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Stafford v. Desoto Acquisition and Development Corporation

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

January 5, 2017




         This negligence action brought by Jenny Stafford is before the Court on the motions for summary judgment of DeSoto Acquisition and Development Corporation; Memphis Street Café, LLC; and Natalia Gudkovskaya. Doc. #51; Doc. #53. Also before the Court is the motion in limine of Memphis Street Café and Gudkovskaya, Doc. #66, joined by DeSoto Acquisition and Development Corporation.


         Summary Judgment Standard

         Under Rule 56 of the Federal Rules of Civil Procedure, “[s]ummary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law.” Norwegian Bulk Transp. A/S v. Int'l Marine Terminals P'ship, 520 F.3d 409, 411 (5th Cir. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). To award summary judgment, “[a] court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor.” Id. at 411-12 (internal quotation marks and citation omitted). To this end, “[t]he moving party bears the burden of establishing that there are no genuine issues of material fact.” Id. at 412.

         “If … the nonmoving party bears the burden of proof at trial, the moving party may demonstrate that it is entitled to summary judgment by submitting affidavits or other similar evidence negating the nonmoving party's claim, or by pointing out to the district court the absence of evidence necessary to support the nonmoving party's case.” Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998) (citation omitted). If the moving party makes the necessary demonstration, “the burden shifts to the nonmoving party to show that summary judgment is inappropriate.” Id. In making this showing, “the nonmoving party must go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Cotroneo v. Shaw Env't & Infrastructure, Inc., 639 F.3d 186, 191-92 (5th Cir. 2011) (citation and internal punctuation omitted). When considering a motion for summary judgment, the Court “resolve[s] factual controversies in favor of the nonmoving party.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).


         Procedural History

         On August 12, 2015, Jenny Stafford filed a complaint in this Court against DeSoto Acquisition Corporation (“DeSoto Acquisition”); Memphis Street Café, LLC (“Café”); and Natalia Gudkovskaya. Doc. #1. The complaint alleges that Stafford suffered injuries when she slipped and fell on an inadequately lit stairway leading down to the Café. Stafford alleges that the inadequate lighting was the result of negligence by the Café; Gudkovskaya, the owner of the Café; and DeSoto Acquisition, the owner of the building housing the Café. DeSoto Acquisition answered the complaint on September 14, 2015, and the Café and Gudkovskaya (collectively, “Café Defendants”) filed a joint answer three days later. Doc. #4; Doc. #7.

         On June 10, 2016, following a period of discovery, DeSoto Acquisition filed a motion for summary judgment. Doc. #51. The Café Defendants filed a joint motion for summary judgment on June 13, 2016. Doc. #53. After receiving extensions, Stafford responded in opposition to both motions on July 11, 2016. Doc. #57; Doc. #59. DeSoto Acquisition and the Café Defendants each replied on July 19, 2016. Doc. #61; Doc. #62.

         On December 7, 2016, the Café Defendants filed a motion in limine seeking to exclude “testimony or evidence concerning any alleged violation of the zoning or design standard ordinances for the city of Hernando, Mississippi.” Doc. #66. On December 9, 2016, Stafford responded in opposition to the motion in limine. Doc. #67. Later that day, DeSoto Acquisition “joined” the motion.[1] Doc. #69. The Café Defendants replied in support of the motion in limine on December 12, 2017, Doc. #70, and Stafford filed a sur-reply[2] four days later, Doc. #74.


         Hearsay Objection

         In their motions for summary judgment, the defendants argue that a fact testified to by Stafford during her deposition may not be used to oppose the respective motions for summary judgment. Specifically, the defendants argue as inadmissible hearsay Stafford's statement that, after her fall, a member of the “restaurant staff” walked over to her and said, “We realized the light was out and we were ... aiming to fix it.” Doc. #52 at 8; Doc. #54 at 5. Stafford does not respond to this argument.

         “Unsubstantiated hearsay evidence that would not be admissible at trial does not suffice to raise a genuine issue of material fact.” Arora v. Starwood Hotels & Resorts Worldwide, Inc., 294 F. App'x 159, 161 (5th Cir. 2008) (citing Clary v. Comput. Assocs. Intern., Inc., 109 F.3d 765, 765 (5th Cir. 1997)). Under Rule 801 of the Federal Rules of Evidence, hearsay is defined as a “statement that … the declarant does not make while testifying at the current trial or hearing [and] a party offers in evidence to prove the truth of the matter asserted in the statement.” “Once a party has properly objected to evidence as inadmissible hearsay, the burden shifts to the proponent of the evidence to show, by a preponderance of the evidence, that the evidence falls within an exclusion or exception to the hearsay rule and was therefore admissible.” Loomis v. Starkville Miss. Pub. Sch. Dist., 150 F.Supp.3d 730, 742-43 (N.D. Miss. 2015) (internal quotation marks and alterations omitted).

         Here, the defendants correctly argue that the statement attributed to the unnamed woman, as stated by Stafford, is hearsay if offered for the purpose of showing that the woman (allegedly an employee of the Café) knew the light was out. Accordingly, Stafford must show that the statement falls within an exclusion or exception to the hearsay rule. Stafford has wholly failed in this regard by not responding to the argument. Accordingly, the statement attributed to the unnamed woman will not be considered in evaluating the motions for summary judgment.[3]


         Factual Background

         A. The Premises and Lease Agreement

         During the time period relevant to this suit, Gudkovskaya owned and operated the Café located at 2476 Memphis Street in Hernando, Mississippi. Doc. #58-3 at 4, 10; Doc. #58-4. The property housing the Café was owned by DeSoto Acquisition and leased to Gudkovskaya's husband, Christopher Lee. Doc. #58-4. Of relevance here, the lease, among other things, required DeSoto Acquisition to “provide all maintenance, repairs, and replacements [on] … exterior lighting” and granted DeSoto Acquisition “the right … to enter [the] premises at reasonable hours … for the purpose of inspecting the premises and to make such repairs as Lessor may deem necessary for the protection and preservation of the said building and premises.” Doc. #58-4 at ¶¶ 20, 30.

         The Café maintained two entrances - a front door and back door. Doc. #58-3 at 8. To access the front door, which was located below street level, customers had to travel down a set of steps. Doc. #58-3 at Ex. 3. The stairway, which included a handrail, was covered by an overhang and was lit by a single light[4] placed on the wall above the front door. Id.; Doc. #58-1 ...

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