Babin v. Wendelta, Inc.

368 So.3d 363

Ainslie BABIN, Appellant v. WENDELTA, INC. d/b/a Wendy's #242, Appellee

NO. 2022-CA-00341-COA

Court of Appeals of Mississippi.

July 25, 2023

ATTORNEY FOR APPELLANT: LAUREN ELIZABETH CAVALIER

ATTORNEY FOR APPELLEE: KRISTI ROGERS BROWN, Gulfport

BEFORE CARLTON, P.J., GREENLEE AND McDONALD, JJ.

McDONALD, J., FOR THE COURT:

¶1. Ainslie Babin filed suit against Wendelta Inc. d/b/a Wendy's #242 ("Wendy's") in the Circuit Court of Harrison County for injuries she sustained from a fall at the restaurant. After discovery, Wendy's filed a motion for summary judgment, which the circuit court granted. Babin appeals and argues, among other things, that there were material facts in dispute that precluded a grant of summary judgment. After reviewing the record and arguments of the parties, we reverse the circuit court's judgment and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶2. On May 14, 2019, Babin, a disabled and retired teacher's assistant and librarian, and her family headed home to Louisiana from a family vacation in Pensacola, Florida. Babin and her husband, Brad, traveled with their adult son, Reece, and his wife, Cassie, in one vehicle. Babin and Brad's daughter, Macy, her husband, and their one-year-old traveled in a separate car. The group stopped for lunch at Wendy's on Highway 49 in Gulfport, Mississippi.

¶3. The store had two entrances that each opened to small vestibules. From there, patrons entered the restaurant through another door. Wendy's placed rubber mats in each vestibule in front of the door closest to the outside exit. Inside the lobby itself, Wendy's placed a larger mat. The vestibules were not ventilated and had ceramic tile flooring.

¶4. Babin, who wore leg braces for a congenital neurological condition, entered one of the outer vestibules and stepped on the mat. As she did, the mat slipped from under her, causing her to fall back, and her right foot hit the door used for entering the restaurant. Cassie and Reece, who were behind Babin, witnessed the mat slip and Babin fall. Brad, who on their arrival had gone to Macy's car to see if Macy's husband needed help with the baby, came to assist his wife. Brad said that he kept slipping on the mat as well, so he threw it outside to get his wife up. Reece confirmed this, though photographs taken of Babin after she was lifted to a chair show a mat in the area. Brad described the mat that he picked up as "wore out" on the bottom "where if you step on it, it would slide." Babin said that when her husband picked the mat up, she saw the back, and it was smooth. Reece described the mat as having "crinkles" and that it did not lie flat.

¶5. After Babin was transported to a local hospital, Reece and Cassie remained at Wendy's with other family members. Cassie said that she saw the manager and someone else put the mat back where it was. She observed the two employees step on the mat to see if it moved, and it did. Reece saw the same thing, saying that the black female manager he had spoken with and "a bald white man in a blue button down [shirt]" were messing with the rug:

And when they put it back, they were running their foot over it, seeing how it slid, and then they put it back vertical with the door. And when we left, I ran my foot over it and it still moved.

Cassie, Brad, and Babin said the floor in the vestibule was not wet.

¶6. As a result of the fall, Babin suffered a right ankle fracture and underwent surgery to insert hardware to piece the broken bones back together.

¶7. On October 11, 2019, Babin filed a complaint in the Circuit Court of Harrison County against Wendy's, claiming that Wendy's was negligent and breached its duty to the public to exercise reasonable care in maintaining its premises in a reasonably safe condition for customers entering the restaurant. On November 8, 2019, Wendy's filed an answer to Babin's complaint, denying any liability.

¶8. During discovery, depositions of Babin's family members and Wendy's employees were taken, and documents were produced.

¶9. Wendy's district manager Riche Karl testified that he would occasionally visit various Wendy's locations to work alongside the general managers, and he was at the restaurant on the day that Babin fell. Karl admitted that one of the main purposes of the mats on the floor was

so their [patrons’] first step into the restaurant is not on tile. If they're coming in from outside and they've got wet feet, their first step into the restaurant you don't want it to be on tile.

