United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
GUIROLA, JR. UNITED STATES DISTRICT JUDGE.
THE COURT is the  Motion for Summary Judgment
filed by the defendant Wal-Mart Stores East, LP, in this
premises liability lawsuit. The parties have fully briefed
the Motion. After reviewing the submissions of the parties,
the record in this matter, and the applicable law, the Court
finds that the Motion for Summary Judgment should be granted.
The Court further finds that the plaintiff Darrell
Pettaway’s claims against John Does 1-5 should be
dismissed, because the deadline for naming these parties has
December 20, 2013, Pettaway slipped and fell in the
automotive supply section of the Wal-Mart store in
Pascagoula, Mississippi. He testified during a deposition
that he is not sure what kind of substance he stepped in that
caused him to slip, but he believes it was a liquid soap,
such as Armour All. (Pl.’s Resp., Ex. D at 94, ECF No.
39-4). He does not where the substance came from, and he did
not see an open container in the aisle. (Id.) He
does not know how long the substance was on the floor or how
the substance came to be on the floor. (Id.)
filed this lawsuit in the County Court of Jackson County,
Mississippi, alleging negligence and negligent infliction of
emotional distress claims against Wal-Mart. Wal-Mart removed
the case to this Court and filed the present Motion for
motion for summary judgment may be filed by any party
asserting that there is no genuine issue of material fact and
that the movant is entitled to prevail as a matter of law on
any claim. Fed. R. Civ. P. 56. The movant bears the initial
burden of identifying those portions of the pleadings and
discovery on file, together with any affidavits, which it
believes demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986). Once the movant carries its burden, the
burden shifts to the non-movant to show that summary judgment
should not be granted. Id. at 324-25. The non-movant
may not rest upon mere allegations or denials in its
pleadings but must set forth specific facts showing the
existence of a genuine issue for trial. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986).
parties do not dispute that Pettaway was a business invitee
when he visited the Wal-Mart store. Therefore, Wal-Mart had a
duty to “keep [the] premises in a reasonably safe
condition and to warn of dangerous conditions which are not
readily apparent to the invitee.” K-Mart Corp. v.
Hardy, 735 So. 2d 975, 981 (¶14) (Miss. 1999). Mere
proof of a fall within a business is insufficient to recover
on a negligence claim. Rod v. Home Depot USA, Inc.,
931 So. 2d 692, 695 (¶12) (Miss. Ct. App. 2006).
“A business owner/operator is not the insurer of the
invitee’s safety.” Id.
In order for an invitee to recover in a slip-and-fall case,
the invitee must (1) show that some negligent act of the
defendant caused his injury; or (2) show that the defendant
had actual knowledge of a dangerous condition and failed to
warn the plaintiff; or (3) show that the dangerous condition
existed for a sufficient amount of time to impute
constructive knowledge to the defendant, in that the
defendant should have known of the dangerous condition.
Moore v. Rouse’s Enters., LLC, 219 So. 3d 599,
602 (¶7) (Miss. Ct. App. 2017) (quoting Grammar v.
Dollar, 911 So. 2d 619, 624 (¶12) (Miss. Ct. App.
has no evidence that Wal-Mart had actual or constructive
knowledge of the spill. However, he argues that this Court
should presume that Wal-Mart had knowledge of the spill
pursuant to the spoliation doctrine, because Wal-Mart has not
produced surveillance video of his accident. “Under the
spoliation doctrine, a jury may draw an adverse inference
that a party who intentionally destroys important evidence in
bad faith did so because the contents of those documents were
unfavorable to that party.” Schreane v.
Beemon, 575 F. App’x 486, 490 (5th Cir. 2014)
(quoting Whitt v. Stephens Cty., 529 F.3d 278, 284
(5th Cir. 2008)). “The Fifth Circuit permits an adverse
inference against the destroyer of evidence only upon a
showing of ‘bad faith’ or ‘bad
conduct.’” Id. “Bad faith, in the
context of spoliation, generally means destruction for the
purpose of hiding adverse evidence.” Guzman v.
Jones, 804 F.3d 707, 713 (5th Cir. 2015). “In
borderline cases, an inference of spoliation, in combination
with some (not insubstantial) evidence for the
plaintiff's cause of action, can allow the plaintiff to
survive summary judgment.” Whitt, 529 F.3d at
285 (quoting Byrnie v. Cromwell Bd. of Educ., 243
F.3d 93, 107 (2d Cir. 2001). However, a spoliation inference
is insufficient to survive summary judgment where
“there is little other substantial summary judgment
evidence of liability against” the defendant.
interrogatory responses, Wal-Mart testified that its former
asset protection manager “attempted to download and
copy video of the incident but was unable to do so due to a
mechanical problem with the video system.” (Pl.’s
Resp., Ex. G at 7-8, ECF No. 39-7). Wal-Mart also testified
that “it has no video of the incident, or the area of
the incident obtained at any time on the day of the incident
. . . .” (Id. at 9). Wal-Mart’s current
asset protection manager has testified by affidavit that
surveillance cameras in the area of Pettaway’s accident
would not have captured the accident or an individual
spilling a product on the floor, as the camera only captures
the top portion of the aisle. (Def.’s Mot., Ex. 7, ECF
memorandum in response to the Motion for Summary Judgment,
Pettaway claims that Wal-Mart’s 30(b)(6) designee
testified that Wal-Mart “had video surveillance over
its entire store and the areas in questions [sic].”
(Pl.’s Mem. at 2, 6, ECF No. 40). However, the designee
actually testified that the surveillance cameras in the store
do not cover every aisle and that he did not know whether the
aisle where Pettaway fell would have been captured on video.
(Pl.’s Resp., Ex. A at 48-50, ECF No. 39-1). Pettaway
also argues that Wal-Mart’s 30(b)(6) designee
“concedes that Mr. Pettaway received a call from a
Wal-Mart representative saying she had reviewed the video
footage.” (Pl.’s Mem. at 10, ECF No. 40). The
30(b)(6) designee actually testified that he did not know
whether Pettaway would have received such a call, but if
Pettaway had received such a call it would have been from
Claims Management, Incorporated, the company that handles
Wal-Mart’s claims. (Pl.’s Resp., Ex. A at 27-28,
ECF No. 40).
Court finds that there is no evidence of bad faith or bad
conduct on the part of Wal-Mart. Pettaway has not produced
any testimony or evidence to contradict testimony given by
Wal-Mart’s former asset protection manager that the
video could not be copied or downloaded due to a mechanical
problem with the video system. A mechanical problem is not
indicative of bad faith or an attempt to destroy adverse
evidence. Furthermore, even if Pettaway had demonstrated
spoliation, the adverse inference would have been
insufficient to survive summary judgment because Pettaway has
no evidence of ...