United States District Court, N.D. Mississippi, Oxford Division
MICHAEL P. MILLS, UNITED STATES DISTRICT JUDGE.
before the Court is defendants OfficeMax Incorporated,
OfficeMax North America, Inc., and OfficeMax, Inc.'s
(“OfficeMax”) Motion for Summary
Judgment . 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.
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. 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
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
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.
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)).
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.
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.
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). 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).
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
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 ...