author: FAIR, J., BARNES, J.,

text:
    Terry E. HARRIS, Appellant v. Eddie MICHAEL, Jr. and BellSouth Telecommunications, LLC d/b/a AT & T Mississippi, Appellees.
    No. 2014-CA-01613-COA.
    Court of Appeals of Mississippi.
    June 7, 2016.
    Rehearing Denied Oct. 18, 2016.
    Certiorari Denied Feb. 2, 2017.

      Chase Ford Morgan, Hattiesburg, Leonard Brown Melvin III, attorneys for appellant.
    Robert D. Gholson, Katherine Bisnette Sumrall, Laurel, attorneys for appellees.
   FAIR, J.,

for the court:

¶ 1. In this negligence case, Terry Harris sued Eddie Michael Jr. and BellSouth Telecommunications, claiming that he suffered injuries from Michael’s failure to stop and yield to his vehicle at an intersection. At the close of Harris’s case, the defendants moved for a directed verdict. We find the court erred in granting the defendants’ motion. Thus, we reverse and remand.

FACTS

¶ 2. On June 10, 2010, Harris was riding with Robert Madden picking up limbs as part of their job for the Lamar County Road Department. Madden was driving eastbound on Shears Road in Hattiesburg, Mississippi. Michael was driving southbound on Weathersby Road in a BellSouth company truck, with a trailer attached. Both trucks approached the four-way stop at the intersection of Shears Road and Weathersby Road. As Madden made his right turn at the intersection, his truck struck the end of Michael’s trailer. Harris claimed that he suffered back injuries from the accident and that Michael’s negligence was the sole and proximate cause of his injuries.

¶3. Michael stated in his deposition that he took photos of the damaged vehicles after the accident and submitted the photos to BellSouth. He also completed a “safety procedure report” from a “red-book”—as required under BellSouth’s company policy. Harris requested the photos and report during discovery, but the defendants stated that the information had been lost by a third party courier. The day before trial, Harris requested a spoliation instruction on the basis of the missing information. The defendants filed a supplemental motion in limine, requesting the court prohibit the plaintiff from mentioning, implying, or eliciting testimony about the photos taken from the accident, the “red book,” and the “safety procedure report.” The court partially granted the defendants’ motion, stating that Harris could ask Michael about his personal knowledge of the photos and report, but could not imply that the information had been lost or destroyed by the employer or a third party.

¶ 4. At trial, Harris and Madden both testified that Madden made a complete stop at the intersection, then proceeded to turn right. They also said there were no other vehicles in sight when Madden turned at the intersection. Michael testified Madden ran the stop sign and caused the accident.

¶ 5. The defendants moved for a directed verdict at the close of Harris’s case. The court granted the motion, stating the evidence showed “nothing more than speculation,” since neither Harris nor Madden testified that Michael caused the accident. Harris appealed.

DISCUSSION

1. Directed Verdict

¶ 6. “Mississippi Rule of Civil Procedure 50(a), which governs directed verdicts, applies to jury trials, where the judge is not the fact-finder.” All Types Truck Sales Inc. v. Carter & Mullings Inc., 178 So.3d 755, 758 (¶ 12) (Miss.Ct.App.2012). The standard of review for a trial court’s grant or denial of a motion for a directed verdict is de novo. Solanki v. Ervin, 21 So.3d 552, 556 (¶ 8) (Miss.2009) (citations omitted). The trial court may direct a verdict for the defendant at the close of the plaintiffs case under Mississippi Rule of Civil Procedure 50(a) if it finds the plaintiff has failed to present credible evidence to establish the necessary elements of his claim. Hall v. Miss. Chem. Express Inc., 528 So.2d 796, 798 (Miss.1988). Our supreme court has stated:

[T]he trial judge is to look solely to the testimony on behalf of the party against whom a directed verdict is requested. He will take such testimony as true along with all reasonable inferences which can be drawn from that testimony which is favorable to that party, and, if it could support a verdict for that party, the directed verdict should not be given. If reasonable minds might differ as to this question, it becomes a jury issue,

Solanki, 21 So.3d at 556 (¶ 8) (quoting White v. Thomason, 310 So.2d 914, 916-17 (Miss.1975)).

¶ 7. Clearly, only one vehicle had the right-of-way at the intersection. The accident raises fact issues of how the accident occurred and legal issues of simple negligence. “The elements of negligence are well-established: duty or standard of care, breach of that duty or standard, proximate causation, and damages or injury.” Porter v. Grand Casino of Miss. Inc., 181 So.3d 980, 985 (¶ 12) (Miss.2016).

¶ 8. Viewing the evidence in the light most favorable to Harris, reasonable minds could differ as to whether Michael was negligent. Harris and Madden testified that Madden made a complete stop at the intersection, and that, when Madden entered the intersection, there were no other vehicles in sight. Taking the plaintiffs testimony as true, the reasonable inference would be that Michael ran the stop sign.

¶9. The dissent finds that, had Michael run the stop sign, the impact would have occurred in different places on the vehicles. That is a question for the fact-finder, not the judge. And although Harris did not say with certainty that Michael ran the stop sign, he did say that Madden made a complete stop. Harris’s testimony contradicted Michael’s testimony. “The general rule is, where there is a conflict in the evidence, the question of negligence is for the determination of the jury.” Payne v. Gowdy, 155 So.3d 794, 805 (¶ 44) (Miss.Ct.App.2012) (citing Butane Gas Co. v. Varner, 244 Miss. 130, 141 So.2d 226, 232 (1962)). Therefore, the court’s grant of the defendants’ motion was improper.

¶ 10. Because facts and inferences created a question of fact from which reasonable minds could differ, the court should not have granted a directed verdict but instead submitted the matter to the jury. Thus, we reverse the court’s decision.

2. Motion in Limine

¶ 11. To grant a party’s motion in limine, the court must find that: “(1) the material or evidence in question will be inadmissible at a trial under the rules of evidence; and (2) the mere offer, reference, or statements made during trial concerning the material will tend to prejudice the jury.” Whittley v. City of Meridian, 530 So.2d 1341, 1344 (Miss.1988) (citation omitted). We will not reverse a court’s grant of a motion in limine unless we find the court abused its discretion. Cridiso v. State, 956 So.2d 281, 289 (¶ 21) (Miss.Ct.App.2006) (citation omitted).

¶ 12. Michael stated in his deposition that he filed a BellSouth “safety procedure report” from a “redbook.” He filled out the report at the accident site. He also took pictures of the accident with a disposable camera, which was standard protocol for BellSouth employees. Michael gave the camera to his supervisor and never saw the pictures developed. During discovery, Harris requested the defendants “[p]roduce all recorded statements [in their possession], whether video, audio, or other form[,] describing the accident in question.” For information not in their possession, the defendants were asked to “identify the statement(s) and provide the name, address, and telephone number of its/their custodian.”

¶ 13. The defendants responded, stating that after a diligent search, they determined that the documents were lost in transit by a third party courier around the time of the accident three years prior. They further stated that, in a good faith effort to respond to Harris’s request, they provided in discovery the “flash report” prepared right after the accident. That report purportedly contained the same information as the “safety procedure report.”

¶ 14. There was no other mention of the missing information until the day before the trial, when Harris filed his proposed jury instructions. The relevant instruction stated:

[I]f you find by a preponderance of the evidence in this case that Eddie Michael ] Jr. ... negligently failed to secure the photographs taken ... at the scene of the accident, the “red book” completed by Eddie Michael Jr., after the accident, and the “safety procedure report” completed by Eddie Michael Jr., after the accident, causing them to be misplaced, lost or otherwise unavailable for the use at this trial, then you should presume that the photographs, the “red book” and the “safety procedure report” contained evidence that was unfavorable [to the defendants].

¶ 15. The defendants filed a supplemental motion in limine to exclude the instruction. The court granted the motion in part, ruling that Harris could not “create an inference to the jury that the employer, the third party, [or] who[ ]ever was involved in handling the red book and photograph did anything wrong through [Michael].” The court explained that the issue was too prejudicial to present to the fact-finder. Harris could, however, ask Michael about his personal knowledge of the missing information.

¶ 16. “[A] negative inference is only proper when a defendant intentionally or through gross negligence discards evidence that is the subject of litigation.” Page v. Biloxi Reg’l Med. Ctr., 91 So.3d 642, 645 (¶ 17) (Miss.Ct.App.2012) (citing Thomas v. Isle of Capri Casino, 781 So.2d 125, 133 (¶ 39) (Miss.2001)). Here, the judge determined there was no evidence of an intentional act or gross negligence on the defendants’ behalf. And so under Mississippi Rule of Evidence 403, any evidence suggesting that the defendants lost or misplaced the information—because it was “unfavorable” to them—was more prejudicial than probative.

