United States District Court, N.D. Mississippi, Aberdeen Division
MEMORANDUM OPINION DENYING DEFENDANT'S MOTION FOR
before the Court is Defendant The Kroger Company's motion
for summary judgment . Upon due consideration, the Court
finds the motion should be denied.
Factual and Procedural Background
April 4, 2016, Plaintiff Cindy Armstrong ("Plaintiff)
filed this personal injury action against Defendant The
Kroger Company ("Kroger") in the Circuit Court of
Alcorn County. On April 21, 2016, Kroger timely removed the
action to this Court. Subsequently, on April 22, 2016, Kroger
filed its answer to the complaint. On April 25, 2016,
Plaintiff filed a motion to remand  to which Kroger filed
a response . Subsequently, on June 17, 2016, while her
motion to remand was still pending, Plaintiff filed a motion
to withdraw  her motion to remand , stating that she
wished to have her action remain in federal court. The Court
granted her motion to withdraw, finding that diversity
jurisdiction was established in the case subjudice.
See Ct.'s Order  & Mem. Op.  Granting
Mot. Withdraw Mot. Remand . The parties then engaged in
discovery. On February 9, 2017, Kroger filed the present
motion for summary judgment  to which Plaintiff filed a
response and Kroger filed a reply.
Plaintiffs complaint, she alleges that she "drove her
automobile to the Kroger gas pumps in Corinth, Mississippi,
when she slipped, fell[J and was injured" and that
Kroger negligently caused Plaintiffs injuries by
"[c]reating a dangerous condition on its premises";
"[f]ailing to warn [Plaintiff] of a dangerous condition
on its premises"; "[f]ailing to clean the dangerous
condition from its premises"; and "[f]ailing to
keep its premises in a safe condition." PL's
State-Ct Compl.  ¶¶ 4-5. Plaintiff further
alleges that "[a]s a direct result of Kroger's
negligence [Plaintiff] has suffered" the following:
past, present, and future medical expenses; pain and
suffering; loss of enjoyment of life; and emotional distress.
Id. ¶ 6.
factual record was further developed after discovery, as
follows. Plaintiff was a Kroger customer who was purchasing
and pumping gas at the Corinth Kroger. A table/booth was set
up to the edge of the gas pumps with a banner stating
"Earn 4x fuel points with [Kroger] card." While she
was at the gas pump, a salesman approached Plaintiff to
demonstrate a NASCAR-related automobile
dust-and-rain-repellant spray. The salesman apparently worked
for a company called Smart Circle International, which had a
vendor-store agreement with Kroger. The salesman sprayed the
bottom area and a tire of Plaintiffs car and wiped off the
spray with a cloth. The salesman then stated the terms of the
sale of the product. Plaintiff testified in her deposition
that the salesman "said that he was working on behalf of
Kroger and that [she] got a discount if she had her Kroger
card." PL's Dep. [31-3] at 4, [38-1] at 11.
Plaintiff responded that she was not interested in purchasing
the product. Plaintiff stated in her responses to
Kroger's interrogatories that "[t]he spray got on
Plaintiffs foot[, ] causing her to slip and fall, "
which resulted in a broken left arm and bruised right knee.
PL's Resp. to Def.'s Interrogs. [34-10] at 7.
Kroger's motion for summary judgment, it denies liability
for damages arising from the subject incident.
Summary Judgment Standard
Court grants summary judgment "if the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine dispute as to any
material fact and that the movant is entitled to judgment as
a matter of law." See Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, Ml U.S. 317, 322, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986); Weaver v. CCA Indus.,
Inc., 529 F.3d 335, 339 (5th Cir. 2008). The rule
"mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails
to make a sufficient showing 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."
Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548.
party moving for summary judgment bears the initial
responsibility of informing the Court of the basis for its
motion and identifying those portions of the record it
believes demonstrate the absence of a genuine dispute of
material fact. See Id. at 323, 106 S.Ct. 2548. Under
Rule 56(a), the burden then shifts to the nonmovant to
"go beyond the pleadings and by .. . affidavits, or by
the 'depositions, answers to interrogatories, and
admissions on file, ' designate 'specific facts
showing that there is a genuine issue for trial.' "
Id. at 324, 106 S.Ct. 2548; Littlefield v.
Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir.
