United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S
 MOTION FOR SUMMARY JUDGMENT
SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE.
THE COURT is the Motion for Summary Judgment  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  should denied.
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.”
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.
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.
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  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.  at 1; Def.'s Mem. 
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.  at 9-10.
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.
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).
Relevant Legal Standards