United States District Court, N.D. Mississippi, Aberdeen Division
MEMORANDUM OPINION GRANTING DEFENDANT'S MOTION
FOR JUDGMENT AS A MATTER OF LAW
September 11, 2017, at the close of Plaintiff Cindy Armstrong
("Plaintiff) 's case in chief, this Court granted
the Defendant The Kroger Company ("Kroger")'s
motion for judgment as a matter of law for all the reasons
seminal case in the Fifth Circuit concerning motions for
judgment as a matter of law or motions for a directed verdict
is Boeing Co. v. Shipman, 411 F.2d 365, 368 (5th
Cir. 1969). See also Burch v. Coca-Cola Co., 119
F.3d 305 (5th Cir. 1997); Sobley v. S. Nat. Gas Co.,
302 F.3d 325 (5th Cir. 2002). Rule 50 of the Federal Rules of
Civil Procedure authorizes the entry of judgment as a matter
of law "[i]f a party has been fully heard on an issue
during a jury trial and the court finds that a reasonable
jury would not have a legally sufficient evidentiary basis to
find for the party on that issue." James v. Harris
County, Tex., 577 F.3d 612, 617 (5th Cir. 2009). This
Court must draw all reasonable inferences in favor of the
non-moving party. See Lytle v. Household Mfg., Inc.,
494 U.S. 545, 554-55, 110 S.Ct. 1331, 108 L.Ed.2d 504 (1990)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). "More
specifically, this Court should give credence to the evidence
favoring the non-moving party and any uncontradicted or
unimpeached evidence supporting the moving party, to the
extent such evidence comes from disinterested
witnesses." See Shelton v. Bd. of Superiors of So.
Superiors of So. Univ. & Agric. & Meek Coll.,
532 Fed.Appx. 558, 562 (5th Cir. 2013) (per curiam) (citing
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 151, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). The
aforecited cases stand for the premise that if the evidence
in a case is of such quality and weight that reasonable,
fair-minded jurors in the exercise of impartial judgment
could not reach a verdict on behalf of the plaintiff,
judgment as a matter of law should be granted. A mere
scintilla of evidence is not sufficient to give the case to
case sub judice, Plaintiff referred somewhat to the
doctrine of apparent authority under the law of the State of
Mississippi. " 'Under the law of agency, a principal
is bound by the actions of its agent within the scope of that
agent's real or apparent authority.' " Cent.
Indus., Inc. v. McFarlane, 159 So.3d 610, 614 (Miss. Ct.
App. 2015) (quoting Langham v. Behnen, 39 So.3d 970,
974-75 (Miss. Ct. App. 2010)). "Apparent authority
exists when a reasonably prudent person, having knowledge of
the nature and the usages of the business involved, would be
justified in supposing, based on the character of the duties
entrusted to the agent, that the agent has the power he is
assumed to have." Barnes, Broom, Dallas &
McLeod, PLLC v. Estate of Cappaert, 991 So.2d 1209, 1212
(Miss. 2008). "If an agent had apparent authority to
bind his or her principal, then the issue of actual authority
need not be reached." Andrew Jackson Life Ins. Co.
v. Williams, 566 So.2d 1172, 1180 (Miss. 1990). "In
order to recover under a theory of apparent authority, the
claimant must put forth 'sufficient evidence' of
'(1) acts or conduct of the principal indicating the
agent's authority, (2) reasonable reliance upon those
acts by [the claimant], and (3) a detrimental change in
position by [the claimant] as a result of that reliance.'
" Adams Cmty. Care Ctr. LLC v. Reed, 37 So.3d
1155, 1160 (Miss. 2010) (quoting Eaton v. Porter,
645 So.2d 1323, 1325 (Miss. 1994)). "An act is
considered to be within the agent's apparent authority
when a third party is justified in concluding that the agent
is authorized to perform it from the nature of the duties
which are entrusted to him. Apparent authority is to be
determined from the acts of the principal and requires
reliance and good faith on the part of the third party."
FSC Sec. Corp. v. McCormack, 630 So.2d 979, 985
(Miss. 1994) (citations omitted) (quoting Terrain Enters.
Inc. v. W. Cas. & Sur. Co., 774 F.2d 1320, 1322 (5th
Cir. 1985)). Only "[i]f there is sufficient evidence as
to each of the three elements of apparent authority, [is] the
issue '. . . a question of fact to be determined ... by
the jury.' " Morgan v. MML Inv'rs Servs.,
Inc., No. 2016-CA-00732-COA, 2017 WL 3712898, at *4
(Miss. Ct. App. Aug. 29, 2017) (quoting Eaton, 645
So.2d at 1325). Otherwise, the Court must grant the motion
for judgment as a matter of law.
Court finds that the Mississippi case most analogous to the
case sub judice is Cavalier Home Builders v.
