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Smith v. Wal-Mart Stores, Inc.

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

June 23, 2017

WILLIAM SMITH PLAINTIFF
v.
WAL-MART STORES, INC. DEFENDANT

          ORDER

          CARLTON W. REEVES UNITED STATES DISTRICT JUDGE.

         Defendant has moved for summary judgment. After reviewing the facts and briefing, the Court has determined that defendant's motion must be denied. Defendant's motion in the alternative for partial summary judgment is granted in part and denied in part.

         I. Factual Background

         On November 18, 2012, [1] William Smith was violently assaulted in the parking lot of Wal-Mart Stores East, LP (“Wal-Mart”) in Philadelphia, Mississippi. Smith-a high school student at the time-and two friends were seated inside a car, when a pick-up truck approached then circled their vehicle. Shortly thereafter, the pick-up parked directly behind their car. Two white males in their twenties-later identified as Adam Thrash and Bobby Cumberland-exited the truck and walked up to the car. The assailants hurled racial epithets as they approached, and the high-schoolers exited their vehicle. The two white men escalated their verbal abuse into a potentially deadly physical assault, and one of them ultimately stabbed Smith multiple times. Wal-Mart appears to concede that the events unfolded over at least a few minutes. Docket No. 53, at 6.

         Upon recognizing the severity of his wounds, Smith and his friends sought help and first-aid from the employees at Wal-Mart. Smith alerted store employees, some of whom were smoking cigarettes outside of the store and at least one of whom witnessed and joked about the assault. The police were not called; an ambulance was not summoned; the manager was not informed; and when asked for bandages to stymie Smith's bleeding, a store cashier informed Smith where he could purchase them. Plaintiff's friends retrieved bandages, waited in the checkout line and purchased them, administered what immediate medical aid they could in Wal-Mart's restroom, then drove Smith to the Emergency Room at Neshoba General Hospital. His injuries included a knife wound, which required stitches, a fracture to two of his vertebrae and a concussion.

         II. Legal Standard

         Rule 56 directs courts to “grant summary judgment 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). “The pleadings, depositions, admissions, and answers to interrogatories, together with affidavits, must demonstrate that no genuine issue of material fact remains.” Sims v. Monumental Gen. Ins. Co., 960 F.2d 478, 479 (5th Cir. 1992) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)). “An issue is genuine if the evidence supporting its resolution in favor of the party opposing summary judgment, together with any inferences in such party's favor that the evidence allows, would be sufficient to support a verdict in favor of that party.” St. Amant v. Benoit, 806 F.2d 1294, 1297 (5th Cir. 1987) (citation omitted).

         III. Discussion

         Because subject matter jurisdiction of this case is based on diversity, the applicable substantive law is that of the forum state, Mississippi. State law is determined by looking to the decisions of the state's highest court. Delancey v. MedAmerica Ins. Co., ___F.Supp.3d ___, 2017 WL 1241434, at *1 (S.D.Miss. Mar. 31, 2017).

         Plaintiff seeks to recover on a negligence claim of premises liability for defendant's alleged failure to provide adequate security.[2] “In a premises liability action, the plaintiff must prove the familiar elements of duty, breach of duty, proximate cause, and damages.” Holmes v. Campbell Prop., Inc., 47 So.3d 721, 724 (Miss. Ct. App. 2010) (citing Crain v. Cleveland Lodge 1532, Order of Moose, Inc., 641 So.2d 1186, 1189 (Miss. 1994)). “A business owner owes an invitee a duty to exercise reasonable care to protect the invitee from reasonably foreseeable injury at the hands of another.”[3] Ellis v. Gresham Serv. Stations, Inc., 55 So.3d 1123, 1127 (Miss. Ct. App. 2011) (citing Lyle v. Mladinich, 584 So.2d 397, 399 (Miss. 1991)). To recover from defendant's alleged failure to take reasonable care to extinguish the threat of assault, “the plaintiff must prove the defendant had either (1) actual or constructive knowledge of the assailant's violent nature, or (2) actual or constructive knowledge that an atmosphere of violence existed on the premises.” Wright v. R.M. Smith Inv., L.P., 210 So.3d 555, 559 (Miss. Ct. App. 2016) (citing Kroger v. Knox, 98 So.3d 441, 443 (Miss. 2012)). The present motion argues that plaintiff cannot make either showing.

         Smith makes no attempt to demonstrate that Wal-Mart had actual or constructive knowledge of Thrash's or Cumberland's violent nature. He does, however, assert that Wal-Mart had constructive knowledge that an atmosphere of violence existed on its premises. “[F]actors for consideration of whether a defendant had such notice have been held to include ‘the overall pattern of criminal activity prior to the event in question that occurred in the general vicinity of the defendant's business premises, as well as the frequency of criminal activity on the premises.'” Ellis, 55 So.3d at 1127 (quoting Gatewood v. Sampson, 812 So.2d 212, 220 (Miss. 2002)).

         To that end, Smith has submitted, inter alia, 911 dispatch records of calls regarding events in defendant's parking lot for the three years prior to the stabbing. This submission reveals nearly four hundred calls made to 911 requesting emergency assistance. Aside from plaintiff's stabbing, there were calls concerning fights involving groups of juveniles, assaults, kidnapping, robberies, shootings, possession of explosives, missing persons, theft, and vandalism. Remarkably, those hundreds of calls did not encompass the allowable “general vicinity of defendant's business premises, ” rather each call related to a specific instance of suspected “criminal activity on the premises.” Gatewood, 812 So.2d at 220.

         In rebuttal, defendant offered the sworn statement of Officer Barry Smith, the police officer who investigated plaintiff's stabbing. Therein Officer Smith explains that defendant's parking lot was part of his regular patrol, and he provides an anecdotal description of defendant's parking lot as having been relatively safe. Notably, Officer Smith's statement does not explain what the “patrol” entails and the frequency with which the patrols were conducted.

         Drawing all inferences in the non-movant's favor, to the extent allowed by the evidence, there certainly exists a genuine issue as to Wal-Mart's constructive knowledge that an atmosphere of violence existed on its premises. Even if it is found to have been negligent, Wal-Mart argues that it is still entitled to judgment as a matter of law, because the evidence could never support a claim that its negligence was the proximate cause of plaintiff's damages. “Proximate cause is a concept which is more accurately defined by reference to the distinct concepts of which it is comprised, which are: (1) cause in fact; and (2) foreseeability.” Davis v. Christian Bhd. Homes of Jackson, Miss., Inc., 957 So.2d 390, 404 (Miss. Ct. App. 2007) (quotation marks and citation omitted). “Cause in fact means that the act or omission was a substantial factor in bringing about the injury, ...


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