2001); Willis v. Roche Biomedical Labs., Inc., 61
F.3d 313, 315 (5th Cir. 1995). Where, as here, the parties
dispute the facts, the Court must view the facts and draw
reasonable inferences in the light most favorable to the
plaintiff. See Scott v. Harris, 550 U.S. 372, 378,
127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (internal citations
omitted). "However, a nonmovant may not overcome the
summary judgment standard with conclusional allegations,
unsupported assertions, or presentation of only a scintilla
of evidence." McClure v. Boles, 490 F.App'x
666, 661 (5th Cir. 2012) (per curiam) (citing
Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir.
Analysis and Discussion
argues in its motion for summary judgment that on the day of
Plaintiffs slip-and-fall, there were no reported problems
with debris or substances on the ground or with the gas
pumps, nor was there any rain. Kroger further argues that its
personnel regularly check the grounds of its premises.
Finally, Kroger argues that it has no liability for the
slip-and-fall, because the salesman in question was a Smart
Circle International employee who did not work for Kroger.
argues in response that Kroger created the danger that caused
Plaintiffs slip-and-fall and injuries. Plaintiff further
argues that even if the salesman was not a Kroger employee,
Kroger was negligent, because the salesman had set up a tent
on Kroger's business premises with Kroger's knowledge
and was soliciting Kroger customers and conducting
demonstrations of the spray while in close proximity to
Kroger customers. Plaintiff further argues that a photograph
(also submitted by Kroger as an attachment to its motion for
summary judgment) showing a booth on Kroger's business
premises with the banner stating "Earn 4x fuel points
with [Kroger] card" "shows that the man doing the
demonstration for [Plaintiff] was either a Kroger employee
(as he identified himself to [Plaintiff]) or working for [a]
business that was partnered with Kroger." PL's Resp.
Opp'n to Def.'s Mot. Summ. J.  at 3 n.l.
Plaintiff maintains that Kroger should have known about the
foreseeable danger such spray could pose to Kroger customers
and that Kroger should have taken the proper steps to prevent
premises-liability case, "duty is contingent on the
status of the injured person. Thus, the first step in
determining duty is to identify the status of the injured at
the time of the injury." Albert v. Scott's Truck
Plaza, Inc., 978 So.2d 1264, 1266 (Miss. 2008). Because
the pertinent facts to the determination of Plaintiffs
classification are not in dispute, her classification is a
question of law for the Court. See Id. at 1267.
Based on the undisputed facts in this case, Plaintiff was a
Kroger customer who was on the premises to pump gas into her
vehicle; therefore, Plaintiff was a business invitee of
Kroger on the date in question. See Karpinsky v. Am.
Nat'l Ins. Co., 109 So.3d 84, 89 (Miss. 2013) (store
customer is business invitee). Under Mississippi law, the
owner or operator of business premises "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." Vivians
v. Baptist Healthplex, No. 2014-CT-01828-SCT, 2017 WL
2813303, at *2 (Miss. June 29, 2017) (internal quotation
marks and citations omitted); Jones v. Wal-Mart Stores K,
LP, 187 So.3d 1100, 1103 (Miss. Ct. App. 2016) (citing
Jerry Lee's Grocery, Inc. v. Thompson, 528 So.2d
293, 295 (Miss. 1988)).
prevail on her premises liability claim, Plaintiff must
ultimately prove either (1) that Kroger's negligence
injured her, (2) that Kroger had knowledge of the dangerous
condition and failed to warn her, or (3) that the condition
existed for a sufficient amount of time such that Kroger
should have had knowledge or notice of the condition
(constructive knowledge). See Estate of Kiihnl v. Family
Dollar Stores of Miss., Inc.,197 So.3d 920, 924 (Miss.
Ct. App. 2016). "Mississippi law further requires that
when a dangerous condition exists that was created by someone
not associated with the business, the plaintiff must
produce evidence that the owner or operator had actual
or constructive knowledge of the dangerous condition as well
as a sufficient opportunity to correct it."
Karpinsky, 109 So.3d at 89 (internal quotation
marks, footnote, and citation omitted) (emphasis in
original). However, "[p]roof of notice is not necessary
if the condition was created by the negligence of the
proprietor or someone under his authority." Drennan
v. Kroger Co.,672 So.2d 1168, 1172 (Miss. 1996).
"To recover in a negligence action[, ] ...