author: PIERCE, Justice, LAMAR, Justice,

text:
    Elizabeth MARTIN v. ST. DOMINIC-JACKSON MEMORIAL HOSPITAL.
    No. 2009-CT-01365-SCT.
    Supreme Court of Mississippi.
    April 5, 2012.
    Rehearing Denied June 28, 2012.

      Micah Benjamin Dutro, Ramel Lemar Cotton, attorneys for appellant.
    John Ernest Wade, Jr., Jonathan Robert Werne, Jackson, attorneys for appellee.
   PIERCE, Justice,

for the Court:

¶ 1. While attending a group-therapy session at St. Dominic’s Hospital (“SDH”) on September 27, 2005, Elizabeth Martin slipped and fell on a floor while it was being waxed. She alleged she received injury to both knees. Martin sued SDH for negligence regarding her injuries allegedly caused by the fall. At the conclusion of the trial, SDH moved for a directed verdict, claiming that Martin had not provided sufficient evidence to establish the proximate cause of her injury. The Circuit Court for the First Judicial District of Hinds County granted SDH’s motion for a directed verdict, and Martin timely filed an appeal. The Court of Appeals reversed the decision of the circuit court and remanded the case for a new trial, finding that Martin had provided enough evidence to create a question of fact for the jury to make a determination based on the totality of the evidence. We disagree and find that the circuit court correctly granted SDH’s motion for a directed verdict.

FACTS AND PROCEDURAL HISTORY

¶ 2. The following facts are gleaned from the Court of Appeals opinion and the testimony and evidence presented at trial. On September 27, 2005, Martin slipped and fell on both knees on a floor while it was being waxed at SDH during a break in a physical-therapy session that Martin was participating in while a patient at SDH. According to testimony adduced by SDH, Martin and the other participants in the therapy session had been specifically warned to avoid the hallway because Environmental Services (i.e. Housekeeping) had begun to prepare the floor to be waxed; warning signs had been placed in the area being waxed; and Martin slipped and fell as she passed the custodian who was waxing the floor. Martin testified that there were no warning signs and that she had not been warned by the hospital’s personnel to avoid the area where the fall occurred.

¶ 3. It is undisputed that Martin fell. Martin alleged that she suffered some swelling at least a day after the fall. Martin, already a patient at SDH before the fall and going home the next day, remained hospitalized overnight. She was discharged from the hospital the following day and given a prescription for pain.

¶ 4. After Martin was discharged from the hospital, she claimed that her knee, without saying which one, continued to swell, causing her to see her family physician, Dr. Brent Meador. Martin testified that “after I had left St. Dominic, I began to have swelling in the knee.” Martin never testified to the extent of injuries in her right knee, but she did testify that when she went to see Dr. Meador after the fall, she thought her problems stemmed from her arthritis, with which she had been diagnosed in 2004. Because Dr. Meador did not know the cause of Martin’s ailments, he ordered magnetic resonance imaging (“MRI”) of Martin’s left knee. Dr. Meador also ordered an x-ray of Martin’s right knee, and thereafter, he referred Martin to Dr. David Gandy.

¶ 5. Dr. Gandy saw Martin about two months after she fell, and he testified that Martin had explained in a form she filled out, that the cause of her pain stemmed from a fall that had aggravated and intensified an existing problem. Dr. Gandy reviewed Martin’s MRI, showing that Martin had a trabecular injury, which is a bruise to the bone that normally would occur, according to Dr. Gandy, “from some type of direct blow to the knee.” The MRI also showed that Martin had a mild ACL sprain. Dr. Gandy explained: “An ACL is an anterior cruciate ligament. That’s one of the two cross ligaments within the knee, and most people hear [about] those in football[-]type injuries, things like that, and it was a mild sprain. It was not a tear or not a major injury.” The MRI also showed “a small joint effusion, meaning some small amount of fluid in the knee, and then there’s some mild marrow edema in the distal femur and proximal tibia.” Dr. Gandy explained that “[e]dema is swelling anywhere, but in this case within the bone marrow, and [the radiologist] thought it could be due to the recent fall or to arthritis.” As far as the right knee is concerned, Dr. Gandy reviewed the x-ray, which “showed moderate osteoarthritis in the right knee with no acute abnormality seen.”

¶ 6. “In his initial diagnosis, Dr. Gandy determined that Martin had internal derangement, which means that something is wrong inside the knee, but she primarily had arthritis in both knees.” As Dr. Gandy began to treat Martin, he based her treatment on the MRI and an x-ray ordered by Dr. Meador, Martin’s medical history, and his own examination. Dr. Gandy testified that Martin complained of pain in both knees, with the pain in her left knee having existed “for about two years” and pain in her right knee being a result of a direct blow from the fall she had two months prior. According to Dr. Gandy, Martin “had pain with motion[,] and she had pain with stress to various environments, which means pulling the knee in and pulling the knee out, holding the thigh stable. Dr. Gandy informed Martin that she had three options: 1) bracing the knee; 2) injections to the knee; or 3) considering arthroscopic surgery. Martin chose to undergo arthroscopic surgery to her left knee. No treatment options were given for any problems with the right knee.

¶ 7. The surgery revealed that Martin had arthritis and medial and lateral meniscus tears in the left knee. Dr. Gandy gave the following explanation regarding the meniscus tears:

A meniscus is a disc[-]shaped structure. There are two of them within the knee. The medial being on the inner side of the knee and lateral on the outer side of the knee. Their purpose is as a secondary stabilizer. They’re not the primary stabilizer like the ligaments are. They prevent more of a side[-]to[-] side kind of gliding motion in the knee. They kind of deepen the socket, and if they are torn, which can occur in a younger person, generally it’s from a twisting maneuver. In a person a bit older, it can be from either wear and tear or an injury, either one.

At Martin’s followup visit on December 28, 2005, Dr. Gandy explained to her that the cause of her meniscus tears was “from wear and tear or from an acute injury.”

¶ 8. At trial, Martin testified that, because of the fall at SDH, she had sustained both monetary and hedonic damages. She testified that she had bills from: Dr. Meador in the amount of $2,422; Sports Medicine South for $1,918; St. Dominic Ambulatory for $3,228; and from Jackson Orthopedic Clinic for various reasons in the amount of $5,942.40. Thus, Martin had acquired a total of $13,510.40 in expenses from seeing Dr. Meador and Dr. Gandy and electing to undergo arthroscopic surgery. Martin also claimed she had incurred hedonic damages in that she: missed college football games; could not exercise; could not be active with her grandchildren; and was late to or missed church. In addition, Martin claimed she had missed six weeks’ worth of work, but did not lose any income.

¶ 9. At the close of trial, SDH renewed its motion for a directed verdict ore tenus, asserting that Martin had failed to present testimony or evidence that the alleged negligence proximately caused her damages. Specifically, SDH reasoned that Martin did not present any testimony or evidence by a physician or expert to a reasonable degree of medical certainty that SDH’s alleged negligence had caused Martin’s damages. In fact, SDH stressed the fact that Martin had never asked Dr. Gandy what had caused her injuries. In response, Martin’s trial counsel urged that the mere existence of her injuries was sufficient to support her damages, and he also stated that, “[i]n order to satisfy our burden, we don’t have to put on an expert that says with 100 percent certainty this is what caused this injury.” Further, counsel argued that “the proximate cause is so obvious.” But the circuit court reminded trial counsel that it had asked “what specific medical testimony there was of proximate causation by a medical doctor relating to this accident and this particular injury.” Then, the circuit court stated that it had never received a sufficient answer and then agreed with SDH, finding the jury could not rely upon the medical opinion of Dr. Gandy, because his testimony was speculative and insufficient to support an award of damages. As a result, the circuit court granted SDH a directed verdict, because Martin had not provided “any evidence based upon a reasonable degree of medical certainty to support her alleged damages.”

¶ 10. Aggrieved, Martin appealed, seeking “reimbursement for her medical expenses associated with treatment by her primary physician, treatment by Dr. Gan-dy and the costs of arthroscopic surgery, and continued treatment through rehabilitation with Sports Medicine South.” And on appeal, the Court of Appeals reversed the circuit court and found this case to be a “classic situation where the evidence creates a question of fact — whether the edema and meniscus tear[s] were caused by the wear and tear of the aging process or by the injury to the knee from the fall.” The Court of Appeals dismissed the circuit court’s finding that the testimony of Dr. Gandy was speculative and insufficient, and opined that the evidence presented created a question of fact upon which reasonable minds could differ as to the cause of Martin’s injuries. Moreover, the Court of Appeals determined that “on these facts, reasonable minds could not even differ as to whether some of Martin’s injuries were caused by the fall at the hospital, leaving the only remaining question to be whether the hospital breached its duty to Martin.” The Court of Appeals gave a hypothetical to support its reasoning, comparing this case to one in which two testifying experts testified with differing opinions. Judge Ishee dissented, believing that Martin “did not provide enough evidence for a jury to determine that Martin’s injuries were proximately caused by her fall at St. Dominic.”

¶ 11. SDH filed a motion for rehearing, but the Court of Appeals denied that motion on September 19, 2011. SDH then petitioned this Court for a writ of certiora-ri, which was granted on December 15, 2011. On writ of certiorari, the issue is whether the Court of Appeals erred in holding' that a plaintiff need only present evidence that a defendant may have caused the plaintiffs medical injury in order to withstand a motion for a directed verdict.

STANDARD OF REVIEW

¶ 12. The standard of review for a directed verdict is de novo. “This Court will consider the evidence in the light most favorable to the appellee, giving the party the benefit of all favorable inference[s] that may be reasonably drawn from the evidence.” “If we find that the evidence favorable to the non-moving party and the reasonable inferences drawn therefrom present a question for the jury, the motion should not be granted.”

ANALYSIS

¶ 13. The sole issue before this Court is whether the Court of Appeals erred in finding that Martin had presented sufficient evidence to withstand a motion for a directed verdict. The Court of Appeals found that Martin had produced sufficient credible evidence that created a question of fact, and thus, a directed verdict should not have been granted. However, “an essential part of the claim in a personal tort case is to demonstrate, not only the extent of the injury, but [also] that the negligence of the defendant was the proximate cause of the injury.” Further, “[t]his Court requires that in order to incur liability when a party is negligent, that negligence also must be the proximate cause of the injury.” “In order for an act of negligence to proximately cause the damage, the fact finder must find that negligence was both the cause in fact and legal cause of the damage.”

