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Levin v. Lowe's Home Centers, LLC

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

January 20, 2017

KENNETH A. LEVIN PLAINTIFF
v.
LOWE'S HOME CENTERS, LLC DEFENDANT

          MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

          LOUIS GUIROLA, JR. CHIEF U.S. DISTRICT JUDGE

         BEFORE THE COURT is the [24] 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 dismissed.

         Background

         Levin 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).

         Lowe's 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.

         Discussion

         1. The Legal Standard

         Summary 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).

         2. Mississippi Premises Liability Law

         Mississippi 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 advantage.”).

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 business invitee.”

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).

         3. Did A Dangerous Condition Exist?

         Levin 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 ...


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