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Smithy v. The Kroger Co. Inc.

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

July 10, 2018

SHERIAN SMITHY PLAINTIFF
v.
THE KROGER CO., INC, & THOMPSON SQUARE, LLC DEFENDANTS

          MEMORANDUM OPINION

         Now before this Court is Defendant Thompson Square LLC's Motion for Summary Judgment [26]. Having considered the matter, the Court finds the motion should be granted.

         Background On December 30, 2016, Plaintiff Sherian Smithy fell while in the parking lot of Defendant Kroger's store in Tupelo, Mississippi. Compl. [2] at ¶ 5. Smithy alleges that after she finished putting groceries in her car, she went to push her shopping cart away from her vehicle. Id. at ¶ 10. As she did, she slipped and fell. Id. Smithy does not remember the fall itself. Rather, the next thing she could recall was her daughter and another individual standing over her. Sherian Smithy Deposition [26-1] at 33-34. According to Smithy this individual stated that Smithy fell because of the condition of the parking lot. Id.

         Smithy brought this negligence action against Kroger and Defendant Thompson Square, the owner of the parking lot, in state court. Thompson Square timely removed the case to this Court. Now Thompson Square moves for summary judgment. Smithy has responded, and the matter is 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) (quoting 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 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." Id. 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. "An issue of fact is material only if'its resolution could affect the outcome of the action'." 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)).

         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 (internal quotation marks omitted.); Littlefleld 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." Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013) (quoting Boudre櫬 v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005)). "[T]he nonmoving party 'cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence.'" Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007) (quoting Turner v. Baylor Richardson Medical Center, 476 F.3d 337, 343 (5th Cir. 2007)).

         Analysis

         A plaintiff bringing a negligence claim under Mississippi law "must prove by a preponderance of the evidence that the defendant owed her a duty, the defendant breached that duty, a causal connection between the defendant's conduct and her injuries, and damages." Dorsey v. Simon Prop. Grp., L.P., 378 Fed.Appx. 476, 478 (5th Cir. 2010) (citing Simpson v. Watson, 14 So.3d 86, 88 (Miss. Ct. App. 2009)). A business owner's duty depends on the plaintiffs status as an invitee, licensee, or trespasser. Leffler v. Sharp, 891 So.2d 152, 156-57 (Miss. 2004). "Under Mississippi law, a store owner owes a duty to an invitee to exercise reasonable or ordinary care to keep the premises in a reasonably safe condition or to warn of dangerous conditions that are not readily apparent." Kernv. Wal-Mart Stores, Inc., 174F.3d 198, 1999 WL 153013, at *2 (5th Cir. Feb. 25, 1999) (citing Fulton v. Robinson Indus., Inc., 664 So.2d 170, 175 (Miss. 1995)). However, "[a] business operator is not an insurer against all injuries." Id. (citing Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994) (summarizing Mississippi law)). "[M]erely proving the occurrence of an accident within the business premises is insufficient to prove liability; rather, the plaintiff must demonstrate that the operator of the business was negligent." Lindsey, 16 F.3d at 618 (citing Sears, Roebuck & Co. v. Tisdale, 185 So.2d 916, 917 (Miss. 1966)). "To prove that the operator was negligent, the plaintiff must show either [1] that the operator caused the dangerous condition, or, [2] if the dangerous condition was caused by a third person unconnected with the store operation, that the operator had either actual or constructive knowledge of the dangerous condition." Id. (citing Munford, Inc. v. Fleming, 597 So.2d 1282, 1284 (Miss. 1992); Waller v. Dixieland Food Stores, Inc., 492 So.2d 283, 285 (Miss. 1986)).

         Thompson Square argues that Smithy cannot show an alleged dangerous condition caused her fall. As evidence, Thompson Square points to her deposition testimony where she states that because she was temporarily knocked out by the fall, she does not remember why she fell:

Q. Do you remember the fall?
A. No.
Q. Since you don't remember the fall, is it fair to say that you don't ...

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