United States District Court, S.D. Mississippi, Southern Division
KENNETH A. LEVIN PLAINTIFF
LOWE'S HOME CENTERS, LLC DEFENDANT
MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR
GUIROLA, JR. CHIEF U.S. DISTRICT JUDGE
THE COURT is the  Motion for Summary Judgment filed by
Lowe's Home Centers, LLC, in this premises liability
case. The issues have been fully briefed. After due
consideration of the Motion and the relevant law, it is the
Court's opinion that there is no question of material
fact for the jury. The Motion will be granted and this case
alleges he was shopping at the Lowe's store in Gautier,
Mississippi, when he requested assistance to pick up a roll
of wire mesh. No store personnel came to help him, so Levin
attempted to pick up the mesh himself. When he touched it,
the roll began to fall toward him. He reached out his hand to
catch it, and his finger was pinned between the roll and a
cord across the bin holding the mesh rolls. The sharp ends of
the wire mesh roll caused lacerations on his left ring
finger, which required multiple sutures. Levin alleges that
the roll of wire mesh was a hazardous condition that
Lowe's failed to mitigate or warn him about. He brings
claims of negligence and premises liability against
Lowe's. (Compl. 3-4, ECF No. 1-1).
moves for summary judgment on Levin's claims, arguing
that Levin fails to establish a premises liability claim
because he cannot show that Lowe's was negligent, that a
dangerous condition existed, or that Lowe's had knowledge
of a dangerous condition. The evidence submitted by the
parties is minimal, consisting only of excerpts from
Levin's deposition testimony and a one-page incident
report filled out by a Lowe's employee after Levin
reported his injury.
judgment is mandated against the 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
has the burden of proof at trial. Fed.R.Civ.P. 56(e);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Factual controversies are resolved in favor of the nonmoving
party, but only when there is an actual controversy; that is,
when both parties have submitted evidence of contradictory
facts. Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994).
Mississippi Premises Liability Law
law classifies Levin as a business invitee on the premises of
Lowe's. Little by Little v. Bell, 719 So.2d 757,
760 (Miss. 1998) (“An 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
The duty owed by a premises owner to a business invitee is
the “duty to exercise reasonable or ordinary care to
keep the premises in a reasonably safe condition.”
However, “the owner/occupier is not an insurer of the
invitee's safety, and he is not liable for injuries which
are not dangerous or which are, or should be known to the
McSwain v. Sys. Energy Res., Inc., 97 So.3d 102, 107
(Miss. Ct. App. 2012) (quoting Jones v. James Reeves
Contractors, Inc., 701 So.2d 774, 782 (Miss. 1997)).
Mere proof of an injury by a business invitee “is not
the basis for premises liability, rather negligence of the
business owner must be shown.” Almond v. Flying J
Gas Co., 957 So.2d 437, 439 (Miss. Ct. App.
2007) (citation omitted). To succeed in a premises liability
claim, the plaintiff must show: “(1) a negligent act by
the defendant caused the plaintiff's injury; or, (2) that
the defendant had actual knowledge of a dangerous condition,
but failed to warn the plaintiff of the danger; or, (3) the
dangerous condition remained long enough to impute
constructive knowledge to the defendant.” Byrne v.
Wal-Mart Stores Inc., 877 So.2d 462, 465 (¶5)
(Miss. Ct. App. 2003) (citing Downs v. Choo, 656
So.2d 84, 86 (Miss. 1995)). “Each of these premises
liability claims requires that the party show a dangerous
condition existed.” Walz v. HWCC-Tunica, Inc.,
186 So.3d 375, 377 (Miss. Ct. App. 2016).
A Dangerous Condition Exist?
alleges that Lowe's caused a dangerous condition by
placing the roll in the bin in an unstable condition and
failing to cover the sharp, protruding ends of the wire mesh.
He further alleges that Lowe's had a duty to warn him
about the ...