United States District Court, N.D. Mississippi, Aberdeen Division
Sharion Aycock, UNITED STATES DISTRICT JUDGE
before the Court is Food Giant Supermarkets Inc.'s Motion
for Summary Judgment . John and Ella Hersey responded
 by requesting under Federal Rule of Civil Procedure
56(d) that the Court defer consideration of Food Giant's
motion until the close of discovery. The Court granted the
Herseys' request and extended the time for them to
respond beyond the close of discovery. The Herseys failed to
and Procedural Background
20, 2014 John Hersey drove his wife Ella to the Food Giant
supermarket in Okolona, Mississippi. John Hersey remained
outside while Ella Hersey went inside the store to shop. As
she entered the store, Ella Hersey tripped and fell over a
rubber backed rug in the entryway. Ella Hersey was injured in
the fall and does not remember whether the rug was upturned
when she tripped. Other customers and assistant store manager
Amanda Red came to her assistance. The store video camera
recording system may have captured Ella Hersey's fall but
the quality of the images is extraordinarily poor, in part
because a strong glare from the sun blocks out the majority
of the video. In addition, due to technical difficulties,
Food Giant was unable to capture the footage directly from
the recording system. Instead, store manager Red took a
second video with her cell phone of the store's monitor
replaying the original video. This additional recording layer
further degraded the quality of the recording.
Herseys filed their Complaint  against Food Giant
Supermarkets, Inc. in July of 2015. Ella Hersey asserts a
claim for negligence based on premises liability and requests
actual and punitive damages. John Hersey asserts a claim for
loss of consortium. Mississippi substantive law applies in
this diversity case. See Cox v. Wal-Mart Stores E.,
L.P., 755 F.3d 231, 233 (5th Cir. 2014) (citing Wood
v. RIH Acquisitions MS II, LLC, 556 F.3d 274, 275 (5th
Rule of Civil Procedure 56 governs summary judgment. Summary
judgment is warranted when the evidence reveals no genuine
dispute regarding any material fact, and the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
moving party “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, 106 S.Ct. 2548. 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, 106 S.Ct. 2548 (citation omitted). In
reviewing the evidence, factual controversies are to be
resolved in favor of the non-movant, “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). 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, 120
S.Ct. 2097, 147 L.Ed.2d 105 (2000).
though the Plaintiffs did not respond to the instant summary
judgment motion, Rule 56 makes it clear that there is
“no summary judgment by default” and the lack of
a response by the Plaintiff does not alter the Court's
summary judgment inquiry. See Fed. R. Civ. P. 56(e)
advisory committee notes to 2010 amendments. Summary judgment
may only be granted if it is appropriate to do so.
See Fed R. Civ. P. 56(a) The Fifth Circuit has held
that “although ‘[a] motion for summary judgment
cannot be granted simply because there is no opposition'
. . . a court may grant an unopposed summary judgment motion
if the undisputed facts show that the movant is entitled to
judgment as a matter of law.” Calais v.
Theriot, 589 F. App'x 310, 311 (5th Cir. 2015)
(quoting Hibernia Nat'l Bank v. Administracion Cent.
Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985)).
analysis of premises liability claims under Mississippi law
requires a determination on three fronts: (1) legal status of
the injured person, (2) relevant duty of care, and (3)
defendant's compliance with that duty.”
Wood, 556 F.3d at 275 (citing Massey v.
Tingle, 867 So.2d 235, 239 (Miss. 2004)). In the instant
case, the parties agree the Plaintiff was a business invitee
at the relevant times. “[A] business invitee [is]
‘a person who goes upon the premises of another in
answer to the express or implied invitation of the owner or
occupant for their mutual advantage.'” Kinstley
v. Dollar Tree Stores, Inc., 63 F.Supp.3d 658, 661
(S.D.Miss. 2014) (citing Turner v. Entergy Miss.,
Inc., 139 So.3d 115, 117 (Miss. Ct. App. 2014)).
premises owner owes invitees a duty of reasonable care, to
“maintain its premises in a reasonably safe condition,
” but a premises owner is “not an insurer of the
safety of invitees.” Pigg v. Express Hotel
Partners, LLC, 991 So.2d 1197, 1199 (Miss. 2008);
Wood, 556 F.3d at 275. This includes duties to
“warn of any dangerous conditions not readily apparent
which the owner knew, or should have known, in the exercise
of reasonable care, and the duty to conduct reasonable
inspections to discover dangerous conditions existing on the
premises.” Pigg, 991 So.2d at 1199-1200
(quoting Gaines v. K-Mart Corp., 860 So.2d 1214,
1216 (Miss. 2003)). The breach of either duty supports a
claim of negligence. Pigg, 991 So.2d at 1200;
Mayfield v. The Hairbender, 903 So.2d 733, 738
order to prove breach in a slip-and-fall case, a plaintiff
(1) show that some negligent act of the defendant caused his
injury; or (2) show that the defendant had actual knowledge
of a dangerous condition and failed to warn the plaintiff; or
(3) show that the dangerous condition existed for a
sufficient amount of time to impute constructive knowledge to