United States District Court, N.D. Mississippi, Aberdeen Division
SHARION AYCOCK, UNITED STATES DISTRICT COURT JUDGE
Peters originally filed her Complaint  in the Circuit
Court of Prentiss County, Mississippi. Fred's Stores of
Tennessee, Inc. removed the case to this Court premising
jurisdiction on diversity of citizenship. Plaintiff Peters
alleges that Defendant Fred's is liable for injuries she
sustained after falling while shopping in the Defendant's
store. Now before the Court is the Defendant's Motion for
Summary Judgment  requesting dismissal of all of the
Plaintiff's claims. The Plaintiff filed a Response 
and the Defendant filed a Reply  making this issue ripe
and Procedural Background
evening of November 5, 2014, the Plaintiff entered the
Fred's store on North 2nd Street in Booneville,
Mississippi to do some shopping. According to the Plaintiff,
the store was generally in disarray with stocking and
reorganizing going on in various parts of the store. The
Plaintiff walked to the back of the store, retrieved two
items, and began walking back towards the front of the store
where the checkout registers are located. On her way, the
Plaintiff passed through the apparel section where she
slipped and fell. The Plaintiff does not know what caused her
fall, although she thinks she may have slipped on a piece of
plastic. Store employee Lane Hunkapiller was nearby and heard
the Plaintiff fall. Hunkapiller came over to check on the
Plaintiff. The Plaintiff sat on the floor for a minute or two
until she was able to get up. The Plaintiff alleges that
during this time Hunkapiller picked a piece of plastic up
from the floor, snapped it into two pieces, and placed it in
his pocket. Hunkapiller denies picking anything up. The
Plaintiff eventually finished her shopping and left the
Defendant now requests summary judgment in its favor on all
of the Plaintiff's claims.
Rule of Civil Procedure 56 governs summary judgment. Summary
judgment is warranted when the evidence reveals no genuine
dispute regarding any material fact, and the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
The rule “mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party
who fails to make a showing sufficient to establish the
existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
moving party “bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material
fact.” Id. at 323, 106 S.Ct. 2548. The
nonmoving party must then “go beyond the
pleadings” and “designate ‘specific facts
showing that there is a genuine issue for trial.'”
Id. at 324, 106 S.Ct. 2548 (citation omitted). In
reviewing the evidence, factual controversies are to be
resolved in favor of the non-movant, “but only when . .
. both parties have submitted evidence of contradictory
facts.” Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994) (en banc). When such contradictory
facts exist, the Court may “not make credibility
determinations or weigh the evidence.” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120
S.Ct. 2097, 147 L.Ed.2d 105 (2000). Conclusory allegations,
speculation, unsubstantiated assertions, and legalistic
arguments are not an adequate substitute for specific facts
showing a genuine issue for trial. TIG Ins. Co. v.
Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir.
2002); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir.
1997); Little, 37 F.3d at 1075. Mississippi
substantive law applies in this diversity case. See Cox
v. Wal-Mart Stores E., L.P., 755 F.3d 231, 233 (5th Cir.
2014) (citing Wood v. RIH Acquisitions MS II, LLC,
556 F.3d 274, 275 (5th Cir. 2009)).
analysis of premises liability claims under Mississippi law
requires a determination on three fronts: (1) legal status of
the injured person, (2) relevant duty of care, and (3)
defendant's compliance with that duty.”
Wood, 556 F.3d at 275 (citing Massey v.
Tingle, 867 So.2d 235, 239 (Miss. 2004)). In the instant
case, the Plaintiff was a business invitee at the relevant
times. “[A] business invitee [is] ‘a person who
goes upon the premises of another in answer to the express or
implied invitation of the owner or occupant for their mutual
advantage.'” Kinstley v. Dollar Tree Stores,
Inc., 63 F.Supp.3d 658, 661 (S.D.Miss. 2014) (citing
Turner v. Entergy Miss., Inc., 139 So.3d 115, 117
(Miss. Ct. App. 2014)).
premises owner owes invitees a duty of reasonable care, to
“maintain its premises in a reasonably safe condition,
” but a premises owner is “not an insurer of the
safety of invitees.” Pigg v. Express Hotel
Partners, LLC, 991 So.2d 1197, 1199 (Miss. 2008);
Wood, 556 F.3d at 275. This includes duties to
“warn of any dangerous conditions not readily apparent
which the owner knew, or should have known, in the exercise
of reasonable care, and the duty to conduct reasonable
inspections to discover dangerous conditions existing on the
premises.” Pigg, 991 So.2d at 1199- 1200
(quoting Gaines v. K-Mart Corp., 860 So.2d 1214,
1216 (Miss. 2003)). The breach of either duty supports a
claim of negligence. Id. at 1200; Mayfield v.
The Hairbender, 903 So.2d 733, 738 (Miss. 2005).
order to prove breach in a slip-and-fall case, a plaintiff
(1) show that some negligent act of the defendant caused her
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
Kinstley, 63 F.Supp.3d at 661 (quoting Anderson
v. B.H. Acquisition, Inc., 771 So.2d 914, 918 (Miss.
2000)). In the end, a plaintiff “cannot succeed on a
premises liability claim without showing either that the
defendant created the dangerous condition or that the
defendant possessed actual or constructive ...