¶ 14. Here, the circuit court concentrated on the cause-in-fact element. This Court has defined cause-in-fact as:

but for the defendant’s negligence, the injury would not have occurred. Stated differently, the cause in fact of an injury is that cause which, in natural and continuous sequence unbroken by any efficient intervening cause, produces the injury and without which the injury would not have occurred.

Martin attempted to prove that SDH’s actions were the proximate cause of her injuries through the testimony of Dr. Gandy. However, SDH contends that Dr. Gandy did not testify to a reasonable degree of medical certainty that Martin’s knee injuries were caused by her fall. “In this case, the trial court’s ruling focused on the cause-in-fact element, which means that the injury would not have occurred but for the defendant’s negligence.”

¶ 15. Mississippi jurisprudence does not require medical testimony to contain any magical words, but medical testimony is not probative unless it speaks in terms of probabilities rather than possibilities. “As this Court has frequently said, verdicts and judgments in civil actions must be based on the probabilities of the case, not on possibilities; and a verdict, although it is treated with great respect, has no force to convert a possibility into a probability....” However, “some speculation in medical matters is allowable and necessary.” “Perhaps nothing is absolutely certain in the field of medicine, but the intent of the law is that if a physician cannot form an opinion with sufficient certainty so as to make a medical judgment, neither can a jury use that information to reach a decision.”

¶ 16. Dr. Gandy testified that, in older individuals like Martin, the injuries she sustained were from either wear and tear or an injury. Further, Dr. Gandy informed Martin that her injuries were from either wear and tear or an injury. The record is void of any assertion from any medical expert that Martin’s injuries were related to her fall at SDH or were an aggravation of a preexisting condition. In fact, Martin’s trial counsel never asked the question. Martin’s evidence and testimony presented at trial simply show that either her arthritis or the fall caused her injury in the left knee. Martin failed to provide testimony of the damages, if any, associated with her right knee, and instead concentrated on the damages she sustained as a result of the alleged injury to her left knee. The evidence presented at trial shows that Martin had experienced pain in the knee operated on two years prior to the fall. Dr. Gandy testified that Martin had informed him of pain in both knees, with the pain in her left knee existing “for about two years” and pain in her right knee as a result of a direct blow from the fall she had two months prior, yet that is the only testimony that addressed Martin’s right knee. “Dr. Gandy did not opine as to whether Martin’s fall at the hospital actually caused or contributed to her injuries, thus leaving the jury to speculate as to causation.” Although absolutes are not required in medical-expert testimony, Dr. Gandy’s statements do not equate to an opinion of sufficient certainty for a jury to draw a conclusion.

¶ 17. The Court of Appeals used a hypothetical to explain how Dr. Gandy’s opinion should be treated as two different opinions from two different medical experts:

Suppose instead of one physician testifying that the tear was caused by either arthritis conditions or by the blow to the knee from the fall, there had been two physicians, one testifying on behalf of Martin and the other testifying on behalf of the hospital. Suppose further that Martin’s expert had testified that the meniscus tear was caused by the blow to the knee from the fall while the hospital’s expert had testified that the tear was caused by the progression of Martin’s arthritis. Could it be legitimately argued that the matter should not be presented to the jury for resolution of the question? How then is the legal implication different because one expert said both?

If two different opinions from two different medical experts were proffered, this case would not be on appeal. In that hypothetical, one doctor opines one set of facts for causation and second doctor a competing opinion. At that point, no one but the jury can determine that issue. However, that situation is not what is before this Court. Here, a medical expert, Dr. Gandy, testified that Martin’s injuries were the result of either wear and tear or an injury. Neither he nor anyone else gave a competing diagnosis. Therefore, a directed verdict was proper, because Dr. Gandy’s opinion did not rise to a reasonable degree of medical certainty.

¶ 18. Although Martin’s counsel argued that Martin’s injuries alone were sufficient to support her damages and that Martin was not required to have an expert testify with certainty as to the cause of her injuries, proximate cause requires more than speculation, guesswork, conjecture, or inferences. The law requires probability, not an assumption that the fall Martin experienced at SDH proximately caused injury to support her damage claims.

CONCLUSION

¶ 19. The circuit court did not err in this case. The directed verdict granted was proper, because the evidence provided by Martin did not rise to a reasonable degree of medical certainty. Therefore, the decision of the Court of Appeals is reversed, and the decision of the circuit court is reinstated and affirmed.

f 20. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS REINSTATED AND AFFIRMED.

WALLER, C.J., CARLSON, P.J., AND RANDOLPH, J., CONCUR. LAMAR, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., AND KITCHEN, J. CHANDLER AND KING, JJ., NOT PARTICIPATING.

LAMAR, Justice,

dissenting:

¶ 21. This case presents a situation in which a medical expert could not definitely testify that a fall was the cause of two meniscus tears to the plaintiffs left knee. However, I do not agree with the majority that such testimony is crucial to the plaintiff surviving a motion for directed verdict. This is not a case of medical malpractice but a slip and fall. And I believe the plaintiff presented sufficient circumstantial evidence for the jury to determine whether the meniscus tears were the result of the fall versus normal wear and tear.

¶ 22. Negligence and causation may be established by circumstantial evidence, and this rule is qualified to the extent that the circumstances shown must be such as to take the case out of the realm of conjecture and place it within the field of legitimate inference.” This Court has ruled that the jury must determine whether circumstantial evidence meets the probability test, and “only in rare and exceptional cases” should the court take such a case from the jury.

¶ 23. I first note that “the evidence is uncontradicted that Martin landed on both of her knees and that they immediately began to swell, necessitating utilization of ice packs, an overnight stay in the hospital, and pain medication.” It was also undisputed that an MRI taken after the fall showed an ACL strain and bone bruise to the left knee. While the plaintiff admittedly suffered from arthritis in her left knee prior to the fall, she testified that, after the fall, her left knee was “swollen all the time” would “buckle and pop” and was generally unstable. When the swelling and pain failed to subside, Martin sought medical help because she “knew that this situation was not — it was not going to heal on its own.... I didn’t know what was going on ... maybe [it] was my arthritis acting up .... [but] Dr. Meador was thinking it was more than the — -just arthritis.” (Emphasis added.) And within two months of the fall, she underwent arthroscopic surgery, the best option available to address the recurring swelling, buckling, and popping of her left knee. During that surgery, Dr. Gandy discovered two meniscus tears.

¶ 24. In reviewing all the above-noted evidence in the light most favorable to the plaintiff, I believe she presented sufficient evidence for a jury to determine causation. Even assuming the majority is correct about evidence relative to the meniscus tears, Martin sustained other injuries to her left as well as right knee. I fail to see how expert testimony is necessary for the jury to determine causation with respect to the immediate swelling, the ACL strain, and bone bruise, all of which immediately resulted from the fall. I further disagree that Martin cannot collect at least those damages associated with her immediate care, including the overnight stay, any medication, and pain and suffering. Therefore, I fail to see how the entire case should end and respectfully dissent.

DICKINSON, P.J., AND KITCHENS, J., JOIN THIS OPINION.

      . Dr. Gandy testified by video because he was unavailable for trial due to his surgery schedule.

      . Martin v. St. Dominic-Jackson Mem’l Hosp., 90 So.3d 70, 75 (Miss.Ct.App.2011) (Ishee, J. dissenting).

      . Martin, 90 So.3d at 74.

      . Id.

        .Id.

      . Id. at 74 (Ishee, J., dissenting).

      . Martin v. St. Dominic-Jackson Mem'l Hosp., 90 So.3d 70 (Miss.Ct.App.2011), cert. granted, 76 So.3d 169 (Miss.2011).

      . Kennedy v. Illinois Cent. R.R. Co., 30 So.3d 333, 335 (Miss.2010).

      . InTown Lessee Assocs., LLC v. Howard, 67 So.3d 711, 718 (Miss.2011) (citing Spotlite Skating Rink, Inc. v. Barnes, 988 So.2d 364, 368 (Miss.2008)).

      . Kennedy, 30 So.3d at 335.

      . Busick v. St. John, 856 So.2d 304, 307 (Miss.2003).

      . Utz v. Running and Rolling Trucking, Inc., 32 So.3d 450, 466 (Miss.2010).

      . Glover v. Jackson State Univ., 968 So.2d 1267, 1277 (Miss.2007).

      . See Martin, 90 So.3d at 74.

      . Glover, 968 So.2d at 1277.

      . Martin, 90 So.3d at 74.

      . Pittman v. Hodges, 462 So.2d 330, 333-34 (Miss.1984).

      . Twin County Elec. Power Ass’n v. McKenzie, 823 So.2d 464, 472 (Miss. 2002) (citing Elsworth v. Glindmeyer, 234 So.2d 312, 319 (Miss. 1970)).

      . Pittman, 462 So.2d at 334.

      . Catchings v. State, 684 So.2d 591, 597 (Miss. 1996).

      . Martin, 90 So.3d at 76.

      . Id.

      . Martin, 90 So.3d at 74.

      . Tombigbee Elec. Power Ass'n v. Gandy, 216 Miss. 444, 454, 62 So.2d 567 (1953).

      . Mississippi Valley Gas Co. v. Estate of Walker, 725 So.2d 139, 145-46 (Miss. 1998) (emphasis added) (quoting BFGoodrich Inc. v. Taylor, 509 So.2d 895, 904 (Miss. 1987)), overruled on other grounds by Adams v. U.S. Homecrafters, Inc., 744 So.2d 736 (Miss. 1999).

        . Martin v. St. Dominic-Jackson Mem’l Hosp., 90 So.3d 70 (Miss.Ct.App.2011).


source: Caselaw Access Project

author: KING, Justice,

license: Public Domain

text:
    Stephen Brian SMITH and Melissa Luann Smith v. Larry WILSON and Charlotte Wilson.
    No. 2010-CA-02002-SCT.
    Supreme Court of Mississippi.
    May 3, 2012.
    Rehearing Denied June 28, 2012.