¶ 17. “Broad discretion is vested in the trial court to guard against unfair innuendos which might arise as a result of trial strategy.” Whittley, 530 So.2d at 1345. Because the record lacks any evidence supporting that the defendants intentionally or recklessly discarded the missing information, we find the court was •within its discretion to partially grant the defendants’ motion in limine.

CONCLUSION

¶ 18. We find no error in the court’s partial grant of the defendants’ motion in limine. We do, however, find error in the court’s grant of the defendants’ motion for a directed verdict. Accordingly, we reverse and remand.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF LAMAR COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANT AND ONE-HALF TO THE AP-PELLEES.

LEE, C.J., IRVING, P.J., ISHEE AND GREENLEE, JJ. CONCUR. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION. BARNES, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY GRIFFIS, P.J., CARLTON AND WILSON, JJ.

BARNES, J.,

concurring in part and dissenting in part:

¶ 20. Finding the circuit judge did not err in granting the defendants’ motion for a directed verdict, I respectfully dissent from the majority’s decision to reverse and remand on this issue. I concur with the majority that the court was within its discretion to grant the defendants’ motion in limine in part.

¶21. “[I]f reasonable jurors could not have arrived at a different verdict, the grant of a directed verdict must be affirmed on appeal. On the other hand if there is substantial evidence, that is, evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions, we cannot affirm the grant of a directed verdict.” Forbes v. Gen. Motors Corp., 935 So.2d 869, 872-73 (¶ 3) (Miss.2006) (emphasis added) (citing Cousar v. State, 855 So.2d 993, 998 (¶ 14) (Miss.2003)). Even affording Harris all favorable inferences from the evidence, I disagree with majority’s finding that reasonable minds could differ as to what caused the accident in question. After the plaintiff rested his case, the defense moved for a directed verdict, noting that both Harris and Madden “admitted in sworn testimony that they did not see [Bellsouth’s] vehicle at any point prior to the accident; therefore, it is impossible for either of them to say that [Michaél] did anything that could be construed as negligence.” The testimony supports this argument. At trial, Madden could not state with any certainty what caused the accident.

Q. Do you have any explanation for the accident?
A. Not really.
Q. You don’t know whose fault it was or what happened?
A. Should have been mine. I didn’t see him....
Q. Do you have any answer as to whether he stopped’ at that stop sign?
A. I have no idea.
Q. Okay. But you never saw [Michael]?
A. I never saw him.

Harris also acknowledged during cross-examination that he did not see the Bell-South vehicle before impact; he simply speculated that Michael had sped through the stop sign, stating “I don’t think he stopped.” Michael also testified that Madden admitted fault after the accident, stating that “he just didn’t see me.” He also said Harris came over and said “old buddy [ (Madden) ] just didn’t see me,” but Harris denied talking to Michael after the incident.

¶ 22. The court granted the defendants’ motion, finding that the testimony by Harris and Madden was “nothing more than speculation as to what caused this accident.” Thus, the circuit court concluded that Harris failed to establish liability on the part of the defendants during his casein-chief, noting in its final judgment that “the subjective belief of Plaintiff and/or Mr. Madden as to whether or not the BellSouth vehicle ran the stop sign is not sufficient to establish negligence or causation.” A circuit court’s granting of a motion for a directed verdict is proper “if the plaintiffs evidence is so lacking that reasonable jurors would be unable to reach a verdict in favor of that party.” Fulton v. Robinson Indus. Inc., 664 So.2d 170, 172 (Miss.1995) (citing Tate v. S. Jitney Jungle, 650 So.2d 1347, 1349-50 (Miss.1995)).

¶23. Furthermore, as defense counsel additionally argued at trial, the location of the impact between the vehicles—between the left-front bumper of the Lamar County truck and the rear-right axle of the Bell-South trailer—shows that “it is inescapable that [Michael’s] vehicle occupied and preempted the intersection before [the] plaintiffs truck began to pull through the stop sign[.]” Although the circuit judge did not base his decision to grant the directed verdict on this argument, I find the defense’s claim is supported by undisputed evidence. Logic dictates that had Michael run the stop sign on the north side of the intersection traveling southbound, after the other truck had already begun turning right into the intersection from the west, the impact of the collision would not have been toward the rear of the trailer attached to the back of the BellSouth truck, but rather the impact would have been toward the front of the BellSouth truck itself.

¶ 24. Finding the evidence insufficient to establish any liability on the part of the defendants, I would affirm the circuit court’s judgment.

GRIFFIS, P.J., CARLTON AND WILSON, JJ., JOIN THIS OPINION.

      . Harris also testified that he saw Michael holding a cell phone after the accident occurred. In his deposition, Michael stated that he had not used his phone right before the accident. Cell phone records in discovery, however, revealed that he actually was on his phone at the time of impact (possibly impairing his driving). During cross-examination, Michael said he had forgotten that he used his phone.

      . Rule 403 states that ‘'[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

      . Photos admitted into evidence show that the intersection was clear of any impediments to a person’s viewing of other vehicles at the intersection (i.e., bushes, trees, etc.). There was also testimony by Michael that the accident happened mid-morning on a sunny day.

      . The circuit court did observe in its final judgment that Michael's testimony "is consistent with the physical facts of the accident.” Michael testified that he "came to a complete stop,” and he saw the other truck "approaching the intersection.”


source: Caselaw Access Project

author: WILSON, J.,

license: Public Domain

text:
    Carol GRAY, Appellant, v. Dimitrios DIMITRIADES, M.D., Memorial Hospital at Gulfport and Todd Frieze, M.D., Appellees.
    No. 2014-CA-01106-COA.
    Court of Appeals of Mississippi.
    June 7, 2016.
    Rehearing Denied Oct. 25, 2016.
    Certiorari Denied March 2, 2017.

      John F. Hawkins, Edward Gibson, Bay St, Louis, Jonathan B. Fairbank, attorneys for appellant.
    Roland F. Samson III, Gulfport, Stephen Walker Burrow, James H. Heidelberg, Pascagoula, attorneys for appellees.
   WILSON, J.,

for the Court:

¶ 1. In May 2009, a biopsy of Carol Gray’s spine showed that she had multiple myeloma, a form of bone cancer. The results were sent to Dr. Eric Graham, the orthopedic surgeon who performed the biopsy, but Dr. Graham failed to communicate the results to Gray. Over one year later, another doctor discovered the biopsy results in Gray’s medical records and shared with Gray, for the first time, that she had bone cancer. Gray alleges that she suffered additional fractures and bone lesions as a result of her doctors’ failure to diagnose her -with multiple myeloma. Gray filed a medical malpractice complaint in the Harrison County Circuit Court against Dr. Graham; nurse practitioner Michelle Graham; Dr. Dimitrios “Jimmy” Dimitriades, her former doctor, a family medicine practitioner; Dr. Dimitriades’s employer, Memorial Hospital Gulfport (MHG); and Dr. Todd Frieze, an endocrinologist. The defendants subsequently filed separate motions for summary judgment, which the circuit court granted in separate orders, all of which Gray has appealed.

¶ 2. Gray’s appeal from the order granting summary judgment in favor of the Grahams came to this Court first because the circuit court certified that order as a final judgment pursuant to Mississippi Rule of Civil Procedure 54(b). We reversed and remanded in that appeal because we concluded that Gray’s evidence was sufficient to create a genuine issue of material fact as to whether the Grahams’ negligence was a proximate cause of her subsequent injuries. Gray v. Graham, 2014-CA-00069-COA, 203 So.3d 1177, 2016 WL 382966 (Miss.Ct.App. Feb. 2, 2016) (motion for rehearing filed Feb. 2, 2016). This appeal involves the remaining defendants—Dr. Freeze, Dr. Dimitriades, and MHG. We affirm the orders granting summary judgment in favor of these defendants because we agree with the circuit court that the affidavit of Gray’s expert, Dr. Bruce Avery, failed to create a genuine issue of material fact as to whether either Dr. Frieze or Dr. Dimitriades deviated from the standard of care, and whether their alleged negligence proximately caused any injury to Gray.

FACTS AND PROCEDURAL HISTORY

¶ 3. Gray’s first appointment with Dr. Dimitriades, a family medicine practitioner, was in July 2008. At that appointment, Dr. Dimitriades ordered a CBC (complete blood count) and metabolic panel, which revealed that Gray had a low red blood cell count (anemia). Gray had an appointment with another doctor in Dr. Dimitriades’s clinic in November 2008. The results of a test administered at the appointment indicated that Gray was still anemic and that her total protein level was “borderline high.”

¶ 4. On November 26, 2008, Gray had another appointment with Dr. Dimitriades and complained of back pain. Dr. Dimi-triades ordered an x-ray, which revealed she had fractured the T-7 vertebra of her spine. Dr. Dimitriades referred Gray to Dr. Graham, an orthopedic surgeon, to repair the fracture.