He agreed that moisture could get on the floor from condensation inside the vestibule. He said that managers were not required to purchase any particular type of mat for the entryways to the store and that nothing is placed underneath the mats. Karl said that a week before the incident, he instructed the store manager, Monique Reed, to purchase some new mats. On the day of the incident, Karl testified that around 9:00 a.m., he placed the mat inside the vestibule. He said the mat did not move or slide around at that time. But he also said that when he moved the mat closer to the threshold, he "just slid it over." He never personally spoke to Babin, nor did he ever personally examine the mat after the accident.

¶10. Reed, who had worked for Wendy's for seventeen years and was the general manager of the store that day, testified that she was responsible for replacing the mats and buying new mats. She said that Wendy's has no official policies or procedures concerning the mats, except that employees were to make sure that the floor is dry and to place a wet floor sign down if needed. Employees also watched a safety video during orientation. Concerning the purchase of new mats, Reed testified that no standard mat was required, and she had bought the mats either from a catalog provided by Wendy's or from the local Lowe's store when they needed the mat quickly. Reed said she bought the mat Babin slipped on at Lowe's a week before.

¶11. On the day of the incident, Reed said she did a "walk through" inspection before the store opened, and she did not notice the mat slipping or moving. According to the incident report, the floors had been wet-mopped the night before. The day of the incident (a Tuesday) was what Reed called a "truck day" when trucks made deliveries and only simple maintenance, like sweeping the parking lots and wiping windows, was performed. Reed also testified that nothing was placed underneath the rugs to keep them from slipping. Neither she nor Karl witnessed Babin's fall because both of them were in different parts of the restaurant at the time. When Reece was called, Babin was already on her feet, leaning in the doorway of the vestibule. Reed instructed another employee, Rodney Weston, to take Babin a chair. Reed testified that the mat Babin slipped on was placed in a bag and put in a storage area.

¶12. Weston testified that at the time he was employed as a grill cook and did general maintenance in the restaurant, which included mopping floors and clearing trash from the parking lot. At the time of Babin's fall, Weston was at the front counter working the cash register. He testified that Babin fell in the area between the first threshold and the second door. He said that she stepped on the mat and that the mat "just slipped from under her and she fell." Weston testified that he usually dry-mopped the dining area when he opened the store because it would have dew from the overnight air conditioning. He further stated:

But in that doorway because there's no, like, ventilation in it, it's like it's going to hold the moisture in it, so the rug is real slippery I guess.

Weston testified that after Babin's fall, the mats were replaced. He also testified that he usually put "wet floor" signs inside the doorways because

[t]here's no like ventilation inside those -- inside that little doorway. So I keep that there just in case -- because only air comes in when people open the door and close. So it's not the air -- the dew is not soaking it up. So I leave those in there. The wet floor signs.

Photographs taken at the time of Babin's fall show no "wet floor" signs in the area.

¶13. Wendy's employee Cherri Trotter, who worked the drive-through on the day of Babin's fall, testified that she moved to the edge of the counter so she could see what was happening. Babin had already fallen, and people were lifting her into a chair. Trotter said that the mat was not worn, but she also said that "those rugs slid a little bit anyway but when they were placed longways they didn't slide as much." Trotter also said Karl was not at work that day, but they called him after Babin fell.

¶14. Babin retained a safety expert named Dennis Howard, who examined the subject mat that Wendy's had preserved. As a board-certified safety professional, Howard had experience in recognizing, evaluating, and controlling hazards to provide a reasonably safe walking surface for pedestrians. Howard was also experienced in studying and analyzing causation and contributions to causes of slips, trips, and falls. On December 17, 2021, Howard inspected the mat as well as the vestibule where it had been placed. In his affidavit, Howard described the mat as a two-foot by three-foot utility mat manufactured by Mohawk Home as part of their Walk-off Collection. The receipt for the purchase Wendy's provided confirmed that mats with these dimensions were purchased from Lowe's for $12.98 each. Two other larger mats were also purchased that day. Howard stated that the mat he inspected was irregularly buckled and had a four-inch rip on its outer edge. He added that the bottom of the mat had very few slip-resistant properties. Howard also observed that the surface of the vestibule was covered with ceramic tiles. Because of the mat's properties, Howard stated in his affidavit/report:

[I]t is my expert opinion that the mat in question does not conform with American National Standard B101.6 (ANSI/NFSI B101.6 Standard)

...