      Jason D. Herring, Henderson McKelvy Jones, Tupelo, Gary Goodwin, Columbus, attorneys for appellants.
    William Paul Starks, II, Starkville, attorney for appellees.
    Before CARLSON, P.J., PIERCE and KING, JJ.
   KING, Justice,

for the Court:

¶ 1. Charlotte and Larry Wilson, parents of Crystal Wilson (deceased), filed an action requesting visitation with their grandchildren. The chancellor granted the request. Aggrieved, Stephen Smith, Crystal’s former husband, and Melissa LuAnn Smith, Stephen’s current wife, appeal the chancellor’s decision and challenge the constitutionality of Mississippi’s grandparent-visitation statutes. The Smiths raise four issues on appeal:

I. Whether sections 93 — 16—3—(1) and 93-16-5 and Martin v. Coop are unconstitutional in light of Troxel v. Granville.
II. Whether Mississippi Code sections 93-16-3(1) and 93-16-5, the Martin factors, and the elements set forth by the United States Supreme Court in Troxel violate the Smiths’ due process rights.
III. Whether the chancellor erred in applying the Martin factors.
IV. Whether the chancellor granted excessive grandparent visitation.

¶ 2. We hold the following: (I) Mississippi’s grandparent-visitation statute and the Martin factors do not violate the Constitution. (II) The chancellor did not err in applying the grandparent-visitation statutes, the Martin factors, and Troxel to this case. (Ill) The chancellor properly applied the Martin factors. (IV) And the Wilsons’ visitation is not excessive. Thus, we affirm the chancellor’s judgment.

FACTS AND PROCEDURAL HISTORY

¶ 3. Crystal Wilson married Stephen Brian Smith in December 2001. Two children were born of the marriage: Breely, born June 23, 2002, and Banks, born August 28, 2006. In January 2007, Stephen secured employment with the Boeing Company, which prompted a family move to Ohio. Tragically, Crystal died in a car accident later that month. Stephen immediately moved his family to Hamilton, Mississippi, where they lived with Crystal’s parents, Charlotte and Larry Wilson.

¶ 4. Stephen lived with the Wilsons a few months before moving back into the family home in Columbus, Mississippi. Stephen let Breely and Banks live with the Wilsons for two and a half years. During this time, Stephen obtained a college degree from the Mississippi University of Women, where he met Melissa Luann Smith, whom he married October 31, 2008.

¶ 5. The Smiths desired to move the children into the family home and expressed this desire to the Wilsons on several occasions. According to Stephen, Charlotte would object, become upset, and cry. Thus, the Smiths let the children finish the school year living at the Wilsons’ home. The Smiths moved the children to their home in July 2009, and the children continued to visit the Wilsons on most weekends.

¶ 6. According to Stephen, his relationship with the Wilsons became strained in the fall of 2009. But the Wilsons could think of no events which would have strained their relationship at that time. Stephen testified that the Wilsons would not enforce his house rules-no eating in the bedroom, children must brush their teeth at certain times, no running and screaming inside, and children must respect adults. Linda Smith, Stephen’s mother, testified that the children were also hyper and disobedient after staying with the Wilsons. Additionally, Stephen complained that the Wilsons openly had criticized him in front of the children, and Charlotte had questioned his choice of school for Breely. But Charlotte did not voice her opinion to Stephen; Linda had informed Stephen of Charlotte’s dissatisfaction many months later. Believing the Wilsons were undermining his parenting, the Smiths decreased the Wilsons’ visitation with Breely and Banks in the spring of 2010.

¶ 7. The tension between the Smiths and the Wilsons came to a head during Easter weekend in April 2010. The children spent the weekend with the Wilsons. As Charlotte was bathing Banks, she noticed a bruise on his left thigh. Charlotte questioned Breely about the bruise, and she informed Charlotte that Stephen had given Banks sixteen licks with a belt. Larry attempted to take Banks to a clinic, but it was closed. The receptionist instructed Larry to take Banks to the Sheriffs Department. He did, and the Sheriffs Department contacted the Department of Human Services (DHS). From there, DHS launched an investigation into Banks’s alleged abuse. Stephen admitted spanking Banks but denied bruising him. No formal action resulted from the investigation.

¶ 8. Upset by this series of events, the Smiths denied the Wilsons further visitation with Breely and Banks. The Wilsons then filed a complaint for visitation in the Lowndes County Chancery Court on June 7, 2010. The Smiths confronted the Wil-sons about the complaint. Stephen admitted telling Larry he would give him a “terrible ass whooping.” And according to Charlotte, Melissa threatened her via text and voice-mail messages. Melissa also assaulted Charlotte.

¶ 9. In July 2010, the Smiths moved to Illinois. When asked why they had moved, Stephen stated the move was for employment opportunities. But the Wil-sons testified that the Smiths had moved in retaliation to their complaint. Since the move, the Smiths have not allowed the Wilsons any contact with the children.

¶ 10. Stephen stated he is entitled to decide what is best for his children. And he believes visitation with the Wilsons would be emotionally detrimental to Breely and Banks. Since ending visitation with the Wilsons, Stephen stated his children are now well-adjusted and happy. Stephen would not state specifically when he thought it would be fit to resume visitation and indicated that he “might” abide by a court order. Charlotte stated visitation would be beneficial to the children, because they are the only connection the children have to their mother Crystal.

¶ 11. Because the children’s mother is deceased, the chancellor found the Wilsons were entitled to visitation under Mississippi Code Section 98-16-3(1). See Miss. Code Ann. § 93-16-8(1) (Rev.2004). The chancellor also considered the factors for grandparent visitation established in Martin v. Coop, 693 So.2d 912 (Miss.1997) and found that: (1) The distance between the families is great, but the Wilsons requested visitation only during holidays, spring break, and summer. Although the Wil-sons allowed the children more freedom, there was no proof that grandparent visitation would be disruptive. (2) The suitability of the Wilsons’ home was not contested. (3) The age of the children did not favor either party. (4) The Wilsons’ ages and physical and mental health were not an issue. (5) After caring for the children for two-and-half years, the Wilsons had developed a special bond with the children. (6) The Wilsons’ moral fitness was not an issue. (7) The Wilsons and the Smiths lived eight hours apart; thus, the distance favored the Smiths. (8) With the exception of the Easter incident, the Wilsons accepted their nonparental role. The Smiths could not point to a specific occurrence in which the Wilsons had interfered with their discipline. (9) The Wilsons’ employment responsibilities would not interfere with their visitation. (10) And besides the Easter incident, there was no other proof that the Wilsons had interfered with Stephen’s child-rearing.

¶ 12. Based on this analysis, the chancellor found it within the children’s best interest to have grandparent visitation. Accordingly, the chancellor granted the Wilsons visitation during Thanksgiving (in odd-numbered years), Christmas holidays (in even-numbered years and in odd-numbered years if the Smiths do not visit Mississippi during Thanksgiving), two weeks in summer, and phone calls once a week. Aggrieved, the Smiths filed this appeal on January 4, 2011.

ANALYSIS

¶ 13. This Court will not disturb the chancellor’s factual findings “unless the chancellor abused his discretion, was manifestly wrong, or made a finding which was clearly erroneous.” Zeman v. Stanford, 789 So.2d 798, 801-802 (¶ 12) (Miss. 2001). Questions of law, however, are reviewed de novo. Id.

I. Whether the grandparent-visitation statutes and Martin are unconstitutional in light of Troxel.

II. Whether the chancellor erred in applying the grandparent-visitation statutes and Martin to the Smiths’ case in light of Troxel.

¶ 14. The Smiths argue that the grandparent-visitation statutes and Martin are unconstitutional in light of Troxel. Alternatively, the Smiths maintain that the chancellor erred in applying the grandparent-visitation statutes and Martin to this case because neither requires the chancellor to consider several elements set forth in Troxel. The Wilsons argue that Martin and the grandparent-visitation statutes are constitutional on their face and do not violate the Smiths’ due process rights. Because the Smiths raise similar arguments under Issues I and II, we discuss these issues together.

A. Troxel v. Granville

¶ 15. The Smiths rely on Troxel v. Granville, a United States Supreme Court case which originates from the state of Washington, to support their argument. Troxel, 580 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). In Troxel, a couple had two daughters out of wedlock. Id. at 60, 120 S.Ct. 2054. The father lived with his parents and enjoyed visitation with his daughters at their home. Id. After the father died, the grandparents continued to enjoy liberal visitation with the girls, but the mother desired to reduce their visits. Id. at 60-61, 120 S.Ct. 2054. Thus, the grandparents filed a petition requesting visitation rights. Id. at 61, 120 S.Ct. 2054.

¶ 16. The Washington statute provided that:

Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances.

Id. (quoting Wash. Rev.Code § 26.10.160(3) (1994)). Troxel’s plurality opinion held the Washington statute unconstitutional, finding the statute “breathtakingly broad,” allowing “[a]ny person” to seek visitation rights “at any time.” Id. at 67, 120 S.Ct. 2054.

¶ 17. The United States Supreme Court also found the statute violated the mother’s substantive due-process rights, because it did not accord any deference to her wishes (to reduce visitation) and authorized a lower court to grant visitation whenever it thought visitation would serve the children’s best interest. Id. Additionally, the Supreme Court noted that the grandparents did not accuse the mother of being an unfit parent, and there was no finding that she had sought to end visitation entirely. Id. at 68, 71, 120 S.Ct. 2054. The Supreme Court stated, “[t]he decisional framework employed by the Superior Court directly contravened the traditional presumption that a fit parent will act in the best interest of his or her child ... the court’s presumption failed to provide any protection for Granville’s fundamental constitutional rights to make decisions concerning the rearing of her own daughters.” Id. at 69-70, 120 S.Ct. 2054.

¶ 18. The Supreme Court declined to address whether all nonparental visitation statutes are unconstitutional, stating:

Because much state-court adjudication in this context occurs on a case-by-case basis, we would be hesitant to hold that specific non-parental visitation statutes violate the Due Process Clause as a per se matter.

Id. at 73, 120 S.Ct. 2054.

B. Constitutionality

¶ 19. The Smiths contend that Mississippi Code Sections 93-16-3 and 93-16-5 violate their due process rights, and the grandparent-visitation statutes are unconstitutional. See Miss.Code Ann. §§ 93-16-3 (Supp.2011), 93-16-5 (Rev.2004). Likewise, the Smiths argue that the Martin factors violate their due-process rights, and Martin is unconstitutional. See Martin, 693 So.2d 912 (Miss.1997).

1. Grandparent-Visitation Statutes

¶ 20. The chancellor found that the Wil-sons were eligible for visitation under Section 93-16-3(1), which provides:

(1) Whenever a court of this state enters a decree or order awarding custody of a minor child to one (1) of the parents of the child or terminating the parental rights of one (1) of the parents of a minor child, or whenever one (1) of the parents of a minor child dies, either parent of the child’s parents may petition the court in which the decree or order was rendered or, in the case of the death of a parent, petition the chancery court in the county in which the child resides, and seek visitation rights with the child.

