station was aware of a problem with the pump he was using. Deciding the admissibility of Jason’s statement would require analysis under the rules governing hearsay. As we discuss in the succeeding paragraph, though, this statement even if admissible would be insufficient to deny summary judgment.

¶ 19. We have already noted that there are significant, material facts implicating an agency relationship between Bueto and Wall Oil, although our holding is not premised on a finding of agency. Regardless of how the agency issue might be resolved, there still would not be a genuine issue of material fact regarding the requisite notice to Bueto. Nothing in the statement attributed to Jason by Miller indicates that Wall Oil was aware of the existence of the oil spill that Miller slipped in. Further, there is no proof that the pump of which Jason allegedly spoke actually caused the spill.

¶ 20. Miller also contends that the truck stop could, “[a]t a minimum,” put up signs warning customers of a dangerous condition. We have already found that Miller presented no evidence which would indicate that the truck stop had notice of the spill. Therefore, the truck stop cannot be held liable for the failure to warn.

¶ 21. Because there is no evidence to indicate that the oil that Miller slipped on was spilled as a result of the station’s negligence, Miller must show actual or constructive notice on the part of the truck stop in order to overcome summary judgment. Since no genuine issue of material fact has been presented to support a finding of notice, summary judgment was properly granted against Miller, even though we disagree as to the basis relied on by the trial court. It is well-settled law that when a trial court has reached the right result, an appellate court may affirm the judgment of the trial court employing a different basis than the one upon which the trial court relied. Puckett v. Stuckey, 633 So.2d 978, 980 (Miss.1993).

S. Punitive Damages

¶ 22. Because we have found that summary judgment was properly granted, the trial court was also clearly correct in refusing to grant punitive damages to Miller. This issue is without merit.

k. Costs of Appeal

¶ 23. Because we are affirming the trial court, and finding Miller’s appeal without merit, we also find that he is not entitled to recover the cost of pursuing his appeal. Therefore, this issue is also without merit.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.

      . Miller has had two prior appeals before this Court regarding his accident, Miller v. R.B. Wall Oil Co., 850 So.2d 101 (Miss.Ct.App.2002) (appeal dismissed because lower court’s order not a final judgment) and Miller v. Shell Oil Co., 783 So.2d 724 (Miss.Ct.App.2000) (reversed and remanded for trial on the merits).