¶ 5. On January 16, 2009, Dr. Graham ordered an MRI, which confirmed Gray’s T-7 fracture, but did not show any lytic lesions. (Lytic lesions are a possible sign of bone cancer.) Dr. Graham recommended surgery to repair the fracture.

¶ 6. On February 18, 2009, Dr. Graham performed surgery (kyphoplasty) and successfully repaired Gray’s T-7 fracture. During the procedure, Dr. Graham biopsied a small part of the fractured vertebrae. The biopsy results showed “only bone fragments and blood,” indicating a normal biopsy. The results were sent to both Dr. Graham and Dr. Dimitriades.

¶ 7. On April 30, 2009, an MRI of Gray’s spine revealed a fracture of her T-5 vertebra. The MRI, again, did not indicate any lytic lesions. On May 13, 2009, Dr. Graham performed surgery (kypho-plasty) to correct Gray’s T-5 fracture. He also biopsied a portion of the fractured vertebra.

¶ 8. The results of this second biopsy revealed plasma cells in Gray’s bone marrow to a degree consistent with a diagnosis of multiple myeloma or plasmacytoma. The results were sent to Dr. Graham. Gray followed up with Dr. Graham on June 4, 2009, and January 29, 2010. However, Gray alleges that Dr. Graham did not inform her of the results of her second biopsy during either appointment.

¶ 9. The results of Gray’s second biopsy were not sent to Dr. Dimitriades. Dr. Dimitriades denies that he ever saw the results, and there is no evidence to the contrary. Gray saw Dr. Dimitriades on May 27, 2009, and underwent a bone mineral density exam. The results indicated normal bone density and low fracture risk. Gray followed up with Dr. Dimitriades on June 19, 2009; June 24, 2009; September 1, 2009; and January 13, 2010. Lab work ordered by Dr. Dimitriades during these visits continued to show that Gray was anemic.

¶ 10. Sometime prior to July 21, 2009, Gray was referred to Dr. Frieze, an endocrinology specialist. On July 21, 2009, Gray presented to Dr. Frieze “carrying a diagnosis of post-menopausal osteoporosis,” and Dr. Frieze allegedly received “all labs from Dr. Dimitriades.” The summary judgment record contains no additional information concerning Dr. Frieze’s treatment of Gray. There is no evidence that Dr. Frieze saw or treated her other than during this one appointment in July of 2009. There is also no evidence that Dr. Frieze ever received the results of Gray’s May 2009 biopsy.

¶ 11. On January 22, 2010, Gray went to see Dr. Sean Kerby for the first time. At this point, Dr. Kerby apparently replaced Dr. Dimitriades as Gray’s primary treating physician. Gray alleges she complained of chest pain to Dr. Kerby and that he diagnosed her with costochondritis, an inflammation of cartilage in the ribs.

¶ 12. Gray alleges that she saw Dr. Kerby again in May 2010, and that he diagnosed her with cellulitis. When her cellucitis did not improve with antibiotics, Dr. Kerby sent Gray to the emergency room at Garden Park Hospital.

¶ 13. At a follow-up appointment with Dr. Kerby on June 7, 2010, Dr. Kerby informed Gray that the May 2009 biopsy taken by Dr. Graham indicated that she had multiple myeloma. Dr. Kerby recommended that Gray see an oncologist. According to Gray, this was the first time she learned that she might have cancer. The record is unclear as to how Dr. Kerby became aware of the May 2009 biopsy or why he first discussed it with Gray on June 7, 2010. Dr. Kerby’s notes also reflect a fracture of the T-10 vertebra.

¶ 14. Three weeks later, Gray began receiving treatment for multiple myeloma at the M.D. Anderson Cancer Center in Houston, Texas. In addition to multiple myeloma, doctors at M.D. Anderson diagnosed Gray with fractures at T-4, T-8, T-10, L-l, and L-2 and noted numerous bony lesions. CT scans and a complete bone scan performed at M.D. Anderson indicated that additional fractures were consistent with multiple myeloma and were “most likely due to pathological fractures from myelomatous involvement.” Gray has responded well to treatment at M.D. Anderson, has achieved a partial remission, and has suffered no additional fractures or lesions.

¶ 15. On April 14, 2011, Gray filed a complaint alleging malpractice against Dr. Graham, Nurse Graham, Dr. Dimitriades, MHG, and Dr. Frieze.

¶ 16. In March 2012, the Grahams moved for summary judgment. In December 2013, the circuit court granted the Grahams’ motion on the ground that the opinions of Gray’s expert on causation— Dr. Avery, an oncologist—were conclusory in nature and insufficient to create a genuine issue of material fact. The circuit court certified the order granting summary judgment in favor of the Grahams as final under Rule 54(b), and Gray timely appealed.

¶ 17. In January 2014, Dr. Dimi-triades/MHG and Dr. Frieze moved for summary judgment. Although Gray had filed Dr. Avery’s affidavit in March 2012 in opposition to the Grahams’ motions for summary judgment, the remaining defendants pointed out that Gray had never designated Dr. Avery as an expert with respect to her claims against them, or disclosed the substance of Dr. Avery’s opinions concerning them. See M.R.C.P. 26(b)(4)(A)(i). Accordingly, they argued that Gray had no competent evidence of the applicable standard of care, negligence, or proximate causation. In response, Gray supplemented her interrogatory responses and submitted a supplemental affidavit from Dr. Avery. The defendants then argued that Dr. Avery’s affidavits still failed to create a genuine issue of material fact as to the essential elements of Gray’s claims. Dr. Frieze also argued that Dr. Avery, an oncologist, was not qualified to render opinions concerning the care provided by an endocrinologist, such as himself.

¶ 18. In July 2014, the circuit court entered orders granting summary judgment to the remaining defendants. As to Dr. Dimitriades, the court observed that the “crux” of Gray’s theory was that the fractures and bony lesions discovered at M.D. Anderson in June 2010 would have been prevented if she had been “timely informed of the May 13, 2009 biopsy results.” However, as the court noted, there is no evidence that those results were ever sent to Dr. Dimitriades. The court also found there were a “number of deficiencies” in Dr. Avery’s opinions, including that Dr. Avery could not explain when Dr. Dimitriades should have ordered additional testing or what those tests would have revealed. In the court’s view, Dr. Avery could offer only a “conclusory statement that [such testing] would have confirmed a diagnosis of multiple myeloma.” The court therefore concluded that Dr. Avery’s affidavits failed to create a genuine issue of fact with respect to either an alleged breach of the standard of care or proximate causation.

¶ 19. As to Dr. Frieze, the court first ruled that Dr. Avery was not qualified to opine as to the standard of care owed by a reasonably prudent endocrinologist. The court also concluded that Dr. Avery failed to explain, other than in a conclusory and speculative fashion, what additional testing Dr. Frieze should have performed or what those tests would have shown. In addition, the court noted that Dr. Avery opined that Gray could have avoided additional fractures if she had been “timely informed” of her May 13, 2009 biopsy results; however, Dr. Frieze never saw those results and did not even treat Gray until July 21, 2009. The court concluded that Dr. Avery failed to account for this timing difference; instead, Dr. Avery simply “lump[ed] every defendant together” and then asserted that they all proximately caused Gray’s injuries.

¶ 20. Gray timely appealed the orders granting summary judgment in favor of Dr. Dimitriades/MHG and Dr. Frieze. Gray filed her reply brief in this second appeal just after oral argument in the first appeal, Gray v. Graham. Just prior to oral argument in this appeal, we issued our ruling in Gray v. Graham. The only issue that we addressed in that opinion was whether Dr. Avery’s affidavit was sufficient to create a genuine issue of material fact on the question whether the Grahams’ alleged negligence proximately caused injury to Gray. The date of the alleged negligence at issue in that appeal was also easy to pinpoint: on May 14, 2009, the results of Gray’s biopsy, which indicated that she had cancer, were sent to the Grahams, but the Grahams failed to communicate the results to Gray. Gray, 203 So.3d at 1177-78 (¶ 2), 2016 WL 382966, at *1 (¶ 2). The issues in this appeal are materially different.

STANDARD OF REVIEW

¶ 21. We review an order granting summary judgment de novo. Price v. Purdue Pharma Co., 920 So.2d 479, 483 (¶ 10) (Miss.2006). “The evidence must be viewed in the light most favorable to the party against whom the motion has been made.” Id. Summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party- is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). The non-moving party “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e).

DISCUSSION

¶22. In a medical malpractice case, it is the plaintiffs burden to prove

the following elements: (1) the existence of a duty by the defendant to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; (2) a failure to conform to the required standard; and (3) an injury to the plaintiff proximately caused by the breach of such duty by the defendant.

Hubbard v. Wansley, 954 So.2d 951, 956-57 (¶ 12) (Miss.2007). Expert testimony typically is required to establish each element of the plaintiffs case. Id. at 957 (¶ 12). “The appropriate standard of care in a medical malpractice case is objective and centers around exercising the degree of care, diligence, and skill ordinarily possessed and exercised by a minimally competent and reasonably diligent, skillful, careful, and prudent physician in that field of practice.” Bickham v. Grant, 861 So.2d 299, 303 (¶ 14) (Miss.2003).