Miss.Code. Ann. § 93-16-3(1) (Supp.2011). Section 93-16-5 addresses standing, enforcement, and modification of visitation. See Miss.Code Ann. § 93-16-5 (Rev.2004). The statute also provides that “the court may, in its discretion, if it finds that such visitation rights would be in the best interest of the child, grant to a grandparent reasonable visitation rights with the child.” Id.

2. Martin v. Coop

¶ 21. In Martin, which was decided pr e-Troxel, the paternal grandparents sought grandparent visitation following their son’s death. Martin, 693 So.2d at 914. The Court determined that Section 93-16-3(1) was constitutional; thus, the grandparents had a statutory right to visitation. Id. But the Court found the visitation awarded was excessive. Id. at 915-916. The Court set forth ten factors for chancellors to consider when awarding visitation:

As always, the best interest of the child must be the polestar consideration. The visitation should be less than that which would be awarded to a non-custodial parent, unless the circumstances overwhelming dictate that that amount of visitation is in the best interest of the child, and it would be harmful to the child not to grant it. The following factors should be considered by the chancery court in determining grandparent visitation, and no one should be weighed more heavily than the others.
1. The amount of disruption that extensive visitation will have on the child’s life. This includes disruption of school activities, summer activities, as well as any disruption that might take place between the natural parent and the child as a result of the child being away from home for extensive lengths of time.
2. The suitability of the grandparents’ home with respect to the amount of supervision received by the child.
3. The age of the child.
4. The age, and physical and mental health of the grandparents.
5. The emotional ties between the grandparents and the grandchild.
6. The moral fitness of the grandparents.
7. The distance of the grandparents’ home from the child’s home.
8. Any undermining of the parent’s general discipline of the child.
9. Employment of the grandparents and the responsibilities associated with that employment.
10. The willingness of the grandparents to accept that the rearing of the child is the responsibility of the parent, and that the parent’s manner of child rearing is not to be interfered with by the grandparents.

Id. at 916.

3. Neither Martin nor the grandparent-visitation statutes violates the Constitution.

¶ 22. Unlike the statute in Troxel, Mississippi’s grandparent-visitation statute is narrow, allowing grandparents (not any person) to seek visitation only under certain circumstances. In this case, the Wil-sons had a statutory right to visitation with their grandchildren following the death of their daughter. See Martin, 693 So.2d at 914. The Smiths argue that this distinction is immaterial; we disagree. The Court has addressed the same issue previously in Martin and Zeman v. Stanford. See Martin, 693 So.2d 912 (Miss. 1997); Zeman v. Stanford, 789 So.2d 798 (Miss.2001).

¶ 23. In Martin, this Court ruled that: The Fifth and Fourteenth Amendments to the United States Constitution proscribe governmental interference with individual liberties such as a parent’s right to determine his child’s care, custody and management. See Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599 (1982). However, this right is not absolute. See Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (parental decisions may be curtailed by the State as in the best interest of the child). The Mississippi Legislature has determined that a grandparent may petition the court for visitation if a parent has died. This statute does not deprive the parents of their right to raise their children by determining the care, custody and management of the child. Mississippi’s grandparent visitation act does not intrude upon this parental liberty, and as such, it is constitutional.

Martin, 693 So.2d at 915. Relying on Martin, the Court in Zeman held that:

The statute in Troxel swept too broadly by permitting any person to petition at any time with the only requirement being that the court find that visitation serves the best interest of the child. In contrast, this Court, via Martin, specifically requires the Chancellor to consider certain factors before awarding visitation in order to ensure that parents are not deprived of their right to rear their children and determine their children’s care, custody, and management. Martin, 693 So.2d at 915. The limitations imposed by this Court in its interpretation of § 93-16-3 clearly result in the “narrower reading” that was lacking in Troxel. The factors set forth in Marlin specifically prohibit a Chancellor from ordering visitation which would interfere with a parent’s right to rear his or her children.

Zeman, 789 So.2d at 803 (¶ 18).

¶ 24. The statute in Troxel and Mississippi’s grandparent-visitation statutes are distinguishable. The Mississippi statute is more narrow, and Martin provides several factors for chancellors to consider when awarding grandparent visitation. As stated in Zeman, these factors prohibit chancellors from granting any visitation that would interfere with a parent’s substantive due-process rights. Thus, we find the grandparent-visitation statutes and Martin do not violate the Constitution. This argument is without merit.

C. Neither the chancellor’s application of Martin nor the grandparent-visitation statutes violates the Smiths’ due process rights.

¶ 25. Next, the Smiths argue that the chancellor’s application of Martin and the grandparent-visitation statutes are in direct conflict with Troxel. The Smiths maintain the chancellor should have applied a heightened burden of proof-clear and convincing evidence—to prove that visitation was in the children’s best interest. The Smiths also contend that the chancellor failed to defer to his wishes, did not find he was an unfit parent, and did not find that he intended to permanently deny the Wilsons visitation.

1. Clear & Convincing Evidence

¶ 26. The Smiths likened the burden of proof in their case to that of an action to terminate parental rights, claiming the chancellor should have employed a clear-and-convincing-evidence standard. According to the Wilsons, the Smiths’ claim is not supported by caselaw.

¶ 27. The Smiths cite no authority which requires a heightened burden of proof in cases concerning grandparent visitation. A party’s failure to cite relevant authority operates as a procedural bar, and the Court is not obligated to consider the issue. Shavers v. Shavers, 982 So.2d 397, 401 (¶ 22) (Miss.2008). As such, we decline to review this issue.

2. Parent’s Wishes

¶ 28. The Smiths contend that Troxel requires chancellors to defer to the parent’s wishes, and the chancellor failed to consider Stephen’s wishes concerning grandparent visitation. The Wilsons believe the chancellor gave due consideration to Stephen’s decision to deny them visitation.

¶29. It is important to note that the mother in Troxel wished to reduce grandparent visitation, not terminate it completely. The Smiths do not want the Wil-sons to have any court-ordered visitation. The chancellor’s judgment detailed Stephen’s history with the Wilsons and listed events which concerned Stephen:

It is Stephen’s belief that spending too much time with [the Wilsons] is detrimental to [the children’s] well-being. Stephen stated that [the Wilsons] allowed the children too much freedom, and that when he would get the children back from a visitation, it would take him a week to correct their behavior.
Stephen’s position is clear. He and he alone wants to determine if and when any visitation shall occur between the children and [the Wilsons].

In regard to Stephen’s concerns, the chancellor determined his complaints against the Wilsons were minor, also stating that:

The [c]ourt is in no doubt that Stephen perceives the visitation as a disruption to his life or perhaps more accurately, his loss of control of the situation.... A disruption to his life is not, in this [c]ourt’s opinion, a disruption to the children’s lives.

¶ 30. The chancellor considered Stephen’s concerns. While a chancellor should accord special weight to a parent’s wishes, there is no automatic right to deference. See, e.g. Troxel, 530 U.S. at 86, 120 S.Ct. 2054 (Stevens, J., dissenting) (“[W]e have never held that the parent’s liberty interest in this relationship is so inflexible as to establish a rigid constitutional shield, protecting every arbitrary parental decision from any challenge absent a threshold finding of harm [E]ven a fit parent is capable of treating a child like a mere possession.”); Brown v. Yates, 68 So.3d 758, 762 (¶ 20) (Miss.Ct.App.2011). The “best interest of the child must be the polestar consideration.” Martin, 693 So.2d at 916. Using the Martin factors, the chancellor found visitation with the Wilsons — the only connection Breely and Banks have to their deceased mother — within the children’s best interest. This assignment of error also is without merit.

3. Unfitness

¶ 31. The Smiths maintain that Troxel requires the court to find the parent unfit before awarding grandparent visitation. Because no such finding was made in this case, the Smiths rely on the presumption noted in Troxel — that fit parents make decisions that are in their children’s best interest. The Wilsons contend that an unfitness requirement would frustrate the purpose of the statute, allowing a parental veto in all other circumstances.

¶ 32. The chancellor did not make a finding of unfitness, and the Wilsons agreed that Stephen was a good father. But unfitness is not required to award grandparent visitation. But see In re Custody of M.A.G., 859 So.2d 1001, 1004 (¶ 6) (Miss.2003) (holding a finding of unfitness is necessary to award custody to a third party over the natural parents). The Court has held “a parent’s right to determine his child’s care, custody and management ... is not absolute.” Martin, 693 So.2d at 915. Unfitness is one factor of many. The chancellor correctly applied the Martin factors to this case and determined that visitation was in the children’s best interest. We find the chancellor’s decision is supported by substantial evidence.

4. Unreasonably Denied Visitation

¶ 33. The Smiths state that Troxel requires a finding that the parent intended permanently to deny visitation to the grandparents. Section 93-16-3(2), which is not at issue here, addresses those grandparents not entitled to visitation under subsection (1) and specifically requires the chancellor to find that the parent unreasonably denied the grandparents visitation rights. Miss.Code Ann. § 93-16-3(2) (Supp.2011); see also Stacy v. Ross, 798 So.2d 1275 (Miss.2001). Troxel actually recognized Mississippi as a state which specifically provides this limitation. Troxel, 530 U.S. at 71, 120 S.Ct. 2054. Although subsection (1) does not expressly list this requirement, the chancellor considered whether Stephen unreasonably denied the Wilsons visitation.

¶ 34. The Smiths maintain that they did not intend permanently to terminate the Wilsons’ visitation. Conversely, the Wil-sons believe the evidence supports a finding that the Smiths unreasonably denied them visitation. Based on the testimony, the Smiths told the Wilsons they would never see their grandchildren again. Holding to that promise, the Smiths did not allow the Wilsons any visitation with Breely and Banks following the Easter incident. When asked if he would voluntarily allow the Wilsons visitation, Stephen would not give a definite answer or time frame within which visitation could resume and said he thought it was reasonable to deny the Wilsons visitation at that time. Stephen even suggested that he might ignore a court order for grandparent visitation if he thought it was in the children’s best interest. Based on this evidence, the chancellor found the Smiths permanently intended to deny the Wilsons visitation:

Stephen’s sense of betrayal and anger have to date not subsided and he has refused to allowed [the Wilsons] any contact whatsoever with the children since April 2010. Furthermore, it is. this [c]ourt’s opinion that Stephen moved to Illinois to further punish [the Wilsons] for their involvement in the Easter weekend incident.

