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Herman v. Wal-Mart Stores East, LP

United States District Court, N.D. Mississippi, Aberdeen Division

May 29, 2018



         This 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 [30]; and a motion for partial summary judgment on the issue of liability filed by Plaintiff Linda Herman [31]. 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.


         This 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. [1] ¶¶ 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.

         After 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.

         Summary Judgment Standard

         Summary 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.

         The 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))).

         Under 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. 2007)).


         1. Herman's Motion for Partial Summary Judgment on the Issue of Liability

         Herman 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.

         It is 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.

         Herman 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 [33]. The video shows several boxes fall from the cart and strike Herman. It is unclear from the video whether the cart also struck Herman.

         Dunaway 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 ...

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