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Harper v. Wilkaitis

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

May 18, 2015

KIMBERLY HARPER, Plaintiff,
v.
JOHN WILKAITIS; BRENTWOOD, ACQUISITION, INC. Defendants.

ORDER

CARLTON W. REEVES, District Judge.

Before the Court is Brentwood Acquisition's motion for summary judgment. Docket No. 90. The matter is fully briefed. After considering the evidence, arguments, and applicable law, the motion will be denied.

I. Factual and Procedural History

On October 24, 2012, Kimberly Harper and Joseph Kwentus were walking on the campus of Brentwood Behavioral Healthcare, a mental health facility in Flowood, Mississippi. Harper was an employee of Precise Research, a company which leased office space from Brentwood and helped care for Brentwood's patients. Kwentus was her supervisor at Precise Research and Brentwood's Director of Adult Services.

A few minutes after five in the afternoon, Harper and Kwentus were returning to Precise Research from reviewing charts or seeing patients at Brentwood's Adult Unit. There was no sidewalk, so they walked in the road. Harper and Kwentus then entered a "T" intersection. At that moment, a car driven by John Wilkaitis entered the intersection and struck Harper, causing her injuries.

Harper subsequently filed this lawsuit against Wilkaitis and Brentwood. She claimed that Wilkaitis is liable to her for negligent operation of his motor vehicle because he failed to keep a lookout and stop before colliding with her. She also claimed that Brentwood is liable to her for maintaining an unsafe premises: the intersection didn't have a stop sign, she said, and the view was obstructed by "dark material" placed on nearby fencing.

After discovery, this motion followed.

II. Legal 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).

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.), as revised on denial of reh'g, 70 F.3d 26 (5th Cir. 1995).

III. Discussion

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). State law is determined by looking to 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).

A. Apportionment of Fault

Brentwood claims it is entitled to summary judgment because the evidence shows that Wilkaitis was solely responsible for the crash. It argues that Wilkaitis - who approached the intersection from the bottom of the "T, " so to speak - should have stopped when he reached the intersection so that he could look left and right. Because he did not ...


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