Based on the foregoing, we hold the chancellor’s finding is supported by substantial evidence.

III. Whether the chancellor erred in applying the Martin factors.

¶ 35. Alternatively, the Smiths argue that the chancellor erred in finding three Martin factors favored the Wilsons: the amount of disruption extensive visitation would have on the children, any undermining of the parent’s general discipline of the children, and the willingness of the grandparents to accept the parent’s rearing of the children. The Wilsons maintain that the chancellor properly considered the Martin factors and, thus, did not err in his analysis.

A. Disruption

¶ 36. Martin instructs chancellors to consider:

The amount of disruption that extensive visitation will have on the child’s life. This includes disruption of school activities, summer activities, as well as any disruption that might take place between the natural parent and the child as a result of the child being away from home for extensive lengths of time.

Martin, 693 So.2d at 916. The chancellor noted the great distance between the Wil-sons and the Smiths. The chancellor also noted the Wilsons requested visitation during times the children would be out of school — holidays, spring break, and summer. Thus, the chancellor determined that visitation would not be disruptive.

¶ 37. The Smiths argue that visitation would be disruptive to his family because the children may revert back to their old behaviors, it would limit visitation time with the other grandparents and limit the time the children spend with their new sibling. The chancellor noted that Stephen perceived visitation as a disruption to his life (based on the Smiths’ feud with the Wilsons after the Easter incident). But the court found that a disruption to Stephen’s life was not necessarily a disruption to the children’s lives. The chancellor saw no harm in allowing the children to visit the Wilsons, stating, “spending time with grandparents who allow grandchildren a little more freedom than at home, does not qualify as a disruption.” The Smiths also contend that the chancellor improperly placed the burden on them to prove that visitation would not be disruptive. But after reading the order, the chancellor simply noted that the Smiths did not produce any countervailing evidence.

¶ 38. The chancellor considered the evidence and properly weighed the factor. Accordingly, we find the chancellor’s decision is supported by substantial evidence.

B. Undermining Discipline

¶ 39. Martin instructs chancellors to consider “[a]ny undermining of the parent’s general discipline of the child[ren].” Martin, 693 So.2d at 916. The chancellor found that, with the exception of the Easter incident, the Wilsons accepted their nonparental role and respected Stephen’s discipline. The chancellor noted that Stephen could not point to a specific instance in which the Wilsons interfered with his discipline of the children.

¶ 40. The Smiths argues that the Wil-sons undermined his discipline by not enforcing his rules — no eating in the bedroom, brushing their teeth at specific times, refraining from screaming and running wild, and respecting adults. The chancellor determined that these things were minor and typical actions by grandparents.

¶ 41. The chancellor considered the evidence and properly weighed the factor. Thus, we find the chancellor’s decision is supported by substantial evidence.

C. Willingness to Accept Rearing

¶ 42. Martin instructs chancellors to consider:

The willingness of the grandparents to accept that the rearing of the child is the responsibility of the parent, and that the parent’s manner of child rearing is not to be interfered with by the grandparents.

Martin, 693 So.2d at 916. The chancellor found, with the exception of Easter weekend, there was no proof the Wilsons had interfered with Stephen’s child rearing.

¶ 43. According to Stephen, the Wilsons objected to his regaining physical custody of Breely and Banks in July 2009, and Charlotte interfered with his decision regarding his choice of school for Breely. The evidence shows the Wilsons did not physically stop Stephen from getting the children in July 2009, and Charlotte did not voice her opinion regarding Breely’s school to him. Charlotte shared her concern with Linda, who did not share the conversation with Stephen until many months later. Stephen even admitted that Charlotte’s concerns did not influence his decision.

¶ 44. The chancellor considered the evidence and properly weighed the factor. As long as the chancellor’s factual findings are supported by substantial evidence, this Court should uphold the chancellor’s grandparent-visitation order. Zeman, 789 So.2d at 804 (¶ 23). Because the chancellor’s Martin analysis is supported by substantial evidence, we will not disturb the visitation order.

IV. Whether the chancellor granted excessive visitation.

¶ 45. The chancellor awarded the Wilsons visitation the Friday and Saturday following Thanksgiving (in odd-numbered years), five days following Christmas (in even-numbered years and in odd-numbered years if the Smiths do not visit Mississippi during Thanksgiving), two weeks in summer, and phone calls once per week. The Smiths argue the court-ordered visitation is excessive.

¶ 46. This Court previously has addressed claims of excessive grandparent visitation. “The visitation [granted to a grandparent] should be less than that which would be awarded to a non-custodial parent, unless the circumstances overwhelming dictate that [the] amount of visitation is in the best interest of the child, and it would be harmful to the child not to grant it.” Townes v. Manyfield, 883 So.2d 93, 96 (¶ 21) (Miss.2004); see also Martin, 698 So.2d at 915-916 (finding grandparent visitation totaling eighty-six days in even years and eighty-one days in odd years was excessive as visitation that would be awarded to a noncustodial parent). In Woodell v. Parker, 860 So.2d 781 (Miss. 2003), the Court upheld grandparent visitation consisting of one weekend per month, every other spring break/Easter holiday, the Friday and Saturday following Thanksgiving, five days following Christmas, and two weeks in summer. Woodell, 860 So.2d at 790 (¶¶ 30-32).

¶ 47. In this case, the chancellor awarded the Wilsons visitation similar to that awarded in Woodell — visitation during holidays and the summer. Accordingly, we find the Wilsons’ visitation is not excessive.

CONCLUSION

¶ 48. We find that Mississippi’s grandparent-visitation statute and the Martin factors do not violate the Constitution. The chancellor did not err in applying the grandparent-visitation statutes, Martin, and Troxel to this case. The chancellor properly applied the Martin factors to this case. And the Wilsons’ visitation is not excessive. Thus, we affirm the chancellor’s grandparent-visitation order.

¶ 49. AFFIRMED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ„ CONCUR.

      . Martin v. Coop, 693 So.2d 912 (Miss.1997).

      . Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).

      . The previous weekend, the Wilsons noticed a bruise on Banks’s right thigh. Breely explained that Melissa had spanked Banks with a wooden spoon.

      . Although Melissa was named as a party to the action, the Smiths decided that she should not appear at the hearing because she did not have any legal rights to the children.

      . Based on these events, Charlotte filed a "Motion for Emergency Temporary Restraining Order” against Melissa. As exhibits, Charlotte submitted her affidavit, detailing the events, and a transcript of the text and voice-mail messages.

      . At the time of trial, both Stephen and Melissa were unemployed.

      . That month, Stephen emailed the Wilsons and stated he and Melissa felt betrayed and disrespected by them. Stephen also stated, "[I]f it’s necessary for us to move away in order to have a happy life and be free from your meddling, we are well prepared to do so.”

      .According to Larry, Stephen said "no hack judge or lawyer in Columbus was going to tell him what to do.” Stephen admitted the same.

      . Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); Martin v. Coop, 693 So.2d 912 (Miss.1997).

      . In Zeman, the grandparents sought visitation under the statute’s custody provision.

      .Stephen stated he might consider allowing visitation only when he felt the children were mature enough to visit the Wilsons.

      . As previously mentioned, Stephen sent the Wilsons an email stating he would move far away if needed.

      . Melissa was pregnant at the time of trial.


author: CHANDLER, Justice,

text:
    SMITH COUNTY SCHOOL DISTRICT v. Laura Shontelle BARNES.
    No. 2010-CT-00681-SCT.
    Supreme Court of Mississippi.
    June 7, 2012.

      G. David Garner, Raleigh, attorney for appellant.
    Eugene Coursey Tullos, Raleigh, attorney for appellee.
   ON WRIT OF CERTIORARI

CHANDLER, Justice,

for the Court:

¶ 1. Laura Shontelle Barnes was employed as an elementary school teacher with the Taylorsville Elementary School in the Smith County School District (District) for eleven years before she was terminated on May 12, 2009. Barnes was terminated for refusing to take a drug test, which was a violation of the District’s drug and alcohol policy. On July 17, 2009, the Smith County School Board (Board) held a hearing in which the Board heard evidence from Barnes and the District on the events surrounding May 6 and May 7, 2009. The Board affirmed the District’s Superintendent of Education’s decision to terminate Barnes’s employment. Aggrieved, Barnes appealed the Board’s decision to the Smith County Chancery Court. On March 10, 2010, the chancery court reversed the Board’s decision and reinstated Barnes’s employment, finding that the Board’s decision was arbitrary or capricious and was not supported by substantial evidence.

¶ 2. On April 13, 2010, the Board filed a notice of appeal with the Court of Appeals. In a six-four decision, the Court of Appeals reversed and rendered the chancery court’s holding, finding that the Board’s decision to affirm the superintendent’s termination of Barnes based on her refusal to submit to a drug test was not arbitrary or capricious. Barnes filed a motion for rehearing, which was denied on January 10, 2012. On January 19, 2012, Barnes petitioned to this Court, stating that the Court of Appeals failed to properly consider all relevant evidence that would have precluded termination of Barnes. Finding no error, we affirm.

FACTS

¶ 3. The following facts are largely derived from the Court of Appeals’ opinion. Barnes was a certified employee teaching first grade at Taylorsville Elementary in the Smith County School District. On May 7, 2009, Yvonne Dees, the elementary school principal, received reports that, on May 6, 2009, Barnes had been lying on the classroom floor with her eyes closed. According to testimony presented at the hearing, the children were still in the classroom. Five or six of the students informed other teachers that Barnes “fell out” and that she needed help. The teachers approached Barnes, who was still lying on the floor, and she informed them that she was in severe pain due to an ovarian cyst. The other teachers assisted her by watching the children, and she eventually left work at noon that day. At the hearing, Barnes stated that her pain was from an ovarian cyst. She also stated that, when returning home that day, she took medication prescribed to her for tooth pain.

¶ 4. After hearing about Barnes’s behavior from the teachers, Dees reported this information to Jeff Duvall, Taylorsville Attendance Center principal. Duvall then called Priscilla Magee, the District’s assistant superintendent, to determine the procedure for addressing the incident. Based on Duvall’s call to Assistant Superintendent Magee, the decision was made to request that Barnes submit to a drug test pursuant to the District’s drug and alcohol policy.

