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Davis v. The Kroger Co.

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

December 12, 2014

CHRISTY DAVIS, Plaintiff,
v.
THE KROGER COMPANY, and JOHN DOES 1-10, Defendants.

ORDER

DANIEL P. JORDAN, III, District Judge.

This slip-and-fall case is before the Court on Defendant The Kroger Company's ("Kroger") Motion for Summary Judgment [22] pursuant to Federal Rule of Civil Procedure 56. The Court, having considered the memoranda and submissions of the parties, along with the pertinent authorities, finds that Kroger's Motion [22] should be denied.

I. Facts and Procedural History

On April 22, 2010, Plaintiff Christy Davis and her friend, Arthur Whitehead, entered a Kroger store in Clinton, Mississippi, to purchase groceries. Whitehead Dep. [25-2] at 7. While pushing her cart, Davis slipped on a "white-colored-looking water" and "fell on her knee." Id. at 8-9. According to Whitehead, the substance on the floor where Davis fell "was sort of feeling like it had soap" and "smelled like some kind of soap agent, " similar to the soapy water in the buckets that employees used to clean the store. Id. at 14. Davis later sought medical treatment at the hospital for her knee. Id. at 20-21.

On April 3, 2013, Davis filed suit in Mississippi state court seeking damages for her injuries, emotional pain and suffering, and medical expenses, and Kroger subsequently removed the case to this Court. Notice of Removal [1] at 1. Following discovery, Kroger filed its Motion for Summary Judgment [22]. Davis responded [25], and Kroger replied [26]. The Court has personal and subject-matter jurisdiction and is prepared to rule.

II. Standard of Review

Summary judgment is warranted under Rule 56(a) of the Federal Rules of Civil Procedure when evidence reveals no genuine dispute regarding any material fact and that the moving party is entitled to judgment as a matter of law. The rule "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The party moving for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323. The nonmoving party must then "go beyond the pleadings" and "designate specific facts showing that there is a genuine issue for trial.'" Id. at 324. In reviewing the evidence, factual controversies are to be resolved in favor of the nonmovant, "but only when... both parties have submitted evidence of contradictory facts." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). When such contradictory facts exist, the court may "not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). Conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments have never constituted an adequate substitute for specific facts showing a genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002); Little, 37 F.3d at 1075; SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993) (per curiam).

III. Analysis

A. Kroger Employees' Negligence

Under Mississippi law, to recover in a slip-and-fall case, a plaintiff

must show the proprietor had actual knowledge of a dangerous condition, or the dangerous condition existed for a sufficient amount of time to establish constructive knowledge, in that the proprietor should have known of the condition, or the dangerous condition was created through a negligent act of a store's proprietor or his employees.

Munford, Inc. v. Fleming, 597 So.2d 1282, 1284 (Miss. 1992). To recover, a plaintiff need prove only one of these bases for premises liability; thus, "[w]hen the dangerous condition was created by the negligence of the business owner or someone under his authority, no proof of the owner's knowledge of the condition is necessary." Bonner v. Imperial Palace of Miss., LLC, 117 So.3d 678, 687 (Miss. Ct. App. 2013).

In the instant case, Davis alleges that Kroger's employees were responsible for negligently leaving a soapy substance on the ground that caused her to fall. Kroger emphasizes repeatedly in its motion and accompanying briefing that Davis has not produced sufficient facts regarding how the substance came to be on the floor, whether Kroger had actual notice of the spill, or the length of time the substance was on the floor. But because Davis is asserting that Kroger's employees were responsible ...


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