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Tenhet v. Strategic Restaurant Acquisition Co., LLC

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

December 20, 2017

WILLIAM TENHET PLAINTIFF
v.
STRATEGIC RESTAURANT ACQUISITION COMPANY, LLC, and JOHN AND JANE DOES 1-10 DEFENDANTS

          MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S [13] MOTION FOR SUMMARY JUDGMENT

          HALIL SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE.

         BEFORE THE COURT is the Motion for Summary Judgment [13] filed by Defendant Strategic Restaurant Acquisition Company, LLC. Plaintiff William Tenhet has not responded to the Motion, and the time for doing so has passed. After consideration of the Motion on its merits, the related pleadings, the record, and relevant legal authority, the Court finds that Defendant's Motion [13] should denied.

         I. BACKGROUND

         A. Factual Background

         On the afternoon of June 11, 2014, Plaintiff William Tenhet (“Plaintiff”) and his sister went to dine at a Burger King restaurant owned by Defendant Strategic Restaurant Acquisition Company, LLC (“Defendant”), and located in Long Beach, Mississippi. Pl.'s Dep. [14-2] at 64-65; see also Compl. [1-2] at 2. Plaintiff claims that as he was walking through the parking lot towards the restaurant, he stepped into an uncovered meter hole, causing him to fall to the concrete and suffer injuries. Pl.'s Dep. [14-2] at 64-68, 76-77; see also Compl. [1-2] at 2. According to Plaintiff, the hole was approximately 12- to 18-inches wide and “[a]bout a foot or more” deep. Pl.'s Dep. [14-2] at 73. “And inside the hole was [sic] the remnants of the top that was supposed to be on it.” Id.

         Just prior to the incident, Plaintiff was walking ahead of his sister in the direction of the restaurant. Id. at 68. Plaintiff turned to look behind him towards his sister, and as he turned to look in the direction he was walking, “next thing I know I am face first. It was like I stepped off a cliff.” Id. Plaintiff “wasn't really looking at the ground” while he walked, and he “stepped straight into the hole.” Id. at 70. Plaintiff testified that when he fell, his head struck the ground, causing him severe injuries and pain. Id. at 76-78.

         B. Procedural History

         On March 22, 2017, Plaintiff filed a Complaint in the Circuit Court of Harrison County, Mississippi, Second Judicial District, advancing claims against Defendant for negligence, negligent supervision/training, negligent infliction of emotional distress, respondeat superior, and res ipsa loquitur. Compl. [1-3] at 3-6. The Complaint alleges that Defendant knew or should have known of the existence of the uncovered meter hole in the restaurant parking lot, which was not open or obvious and which created a hazard to others on the property. Id. at 2.

         Defendant removed the case to this Court on May 8, 2017, on grounds of diversity jurisdiction. On October 11, 2017, Defendant filed a Motion for Summary Judgment [13] seeking dismissal of Plaintiff's claims. Defendant argues that Plaintiff “cannot show that the alleged negligence by the Defendant created an unreasonably dangerous condition, ” precluding Plaintiff's claims as a matter of law. Def.'s Mot. for Summ. J. [13] at 1; Def.'s Mem. [14] at 5-9. Defendant further asserts that the hole was an open and obvious condition that Plaintiff would have noticed and could have easily navigated without injury if he had been watching where he was walking. Def.'s Mem. [14] at 9-10.

         Defendant has supplied the Affidavit of Kyle Ehrenreich [14-3], a private investigator. Ehrenreich avers that on September 21, 2017, over three years after Plaintiff's incident, he photographed the meter hole and measured its size with a standard measuring tape. Aff. of Kyle Ehrenreich [14-3] at 1. According to Ehrenreich's measurements, the hole was approximately 11-inches wide and 5.75-inches deep. Id. at 2.

         Because Plaintiff has not responded to Defendant's Motion for Summary Judgment, the Court considers the Motion on its merits, without the benefit of a Response. See, e.g., Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 362 n.3 (5th Cir. 1995).

         II. DISCUSSION

         A. Relevant Legal Standards

         1. Summary ...


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