United States District Court, S.D. Mississippi, Eastern Division
MARVIN MCCRANEY, JR. PLAINTIFF
MURPHY OIL USA, INC. DEFENDANT
MEMORANDUM OPINION AND ORDER
STARRETT UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Motion for Summary Judgment
 filed by Defendant Murphy Oil USA, Inc. After
considering the submissions of the parties, the record, and
the applicable law, the Court finds that this motion is well
taken and should be granted.
March 17, 2014, Plaintiff Marvin McCraney
(“Plaintiff”) fell next to a pumping station at a
Murphy Oil gas station located at 955 Highway 98 in Columbia,
MS. The undisputed facts reveal there was a spill next to one
of the pumps, and Defendant Murphy Oil USA, Inc.
(“Defendant”) put down a gritty, “kitty
litter” like substance to absorb the spill near where
Plaintiff fell. In the case of a spill, Angela Ervin, a
former Murphy Oil employee, testified that employees were
supposed to put down the “kitty litter”
substance, and block off the pump until the spill had dried.
(See Deposition of Angela Ervin [55-1] at p. 5.)
There was no cone or warning blocking the pump where
Plaintiff fell. (See Deposition of Marvin McCraney
[55-2] at p. 19.) No one witnessed Plaintiff fall, and there
is no photographic or video evidence. Plaintiff testified
that he does not know what caused him to fall but claimed
that his feet slipped out from under him. (See
Deposition of Marvin McCraney [55-2] at p. 11-12.) On April
28, 2016, Plaintiff filed suit against Defendant, who then
removed the case to this Court on the grounds of diversity.
Defendant filed this Motion for Summary Judgment  and
contends Plaintiff is incapable of establishing causation, an
essential element of his claim.
Standard of Review
Rule of Civil Procedure 56 provides that “[t]he court
shall 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). “Where the burden of production at
trial ultimately rests on the nonmovant, the movant must
merely demonstrate an absence of evidentiary support in the
record for the nonmovant's case.” Cuadra v.
Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir.
2010) (citation and internal quotation marks omitted). The
nonmovant must then “come forward with specific facts
showing that there is a genuine issue for trial.”
Id. “An issue is material if its resolution
could affect the outcome of the action.” Sierra
Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d
134, 138 (5th Cir. 2010) (quoting Daniels v. City of
Arlington, Tex., 246 F.3d 500, 502 (5th Cir. 2001)).
“An issue is ‘genuine' if the evidence is
sufficient for a reasonable [fact-finder] to return a verdict
for the nonmoving party.” Cuadra, 626 F.3d at
812 (citation omitted).
Court is not permitted to make credibility determinations or
weigh the evidence. Deville v. Marcantel, 567 F.3d
156, 164 (5th Cir. 2009) (citing Turner v. Baylor
Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir.
2007)). When deciding whether a genuine fact issue exists,
“the court must view the facts and the inferences to be
drawn therefrom in the light most favorable to the nonmoving
party.” Sierra Club, 627 F.3d at 138. However,
“[c]onclusional allegations and denials, speculation,
improbable inferences, unsubstantiated assertions, and
legalistic argumentation do not adequately substitute for
specific facts showing a genuine issue for trial.”
Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002)
(citation omitted). Summary judgment is mandatory
“against a party who fails to make a showing sufficient
to establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Brown v. Offshore
Specialty Fabricators, Inc., 663 F.3d 759, 766 (5th Cir.
2011) (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
complaint, Plaintiff asserts a claim for negligence arising
from his fall. Defendant argues that Plaintiff lacks the
necessary evidence to prove causation, a necessary element of
any negligence claim.
law provides “[p]laintiffs must, in order to recover on
a negligence claim, demonstrate that the defendant breached a
particular duty owed to the plaintiff, and that the breach of
duty proximately caused damages.” Mitchell v.
Ridgewood E. Apartments, LLC, 205 So.3d 1069, 1074
(Miss. 2016) (internal quotation marks omitted). “In
order for an act of negligence to proximately cause . . .
damage, the fact finder must find that the negligence was
both the cause in fact and legal cause of the damage.”