¶ 23. “Not only must this expert identify and articulate the requisite standard that was not complied with, the expert must also establish that the failure was the proximate cause, or proximate contributing cause, of the alleged injuries.” Hubbard, 954 So.2d at 957 (¶ 12) (quoting Barner v. Gorman, 605 So.2d 805, 809 (Miss.1992)). “On the critical causation question, ‘recovery is allowed only when the failure of the physician to render the required level of care results in the loss of a reasonable probability of substantial improvement of the plaintiffs condition.’ ” King v. Singing River Health Sys., 158 So.3d 318, 324 (¶ 26) (Miss.Ct.App.2014) (quoting Ladner v. Campbell, 515 So.2d 882, 888 (Miss.1987)). Thus, “[a] plaintiff cannot recover by showing a mere possibility of a ‘chance of recovery.’ ... [T]he plaintiff must offer proof of ‘a greater than fifty (50) percent chance of a better result than was in fact obtained.’ ” Mem’l Hosp. at Gulfport v. White, 170 So.3d 506, 508-09 (¶ 12) (Miss.2015) (quoting Clayton v. Thompson, 475 So.2d 439, 445 (Miss.1985); Hubbard, 954 So.2d at 964 (¶ 42)).

¶ 24. On appeal, Gray contends that she presented evidence in support of each essential element of her claims against Dr. Frieze and Dr. Dimitriades/MHG and that the circuit court therefore erred in granting summary judgment. We address Gray’s claims against Dr. Frieze and Dr. Dimitriades/MHG separately below.

A. Dr. Frieze

¶ 25. Dr. Avery’s affidavit recites that Gray had one appointment with Dr. Frieze—on July 21, 2009. There is no evidence in the summary judgment record that Dr. Frieze saw Gray on any other date. Gray was referred to Dr. Frieze for treatment for post-menopausal osteoporosis.

¶ 26. Dr. Avery’s affidavit asserts that Dr. Frieze was negligent because he did not inform Gray of the results of her “May 13, 2009, biopsy of which Dr. Frieze had notice.” However, there is no evidence that Dr. Frieze was provided with those results or was even aware that the biopsy-had occurred. Accordingly, Gray cannot survive summary judgment on the basis of this unsupported assertion by Dr. Avery. The most relevant test results of which Dr. Frieze had notice were Gray’s two MRIs that revealed no lytic lesions and the normal results of her February. 2009 biopsy.

¶27. The question, then, is whether there is any non-speculative, non-concluso-ry evidence from which a reasonable juror could find both (a) that a minimally competent and reasonably prudent doctor would have ordered tests that led to a diagnosis of eancer based solely on Gray’s presentation to Dr. Frieze on July 21, 2009, and (b) that, more likely than not, such testing would have identified the cancer in time to prevent the additional fractures that Gray suffered prior to her treatment at M.D. Anderson. If not, then the circuit court correctly granted summary judgment in favor of Dr. Frieze. See Glover ex rel. Glover v. Jackson State Univ., 968 So.2d 1267, 1274 (¶ 20) (Miss.2007).

¶ 28. Aside from unsupported suggestions that Dr. Frieze was provided with the results of Gray’s May 2009 biopsy, Dr. Avery offers only the following opinion concerning Dr. Frieze’s alleged breach of the standard of care:

When Gray presented to Dr. Frieze with refractory anemia, bone pain, and idiopathic fractures, the standard of care required a reasonably prudent endocrinologist to further investigate potential causes of the refractory anemia and thoracic fractures. Specifically, Dr. Frieze should have done further testing to determine protein levels in the blood and urine such as a serum and urine electrophoresis. Had Dr. Frieze conformed to the standard of care, I opine to a reasonable degree of medical certainty that he would have documented results that led to further studies to confirm the diagnosis of Multiple Myeloma such as a bone marrow examination....

¶ 29. It is important to remember that Gray was referred to Dr. Frieze for treatment of post-menopausal -osteoporosis, and the summary judgment' record only shows that Gray saw Dr. Frieze on one occasion. Dr. Avery’s affidavit fails to explain why a reasonably prudent endocrinologist would not have simply treated Gray for osteoporosis—at least initially or until such treatment first proved ineffective. Dr. Avery fails to explain how or why Dr. Frieze should have leapt from that diagnosis to a cancer diagnosis. Nor does Dr. Avery-explain what the results of tests to determine protein levels would have told a reasonably prudent physician in Dr. Frieze’s shoes. A eonclusory expert affidavit that fails to explain the underlying “how, when, and why” is insufficient to withstand summary judgment. Perez v. Univ. of Miss. Med. Ctr., 75 So.3d 609, 611-12 (¶¶ 13, 16) (Miss.Ct.App.2011) (quoting Dalton v. Cellular S. Inc., 20 So.3d 1227, 1234 (¶ 16) (Miss.2009)).

¶ 30. Dr. Avery’s affidavit also fails to create a genuine question of fact on the issue of causation. In Gray v. Graham, we concluded that there was a genuine issue of material fact as to whether the Grahams’ alleged negligence proximately caused injury to Gray because we concluded that there was evidence from which a reasonable juror could find (a) that Gray suffered additional fractures sometime after May II, 2009, when the Grahams failed to inform her of the results of her biopsy, and (b) that, more likely than not, those injuries would have been prevented had she begun treatment in May 2009. See Gray, 203 So.3d at 1177-78, 1180-81 (¶¶ 2-3, 14), 2016 WL 382966, at *1, *4 (¶¶ 2-3, 14).

¶ 31. Here, in contrast, Dr. Frieze did not even see Gray until more than two months after the Grahams’ alleged negligence. Furthermore, Dr. Avery’s affidavit does not assert that Dr. Frieze should have diagnosed Gray’s multiple myeloma immediately based on her presentation on July 21, 2009; rather, Dr. Avery asserts that Dr. Frieze should have ordered tests, reviewed the results, ordered additional tests, and reviewed the results prior to reaching that eventual conclusion at some unspecified later date. Dr. Avery does not explain how long after July 21, 2009, that testing process would have taken, and there is no evidence in the record as to when, between May 2009 and June 2010, Gray experienced additional fractures. Therefore, there is no basis in the evidence for a reasonable juror to find that additional testing and an eventual diagnosis by Dr. Frieze would have prevented the additional fractures that Gray experienced. As the circuit court observed, Dr. Avery simply “lumps every defendant together” despite significant factual differences in the claims against them. As a result, Gray’s claim that Dr. Frieze’s alleged negligence was the proximate cause of any of her injuries remains in the realm of speculation. Because “proximate cause requires more than speculation, guesswork, conjecture, or inferences,” Martin v. St. Dominic-Jackson Mem’l Hosp., 90 So.3d 43, 50 (¶ 18) (Miss.2012), the circuit court did not err by concluding that Gray failed to create a genuine issue of fact on the issue of proximate causation.

B. Dr. Dimitriades

¶ 32. As described above, Dr. Dimitriades, a family medicine physician, referred Gray to an orthopedic specialist, Dr. Graham, after he diagnosed a T-7 fracture. Dr. Dimitriades knew that Dr. Graham performed surgery to repair the fracture, and he also knew that the results of the biopsy taken during the February 2009 surgery were normal, i.e., the results did not indicate that Gray had multiple myeloma. In addition, MRIs of Gray’s spine on January 15, 2009, and April 30, 2009, did not indicate the presence of any lytic lesions, which also indicated that Gray did not have multiple myeloma.

¶ 33. Dr. Avery asserts that Dr. Dimi-triades “had notice” of the results of Gray’s May 13, 2009 biopsy and negligently failed to communicate those results to her. However, as with Dr. Frieze, there is no evidence to support Dr. Avery’s accusation. The evidence shows that the results of the second biopsy were sent to Dr. Graham alone. Accordingly, Dr. Avery’s unsupported assertion will not suffice to defeat summary judgment.

¶ 34. Even though the evidence shows that Dr. Dimitriades received two MRIs and the results of one biopsy indicating that Gray did not have multiple myeloma, Dr. Avery asserts that Dr. Dimitriades committed malpractice for the following reasons:

When Mrs. Gray’s anemia did not respond to treatment, and when Mrs. Gray suffered her first thoracic fracture, the standard of care required a reasonably prudent internist to further investigate potential causes of the refractory anemia and thoracic fracture. Specifically Dr. Dimitriades should have done further testing to determine protein levels in the blood and urine such as a serum and urine electrophoresis. Had Dr. Dimi-tríades conformed to the standard of care, I opine to a reasonable degree of medical certainty that he would have documented results that would have led to further studies to confirm the diagnosis of multiple myeloma. Other studies that would have documented Multiple Myeloma such as a bone marrow examination ... would have confirmed a diagnosis of multiple myeloma.

