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Phillips v. Wal-Mart Stores East LP

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

June 24, 2015

HEATHER PHILLIPS, ON BEHALF OF HERSELF AND ALL WRONGFUL DEATH BENEFICIARIES OF GAGE ALLEN, Plaintiff,
v.
WAL-MART STORES EAST LP, Defendant.

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

DAVID BRAMLETTE, District Judge.

This cause is before the Court on Defendant's, Wal-Mart Stores East LP, ("Wal-Mart") Motion for Summary Judgment [docket entry no. 61]. Having reviewed the motion and responses, applicable statutory and case law, and being otherwise fully informed in the premises, the Court finds as follows:

I. Procedural and Factual Background

Just after 1:00AM on September 2, 2013, A. M., a fourteen year old, entered the Wal-Mart in McComb, Mississippi. A. M. proceeded to the beer aisle, lingered for approximately two minutes while a Wal-Mart employee stocked shelves on that aisle, and then concealed a twelve pack of beer in his backpack. A. M. walked out to a waiting vehicle and shared the beer with three other minors, C. D., A. R., and Gage Allen. They began to drink the beer and drove to a house in nearby Magnolia. They entered the home with the use of a spare key and procured a bottle of brown liquor and a bottle of vodka. They took shots of the vodka. Later, C. D. drove Gage Allen and D. R. home. At approximately 5:30AM, they were involved in a single car accident, with one fatality: Gage Allen. The investigating officer concluded the accident was caused by C. D. driving under the influence.

Plaintiff Heather Phillips, mother of Gage Allen, on behalf of herself and the other wrongful death beneficiaries of Gage Allen, sued Wal-Mart in the Pike County Circuit Court on April 8, 2014. The complaint made claims for negligence per se and negligence against Wal-Mart. Not. Removal Ex. 1 ¶37, ECF No. 1-1. Defendant removed the suit to this Court on April 25, 2014. Wal-Mart filed its motion for summary judgment on March 16, 2015.

II. Analysis

A. Summary Judgment Standard

Summary judgment is appropriate "if 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 fact is material' if its resolution in favor of one party might affect the outcome of the lawsuit under governing law. An issue is genuine' if the evidence is sufficient for a reasonable jury to return a verdict for the non-moving party." Ginsberg 1985 Real Estate P'ship v. Cadle Co., 39 F.3d 528, 531 (5th Cir. 1994) (citations omitted). The moving party bears the initial responsibility of apprising the district court of the basis for its motion and the parts of the record which indicate the absence of a genuine issue of material fact. Celotex Corp. V. Catrett, 477 U.S. 317, 323 (1986).

"Once the moving party presents the district court with a properly supported summary judgment motion, the burden shifts to the non-moving party to show that summary judgment is inappropriate." Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998). "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). But the nonmovant must meet his burden with more than metaphysical doubt, conclusory allegations, unsubstantiated assertions, or a mere scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). A party asserting that a fact is "genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations... admissions, interrogatory answers, or other materials...." Fed.R.Civ.P. 56(c)(1)(A).

Summary judgment must be rendered when the nonmovant "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, 477 U.S. at 322.

B. Negligence Per Se

Wal-Mart argues that the store is not liable to Plaintiff under negligence per se because the cases and statutes at issue do not apply here. Mem. Supp. 19-20, ECF No. 65. Plaintiff counters that Wal-Mart, as the holder of a permit to sell beer in Mississippi, breached a legal duty to be "minimally observant" to prevent even a shoplifter from "obtaining" alcohol. Mem. Supp. 3, ECF No. 66. The two laws relied on by Phillips are: (1) Mississippi Code Section 67-3-53 ("the state law") and (2) McComb Municipal Ordinance Section 10-41 ("the local law"). The state law provides, in relevant part, "it shall be unlawful for the holder of a permit authorizing the sale of beer or light wine... [t]o sell, give or furnish any beer or light wine... to any person under the age of twenty-one (21) years." Miss. Code Ann. § 67-3-53(b) (2012). The local law makes it "unlawful to sell, give or furnish any wine or beer... to any person under the age of 21 years." MCCOMB, MISS., CODE OF ORDINANCES § 10-41 (2006). The local law is derived from the state law, and therefore the Court will analyze them as one.

"To prevail on a negligence per se claim, 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.'" Hill v. City of Horn Lake, 160 So.3d 671, 680 (Miss. 2015) (quoting Snapp v. Harrison, 699 So.2d 567, 571 (Miss. 1997)).

First, the Court finds that the plaintiffs fall within the class sought to be protected by the state law and the local law. "The Mississippi law which prohibits the sale of beer or wine to a minor[] was adopted for the protection of the general public[, ]' and... minors are members of that protected class."[1] Bridges ex rel. Bridges v. Park Place Entm't, 860 So.2d 811, 814 (Miss. 2003) (quoting Cuevas v. Royal D'Iberville Hotel, 498 So.2d 346, 348 (Miss. 1986)). Further, "[s]ociety has a greater interest in protecting the welfare of minors than other groups... [because m]inors comprise a larger segment of ...


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