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Hersey v. Food Giant Supermarkets, Inc.

United States District Court, N.D. Mississippi, Aberdeen Division

January 9, 2016



          Sharion Aycock, UNITED STATES DISTRICT JUDGE

         Now before the Court is Food Giant Supermarkets Inc.'s Motion for Summary Judgment [28]. John and Ella Hersey responded [33] 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 respond.[1]

         Factual and Procedural Background

         On May 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.

         The Herseys filed their Complaint [2] 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 Cir. 2009)).

         Summary Judgment Standard

         Federal 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).

         The 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).

         Even 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)).

         Premises Liability

         The 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)).

         A 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 (Miss. 2005).

         In order to prove breach in a slip-and-fall case, a plaintiff must:

(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 the ...

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