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Cole v. Southern Family Markets of Meridian, LLC

United States District Court, S.D. Mississippi, Northern Division

October 6, 2014

FAITH COLE, Plaintiff,
v.
SOUTHERN FAMILY MARKETS OF MERIDIAN, LLC, doing business as PIGGLY WIGGLY; C&S WHOLESALE GROCERS, a Corporation Defendants,

ORDER

CARLTON W. REEVES, District Judge.

Before the Court is the defendants' motion for summary judgment. Docket No. 23. The plaintiff has responded, Docket Nos. 26-27, the defendants have replied, Docket No. 29, and the Court is ready to rule.

I. Factual and Procedural History

On October 27, 2009, Faith Cole slipped and fell while exiting the Piggly Wiggly in Meridian, Mississippi. Docket No. 1-2, at 5-6. She filed this suit claiming that the store's failure to mop up or warn her about water on the floor breached its duty to provide her a reasonably safe premises. Id. at 8-9. Cole sought damages for her past medical bills (~$12, 500), future medical bills, and pain and suffering. Id. at 12; Docket No. 1-3. A demand letter seeking over $100, 000 brought the case within the jurisdiction of this Court. Docket No. 1-3.[1]

The defendants' motion argues that Cole's claim fails because she has no evidence about how long the water was on the floor, which means she cannot show that the store knew of a dangerous condition. Docket No. 24, at 4.

In response, Cole contends that the store had actual or constructive knowledge of the water because the store manager's incident report listed the weather as "raining/poor." Docket No. 26, at 4. A surveillance video shows that the parking lot was wet, she adds. Id. at 4-5. Cole also claims the store was negligent in placing a mat several feet inside the door, rather than at the threshold where the water was located. Id. at 5. Finally, she argues that the store's failure to regularly inspect the area suggests constructive knowledge of a dangerous condition. Id. at 7.

II. Summary Judgment Standard

Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A party seeking to avoid summary judgment must identify admissible evidence in the record showing a fact dispute. Id. at 56(c)(1). "Once a summary judgment motion is made and properly supported, the nonmovant must go beyond the pleadings and designate specific facts in the record showing that there is a genuine issue for trial. Neither conclusory allegations' nor unsubstantiated assertions' will satisfy the nonmovant's burden." Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996) (citations and quotation marks omitted); see also Tran Enterprises, LLC v. DHL Exp. (USA), Inc., 627 F.3d 1004, 1010 (5th Cir. 2010) ("With respect to an issue on which the nonmovant would bear the burden of proof at trial, if the movant for summary judgment correctly points to the absence of evidence supporting the nonmovant with respect to such an issue, the nonmovant, in order to avoid an adverse summary judgment on that issue, must produce sufficient summary judgment evidence to sustain a finding in its favor on the issue.").

The Court views the evidence and draws reasonable inferences in the light most favorable to the nonmovant. Maddox v. Townsend and Sons, Inc., 639 F.3d 214, 216 (5th Cir. 2011). But the Court will not, "in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts." McCallum Highlands, Ltd. v. Wash. Capital Dus, Inc., 66 F.3d 89, 92 (5th Cir. 1995), as revised on denial of reh'g, 70 F.3d 26 (5th Cir. 1995).

III. Discussion

A. Mississippi Law

Because this case is proceeding in diversity, the applicable substantive law is that of the forum state, Mississippi. Capital City Ins. Co. v. Hurst, 632 F.3d 898, 902 (5th Cir. 2011); Smith v. Goodyear Tire & Rubber Co., 495 F.3d 224, 228 (5th Cir. 2007). State law is determined by looking to the decisions of the state's highest court. St. Paul Fire and Marine Ins. Co. v. Convalescent Servs., Inc., 193 F.3d 340, 342 (5th Cir. 1999).

Under Mississippi law, it is well-established that premises owners owe business invitees "a duty of reasonable care in keeping their premises in a reasonably safe condition." Pigg v. Express Hotel Partners, LLC, 991 So.2d 1197, 1199 (Miss. 2008) (citations omitted). It also is clear that "a premises owner is not an insurer of the safety of invitees." Id.

Although the standard for slip and fall cases has been articulated in different ways, [2] the briefing shows that the parties agree ...


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