¶ 35. However, Dr. Dimitriades did “investigate potential causes” of Gray’s “first thoracic fracture.” He referred her to Dr. Graham, who performed a biopsy, the results of which were normal. The record also reflects that Gray was referred to Dr. Frieze for treatment of post-menopausal osteoporosis.

¶ 36. Gray had follow-up appointments with Dr. Dimitriades in May, June, and September of 2009 and January of 2010. Dr. Avery asserts that—even though Dr. Dimitriades had received test results indicating that Gray did not have cancer, and even though Gray was referred to both an orthopedic specialist and an endocrinologist—Gray’s continued anemia during this time period compelled Dr. Dimitriades to order “further testing to determine protein levels in the blood.” The results of these initial tests supposedly “would have led to further studies” and an eventual diagnosis of multiple myeloma.

¶ 37. In connection with Dr. Avery’s opinions that Dr. Dimitriades breached the applicable standard of care, we note that in January 2010, Gray stopped seeing Dr. Dimitriades and began seeing a different family medicine physician, Dr. Kerby. Gray saw Dr. Kerby in January, May, and June of 2010, but there is no evidence in the record that Dr. Kerby independently diagnosed Gray’s multiple myeloma or ordered any of the tests that Dr. Avery contends were necessary.

¶38. Against this backdrop, we conclude that Dr. Dimitriades was entitled to summary judgment for essentially the same reasons as Dr. Frieze. Dr. Avery’s affidavit fails to explain why it was not reasonable and prudent for Dr. Dimi-triades to rely on a normal biopsy—the only biopsy of which he had notice—and MRIs that showed no lytic lesions. Nor does he explain why it was not sufficient for Dr. Dimitriades to rely on referrals to an orthopedic specialist and endocrinologist. Finally, Dr. Avery does not explain what the results of tests to determine protein levels would have told a reasonably prudent physician in Dr. Dimi-triades’s position. As stated above, a conclusory expert affidavit that fails to explain the underlying “how, when, and why” is insufficient to withstand summary judgment. Perez, 75 So.3d at 611-12 (¶¶ 13, 16) (quoting Dalton, 20 So.3d at 1234 (¶ 16)).

¶ 39. In addition, as in the case of Dr. Frieze, Dr. Avery fails to explain when Dr. Dimitriades should have first ordered “further testing” or how long that multi-step testing process would 'have taken. We have held that a medical malpractice claim “must fail” in the absence of “expert medical testimony that articulates the duty of care a physician owes to a particular patient under the circumstances and identifies the particular point that the physician breached that duty and caused injury to the plaintiff.” Potter v. Hopper, 907 So.2d 376, 380 (¶ 10) (Miss.Ct.App.2005) (emphasis added). As explained above, in Gray v. Graham, Gray was able to survive summary judgment on the issue of proximate causation because the date of the Grahams’ negligence could be pinpointed to a particular date, and there was evidence that Gray’s additional injuries occurred subsequent to that date. In this appeal, in contrast, all that Dr. Avery can say is that Dr. Dimitriades (allegedly) should have diagnosed Gray by some unspecified later date, and there is no basis for a reasonable juror to find that such a diagnosis would have prevented Gray’s additional fractures. As stated above, “proximate cause requires more than speculation, guesswork, conjecture, or inferences.” Martin, 90 So.3d at 50 (¶ 18). Therefore, Gray failed to create a genuine issue of fact on the issue of proximate causation,

CONCLUSION

¶40. The circuit court correctly concluded that Dr. Avery’s affidavit failed to support Gray’s allegations that Dr. Frieze and Dr. Dimitriades breached the standard of care and proximately caused injury to her. Therefore, the circuit court properly granted summary judgment in favor of those defendants (and Dr. Dimitriades’s employer, MHG).

¶ 41. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY, FIRST JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF TIJIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J„ IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR AND GREENLEE, JJ., CONCUR. JAMES, J., NOT PARTICIPATING.

      . The defendants moved to strike Dr. Avery’s supplemental affidavit. However, the record does not reflect a ruling on that motion, the circuit court considered and addressed the supplemental affidavit in its rulings on the merits, and the defendants have not raised the issue on appeal. Accordingly, we will also consider both of Dr. Avery's affidavits.

      . Because we conclude that the substance of Dr. Avery’s affidavit was insufficient to survive summaiy judgment, it is unnecessary to address the circuit court’s determination that Dr. Avery was not qualified to render opinions concerning the standard of care for an endocrinologist.

      . As noted above, in June 2010, Dr. Kerby informed Gray of the results of her May 2009 biopsy. The record does not explain how Dr. Kerby became aware of those results.


author: CARLTON, J.,

text:
    Helene BENSON, Appellant v. Mack D. RATHER d/b/a the Tint Shop and Vicksburg Printing and Publishing Company, Appellees.
    No. 2014-CA-01775-COA.
    Court of Appeals of Mississippi.
    June 21, 2016.
    Rehearing Denied Nov. 11, 2016.
    Certiorari Denied Feb. 2, 2017.

      Frank G. Vollor, Vicksburg, attorney for appellant.
    Arthur F. Jernigan Jr., Ridgeland, William M. Dalehite Jr., James Seth McCoy, Jackson, Robert Nelson Rutherford, Pearl, attorneys for appellees.
    Before LEE, C.J., CARLTON and FAIR, JJ.
   CARLTON, J.,

for the court:

¶ 1. Helene Benson appeals the Warren County Circuit Court’s grant of summary judgment to Mack Rather d/b/a The Tint Shop and Vicksburg Printing and Publishing Co. (collectively, the Defendants). Finding no error in the circuit court’s grant of summary judgment, we affirm.

FACTS

¶ 2. On September 26, 2012, Benson went to The Tint Shop to replace the tires on her car. As the record reflects, Rather, who operated and owned The Tint Shop, leased the building from Vicksburg Printing. The Tint Shop’s premises consisted of an office and customer-service area connected to two service bays. Benson waited in The Tint Shop’s customer waiting room while one of the employees parked her car outside the second service bay and replaced her tires.

¶ 3. Benson testified in her deposition that, after The Tint Shop installed her new tires, she attempted to pay her bill with a check or a credit card. However, Rather informed Benson that The Tint Shop accepted neither form of payment and that she needed to pay her bill with cash. As a result, Benson testified that she decided to go across the street to her bank to obtain cash for her bill. Instead of walking across the street to her bank, Benson decided to drive her car, which was still parked outside The Tint Shop’s second service bay. Upon reaching her car, Benson opened the door but could not find her car keys. Benson asked the employee who worked on her car where her keys were, and the employee in turn asked Rather, the owner, where the keys were. Benson stated that Rather was working on a car in the first service bay, and she testified that Rather pointed to the back wall of the service-bay area.

¶ 4. According to Benson, neither Rather nor the employee moved to retrieve her keys. However, Rather testified that he stopped working on the car in the first service bay to get Benson’s keys for her. Rather further stated that, because he was on the other side of the vehicle in the first service bay, Benson must not have seen him stop his work and move toward her keys. Benson testified that she entered the second service bay to retrieve the keys herself from the location where Rather indicated.

¶ 5. Benson stated that she was not looking at the floor as she walked through the service bay to retrieve her keys. Furthermore, although Rather testified that signs were posted inside the service bay to prohibit entry by anyone except employees, Benson stated that she noticed no such signs. While walking through the service-bay area, Benson tripped on a concrete lip jutting from the threshold of a doorway between the two service bays. As a result of her fall, Benson broke her hip.

¶ 6. Contrary to Benson’s testimony, Rather testified in his deposition that he retrieved Benson’s car keys and was bringing them out to her when he realized that she had entered the service bay and tripped over the concrete lip. Rather confirmed that customers were not allowed inside or invited into the service-bay area. Rather stated that signs were posted inside the service bays to deter unauthorized entry. However, Rather also admitted that no physical barrier prevented customers, such as Benson, from entering the area and that there were no warning signs posted outside the service-bay area. Rather further testified that he had painted both the floor of the service bay and the concrete lip that Benson stumbled over the same shade of gray.

¶ 7. On August 26, 2013, Benson filed a complaint against the Defendants, asserting that their negligence proximately caused her fall. Benson claimed that, at the time of her injury, she was a business invitee on the Defendants’ premises. Benson further argued that the concrete lip she tripped over was a dangerous condition and that the Defendants acted negligently by failing to keep the premises in a reasonably safe condition and to warn of the dangerous condition.

¶8. On July 28, 2014, Rather filed a motion for summary judgment. To support his summary-judgment motion, Rather asserted the following arguments: (1) at the time Benson fell, she was in an area unauthorized for customers; (2) at most, Benson was a licensee on the property, and she failed to show any evidence that Rather engaged in willful or wanton conduct that caused her injury; (3) the concrete lip Benson tripped on was not an unreasonably dangerous condition; and (4) as the lessee of the property, Rather possessed no duty or authority under the lease agreement to alter or maintain the concrete lip. Vicksburg Printing also filed a motion for summary judgment and asserted similar arguments to those raised by Rather.

