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Lewis v. Kroger Limited Partnership I and Kroger Co.

United States District Court, S.D. Mississippi, Northern Division

October 13, 2017

KRISTEN LEWIS PLAINTIFF
v.
KROGER LIMITED PARTNERSHIP I AND THE KROGER CO. DEFENDANTS

          ORDER

          TOM S. LEE UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         It is 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.

         Summary 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).

         A 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, plaintiff

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 alternatives.

         In her 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?
A. No.
Q. All right. Do you know how long it had ...

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