United States District Court, S.D. Mississippi, Northern Division
LEE UNITED STATES DISTRICT JUDGE
Kristen Lewis filed this action against defendants The Kroger
Company and Kroger Limited Partnership I (Kroger) seeking to
recover damages for injuries she sustained in a slip-and-fall
at a local Kroger store. Kroger has now moved for summary
judgment pursuant to Federal Rule of Civil Procedure 56. In
addition, Kroger has filed a motion to strike an affidavit
which plaintiff submitted in support of her response to
Kroger's summary judgment motion. Lewis has responded in
opposition to Kroger's motion for summary judgment, but
has not responded to the motion to strike. The court, having
considered the memoranda of authorities, together with
attachments, submitted by the parties, concludes that the
motion to strike should be granted and that the motion for
summary judgment should also be granted.
undisputed that on July 12, 2015, while shopping at the
Kroger store in Byram, Mississippi, Lewis fell in the seafood
department and sustained injuries as a result. Kroger
contends it is entitled to summary judgment on Lewis's
claim against it since she has no evidence tending to show
that Kroger created any condition resulting in her
slip-and-fall or that Kroger had actual or constructive
knowledge of any allegedly dangerous condition which may have
caused her fall.
judgment is proper “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). A genuine dispute of material fact exists “if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505,
91 L.Ed.2d 202 (1986). At the summary judgment stage, the
court must view the evidence in the light most favorable to
the non-movant, and it may not make credibility
determinations or weigh the evidence. Abarca v. Metro.
Transit Auth., 404 F.3d 938, 940 (5th Cir. 2005);
Reeves v. Sanderson Plumbing Prods., 530 U.S. 133,
150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Once the moving
party shows there is no genuine dispute as to any material
fact, the nonmoving party “must come forward with
specific facts showing a genuine factual issue for
trial.” Harris ex rel. Harris v. Pontotoc Cty. Sch.
Dist., 635 F.3d 685, 690 (5th Cir. 2011).
premises-liability plaintiff is not entitled to recover
simply because she fell on the defendant's premises.
See Bonner v. Imperial Palace of Miss., LLC, 117
So.3d 678 at *6 (Miss. App. 2013) (“Mere proof of the
occurrence of a fall on a floor within [the] business
premises is insufficient to show negligence on the part of
the proprietor.”) (internal quotation marks and
citation omitted). A premises owner is not required to insure
against all injuries, even for an invitee such as plaintiff;
rather, its duty to an invitee is “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 or occupant
knows of, or should know of, in the exercise of reasonable
care.” Robinson v. Ratliff, 757 So.2d 1098,
1101-02 (Miss. Ct. App. 2000). To succeed on her claim,
must prove either that (1) that defendant's own
negligence created a dangerous condition which caused
plaintiff's injury; (2) that defendant had actual
knowledge of a condition which defendant itself did not
cause, but defendant failed to adequately warn plaintiff of
the danger . . . faced as an invitee; or (3) that, based upon
the passage of time, defendant should have known of the
dangerous condition caused by another party if defendant had
acted reasonably, i.e., constructive knowledge of the
condition should be imputed to the defendant.
Vu v. Clayton, 765 So.2d 1253, 1255 (Miss. 2000)
(citations omitted). Plaintiff has failed to present evidence
sufficient to create an issue for trial under any of these
complaint, plaintiff alleged that a “wet substance on
the floor” of the Kroger caused her to slip and fall.
She charged that Kroger was negligent in that it
“maintained said premises in a dangerous and unsafe
condition by failing to replace or repair a leaking freezer
unit and by failing to clean, sweep and/or mop the affected
area where Plaintiff fell” and by failing to warn
plaintiff and other customers of the dangerous condition. In
her deposition, plaintiff was shown a photograph of the area
taken immediately after her fall which depicts a couple of
small spots or puddles of liquid and asked whether that
“[was] even what she fell in.” She responded,
“I'm not sure. I just know I fell from
something.” Asked whether she believed that the display
cooler/freezer was leaking, as she had alleged in her
complaint, she responded, “I'm not sure.”
Asked whether she contended Kroger knew there was water on
the floor before she fell, she again responded,
“I'm not sure.” Asked whether she knew what
she slipped in, she replied, “Water. I don't know.
I mean I ... I don't know.” Again asked whether she
slipped in the water shown in the photograph, she responded,
as she had previously, “I mean I don't know. I know
I just slipped. That's all I know.” Asked whether
what was depicted in the photograph was a puddle, she
responded as follows:
A. It's something.
Q. All right. What do you mean by it's something?
A. It's liquid.
Q. All right. Do you know where it came from?
Q. All right. Do you know how long it had ...