¶ 5. On May 7, 2009, Barnes returned to work and was summoned to Dees’s office to discuss her behavior from the day before. Dees, Duvall, and the Taylorsville assistant high school principal were all present at the meeting. Barnes did not deny any of the reports given to Dees. Dees informed Barnes that she needed to accompany them to a facility in Magee, Mississippi, to have a drug test performed. Barnes, although visibly upset, initially agreed to take the test. Barnes, Dees, and the assistant high school principal proceeded to the facility located in Magee. At the hearing, Dees testified that, shortly after they began driving to the facility, Barnes stated that she was humiliated and wanted to resign. They pulled the car over and called Duvall, who informed Dees that she should draft a letter of resignation for Barnes to sign. Before actually signing the letter, Barnes changed her mind again and agreed to take the drug test. They resumed traveling to the testing facility. Barnes then received a phone call from her attorney, who advised her to refuse the drug test. At 10:38 a.m., Barnes wrote and signed the following statement: “I refuse to take a drug test 5-7-09.” Barnes testified that Duvall told her that if she did not take the drug test, she would be suspended for one day. Barnes left the school that morning. Barnes went home and told her father what had happened, and he advised her to go back and take the drug test. Later that afternoon, Barnes returned to the school and stated that she would like to take the test. Dees informed her that it was too late to take the test since she had already refused the test earlier. After calling Magee, the assistant superintendent, Barnes went to a facility in Bay Springs, Mississippi, and took a drug test. Although the results of the drug test were not presented by Barnes to the Board, Barnes testified that she tested positive for opiates and was on Xanax and Ambien. She claimed that she had prescriptions for all of the controlled substances she was taking.

¶6. In a letter dated May 12, 2009, Smith County Superintendent of Education Jimmy Hancock notified Barnes that her employment was terminated because of her refusal “to submit to a drug test, neglect of duty, and insubordination.” The letter also informed her that she was entitled to a hearing before the Board. The Board held the hearing on July 17, 2009. Dees, Duvall, Hancock, and Barnes all testified as to the events surrounding Barnes’s termination. The District presented into evidence written statements from six teachers who witnessed the incident on May 6, 2009. In her statement, Therese Pittman described the incident as follows:

I went to Mrs. Barnes[s’] door to get the students for an activity. The lights were out in the room and the students were running all around the room. A little girl came up to me and said “our teacher has fell out.” I turned and saw Ms. Rhodes coming toward me. She said Mrs. Barnes is hurting so she is lying down. I walked into the room and over to where she was lying on the floor. I looked down at her and her eyes were closed, I looked to make sure she was breathing. I turned and said loudly, to see if Mrs. Barnes would respond, [”]Okay girls line up.[”] I left the room with the girls and Mrs. Barnes never got up.

Tracey Rhodes’s description of the events, also submitted through a written statement, was similar to Pittman’s statement. Rhodes stated that when she entered the room, she saw Barnes lying on a rug. Janice Dozier, another teacher at the school, stated that she saw Barnes walking very slowly down the hall on the morning of May 6, 2009. When Dozier asked what was wrong, Barnes explained that her ovaries were hurting. Dozier further explained that, after lunch, one of Barnes’s students came into her room and said that Barnes needed her. When she arrived in Barnes’s room, she saw Barnes “lying on the carpet crying with her side hurting.” In the statement submitted by fellow teacher Melissa Jackson, she said Barnes was “able to carry on a conversation the entire time.”

¶ 7. At the hearing, Barnes said that her test results revealed that she had tested positive for opiates, for which she had prescriptions. However, Barnes did not present the Board with a copy of any prescriptions for her medications nor any statements from her treating physicians who had prescribed the medications she took. Also, she did not present any corroborating medical documentation or testimony supporting her claim that she was in severe pain from ovarian cysts.

¶ 8. After hearing all the evidence from the District and Barnes, the Board unanimously affirmed the District’s decision to terminate Barnes’s employment. The Board found that her dismissal was a proper employment decision that was supported by substantial evidence, was not arbitrary or capricious, and did not violate Barnes’s constitutional or statutory rights.

¶ 9. Barnes then appealed the Board’s decision to the chancery court. On March 10, 2010, the chancellor reinstated Barnes’s employment, finding that the Board’s decision was arbitrary or capricious because the Board strictly held Barnes to the drug and alcohol policy but failed to hold itself to the same standard. The chancellor stated that the record did not show, as required by the District’s drug and alcohol policy, that the superintendent was the one who made the decision as to whether there was reasonable suspicion sufficient to request Barnes take a drug test or that he had appointed someone to act on his behalf. However, Barnes made no claim at the hearing before the Board that the assistant superintendent was without authority to act in the superintendent’s absence when giving Duvall permission to request that Barnes take a drug test.

¶ 10. The District appealed to the Court of Appeals concerning the following issue: whether the chancery court erred in reversing the Board’s decision because the Board’s decision was supported by substantial evidence; was not arbitrary or capricious; nor was it in violation of some statutory or constitutional right of Barnes. The Court of Appeals reversed and rendered the chancery court’s holding, reinstating the decision of the Board. On January 19, 2012, Barnes petitioned to this Court, arguing that the Court of Appeals failed to consider that there was no substantial evidence to support the school’s decision to terminate her. She also argues that the Court of Appeals failed to consider the totality of circumstances surrounding her refusal to take the drug test.

STANDARD OF REVIEW

¶ 11. “When this Court reviews a decision by a chancery or circuit court concerning an agency action, it applies the same standard of review that the lower courts are bound to follow.” Hinds County Sch. Dist. Bd. of Trustees v. R.B. ex rel. D.L.B., 10 So.3d 387, 394 (Miss.2008) (citations omitted). There is a rebuttal presumption in favor of the decision rendered by an agency. His Way Homes, Inc. v. Miss. Gaming Comm’n, 733 So.2d 764, 767 (Miss.1999) (citations omitted). Neither this Court nor the chancery court can “substitute its judgment for that of the agency or reweigh the facts of the case.” Id. (citations omitted).

¶ 12. Mississippi Code Section 37-9-113(3)(a)-(c) provides the standard of review in this matter:

The scope of review of the chancery court in such cases shall be limited to a review of the record made before the school board or hearing officer to determine if the action of the school board is unlawful for the reason that it was:
(a) Not supported by any substantial evidence;
(b) Arbitrary or capricious; or
(c) In violation of some statutory or constitutional right of the employee.

Miss.Code Ann. § 37-9-113 (Rev. 2007).

DISCUSSION

¶ 13. Barnes was terminated for her failure to submit to a drug test. Her termination was based on reasonable suspicion pursuant to the District’s policy. Section 4(a) of the Drug and Alcohol Testing Policy defines reasonable suspicion as the “belief by Smith County School District that an employee is using or has used drugs or alcohol in violation of Smith County School District’s policy.” The District’s reasonable suspicion was based on (ii) of that Section: abnormal conduct or erratic behavior while at work, absenteeism, tardiness, or deterioration in work performance.

¶ 14. The policy also provides that an employee may notify the District of recently used prescription or nonprescription drugs before taking the test. At the hearing, Barnes admitted that she had never lain down on the carpet prior to May 6, 2009. She also stated that she was aware of the drug testing policy and that she had in fact refused to take the drug test.

¶ 15. The chancellor ultimately reversed the Board’s decision under Mississippi Code Section 37-9-113(3)(b), finding the decision to be arbitrary or capricious. This Court has stated that an act is arbitrary “when it is done without adequately determining principle; not done according to reason or judgment, but depending upon the will alone, — absolute in power, tyrannical, despotic, non-rational, — implying either a lack of understanding of or a disregard for the fundamental nature of things.” St. Dominic-Jackson Mem’l Hosp., 910 So.2d 1077, 1082 (Miss.2005) (citations omitted). “An act is capricious when it is done without reason, in a whimsical manner, implying either a lack of understanding of or a disregard for the surrounding facts and settled controlling principles_” Id. (citations omitted).

¶ 16. At the hearing, the chancellor stated that:

The [cjourt believes that because of the drug and alcohol policy that the school district was correct in asking for the drug test....The [cjourt believes that the actions upon observing a teacher coming in and lying on the floor, with the lights off, would appear to be abnormal behavior. The [cjourt believes that after looking at the entire record concerning the allegations of pain or sickness on behalf of Ms. Barnes, that her actions would not be abnormal based on her pain and discomfit [sic].

¶ 17. In reviewing the drug and alcohol policy, the chancellor took issue with the part of the policy that requires approval from the superintendent before requesting an employee to submit to a drug test. The policy states that:

b. If there is reasonable suspicion that an employee is using or had used drugs or consumed alcohol in violation of Smith County School District’s policy, that employee will be required to submit to a drug and/or alcohol test. The superintendent (or in his or her absence[,j an appointed replacement) must approve in advance all reasonable suspicion testing. If the test result is confirmed positive for drugs or alcohol in violation of Smith County School District’s drug and alcohol policy, the employee will be subject to immediate termination of his or her employment with the District.
5. Any employee who refuses to take a drug and alcohol test will be subject to discipline, up to and including immediate termination of employment.

¶ 18. In regard to the drug and alcohol policy, the chancellor stated that:

The [cjourt believes that Ms. Barnes was wrong when she did not comply with taking the drug test. And the [cjourt believes that the superintendent of education of the school district was wrong when they did not have something in the record showing that in the absence of Mr. Hancock, superintendent of education, that he had appointed a replacement to approve the testing of Ms. Barnes, or some other person whoever that might be, when Mr. Hancock was unavailable and could not make the [reasonable-suspicion] determination.

Therefore, he reasoned that Barnes should not be held to the strict policy if the District is not holding itself to the same standards. The chancellor ultimately found that the Board’s decision was arbitrary or capricious because he found nothing in the record indicating that Superintendent Jimmy Hancock appointed Assistant Superintendent Priscilla Magee to authorize drug testing in his absence.

¶ 19. We disagree with Barnes’s argument that the Court of Appeals failed to properly consider all relevant evidence that would have precluded termination of Barnes. The Court of Appeals considered evidence from both Barnes and the District regarding her refusal to take the test and her request to take the test later that day. This Court has stated that “[w]hile it is true that there are many punishments that would seem less harsh or more appropriate in this case, we must recognize that the law commits this entire matter to the discretion of the school board.” Covington County Sch. Dist. v. G.W., 767 So.2d 187, 192 (Miss.2000) (citations omitted).

