United States District Court, S.D. Mississippi, Northern Division
CARLTON W. REEVES UNITED STATES DISTRICT JUDGE.
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.
November 18, 2012,  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.
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
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).
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).
seeks to recover on a negligence claim of premises liability
for defendant's alleged failure to provide adequate
security. “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.” 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.
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)).
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
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.
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, ...