Glover ex rel. Glover v. Jackson State Univ., 968
So.2d 1267, 1277 (Miss. 2007). “[T]he cause in fact of
an injury is ‘that cause which, in natural and
continuous sequence unbroken by any efficient intervening
cause, produces the injury and without which the injury would
not have occurred.'” Id. (quoting
Gulledge v. Shaw, 880 So.2d 288, 293 (Miss. 2004)).
“[N]egligence which is found to be the cause in fact of
a plaintiff's damage will also be the legal cause of that
damage, provided the damage is the type, or within the
classification, of damage the negligent actor should
reasonably expect (or foresee) to result from the negligent
act.” Glover, 968 So.2d at 1277.
argues that, if taking all reasonable inferences in his
favor, the facts show he slipped and fell because of
Defendant's negligence, but Plaintiff mistakenly
classifies unsubstantiated assertions as reasonable
inferences. Plaintiff asserts that he fell due to the ground
being slippery, but there is not sufficient evidence to
support this allegation. There are no witnesses that saw
Plaintiff fall, and there also is no video or photographic
evidence of the fall. Therefore, the only person who can
testify as to what caused the fall is Plaintiff, and he
stated multiple times in his deposition that he does not know
what caused him to fall. (See Deposition of Marvin
McCraney [55-2] at p. 10-12.) When asked if he knew what the
surface was that caused him to fall, Plaintiff said he did
not. (See Deposition of Marvin McCraney [55-2] at p.
11-12.) Plaintiff also stated he did not know what he slipped
on. (See Deposition of Marvin McCraney [55-2] at p.
9.) There is also no evidence that the ground was actually
slippery when Plaintiff fell. All the evidence shows is that
there was a spill at some point, Defendant put down some of
the “kitty litter” substance to clean it, and
Plaintiff fell in the area of the spill. The mere fact that
Plaintiff fell in the same area that the spill had previously
occurred is insufficient evidence to show that spill caused
the slip and fall.
has failed to prove that the probable cause of his fall is
the negligence of Defendant. “In order to satisfy the
proximate-cause element, ‘[t]he plaintiff must
introduce evidence which affords a reasonable basis for the
conclusion that it is more likely than not that the conduct
of the defendant was a cause in fact of the result. A mere
possibility of such causation is not enough.'”
Barrow v. May, 107 So.3d 1029, 1034 (Miss. Ct. App.
2012) (quoting Burnham v. Tabb, 508 So.2d 1072, 1074
(Miss. 1987)). “While inferences of negligence may be
drawn from circumstantial evidence, those inferences must be
the only ones which reasonably could be drawn from the
evidence presented, and if the circumstantial evidence
presented lends itself equally to several conflicting
inferences, the trier of fact is not permitted to select the
inference it prefers, since to do so would be the equivalent
of engaging in pure speculation about the facts.”
Duncan v. Forrest General Hosp., 130 So.3d 126, 128
(Miss. Ct. App. 2013) (internal citation omitted). Based on
the evidence presented, the likelihood that Plaintiff fell
because of a seizure is at a minimum equally as likely as
Plaintiff falling due to the negligence of Defendant.
contends that there has been no reasonably reliable evidence
presented supporting the theory that he fell due to a
seizure. During his deposition, Plaintiff said he has never
had a seizure and has no memory of telling doctors he had a
seizure. (See Deposition of Marvin McCraney [55-2]
at p. 26-27.) However, Defendant has presented multiple
documents that show a reasonable possibility the fall was
caused by a seizure. (See Document
[60-2][60-4][60-6].) The Fire Department report states
“Patient's family advised that [Plaintiff] had a
seizure and caused him to fall.” (See Fire
Department Report [60-2] at p. 1.) The ambulance report also
states it was dispatched for a “patient that had [a
seizure, ] fell and struck his head.” (See AAA
Ambulance Records [60-4] at p. 4.) Finally, the documents
from Plaintiff's emergency visit state he “was
getting his car filled up at a gas station and suddenly fell
over and started to have seizure activity.”