Baughman, 126 So.3d 899 (Miss. Ct. App. 2012). In
Cavalier Home Builders, the Mississippi Court of
Appeals found that no agency relationship existed where the
plaintiffs claimed the purported agent had apparent authority
to act for and bind Cavalier Home Builders because the
plaintiffs believed an agency relationship existed; however,
the only binding documentation between Cavalier Home Builders
and the purported agent was a retailership agreement, and the
only evidence the plaintiffs could provide to support their
belief that he was Cavalier Home Builders' agent was a
white banner in his office with Cavalier Home Builders'
logo on it, reading "Authorized Dealer."
Id. at 903-04. Cavalier Home Builders testified that
the banner was not manufactured, distributed, approved, or
known to exist by Cavalier. The Mississippi Court of Appeals
held that the individual in question was not, and had never
been, Cavalier Home Builders' agent.
case, Kroger submitted with its previously filed motion for
summary judgment an exhibit of a Scan-Based Trading Agreement
[34-5] (the "Agreement") between Kroger and the
vendor, Smart Circle International. The Agreement was signed
on February 5, 2013, and provides that Smart Circle
International was a vendor of specifically designated Kroger
stores, that Kroger would receive products from the vendor on
a direct store delivery basis, and that the "title to
all Products is reserved in Vendor and does not transfer to
Kroger until immediately preceding the register scan."
Agreement [34-5] ¶ 2. The Agreement further provides in
pertinent part as follows: "The parties do not intend to
form a partnership, joint venture, principal-agent,
employer-employee, or any other relationship other than as
set forth in this [Agreement]. Neither party will have any
right or authority and will not attempt to enter into any
contract or commitment, or incur any debt or liability of any
nature, in the name of or on behalf of the other party."
Id. ¶ 15. Although the aforementioned
paragraphs in the Agreement would not defeat a claim for
apparent authority, the Court considers these paragraphs of
the Agreement, as well as the Agreement in toto, as
a factor in this determination.
Court further found instructive the following Mississippi
cases. In Central Industries, Inc. v. McFarlane, 159
So.3d 610 (Miss. Ct. App. 2015), the Mississippi Court of
Appeals upheld the trial court's determination that no
agency relationship was established where a truckdriver had
an agreement with a company to deliver its products using
trailers owned and controlled by that company; the
truckdriver was not an agent of the company despite that some
testimony supported that the company had control over the
inventory and weight of the trailer, given that the trailer
was empty at the time of the incidents giving rise to the
suit. Id. at 613. The Mississippi Court of Appeals
held that no agency relationship was established, because
control had not been demonstrated. Similarly, in Wood v.
Mossy Oak Properties, Inc., 120 So.3d 443 (Miss. Ct.
App. 2013), the Mississippi Court of Appeals found that no
agency relationship was demonstrated where the purported
agent testified that he was not selling property on the
company's behalf, the plaintiff testified that he never
signed papers indicating that the company was involved in the
sale of the property, and no evidence was presented of
conduct by the company that would indicate the purported
agent had authority to sell the subject property on the
company's behalf, even though the purported agent had
worked for the company in the past. Id. at 447. The
Mississippi Court of Appeals found detrimental to plaintiffs
argument on apparent authority that there was no evidence to
demonstrate the company acted in any way to convey to the
plaintiff that the purported agent was selling the property
on the company's behalf. Id.
case sub judice, this Court considered these
Mississippi cases and the lack of demonstrated apparent
authority in this case. The Court notes that Kroger is the
only defendant sued in the case subjudice. Had this
case been filed against Kroger and the vendor, Smart Circle
International, then the case may have been sufficient to go
to the jury. However, the Court must address matters as they
are presented. Therefore, on the present theory of the case
and lack of sufficient evidence, the Court granted
Kroger's motion for judgment as a matter of law.
Court also granted the motion for failure to establish a
premises liability claim. To prevail on her premises
liability claim, Plaintiff was required to ultimately prove
either (1) that Kroger's negligence injured her; (2) that
Kroger had knowledge of a dangerous condition and failed to
warn her; or (3) that a dangerous condition 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 ... 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
v. Am. Nat. Ins. Co., 109 So.3d 84, 89 (Miss. 2013)
(internal quotation marks, footnote, and citation omitted)
(emphasis in original). In the case sub judice,
Plaintiff Cindy Armstrong failed to put on evidence that
Kroger acted negligently. Additionally, Plaintiff failed to
put on evidence that a dangerous condition existed-or that
Kroger had constructive or actual knowledge of the same. As
demonstrated by the case law cited above, these were
prerequisites in Plaintiffs premises liability case under
Mississippi law. See Douglas v. Great Atl. & Pac. Tea
Co., 405 So.2d 107 (Miss. 1981).
of the foregoing reasons, Defendant The Kroger Company's
motion for ...