Kinsella v. Officemax Inc.

          ORDER

          MICHAEL P. MILLS, UNITED STATES DISTRICT JUDGE.

         Presently before the Court is defendants OfficeMax Incorporated, OfficeMax North America, Inc., and OfficeMax, Inc.'s (“OfficeMax”) Motion for Summary Judgment [40]. Plaintiff Ronna Kinsella (“Kinsella”) responded in opposition to the motion, and OfficeMax filed a reply. Having reviewed these submissions, along with relevant authorities and evidence, the Court is now prepared to rule.

         Relevant Facts

         On the evening of January 9, 2013, Kinsella and her mother entered an OfficeMax store located in Southaven, Mississippi. Prior to their arrival at the store, another customer spilled ink toner on the floor in or around the store's ink aisle.^[1] Justin Bernero-an OfficeMax employee- mopped up the spill and placed a yellow caution sign in the area. Shortly thereafter, Kinsella arrived and began walking down the “main center aisle” toward the restroom in the back of the building and “slipped and fell in a puddle of water while passing an end-cap display.” Kinsella allegedly suffered severe injuries as a result of the fall.

         The parties do not dispute that a yellow caution sign was placed somewhere near the area where Kinsella fell. In fact, Kinsella herself testified that she “noticed a wet floor sign . . . [and that] somewhere around there was where [she] fell.” The parties do, however, dispute the exact placement of the sign. OfficeMax asserts that “[t]he yellow caution sign was positioned in the middle of the center aisle so that the front of the sign was facing customers walking straight on the center aisle toward the back of the store.” Kinsella disagrees, asserting that her testimony and photographs from the surveillance video directly refute this allegation. In her deposition, Kinsella testified that the caution sign was placed at an angle “in between the smallest aisle and the first tall aisle, not in the main center aisle where I was walking.”

         Nevertheless, Kinsella walked past the sign, slipped and fell, and allegedly suffered serious injuries. On November 10, 2015, she filed this action. In her complaint, she asserts that OfficeMax's negligence, gross negligence, and/or recklessness were the proximate cause of her injuries. On February 6, 2017, OfficeMax filed the present motion, arguing that Kinsella has not come forward with sufficient evidence to survive summary judgment. Having given due consideration to the motion, the Court finds that it is not well-taken and should be denied.

         Rule 56 Standard

Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine dispute of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). At the summary judgment stage, the court must “draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Once the moving party shows there is no genuine dispute as to any material fact, the nonmoving party “must come forward with specific facts showing a genuine factual issue for trial.” Harris ex rel. Harris v. Pontotoc Cty. Sch. Dist., 635 F.3d 685, 690 (5th Cir. 2011). “[A] party cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or ‘only a scintilla of evidence.'” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)). However, “[s]ummary judgment is [] improper where the court merely believes it unlikely that the non-moving party will prevail at trial.” U.S v. Miss. Dep't of Pub. Safety, 309 F.Supp.2d 837, 840 (S.D.Miss. 2004) (citing Nat'l Screen Serv. Corp. v. Poster Exch., Inc., 305 F.2d 647, 651 (5th Cir. 1962)).

         Discussion

         The Court first notes that because this is a diversity jurisdiction case, Mississippi substantive law is applicable. See Chambliss v. Wal-Mart Stores, Inc., 2015 WL 5009698, *8 (S.D.Miss. Aug. 21, 2015); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Under Mississippi law, “[t]he analysis of premises liability involves three steps: first, the court must determine the status of the injured party as invitee, licensee, or trespasser; second, based on the injured's status, the court must determine what duty the landowner/business operator owed the injured party; and third, the court must determine whether the landowner/business operator breached the duty owed the injured party.” Thomas v. Columbia Grp., LLC, 969 So.2d 849, 852 (Miss. 2007) (citing Little ex rel. Little v. Bell, 719 So.2d 757, 760 (Miss. 1998)).^[2]

         Regarding the first step of this analysis, the parties agree that Kinsella was an invitee at the time the fall occurred. This is in accordance with Mississippi law, which has recognized that “[a] business invitee is defined as someone who enters onto another's premises at the invitation of the owner for the purpose of benefitting both parties.” Grammar v. Dollar, 911 So.2d 619, 624 (Miss. Ct. App. 2005). Kinsella's presence at the store was undoubtedly based upon OfficeMax's implied invitation and for the mutual benefit of the parties. Therefore, the Court finds that Kinsella's legal status at the time of the fall was that of an invitee.

         The Court now turns to the second step of the premises liability analysis, which requires that it determine the relevant duty of care OfficeMax owed Kinsella. Under Mississippi law, “[a] landowner owes an invitee the duty to keep the premises reasonably safe[.]” Thomas, 969 So.2d at 853. “While a premises owner is not an insurer of the safety of invitees, the premises owner does have a duty of reasonable care, to maintain its premises in a reasonably safe condition.” Pigg v. Express Hotel Partners, LLC, 991 So.2d 1197, 1199 (Miss. 2008).^[3] Moreover, “[t]hat duty includes not only the duty to keep its premises in a reasonably safe condition, but the duty to ‘warn of any dangerous conditions not readily apparent [of] 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.'” Id. at 1199-1200 (quoting Gaines v. K-Mart Corp., 860 So.2d 1214, 1216 (Miss. 2003)). Stated concisely, “[a] landowner owes an invitee the duty ‘to keep the premises reasonably safe and when not reasonably safe to warn only where there is hidden danger or peril that is not in plain and open view.'” Mayfield v. The Hairbender, 903 So.2d 733, 737-38 (Miss. 2005) (quoting Massey v. Tingle, 867 So.2d 235, 239 (Miss. 2004) (additional citations omitted)). The Mississippi Supreme Court has further held that these two duties-(1) to keep the premises reasonably safe and (2) to warn of hidden dangers-must be analyzed separately, and “[t]he breach of either duty supports a claim of negligence.” Id. (emphasis added).

         Having determined the relevant duty-the second step of the analysis, the Court will now consider whether OfficeMax breached that duty. This third step provides the basis for the parties' dispute. “Mere proof of the occurrence of a fall on a floor within the business premises is insufficient to show negligence of the part of the proprietor.” Chambliss, 2015 WL 5339698, at *9 (quoting Bonner v. Imperial Palace of Miss., LLC, 117 So.3d 678, 682 (Miss. Ct. App. 2013) (additional citation omitted)).

         Specifically concerning slip-and-fall cases, the Mississippi Court of Appeals has explained that, in order to recover, a plaintiff must “(1) show that some negligent act of the defendant caused her 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 ...