¶ 9. On November 21, 2014, the circuit court entered an order granting summary judgment to the Defendants. Although the circuit court found that Benson retained her status as a business invitee at the time of her fall, the circuit court concluded that Benson failed to prove that an unreasonably dangerous condition existed; that the Defendants acted negligently and caused her injuries; and that the Defendants had actual or constructive notice of an unreasonably dangerous condition. As a result, the circuit court granted summary judgment to the Defendants. Aggrieved by the circuit court’s ruling, Benson appeals.

STANDARD OF REVIEW

¶ 10. With regard to the applicable standard of review, this Court has previously stated:

In considering a trial court’s grant of a motion for summary judgment, this Court conducts a de novo review and examines all the evidentiary matters before it—admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The Mississippi Supreme Court recently clarified the summary-judgment standard, explaining that the movant bears the burden of persuading the trial judge that: (1) no genuine issue of material fact exists, and (2) on the basis of the facts established, he is entitled to a judgment as a matter of law. The supreme court further stated that the movant bears the burden of production if, at trial, he would bear the burden of proof on the issue raised. In other words, the movant only bears the burden of production where he would bear the burden of proof at trial. Specifically, in premises-liability cases, Mississippi law further requires that[,] when a dangerous condition exists that was created by someone not associated with the business, the plaintiff must produce evidence that the owner or operator had actual or constructive knowledge of the dangerous condition as well as a sufficient opportunity to correct it. The supreme court again clarified that[,] while defendants carry the initial burden of persuading the trial judge that no issue of material fact exists and that they are entitled to summary judgment based upon the established facts, the plaintiff carries the burden of producing sufficient evidence of the essential elements of her claim at the summary-judgment stage, as she would carry the burden of production at trial.

Dickinson v. Vanderburg, 141 So.3d 455, 457 (¶ 4) (Miss.Ct.App.2014) (internal citations and quotation marks omitted).

DISCUSSION

¶ 11. On appeal, Benson asserts that genuine issues of material fact remain in dispute. As a result, she contends that the circuit court erred by granting summary judgment to the Defendants. Benson therefore asks this Court to reverse the circuit court’s grant of summary judgment and to remand the matter for a jury trial.

A. Premises Liability

¶ 12. “[Premises liability is a theory of negligence that establishes the duty owed to someone injured on a landowner’s premises as a result of ‘conditions or activities’ on the land.... ” Doe v. Jameson Inn Inc., 56 So.3d 549, 553 (¶ 11) (Miss.2011). Benson argues that the raised threshold upon which she tripped— the concrete lip jutting from the floor of the doorway between the two service bays—created an unreasonably dangerous condition. To recover under her theory of premises liability, Benson must prove the following: “(a) the duty owed to [her] by [the Defendants]; (b) a breach of that duty; (c) damages; and (d) a causal connection between the breach and the damages, such that the breach is the proximate cause of [Benson’s] injuries.” Double Quick Inc. v. Moore, 73 So.3d 1162, 1166 (¶ 11) (Miss.2011) (citation omitted).

¶ 13. Mississippi uses a three-step process to analyze questions of premises liability. Dickinson, 141 So.3d at 457 (¶ 6). “First, we must determine whether the injured party was an invitee, licensee, or a trespasser at the time of the injury. Next, we must determine what duty was owed to the injured party by the business owner/operator. Finally, we must determine whether that duty was breached.” Id. (quoting Rod v. Home Depot USA Inc., 931 So.2d 692, 694 (¶ 9) (Miss.Ct.App.2006)).

¶ 14. Mississippi caselaw provides the following guidance:

An invitee is a person who enters the premises of another in response to an express or implied invitation of the owner or occupant for their mutual advantage. A licensee enters the premises for his own convenience, pleasure, or benefit pursuant to the license or implied permission. A trespasser enters the premises without license, invitation, or other right.
Under Mississippi law, a property owner is not the insurer of an invitee’s safety. Rather, he owes a duty to the invitee to keep the premises reasonably safe and, when not reasonably safe, to warn only of hidden dangers not in plain and open view. Also, the duty owed to a licensee or trespasser is the same—not to willfully or wantonly injure such person.

Double Quick Inc., 73 So.3d at 1166 (¶¶ 12-13) (internal citations and quotation marks omitted).

¶ 15. In the present case, the parties agreed that Benson was an invitee when she originally entered The Tint Shop. However, the record reflects that the Defendants argued before the circuit court that, at the time of her injury, Benson had exceeded the scope of her invitation by voluntarily entering the service-bay area from outside the shop without permission or authorization. The record reflects that Benson did not enter the service-bay area from the interior of The Tint Shop, which included the company’s office and customer waiting room. Instead, she exited the building and then entered the service-bay area from where her car was parked outside the second service bay.

¶ 16. In their argument before the circuit court, the Defendants asserted that Benson’s actions changed her status from an invitee to a trespasser or, at most, a licensee. In response, Benson claimed that she entered the service bay for the mutual benefit of herself and The Tint Shop. Benson argued that she only entered the service-bay area to retrieve her car keys so she could drive to the credit union and withdraw cash for her bill. As a result, Benson asserted that she maintained her status as an invitee.

¶ 17. After considering the parties’ arguments on the issue, the circuit court found that, at the time of her fall, Benson retained her status as an invitee. We recognize that, “where the facts of the case are not largely in dispute, the classification of a plaintiff becomes a question of law for the trial judge.” Doe, 56 So.3d at 554 (¶ 13) (citations omitted). In determining Benson’s status, the circuit court stated:

[H]ad there been warning signs on the outside of the building advising patrons not to enter the service area, or had there been a chain or rope or some other barrier prohibiting patrons from entering the service[-]bay area, or even if there had been a sign or notice posted in the office waiting room, there might be sufficient evidence to warrant Benson having lost her status as a business invitee. This [cjourt, however, finds that[,] lacking such evidence!,] ... Benson did not lose her status as [a] business invitee in this case.

¶ 18. Despite finding that Benson was an invitee at the time of her injury, the circuit court found that Benson failed to prove the Defendants breached their duty to her because she failed to prove an unreasonably dangerous condition. To meet her burden of proof, Benson needed to establish one of the following: “(1) a negligent act by the defendant caused the plaintiffs injury; ... (2)[the] defendant had actual knowledge of a dangerous condition, but [he] failed to warn the plaintiff of the danger; or ... (3) the dangerous condition remained long enough to impute constructive knowledge to the defendant.” Byrne v. Wal-Mart Stores Inc., 877 So.2d 462, 465 (¶ 5) (Miss.Ct.App.2003) (citations omitted). “Proof merely of the occurrence of-a fall on a floor within [the] business premises is insufficient to show negligence on the part of the proprietor. Proof that the floor on which the fall occurred had present thereon litter and debris is similarly insufficient.” Id. at (¶ 6) (citation omitted).

¶ 19. According to Benson, the raised threshold upon which she tripped—the concrete lip rising less than two and a half inches from the floor of the doorway separating the two automechanic service bays—created an unreasonably dangerous condition. However, the circuit court concluded that Benson failed to produce any proof that an unreasonably dangerous condition existed. Furthermore, the circuit court cited this Court’s opinion in Dickinson for the circuit court’s determination that, in Mississippi, thresholds fail to constitute an unreasonably dangerous condition. See Dickinson, 141 So.3d at 458 (¶ 10).

¶ 20. Like Benson, the plaintiff in Dickinson asserted an argument as to the dangerousness of a raised threshold. Id. at 457 (¶ 5). Dickinson tripped on the raised threshold as she was entering a local business. Id. at 456 (¶ 1). Dickinson argued on appeal that the threshold constituted a dangerous condition because the threshold was about two inches higher than the exterior sidewalk. Id. at 458 (¶ 9). Like the expert Benson presented, Dickinson’s ex-pei-t stated that the threshold constituted an unreasonably dangerous condition that the defendant had a duty to identify and correct. Id. Also similar to the facts of the present case, Dickinson’s expert contended that the defendant “should have placed signs warning customers of the raised threshold or painted the elevated area a different color to draw attention to the hazard.” Id.

¶ 21. In affirming the circuit court’s grant of summary judgment to the defendant, the Dickinson court stated:

In McGovern v. Scarborough, 566 So.2d 1225, 1228 (Miss.1990), the ... [sjupreme [cjourt held that a raised threshold was not unreasonably dangerous as a matter of law because the floor itself was at least two inches higher than the exterior walkway. Although the ... [s]upreme [cjourt revised the open-and-obvious standard in Tharp v. Bunge Corp., 641 So.2d 20, 25 (Miss.1994), by finding that a plaintiffs failure to recognize an open and obvious danger operates to reduce damages, not preclude liability, the result in McGovern—that a raised threshold was not unreasonably dangerous—still stands. See also Wood v. RIH Acquisitions MS II, 556 F.3d 274, 282 (5th Cir.2009) (“At least those hazards that are similar to undamaged thresholds, curbs, and steps, which are common architectural features for buildings and parking lots, may properly be found not to be unreasonably dangerous.”).

