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Owens v. The Kroger Co.

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

May 3, 2018

JOHNNIE MAE OWENS PLAINTIFF
v.
THE KROGER CO. DEFENDANT

          ORDER

          DANIEL P. JORDAN, III CHIEF UNITED STATES DISTRICT JUDGE

         Defendant The Kroger Co. (“Kroger”) requests summary judgment [38] on Plaintiff Johnnie Mae Owens's negligence and false-light claims. For the reasons that follow, Kroger's Motion for Summary Judgment [38] is granted in part and denied in part.

         I. Facts and Procedural History

         Owens says Kroger's negligence proximately caused a local media station to broadcast a surveillance image of Owens with the caption “wallet thief.” The dispute began November 24, 2014, when Owens discovered a wallet while checking out at the Clinton, Mississippi, Kroger store. The wallet belonged to the preceding customer, Ezella Lewis. Owens informed the cashier and was instructed to take the wallet to the Customer Service Representative (“CSR”). Instead, Owens left the store hoping to catch Lewis in the parking lot. Unfortunately, Lewis was gone, so Owens returned to the store and handed the wallet to the CSR, Tawanna Cavett. She also asked Cavett how Kroger documents that an item was returned and not stolen. Cavett responded by pointing to the security cameras. Cavett then placed the wallet in the lost-and-found drawer. When Lewis called Kroger and asked whether anyone had found her wallet, it appears that no one checked the drawer before informing Lewis it had been taken. She then called the Clinton Police Department (“CPD”).

         CPD investigated the alleged crime by requesting surveillance footage from Kroger. And pursuant to that request, Kroger provided footage depicting Owens leaving Kroger with Lewis's wallet in hand. Kroger did not, however, give CPD the video from the customer-service area where Owens returned Lewis's wallet. And Kroger again failed to check the lost-and-found drawer. Believing that the person in the video (Owens) stole Lewis's wallet, CPD released still images to Crime Stoppers which, in turn, released them to the media with the description “wallet thief.” The images were then broadcasted on television.

         Aggrieved, Owens filed the instant suit against Kroger alleging various negligence theories and a false-light claim. Compl. [1-2]. Kroger now seeks summary judgment. Def.'s Mot. [38]. The issues have been briefed, and the Court has subject-matter and personal jurisdiction.

         II. Standard

         Summary judgment is warranted under Federal Rule of Civil Procedure 56(a) when evidence reveals no genuine dispute regarding any material fact and that the moving party is entitled to judgment as a matter of law. 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 (1986).

         The party moving for summary judgment “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. 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 (citation omitted). In reviewing the evidence, factual controversies are to be resolved in favor of the nonmovant, “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 (2000). Conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments have never constituted an adequate substitute for specific facts showing a genuine issue for trial. See TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002); Little, 37 F.3d at 1075; SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993).

         III. Analysis

         A. Negligence Claim

         Owens says Kroger's negligence caused her injuries. To establish negligence, “the plaintiff must show duty, breach of duty, causation, and damages.” Presswood v. Cook, 658 So.2d 859, 862 (Miss. 1995). But before addressing those elements, the Court must square-up the parties' briefs and identify the allegedly negligent acts Owens asserts.

         In its opening memorandum, Kroger focuses on the allegation that it provided false or incomplete information to CPD when it produced the surveillance video from the register while withholding the second video from the customer-service area. See Def.'s Mem. [39] at 6-8. Kroger argues that this conduct breached no duties, see id., and Owens takes no real issue with that argument. So to the extent her Complaint can be read to include a negligence claim based on producing only one video, she waived it. See Hensley v. Wal-Mart Stores Inc., 290 Fed.Appx. 742, 743-44 (5th Cir. 2008) (holding that “arguments not raised in response to” dispositive motions are waived).

         That said, Owens's summary-judgment response focuses on a different basis for her negligence claim. According to her, “Kroger breached its duty twice by failing to act with reasonable care to look inside its own Lost & Found drawer before telling Ms. Lewis her wallet was not found or turned in, and when it failed to look inside its own Lost & Found drawer before it provided the CPD the video.” Pl.'s Resp. [42] at 4, 6.

         Owens asserted this theory in her Complaint. Compl. [1-2] ¶¶ 10, 11. Yet Kroger failed to address it until rebuttal. Normally, the Court would ignore arguments first raised in reply. See Gillaspy v. Dall. Indep. Sch. Dist., 278 Fed.Appx. 307, 315 (5th Cir. 2008) (“It is the practice of . . . the district courts to refuse to consider arguments raised for the first time in reply briefs.” (citation omitted)). But even considering the issue and Kroger's reply, questions of fact preclude summary judgment.

         In its reply, Kroger states that it owed Lewis, not Owens, the duty to check the lost-and-found drawer when Lewis called looking for her wallet. It further says that any breaches did not proximately cause Owens's alleged damages. See Def.'s Reply [44] at 4. Accordingly, the parties dispute the duty and causation elements of the prima facie negligence case.

         The duty and causation elements “both involve foreseeability.” Rein v. Benchmark Constr. Co., 865 So.2d 1134, 1143 (Miss. 2004). But “duty is an issue of law, and causation is generally a matter for the jury.” Id. Thus the first issue is for the judge and the second is reserved for the jury when the plaintiff satisfies Rule 56(c) by creating a material fact issue. See Id. The Court will therefore determine first ...


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