United States District Court, N.D. Mississippi, Aberdeen Division
Court currently has before it two motions for partial summary
judgment: a motion for summary judgment on the issue of
damages for future lost wages and future medical expenses
filed by Defendant Wal-Mart Stores East, LP ; and a
motion for partial summary judgment on the issue of liability
filed by Plaintiff Linda Herman . Having considered the
matter, the Court finds that 1) Wal-Mart's motion should
be granted in part and denied in part; and 2) Herman's
motion should be denied.
diversity action arises out of accident that occurred while
Herman was shopping at a Wal-Mart store in Tupelo,
Mississippi. Herman alleges that she was struck by either a
cart or boxes of merchandise stacked upon the cart being
pulled by a Wal-Mart employee. Compl.  ¶¶ 5-10.
Herman filed her complaint in this matter alleging Wal-Mart
employees were negligent in loading and operating the cart,
and therefore Wal-Mart is liable to her for compensatory
damages, including future lost wages and future medical
expenses. Id. ¶ 18.
the completion of discovery, Wal-Mart moved for partial
summary judgment arguing that Herman is unable to provide
evidence of future lost wages and medical expenses. Herman,
in turn, moved for partial summary judgment arguing there is
no factual dispute that Wal-Mart is liable for causing the
cart and merchandise to strike her. The parties have
responded to each other's motions and the matter is now
ripe for review.
judgment "should be rendered if the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine dispute as to any
material fact and that the movant is entitled to judgment as
a matter of law." Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
See Fed. R. Civ. P. 56(a); Johnston &
Johnston v. Conseco Life Ins. Co., 732 F.3d 555, 561
(5th Cir. 2013). The rule "mandates the entry of summary
judgment, after adequate time for discovery and upon motion,
against a party who fails to make a sufficient showing 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., 477
U.S. at 322, 106 S.Ct. 2548.
party moving for summary judgment bears the initial
responsibility of informing the Court of the basis for its
motion and identifying those portions of the record it
believes demonstrate the absence of a genuine dispute of
material fact. See Id. at 323, 106 S.Ct. 2548.
"An issue of fact is material only if its resolution
could affect the outcome of the action." DeBlanc v.
St. Tammany Par. Sch. Bd, 640 Fed.Appx. 308, 312 (5th
Cir. 2016) (per curiam) (quoting Manning v. Chevron Chem.
Co., LLC, 332 F.3d 874, 877 (5th Cir. 2003) (quoting
Wyatt v. Hunt Plywood Co., 297 F.3d 405, 408 (5th
Cir. 2002) (internal quotation marks omitted))).
Rule 56(a), the burden then shifts to the nonmovant to
"go beyond the pleadings and by ... affidavits, or by
the 'depositions, answers to interrogatories, and
admissions on file, ' designate 'specific facts
showing that there is a genuine issue for trial.'"
Celotex, 477 U.S. at 324, 106 S.Ct. 2548;
Littlefield v. Forney Indep. Sch Dist., 268 F.3d
275, 282 (5th Cir. 2001); Willis v. Roche Biomedical
Labs., Inc., 61 F.3d 313, 315 (5th Cir. 1995). The Court
"'resolve[s] factual controversies in favor of the
nonmoving party, but only where there is an actual
controversy, that is, when both parties have submitted
evidence of contradictory facts.'" Thomas v.
Baldwin, 595 Fed. App'x. 378, 378 (5th Cir. 2014)
(per curiam) (quoting Antoine v. First Student,
Inc., 713 F.3d 824, 830 (5th Cir. 2013) (internal
quotation marks and citation omitted)). "[T]he nonmoving
party cannot defeat summary judgment with conclusory
allegations, unsubstantiated assertions, or only a scintilla
of evidence.'" Id. at 380 (quoting
Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir.
Herman's Motion for Partial Summary Judgment on the Issue
moves for summary judgment, arguing that there is no genuine
issue of material fact that: 1) a Wal-Mart employee unsafely
stacked merchandise in the cart he was driving; and 2) either
the cart hit Herman or merchandise fell from the cart and
struck Herman. Therefore, she argues she is entitled to
summary judgment on the issue of liability.
undisputed that while Herman was shopping, Justin Dunaway, a
Wal-Mart employee, passed by her pulling a cart stacked with
boxes of merchandise. Some boxes were stacked higher than the
sides of the cart.
repeatedly testified that she believed she was struck by the
cart. Deposition of Linda Herman [30-3] at 66, 87-88. At her
deposition, she appeared to be unsure whether the boxes also
hit her. See Id. at 176-179. A video of the incident
captured by store cameras shows Dunaway turning a corner with
the cart in tow. Video . The video shows several boxes
fall from the cart and strike Herman. It is unclear from the
video whether the cart also struck Herman.
testified that he was tasked with transporting the cart,
which had already been loaded by other Wal-Mart employees,
from the general receiving area to the grocery receiving
area. Deposition of Justin Dunaway [31-3] at 9-11. He
testified that as he turned a corner "one of the wheels
had locked up and that's when it fell over and hit the
lady." Id. at 9. In a statement he made
immediately after the accident, Dunaway again stated ...