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Eschete v. Jim Wilson & Associates, LLC

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

January 31, 2017

THERESA ESCHETE PLAINTIFF
v.
JIM WILSON & ASSOCIATES, LLC and CRUISIN' THE COAST, INC. DEFENDANTS

         MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT CRUISIN' THE COAST, INC.'S FIRST MOTION FOR SUMMARY JUDGMENT [56], DENYING AS MOOT DEFENDANT CRUISIN' THE COAST, INC.'S SECOND MOTION FOR SUMMARY JUDGMENT [54], AND GRANTING IN PART AND DENYING IN PART DEFENDANT JIM WILSON & ASSOCIATES, LLC'S MOTION FOR SUMMARY JUDGMENT [58]

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT are the Motion for Summary Judgment [58] filed by Defendant Jim Wilson & Associates, LLC; the First Motion for Summary Judgment [56] filed by Defendant Cruisin' the Coast, Inc.; and the Second Motion for Summary Judgment [54] filed by Defendant Cruisin' the Coast, Inc. These Motions are fully briefed. After due consideration of the record, the submissions on file, and relevant legal authority, the Court finds that Defendant Jim Wilson & Associates, LLC's Motion for Summary Judgment [58] should be granted in part and denied in part; that the First Motion for Summary Judgment [56] filed by Defendant Cruisin' the Coast, Inc. should be granted; and that the Second Motion for Summary Judgment [54] filed by Defendant Cruisin' the Coast, Inc. should be denied as moot. This case will be dismissed with prejudice.

         I. BACKGROUND

         A. Factual Background

         This case arises out of a trip and fall incident involving Plaintiff Theresa Eschete (“Plaintiff”) that occurred while she and her husband, Carol Eschete, Jr. (“Mr. Eschete”), were attending a “Cruisin' the Coast” event at Edgewater Mall in Biloxi, Mississippi, on October 11, 2013. Am. Compl. [21] at 3. The annual car show was hosted by Defendant Cruisin' the Coast, Inc. (“CRC”), which had obtained permission to use the parking lot at Edgewater Mall, which was operated by Defendant Jim Wilson & Associates, LLC (“JWA”).[1] Id. at 2.

         The Amended Complaint [21] alleges that Plaintiff and her husband were walking around the Edgewater Mall parking lot and viewing the classic automobiles parked at the event when she stepped “into a hole about 6 inches wide, by about 7 inches deep” in the parking lot. Id. at 3-4. Plaintiff claims that she sprained her right ankle and broke her left leg as a result. Id. at 4. In her deposition, however, Plaintiff was unable to precisely describe the characteristics of the hole, including its depth:

Q. All right. Can you describe for me what you fell on?
A. A hole in the - - it was black, I guess, asphalt.
Q. And it was a circle, rectangle, what shape was it in?
A. To the best of my knowledge, it was probably a circle, maybe about a size of a plate or a saucer maybe, I don't know how deep.
Q. So maybe the size of a dinner plate?
A. I think smaller than a dinner plate, bigger than a saucer.
Q. But you don't know how deep it was?
A. No.
Q. And you told [counsel] that the hole was about as big around as a dinner plate?
A. Smaller, probably between a dinner and a saucer.
Q. Between a dinner and a saucer. And you don't know how deep it was?
A. No. I could guess, but it would be guessing.
Q. And you didn't see the hole before you fell?
A. No.
Q. And you don't know what caused the hole to be there?
A. No.
Q. You don't know how long it had been there?
A. No.
Q. Was there anything, a piece of paper, a napkin, anything that was covering the hole that would have caused it to be hidden from your view ...

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