Dickinson, 141 So.3d at 458 (¶ 10); see also Trull v. Magnolia Hill LLC, 171 So.3d 518, 521 (¶ 10) (Miss.Ct.App.2014) (“Mississippi caselaw has consistently held that the existence of slight variations in walkways or thresholds does not constitute a dangerous condition.” (citations omitted)).

¶ 22. Based on Dickinson, the circuit court here concluded that the threshold in this case failed to constitute an unreasonably dangerous condition. Common architectural conditions for a building are not considered unreasonably dangerous conditions. See Dickinson, 141 So.3d at 458 (¶ 10). Upon review, we agree with the circuit court’s determination that no genuine issue of material fact existed as to this issue. As the circuit court acknowledged, our opinion in Dickinson clearly reiterates the supreme court’s prior holding that a raised threshold is not an unreasonably dangerous condition. See id.

¶23. The record in this case reflects that Benson did not enter The Tint Shop’s service-bay area from the interior door connected to the shop’s office. Instead, Benson exited the customer-service area inside the building and then entered the service-bay area from outside the building where her car was parked in front of the second service bay. As our opinion in Dickinson recognizes, usual dangers that customers normally expect to encounter on a business’s premises, such as thresholds, curbs, and steps, fail to constitute unreasonably dangerous conditions. Id.; see also Knight v. Picayune Tire Servs. Inc., 78 So.3d 356, 359 (¶ 9) (Miss.Ct.App.2011) (“Mississippi has long recognized that normally encountered dangers such as curves, sidewalks, and steps are not hazardous conditions. Often such pathways contain crack[s] and changes in elevation; and, as such, they do not become hazardous conditions simply because they contain minor imperfections or defects.” (citations omitted)). Furthermore, “hazards that are similar to undamaged thresholds, curbs, and steps, which are common architectural features for buildings and parking lots, may properly be found not to be unreasonably dangerous.” Wood, 556 F.3d at 282.

¶ 24. We find that the threshold feature upon which Benson tripped constituted a common architectural feature for the doorway in an automechanic service bay and fell within that usual and expected hazard that is not unreasonably dangerous. See Dickinson, 141 So.3d at 458 (¶ 10). Therefore, we find that no genuine issue of material fact remains as to this issue. Accordingly, Benson’s argument on this assignment of error lacks merit.

B. Negligence Per Se

¶ 25. Benson also asserts that the Defendants were negligent per se because the concrete lip between the two service bays violated the International Building Code (IBC). The Defendants contend that Benson’s argument is procedurally barred because Benson failed to plead negligence per se in her complaint. The Defendants further argue that, in determining that the IBC failed to apply to the threshold in this case, the circuit court correctly found no substantive merit to Benson’s claim. As the record reflects, the circuit court found no dispute existed that The Tint Shop’s building was built prior to 1960 and predated the IBC.

¶ 26. As a preliminary matter, we address whether Benson is procedurally barred from arguing on appeal that the Defendants were negligent per se. The supreme court has stated that “[negligence per se is a subset of negligence in general, whether it be contributory, comparative or otherwise. Thus, a pleading of negligence ... would encompass negligence per se.” Snapp v. Harrison, 699 So.2d 567, 571 (¶ 21) (Miss.1997).

¶ 27. As reflected in the record, Benson asserted the following in her complaint:

The unmarked, unpainted, concrete lip, which blended with the surrounding concrete floor, constituted an unreasonable latent, dangerous, and unlawful condition of said area and was caused by both Defendants’ negligence, jointly and severally, in failing to exercise reasonable or ordinary care to keep the premises in a reasonably safe condition and/or to warn of the latent, dangerous condition [that] was not readily apparent.
The concrete lip was part of the structure of the building, which had been there for some time[,] and was known to both Defendants or should have been known to each of them in the exercise of reasonable care.
As a proximate result of [the] negligence of [the] Defendants, [Benson] suffered bodily injury....

¶28. Upon review, we find that Benson’s complaint failed to plead a cause of action asserting that an alleged violation of the IBC constituted negligence or negligence per se. However, while we find that Benson’s argument is procedurally barred on appeal, we also acknowledge that the circuit court determined the merits of whether the application of the IBC resulted in negligence per se.

¶ 29. “Mississippi recognizes the doctrine of negligence per se, which essentially provides that breach of a statute or ordinance may render the offender liable in tort without proof of lack of due care.” Simpson v. Boyd, 880 So.2d 1047, 1052 (¶ 26) (Miss.2004) (citation omitted). “To prevail in an action for negligence per se, a party must prove that he was a member of the class sought to be protected under the statute, that his injuries were of a type sought to be avoided, and that violation of the statute proximately caused his injuries.” Snapp, 699 So.2d at 571 (¶ 22) (citing Thomas v. McDonald, 667 So.2d 594, 597 (Miss.1995)). Benson designated Lamar Hawkins, a professional engineer, ⅝3 her expert, and she provided the circuit court with a sworn affidavit of Hawkins’s proposed testimony. As reflected in the record, Hawkins planned to testify that the concrete lip Benson tripped over failed to comply with the IBC, as adopted by the City of Vicksburg (the City), and with the Life Safety Code, as adopted by the Occupational Safety and Health Administration.

¶ 30. In addressing Benson’s negligence per se argument, the circuit court found the following:

[A]s to the alleged violation of the [IBC], [section] 101.4.5 of the code clearly states that [the IBC] is not applicable to existing structures. There is no dispute that [The Tint Shop’s] premises were built prior to 1960. The [IBC,] by its own terms[,] does not apply to existing structures. Existing structures are instead governed by the International Property Maintenance Code [ (IPMC) ].... Vicksburg Printing further argues that[,] even if the [IBC] did apply, Benson has not shown that she was in the category of persons the [code] section was designed to protect or that she suffered injuries that the code was Resigned to avoid or that the violation caused Benson’s injuries.

¶31. In addition to the circuit court’s conclusion that the IBC failed to apply in this case, the record reflects that The Tint Shop also passed regular yearly inspections conducted by the City, Rather testified in his deposition that he had to pass an inspection each year to renew his business license. Rather stated that the City conducted about four different inspections each year and that the inspector actually visited The Tint Shop’s premises to perform the inspection. Moreover, Rather testified that he had never been informed of any violations found as a result of the City’s inspections.

¶ 32. Upon review, we find no error in the circuit court’s findings that, by its own terms, the IBC failed to apply to structures built prior to 1960 and that, as a result, the IBC failed to apply in this ease. The record reflects that Benson therefore failed to raise any dispute of material fact as to her argument that negligence per se resulted from the application of the IBC. Accordingly, we affirm the circuit court’s grant of summary judgment to the Defendants.

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

LEE, C.J., GRIFFIS, P.J., ISHEE, FAIR, WILSON AND GREENLEE, JJ., CONCUR. IRVING, P.J., AND BARNES, J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., NOT PARTICIPATING.

      . In granting summary judgment, the circuit court cited Dickinson v. Vanderburg, 141 So.3d 455, 458 (¶ 10) (Miss.Ct.App.2014), for the proposition that a raised threshold fails to constitute an unreasonably dangerous condition.

      . In its appellate brief, Vicksburg Printing asserts an argument that Benson was not an invitee at the time of her fall. In response, Benson filed a motion before this Court on appeal to strike that portion of Vicksburg Printing’s brief because the company filed no cross-appeal of the circuit court’s finding that Benson was, in fact, an invitee at the time of her fall. Benson also filed a supplemental appellate reply brief addressing the issue in the event this Court denied her motion to strike. Upon review, we deny as moot Benson’s motion to strike since we affirm the circuit court’s finding that Benson retained her status as an invitee at the time of her fall.


author: BARNES, J.,

text:
    David SHANKLIN a/k/a David E. Shanklin, Appellant v. STATE of Mississippi, Appellee.
    No. 2014-CA-01654-COA.
    Court of Appeals of Mississippi.
    June 28, 2016.
    Rehearing Denied Nov. 8, 2016.
    Certiorari Denied March 2, 2017.

      Edward Blackmon, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before IRVING, P.J., BARNES and GREENLEE, JJ.
   BARNES, J.,

for the Court:

¶ 1. David Shanklin appeals the dismissal of his motion for post-conviction relief (PCR) by the Circuit Court of Washington County. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2. On September 30, 2010, Shanklin pleaded guilty to possession of 4.4 grams of cocaine with intent to distribute. Consistent with the State’s recommendation, the trial judge sentenced Shanklin to twenty years in the custody of the Mississippi Department of Corrections (MDOC), with all twenty years suspended, conditioned upon Shanklin’s successful completion of five years’ supervised probation and fifteen years’ unsupervised probation. Shanklin was also ordered to pay a $5,000 fine, all court costs, $500 to the Crime Victims’ Compensation Fund, and $300 in lab fees, at the rate of $50 per month. The trial judge gave Shanklin a couple of months before he. was required to begin the payments.

