United States District Court, N.D. Mississippi, Aberdeen Division
LARRY J. STOKES PLAINTIFF
CAPTAIN D'S, LLC, STORE MASTER FUNDING I, LLC, and SHN PROPERTIES, LLC DEFENDANTS
Sharion Aycock UNITED STATES DISTRICT COURT JUDGE
Stokes originally filed this case in the Circuit Court of
Lowndes County. Stokes alleges that, on September 29, 2013,
he slipped and fell in a puddle of water on the floor of the
Captain D's restaurant in Columbus, Mississippi. Stokes
sustained a variety of injuries to his arm and knee,
including some permanent impairment. Stokes further alleges
that the leaking air conditioner or vent that created the
puddle was an ongoing issue, known to the Defendants for
years. The Defendants removed the case to this Court on the
basis of diversity jurisdiction. See Notice of
Removal [1, 21, 23]. Now before the Court is the
Defendants' Motion for Partial Summary Judgment 
requesting that the Court dismiss Stokes' claim for
punitive damages. Plaintiff Stokes filed a Response , and
the Defendants filed a Reply  making this issue ripe for
Rule of Civil Procedure 56 governs summary judgment. A party
may move for summary judgment, identifying each claim or
defense -or the part of each claim or defense- on
which summary judgment is sought. Fed.R.Civ.P. 56(a)
(emphasis added). Summary judgment is warranted when the
evidence reveals no genuine dispute regarding any material
fact, and the moving party is entitled to judgment as a
matter of law. Id. The rule “mandates the
entry of summary judgment, after adequate time for discovery
and upon motion, 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.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d
moving party “bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material
fact.” Id. at 323, 106 S.Ct. 2548. The
nonmoving party must then “go beyond the
pleadings” and “designate ‘specific facts
showing that there is a genuine issue for trial.'”
Id. at 324, 106 S.Ct. 2548 (citation omitted). In
reviewing the evidence, factual controversies are to be
resolved in favor of the non-movant, “but only when . .
. both parties have submitted evidence of contradictory
facts.” Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994). When such contradictory facts
exist, the Court may “not make credibility
determinations or weigh the evidence.” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120
S.Ct. 2097, 147 L.Ed.2d 105 (2000).
Mississippi Code authorizes punitive damages if a claimant
can “prove by clear and convincing evidence that the
defendant against whom punitive damages are sought acted with
actual malice, gross negligence which evidences a willful,
wanton, or reckless disregard for the safety of others . . .
.” Miss. Code Ann. § 11-1-65(1)(a).
“Mississippi law does not favor punitive damages; they
are considered an extraordinary remedy and are allowed
‘with caution and within narrow limits.'”
Warren v. Derivaux, 996 So.2d 729, 738 (Miss. 2008)
(citing Life & Cas. Ins. Co. of Tenn. v.
Bristow, 529 So.2d 620, 622 (Miss. 1988); Standard
Life Ins. Co. v. Veal, 354 So.2d 239, 247 (Miss. 1978)).
Punitive damages should be awarded in addition to actual or
compensatory damages where “the violation of a right or
the actual damages sustained, import insult, fraud, or
oppression and not merely injuries, but injuries inflicted in
the spirit of wanton disregard for the rights of others . . .
. [In other words, there must be] some element of aggression
or some coloring of insult, malice or gross negligence,
evincing ruthless disregard for the rights of others, so as
to take the case out of the ordinary rule.
Id. (citing Bradfield v. Schwartz, 936
So.2d 931, 936 (Miss. 2006) (alteration in original)).
declining to endorse a precise definition, the Mississippi
Supreme Court has approximated “gross negligence”
as “that course of conduct which, under the particular
circumstances, discloses a reckless indifference to
consequences without the exertion of any substantial effort
to avoid them.” McDonald v. Lemon-Mohler Ins.
Agency, LLC, 183 So.3d 118, 126 (Miss. Ct. App. 2015);
West Cash & Carry Building Materials, Inc. v.
Palumbo, 371 So.2d 873, 877 (Miss. 1979); Dame v.
Estes, 101 So.2d 644, 645 (Miss. 1958). Willful and
wanton conduct “‘usually is accompanied by a
conscious indifference to consequences, amounting almost to a
willingness that harm would follow.'” King v.
Dolgencorp, LLC, , No. 1:15-CV-367-LG-RHW, 2016 WL
4250415, at *1 (S.D.Miss. Aug. 10, 2016) (citing Pigford
v. Jackson Pub. Sch. Dist., 910 So.2d 575, 579 (Miss.
Ct. App. 2005) (quoting Maldonado v. Kelly, 768
So.2d 906, 910 (Miss 2000)). Willful and wanton conduct
should be distinguished from negligence in that it
“‘is a failure or refusal to exercise any care,
while negligence is a failure to exercise due
case, the Defendants have admitted vicarious liability for
the actions of their employees working at the restaurant. As
this Court, and others, has previously explained, punitive
damages are not available in Mississippi on the basis of
vicarious liability. See Littlejohn v. Werner
Enterprises, Inc., No. 1:14-CV-44-SA-DAS, 2015 WL
3484651 (N.D. Miss. June 2, 2015) (gathering cases); see
also Miss. Code. Ann. § 11-1-65. Therefore, any
punitive damages claim the Plaintiff may have in this case
must be based on the conduct of the Defendants, and not the
conduct of their employees. Therefore, the question now
before the Court is whether the Plaintiff has raised any
genuine issues of material fact as to the Defendants' own
conduct that could support a claim for punitive damages.
the summary judgment briefing in this case is devoted to
developing the parties' competing versions of the facts
of the case based on the discovery conducted. In particular,
the Court notes that there is much dispute over the period of
time that the air conditioner was leaking, perhaps
intermittently for years. The parties also dispute how much
water was accumulating and how often, what attempts were made
to fix the problem by whom and when, who knew about the leak
including corporate agents, and who had access to the
there are numerous disputed facts in this case related to the
extent of the Defendants' involvement, the Defendants
have admitted partial liability, and it appears likely at
this time that at least some compensatory damages are
warranted, albeit based on vicarious liability, ...