¶ 20. Based on this Court’s standard of review and deference to administrative agency decisions, we find that the Board’s decision was not arbitrary or capricious. The policy explicitly states the consequences for an employee who refuses to take a drug test when requested. Prior to the incident, Barnes had been employed at Taylorsville Elementary for eleven years. At the hearing, Barnes admitted to refusing the test and admitted she was aware of the District’s drug-testing policy. She knew that she could be requested to take a drug test if the District had reasonable suspicion to request a test. She was aware of the potential consequences if she refused to comply. The policy states that “[a]ny employee who refuses to take a drug and alcohol test will be subject to discipline, up to and including immediate termination of employment.” The Board relied on the policy’s clear language when affirming the termination of Barnes’s employment, and its decision was well-reasoned.

¶ 21. On appeal, Barnes also argues that there was no substantial evidence to support the Board’s decision to terminate her employment. “Substantial evidence means more than a scintilla or a suspicion.” St. Dominic-Jackson Mem’l Hosp., 910 So.2d at 1082 (citations omitted). There certainly was more than a scintilla of evidence regarding Barnes’s refusal to take the drug test. The evidence at the hearing revealed that the Board requested Barnes take the drug test after teachers’ reports of Barnes’s abnormal behavior in the classroom. On the way to the drug-testing facility, Barnes signed a statement indicating that she was refusing to take the test. Through its drug and alcohol policy, the District had the prerogative to choose the appropriate punishment, including termination of employment, for Barnes’s refusal to take the drug test when initially requested. Not only was there substantial evidence to support Barnes’s termination, but the District’s decision to enforce its drug and alcohol policy as it is written was not arbitrary or capricious.

CONCLUSIÓN

¶ 22. The Board’s decision to terminate Barnes based on her refusal to take a drug test was not arbitrary or capricious. In addition, the Board’s decision to terminate Barnes’s employment was supported by substantial evidence. Therefore, we affirm the Court of Appeals’ decision, reversing and rendering the decision of the chancery court.

¶ 23. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE JUDGMENT OF THE CHANCERY COURT OF SMITH COUNTY IS REVERSED AND RENDERED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., KITCHENS, PIERCE AND KING, JJ., CONCUR. RANDOLPH AND LAMAR, JJ., NOT PARTICIPATING.


author: IRVING, P.J., ISHEE, J.,

text:
    Elizabeth MARTIN, Appellant v. ST. DOMINIC-JACKSON MEMORIAL HOSPITAL, Appellee.
    No. 2009-CA-01365-COA.
    Court of Appeals of Mississippi.
    May 24, 2011.
    Rehearing Denied Sept. 27, 2011.
    Micah B. Dutro, Ramel L. Cotton, attorneys for appellant.
    Sharon F. Bridges, Jonathan R. Werne, Lane W. Staines, John E. Wade Jr., Jackson, attorneys for appellee.
   IRVING, P.J.,

for the Court:

¶ 1. Elizabeth Martin sued St. Dominic-Jackson Memorial Hospital for injuries that she received in a slip-and-fall accident on the hospital’s premises. At the conclusion of the evidence, the hospital, arguing that Martin had failed to prove causation, moved for a directed verdict. The circuit court agreed and granted the hospital’s motion. Aggrieved, Martin appeals and essentially argues that she presented enough evidence regarding the hospital’s alleged negligence and causation to withstand the motion for a directed verdict.

¶ 2. We agree with Martin that, based on the evidence presented, the jury should have been allowed to determine whether the hospital was negligent and, if so, whether her injuries were proximately caused by the hospital’s negligence. Therefore, we reverse and remand for a new trial on the merits.

FACTS

¶ 8. On September 27, 2005, Martin slipped and fell, on both knees, on a freshly waxed floor at St. Dominic-Jackson Memorial Hospital during a break in a physical-therapy session that Martin was participating in while a patient at the hospital. According to testimony adduced by the hospital, warning signs had been placed in the area where Martin fell, and Martin and the other participants in the therapy session had been specifically warned to avoid the freshly waxed area. Martin testified that there were no warning signs and that she had not been warned by the hospital’s personnel to avoid the area where the fall occurred. In any event, it is undisputed that Martin injured her knees and suffered some damages as a result of her fall. Her knees became swollen, and she was hospitalized overnight and instructed to keep her legs elevated and to use ice packs for the swelling. She was discharged from the hospital the following day and given a prescription for pain medication.

¶ 4. After Martin was discharged from the hospital, her knees continued to swell, resulting in her seeing her family physician, Dr. Brent Meador. Dr. Meador had an MRI done of Martin’s knees, and eventually referred her to Dr. David Gandy. The MRI showed that Martin had a trabe-cular injury, which is a bruise to the bone, that normally occurs, according to Dr. Gandy, “from some type of direct blow to the knee.” The MRI also showed that Martin had a mild ACL sprain. Dr. Gan-dy explained: “An ACL is an anterior cruciate ligament. That’s one of the two cross ligaments within the knee, and most people hear [about] those in football[-]type injuries, things like that, and it was a mild sprain. It was not a tear or not a major injury.” The MRI also showed “some mild marrow edema in the distal femur and proximal tibia.” Dr. Gandy explained: “Edema is swelling anywhere, but in this case within the bone marrow, and [the radiologist] thought it could be due to the recent fall or to arthritis.”

¶ 5. When Martin came to see Dr. Gan-dy, she gave him a history of having pain in her left knee for approximately two years, but she explained that she had just started having pain in her right knee. According to Dr. Gandy: “She had pain -with motion[,] and she had pain with stress to various environments, which means pulling the knee in and pulling the knee out, holding the thigh stable.” She advised Dr. Gandy that she had fallen approximately two months earlier.

¶ 6. Dr. Gandy performed arthroscopic surgery on Martin’s left knee. The surgery revealed that she had arthritis and a medial and lateral meniscus tear in the left knee. He gave the following explanation regarding a meniscus tear:

A meniscus is a disc[-]shaped structure. There are two of them within the knee. The medial being on the inner side of the knee and lateral on the outer side of the knee. Their purpose is as a secondary stabilizer. They’re not the primary stabilizer like the ligaments are. They prevent more of a side[-]to[-] side kind of gliding motion in the knee. They kind of deepen the socket, and if they are torn, which can occur in a younger person, generally it’s from a twisting maneuver. In a person a bit older, it can be from either wear and tear or an injury, either one.

(Emphasis added).

¶ 7. Additional facts, as necessary, will be related during our discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 8. We review the circuit court’s grant or denial of a motion for a directed verdict de novo. Ryals v. Bertucci, 26 So.3d 1090, 1094 (¶ 16) (Miss.Ct.App.2009). We review the evidence presented in the light most favorable to the nonmoving party and give that party the benefit of all favorable inferences that may be reasonably drawn from the evidence. Id. If the evidence presented creates a question of fact upon which reasonable minds could differ, a directed verdict should not be granted; instead, the issue should be submitted to the jury. Ross v. Nat’l Forms & Sys. Group, Inc., 882 So.2d 245, 249 (¶ 11) (Miss.CtApp.2004) (quoting Ducksworth v. Wal-Mart Stores, Inc., 832 So.2d 1260, 1262 (¶ 2) (Miss.Ct.App.2002)). “A question of fact is created if ‘one party swears to one version of the matter in issue and another says the opposite....’” Id. at 250 (¶ 16) (quoting Regency Nissan, Inc. v. Jenkins, 678 So.2d 95, 99 (Miss.1996)).

¶ 9. In order to recover against St. Dominic, Martin is required to prove that the hospital owed her a duty, that the hospital breached that duty, that her injuries were caused by that breach, and that she suffered damages as a result. Mladineo v. Schmidt, 52 So.3d 1154, 1162 (¶ 28) (Miss.2010). Also, in slip-and-fall cases, such as we have here, the duty owed by a business is to use reasonable and ordinary care to keep its premises reasonably safe for use by its customers and to warn them of any existing dangerous condition not readily apparent that is known to the business, or should have been known to it in the exercise of reasonable care. Pigg v. Express Hotel Partners, LLC, 991 So.2d 1197, 1199-1200 (¶ 5) (Miss.2008).

¶ 10. The evidence is undisputed that Martin fell on a freshly waxed floor at the hospital while she was a patient there. Therefore, as an invitee of the hospital, the hospital had a duty to warn her of the freshly waxed floor, which could be unusually slippery.

¶ 11. During the trial, Martin testified that she was not warned by the nurses to avoid the area and that there were no warning or caution signs. Conversely, the hospital’s staff testified that all of the patients were warned to avoid the area being waxed and that caution signs were placed around the area. The testimony presented in this case created a question of fact as to whether the hospital failed to warn Martin of the dangerous condition. Even if the evidence is slight, whether a breach of duty occurred is a question that should be determined by the jury. Hankins Lumber Co. v. Moore, 774 So.2d 459, 464 (¶ 11) (Miss.Ct.App.2000).

¶ 12. There was no dispute as to any of the other elements that Martin had to prove except causation. It is clear that Martin suffered damages. The question is whether Martin produced sufficient credible evidence that created a question of fact upon which reasonable minds could differ. If she did, a directed verdict should not have been granted, and the case should have been presented to a jury to abide the jury’s verdict on that question. The circuit court adopted the hospital’s argument that Martin had “failed to present any testimony or evidence by a physician or expert to a reasonable degree of medical certainty that the [hospital’s] alleged negligence proximately caused [Martin’s] damages.” Relying on Kidd v. McRae’s Stores Partnership, 951 So.2d 622 (Miss.Ct.App. 2007), the circuit court concluded that, on the evidence presented, the jury could not use the medical evidence presented to reach a verdict. We find that the facts here are quite different from the facts in Kidd. In Kidd, the circuit court did not allow evidence of future medicals where the physician never testified as to the future need for two surgeries. Id. at 623 (¶ 5). The issue here is not the exclusion of evidence because of a lack of medical basis, but the submission of the issues of negligence and causation to the jury based on the medical evidence presented. It is in the province of the jury to determine the cause of Martin’s injuries, not the circuit court. As noted, our inquiry must be whether there was credible evidence that created a question of fact upon which reasonable minds could differ as to the cause of Martin’s injuries. It is clear that the answer is an emphatic “yes.”

¶ 13. First, there is overwhelming and uncontradicted evidence that Martin’s fall was caused by the slippery, freshly waxed floor at the hospital. Second, the evidence is uncontradicted that Martin landed on both of her knees and that they immediately began to swell, necessitating utilization of ice packs, an overnight stay in the hospital, and pain medication. It is also undisputed that when she underwent an MRI a few days after the fall, it showed a mild ACL sprain, the kind that is quite often suffered by athletes in the contact sport of football, and edema in the bone marrow. We find that on these facts, reasonable minds could not even differ as to whether some of Martin’s injuries were caused by her fall at the hospital, leaving the only remaining question to be whether the hospital breached its duty to Martin. And on this point, our law is clear that this is a classic question for the jury since the evidence is conflicting.