¶3. On October 23, 2012, an affidavit was filed by Shanklin’s probation field officer, citing he had violated the following conditions of probation: he had not reported to the MDOC since December 12, 2011; he owed $1,125 in unpaid supervision fees; and he owed $6,375.13 in unpaid court-ordered fees. On the same day, a warrant was issued for Shanklin’s arrest.

¶ 4. On November 7, 2012, Shanklin was arrested by the U.S. Marshals Service in Louisiana, although apparently he had not obtained permission to travel there. He was returned to Mississippi. On November 26, 2012, Shanklin signed a waiver of the right to a preliminary probation-revocation hearing, acknowledging that he had the right to retain a lawyer to represent him at the hearing, but that the MDOC was not responsible for appointing a lawyer to represent him.

¶ 5. On December 3, 2012, a revocation hearing was held. The trial court found that Shanklin had violated at least three terms of his probation: failing to report as directed, failing to pay supervised fees, and failing to pay court-ordered fees and assessments. The trial court stated the failure to report was the most egregious violation. Accordingly, the trial court revoked Shankliris probationary status and ordered him to serve the twenty years previously suspended in the custody of the MDOC.

¶ 6. Aggrieved, Shanklin filed a PCR motion in February 2013. In his motion, he requested being considered for MDOC’s Intensive Supervision Program (ISP), or “house arrest.” Shanklin argued that there were certain material facts not heard by the court that required the vacation of his conviction and/or sentence, namely, that at the time he pleaded guilty he believed he would not face revocation for his inability to pay fines. Shanklin also claimed he did not know he could have an attorney present at the revocation hearing. After Shanklin was sent a letter by the circuit clerk in March 2013 stating he would be arrested if he did not pay delinquent fees of $1,400, Shankliris family paid all of his fees, or $6,376. Shanklin also allegedly misapprehended that if he paid the full amount of the fees, he would be given house arrest.

¶7. In May 2013, the trial court dismissed Shankliris PCR motion, finding no merit to his arguments, and Shanklin appealed.

STANDARD OF REVIEW

¶ 8. This Court will not reverse a trial court’s dismissal of a PCR motion absent a finding the trial court’s decision was clearly erroneous. Madden v. State, 75 So.3d 1130, 1131 (¶ 6) (Miss.Ct.App.2011) (citation omitted). Issues of law are reviewed de novo. Id.

ANALYSIS

¶ 9. Shanklin makes two arguments on appeal: whether his probation was improperly revoked, and whether his waivers of the right to a preliminary probation-revocation hearing and the right to counsel were knowing and voluntary.

¶ 10. “Probation may be revoked upon a showing that the defendant ‘more likely than not’ violated the terms of probation.” McDonald v. State, 163 So.3d 991, 993 (¶ 6) (Miss.Ct.App.2015) (citation omitted). “A willful refusal to pay [fines] can result in probation revocation and imprisonment, but a failure to pay after ‘sufficient bona fide efforts ... ’ would require the court to consider alternative measures of punishment.” Berdin v. State, 648 So.2d 73, 78 (Miss.1994) (overruled on other grounds) (quoting Bearden v. Georgia, 461 U.S. 660, 672, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983)). “[A]n indigent may not be incarcerated because he is financially unable to comply with an otherwise lawfully imposed sentence of a fine.” Cassibry v. State, 453 So.2d 1298, 1299 (Miss. 1984) (citing Bearden, 461 U.S. at 672, 103 S.Ct. 2064).

¶ 11. The trial court noted in its May 9, 2013 order that since Shankliris revocation hearing, his family paid all of his court-ordered fees in full, but regardless, the court had never revoked a defendant’s probation solely on the defendant’s inability to pay fees. However, the court routinely revokes probation based upon a defendant’s failure to report as directed, as was the case with Shanklin; this violation was Shanklin’s most egregious. According to the State, which examined MDOC’s records, Shanklin’s initial probation intake was on November 11, 2010, and his last physical reporting date was March 7, 2011. Approximately two weeks later (March 23, 2011) Shanklin called to explain that he had been extradited to Georgia on some charges, and after his court date on April 7, 2011, he would return to Mississippi. However, it was discovered that Shanklin had posted bond and had been released on March 17, 2011. MDOC began looking for Shanklin in July 2011, but was unable to make contact with him until November 2011. He reported again in December 2011, but failed to receive a travel permit to return to Georgia for another court date. In March 2012, contact was made with Shanklin’s father, who said Shanklin had to serve “some days” in Cobb County, Georgia. Shanklin was finally found and arrested on November 7, 2012, in Louisiana. In summary, Shanklin only reported four times in 2011, and never reported in 2012. He also failed to receive permits to travel out of state to either Georgia or Louisiana.

¶ 12. Shanklin argues that the trial court should have inquired about “circumstances beyond his control” that prevented him from reporting and paying his fees before revoking his probation. He cites to Bearden, where the United States Supreme Court held that courts contemplating probation revocation must inquire about the reasons for failure to pay, and whether the reasons are willful; otherwise, a due-process violation results. Bearden, 461 U.S. at 672-73, 103 S.Ct. 2064. Shanklin would apply this rule to probation-reporting violations without citing applicable authority, claiming the State failed to prove his failure to report was willful, or inform him he needed a travel permit. However, even if this rule were the law, Shanklin has the burden of proof in a PCR motion—not the State. See Miss.Code Ann. § 99-39-23(7) (Rev.2015). Further, his sentencing order discussed the terms of his probation, which he was to follow, including reporting to the probation or parole officer as directed and remaining within a specified area. This argument has no merit.

¶ 13. Second, Shanklin claims his waivers of the right to a lawyer and the right to a preliminary probation-revocation hearing were not “knowing and voluntary”; he would not have waived his rights had he known that the trial court was going to order him to serve the entire twenty-year sentence, in spite of his paying all of his fines and court costs. He alleges that the district attorney’s office advised him he would only be sentenced to house arrest (ISP) if he paid all of his fines. Shanklin further contends that had he known he was going to have to serve his twenty-year sentence, he would not have paid the fees, but instead used the money to hire a lawyer.

¶ 14. More accurately, however, Shank-lin did not “waive his right to a lawyer,” but to the revocation hearing. Neither Shanklin nor the record furnishes proof that his waiver was not knowing and voluntary. Further, he provides no proof of the district attorney’s offer of ISP in exchange for payment of the fines.

¶ 15. Regarding his right to counsel at the hearing, the waiver form provides that the defendant has “the right to retain a lawyer to represent [him] in this Administrative Hearing[;] however, the Department of Corrections will not appoint a lawyer for [him].” It is well established that an indigent’s right to have counsel provided for him at a probation-revocation hearing is not automatic. Baldwin v. State, 891 So.2d 274, 277 (¶ 12) (Miss.Ct.App.2004) (citing Riely v. State, 562 So.2d 1206, 1209 (Miss.1990)). The right to appointed counsel is determined on a case-by-case basis; however, it is clear a probationer will have the right to counsel when the issues at the hearing are “complex or otherwise difficult to develop.” Riely, 562 So.2d at 1209 (quoting Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)).

¶ 16. The trial court stated Shanklin never inquired about the right to have an attorney present, or moved for a continuance of the proceeding to obtain an attorney. Further, the probation-revocation issues were neither complex nor difficult to present—there was ample evidence Shank-lin violated the terms of his probation. This argument is not persuasive.

¶ 17. Based on the foregoing, the trial court did not abuse its discretion in dismissing Shanklin’s PCR motion.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, JAMES, WILSON AND GREENLEE, JJ., CONCUR.

      . In a letter filed with the trial court in October 2013, Shanklin requested a copy of an extradition waiver he signed for permission to go out of State. Shanklin later explained that he was extradited to Georgia in March 2011, and his probation officer at the time was aware of his extradition. He was released on bond with a court date on December 5, 2011, and ended up serving some time in Georgia.

      . Shanklin. argues that since he pleaded guilty in reliance on erroneous sentencing information about his probation, his plea cannot be knowing or voluntary, citing Washington v. State, 620 So.2d 966, 968 (Miss.1993). We are not persuaded by this argument—revocation of probation is the issue here, not an invalid guilty plea that was entered over five years ago. Shanklin never filed a PCR motion attacking the plea’s validity, and the time to do so has passed. See Miss.Code Ann. § 99-39-5(2) (Rev.2015) (explaining three-year statute of limitations for PCR motions runs from entry of judgment of conviction where movant pleaded guilty).