United States District Court, S.D. Mississippi, Southern Division
THOMAS A. CLAWSON PLAINTIFF
WAL-MART STORES, INC. DEFENDANT
MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR
GUIROLA, JR., CHIEF U.S. DISTRICT JUDGE
THE COURT is the  Motion for Summary Judgment filed by
the defendant, Wal-Mart Stores, Inc., in this premises
liability case. The plaintiff has not responded. After due
consideration of the defendant’s submissions and the
relevant law, it is the Court’s opinion that there is
no question of material fact for the jury in this case.
Accordingly, the summary judgment motion will be granted and
this case dismissed.
Clawson alleges that while he was shopping in the Wal-Mart
store in Gulfport, Mississippi, he “suddenly and
without warning slipped in a wet slippery area of a store
passageway.” (Compl. 2, ECF No. 1). He claims to have
suffered serious physical and emotional injuries as a result.
(Id.). Wal-Mart seeks summary judgment on the basis
that Clawson has produced no evidence showing that it is
liable for his injuries under Mississippi premises liability
judgment is mandated against the 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
has the burden of proof at trial. Fed. R. Civ. P. 56(e);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Factual controversies are resolved in favor of the nonmoving
party, but only when there is an actual controversy; that is,
when both parties have submitted evidence of contradictory
facts. Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994). Clawson has not submitted any argument
or evidence in opposition to Wal-Mart’s Motion.
Nevertheless, Wal-Mart has the burden of establishing the
absence of a genuine issue of material fact and, unless it
has done so, the Court may not grant the Motion, regardless
of whether any response was filed. Hibernia Nat. Bank v.
Administracion Cent. Sociedad Anonima, 776 F.2d 1277,
1279 (5th Cir. 1985).
is no question that Mississippi law classifies Clawson as a
business invitee on the premises of Wal-Mart at the time of
his alleged injury. Little by Little v. Bell, 719
So. 2d 757, 760 (Miss. 1998) (“An invitee is a person
who goes upon the premises of another in answer to the
express or implied invitation of the owner or occupant for
their mutual advantage.”). The duty owed by a premises
owner to a business invitee is the duty “to exercise
reasonable or ordinary care to keep the premises in a
reasonably safe condition or to warn of dangerous conditions
not readily apparent, which the owner knows of, or should
know of, in the exercise of reasonable care.”
Hartford v. Beau Rivage Resorts, Inc., 179 So. 3d
89, 91 (Miss. Ct. App. 2015) (citation omitted). However,
“the owner/occupier is not an insurer of the
invitee’s safety, and he is not liable for injuries
which are not dangerous or which are, or should be known to
the business invitee.” McSwain v. Sys. Energy Res.,
Inc., 97 So. 3d 102, 107 (Miss. Ct. App. 2012) (citation
omitted). Mere proof of an injury by a business invitee
“is not the basis for premises liability, rather
negligence of the business owner must be shown.”
Almond v. Flying J Gas Co., 957 So. 2d 437, 439
(Miss. Ct. App. 2007) (citation omitted). To succeed on a
premises liability claim, the plaintiff must show: (1) a
negligent act by the defendant caused the plaintiff’s
injury; or, (2) the defendant had actual knowledge of a
dangerous condition, but failed to warn the plaintiff of the
danger; or, (3) the dangerous condition remained long enough
to impute constructive knowledge to the defendant. Garson
v. Circus Circus Miss., Inc., 135 So. 3d 932, 934 (Miss.
Ct. App. 2014) (citations and quotation marks omitted).
argues that Clawson cannot show evidence of any of the three
liability alternatives above, attaching deposition testimony
from Clawson and his fiancé in support. Specifically,
Clawson testified that he slipped and fell in what he
described as “little spots” of a clear liquid
consistent with something leaking from a customer’s
cart. (Def. Mot. Ex. A 81-82, ECF No. 21-1). There were no
footprints or tracks through the liquid. (Id. at
86). He did not know how the liquid came to be on the floor,
how long it was there, or if any Wal-Mart employee knew it
was there. (Id. at 86-87, 95).
fiancé was shopping with him at the time of the
incident. She testified that Clawson had slipped in a little
puddle of water with buggy tracks going through it. (Def. Ex.
B 24, ECF No. 21-2). She did not know how long the liquid had
been on the floor, where it had come from, if Wal-Mart was
responsible for putting it there, or if Wal-Mart knew it was
there. (Id. at 24, 27, 36-37).
store manager on duty at the time of the incident provided an
affidavit regarding store procedures. (Def. Mot. Ex. C, ECF
No. 21-3). Associates were instructed to be on the lookout
for spills and potential hazards. (Id. at 1). They
were required to carry pocket towels for small spills, and
cleaning stations were located throughout the store.
(Id.). Spills were to be guarded until cleaned or
corrected. (Id. at 2). Additionally, managers and
maintenance personnel performed sweeps during the day to
check for hazards. (Id.).
evidence submitted in this case fails to substantiate
Clawson’s claim of premises liability. There is no
indication that the liquid was on the floor because Wal-Mart
committed some negligent act, that Wal-Mart had knowledge of
the liquid on the floor, or that the liquid was on the floor
long enough that Wal-Mart should have known it was there. The
evidence shows only that Clawson was injured in the Wal-Mart
store, which is not sufficient to establish premises
liability under Mississippi law. Accordingly, Wal-Mart has
shown there is no question of material fact for the jury. The
Motion for Summary Judgment will be granted.
IS THEREFORE ORDERED AND ADJUDGED that the 
Motion for Summary Judgment filed by Defendant Wal-Mart
Stores, Inc. is GRANTED. Plaintiff’s
claims are DISMISSED.