¶ 14. The more difficult question is whether the edema in the bone marrow of Martin’s knee and the meniscus tear were caused by Martin’s fall or by the normal wear and tear that occurs as a result of the aging process and the progression of arthritis in the body. The medical evidence on this point, as given by Dr. Gandy, is that the tear was caused by “wear and tear or an injury, either one.” As to the edema, the radiologist that read the MRI, according to Dr. Gandy, believed the edema was due to the recent fall or to arthritis. While Dr. Gandy did not state that the meniscus tear was caused by Martin’s fall, it is noteworthy that he did not say that the tear could not have been caused by the fall or that there is no medical evidence supporting the notion that a meniscus tear can occur when one falls directly on the knee. Suppose instead of one physician testifying that the tear was caused by either arthritis conditions or by the blow to the knee from the fall, there had been two physicians, one testifying on behalf of Martin and the other testifying on behalf of the hospital. Suppose further that Martin’s expert had testified that the meniscus tear was caused by the blow to the knee from the fall while the hospital’s expert had testified that the tear was caused by the progression of Martin’s arthritis. Could it be legitimately argued that the matter should not be presented to the jury for resolution of the question? How then is the legal implication different because one expert said both? It is certainly reasonable that the jury could have decided that the cause was the impact to the knee from the fall, rather than the progression of Martin’s arthritis. This is also a classic situation where the evidence creates a question of fact — whether the edema and meniscus tear were caused by the wear and tear of the aging process, arthritis, or by the injury to the knee from the fall. Reasonable minds could differ as to the cause, but not because of a lack of medical evidence to support the choice made. That is so because Martin suffered from arthritis as well as from the fall on both of her knees. A jury might very well determine, based on the fact that Martin had suffered from arthritis since 2004, that the tear occurred as a result of this condition. On the other hand, a jury might determine, based on Martin’s testimony without objection that she had never had this kind of problem before, that the tear occurred as a result of the acute impact to her knee from the fall. Therefore, since reasonable minds could reach different conclusions as to the cause of her meniscus tear, the circuit court erred in directing a verdict for the hospital. We find that the jury should have been allowed to make that determination based upon the totality of the evidence presented.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

LEE, C.J., GRIFFIS, P.J., AND CARLTON, J. CONCUR. ROBERTS AND MAXWELL, JJ„ CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. ISHEE, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY MYERS AND BARNES, JJ. RUSSELL, J., NOT PARTICIPATING.

ISHEE, J.,

dissenting:

¶ 16. I respectfully dissent with the majority on the issue of causation as to whether Martin offered sufficient testimony to create a question of fact upon which reasonable minds could differ. I also dissent with the majority’s discussion of breach of duty — an issue that was not raised by either party on appeal.

¶ 17. First, I find that Martin’s medical expert, Dr. Gandy, did not provide sufficient evidence for a jury to determine that Martin’s injuries were proximately caused by her fall at St. Dominic. The hospital argues, and I agree, that Martin failed to provide any expert testimony to prove causation and that the trial court did not misapply any case law in reaching its decision.

¶ 18. The basis of the trial court’s decision focused on the causation element. Proximate cause contains two elements: (1) cause in fact and (2) legal cause. Kaigler v. City of Bay St. Louis, 12 So.3d 577, 583 (¶ 30) (Miss.Ct.App.2009) (citing Glover ex rel. Glover v. Jackson State Univ., 968 So.2d 1267, 1277 (¶31) (Miss.2007)). In this case, the trial court’s ruling focused on the cause-in-fact element, which means that the injury would not have occurred but for the defendant’s negligence. Id.

¶ 19. St. Dominic contends that Dr. Gandy did not testify to a reasonable degree of medical certainty whether Martin’s knee injuries were caused by her fall. Yet Martin insists that Dr. Gandy’s statement that the injuries were caused by wear and tear or an acute injury was sufficient. After reviewing the record, I find that Dr. Gandy’s testimony was too speculative for a jury to find causation for the injury.

¶ 20. There are no magic words necessary to establish proximate cause, but the expert’s opinion must be based on a reasonable degree of medical certainty. Vanlandingham v. Patton, 35 So.3d 1242, 1249 (¶ 37) (Miss.Ct.App.2010). In Vanlanding-ham, a medical-malpractice case, we found that although the testifying expert did not always use the terms “within a reasonable degree of medical certainty,” the import of his testimony was apparent. Id. In Kidd v. McRae’s Stores Partnership, 951 So.2d 622, 626 (¶ 19) (Miss.Ct.App.2007), another medical-malpractice case, this Court also stated the following:

[Wjhen an expert’s opinion is not based on a reasonable degree of medical certainty, or the opinion is articulated in a way that does not make the opinion probable, the jury cannot use the information to make a decision. Failure to properly qualify an expert opinion typically occurs in testimony that is speculative .... It is the intent of the law that if a physician cannot form an opinion with sufficient certainty so as to make a medical judgment, neither can a jury use that information to reach a decision.

(Internal citations and quotations omitted).

¶ 21. Dr. Gandy was unable to appear in court; thus, his videotaped deposition was admitted into evidence. As stated by Dr. Gandy, Dr. Meador referred Martin to him. During her initial visit, Martin complained of pain in both knees. When giving her medical history, Martin told Dr. Gandy that she had experienced pain in her left knee for two years, and she had only recently begun having pain in her right knee. She further told Dr. Gandy that she had also fallen at the hospital two months prior, sustaining direct blows to her knees.

¶ 22. Dr. Gandy reviewed the MRI that Dr. Meador had taken of Martin’s knees. According to Dr. Gandy, the MRI revealed that Martin had mild patella alta with evidence of a trabecular injury bruising to her left knee. Dr. Gandy explained that bruising of that type is normally caused by some type of blow to the knee. Dr. Gandy also stated that Martin had sustained a mild anterior cruciate ligament (ACL) sprain, joint effusion (fluid on the knee), and mild marrow edema (swelling) in her left knee. The MRI revealed that Martin’s right knee had moderate osteoarthritis. In his initial diagnosis, Dr. Gandy determined that Martin had internal derangement, which means that something is wrong inside the knee, but she primarily had arthritis in both knees.

¶ 23. Dr. Gandy gave Martin three options: (1) wear a knee brace, (2) receive cortisone injections, or (3) undergo an arthroscopic surgery. Martin elected to have the surgery. During the surgery, Dr. Gandy discovered that Martin had two meniscus tears in her left knee.

¶ 24. During the deposition, Martin’s trial counsel asked Dr. Gandy whether he had recommended the surgery because of the meniscus tears. Dr. Gandy said that was not the reason he had recommended the surgery; because until the surgery, he was unaware that Martin had meniscus tears due to the fact that they were not visible on Martin’s MRI. Dr. Gandy stated that he suggested the surgery to Martin to address her symptoms, and he did not know if those symptoms were due to her arthritis. Martin’s trial counsel also asked Dr. Gandy what caused the meniscus tears. Dr. Gandy responded that a meniscus tear could be caused by normal wear and tear or an acute injury.

¶ 25. As indicated by Dr. Gandy, the surgery was successful. Dr. Gandy testified that on December 28, 2005, he examined Martin and recommended physical therapy. However, Martin declined the physical therapy at that time. Dr. Gandy examined Martin again on March 22, 2006, and she complained of pain in her knee. As a result, Dr. Gandy administered cortisone injections to Martin’s knee. Dr. Gan-dy testified that because of Martin’s arthritis, he expected Martin to continue to experience pain.

¶ 26. On direct examination, Martin’s trial counsel specifically asked Dr. Gandy what caused meniscus tears. Dr. Gandy responded: “In a person a bit older, it can be from either wear and tear or an injury, either one.” On cross-examination, St. Dominic’s trial counsel asked Dr. Gandy whether he explained to Martin what could have caused her meniscus tears. Dr. Gan-dy replied: “I told her it could come from wear and tear or from an acute injury.”

¶ 27. Dr. Gandy did not opine as to whether Martin’s fall at the hospital actually caused or contributed to her injuries, thus leaving the jury to speculate as to causation. Since there is no direct testimony regarding a cause-in-fact, a jury could not use Dr. Gandy’s testimony to make an informed decision. Based on the foregoing, I find that the trial court did not err by granting the hospital’s motion for a directed verdict.

¶ 28. Martin also argues that the trial court misapplied case law in making its decision. For the sake of judicial efficiency, I would have declined to address the details of Martin’s argument. Nonetheless, the majority has examined the challenged citations, as have I. See City of Jackson v. Spann, 4 So.3d 1029, 1038-39 (¶¶ 33-36) (Miss.2009) (ruling that an award of future medical costs was error where the doctor’s testimony regarding those costs was a guess and not based upon a reasonable degree of medical certainty); Kidd, 951 So.2d at 626-27 (¶¶ 17-20) (finding that the trial court’s order prohibiting the admission of the treating physician’s testimony regarding the cost of future surgeries was not an abuse of discretion where the physician did not express his opinion to a reasonable degree of medical certainty). While the cases challenged by Martin are factually distinguishable from her case, the cases did provide statements of law that were applicable to the issues before the trial court. Thus, I disagree with the majority’s opinion, and find that the trial court did not misapply the case law used to support its ruling.

¶ 29. Further, I also dissent with the majority’s discussion of breach of duty. In its opinion, the majority has addressed whether Martin provided sufficient evidence to create a question of fact as to whether the hospital failed to warn Martin of the dangerous condition of the freshly waxed floors. However, neither Martin nor the hospital raised this issue in their briefs, nor does it appear that either party challenged this issue at trial.

¶ 30. We recognize that issues not brought on direct appeal may be reviewed under the plain-error doctrine. However, “[i]n order to reverse under the plain error doctrine, the reviewing court must find both error and harm.” HWCC-Tunica, Inc. v. Jenkins, 907 So.2d 941, 944 (¶ 7) (Miss.2005) (citation omitted). The majority opinion does not address either error or harm. Therefore, I respectfully must also dissent from the majority’s review of this issue.

MYERS AND BARNES, JJ., JOIN THIS OPINION.

      . At the time of Martin's arthroscopic surgery, she was fifty-six years old.