United States District Court, N.D. Mississippi, Aberdeen Division
before this Court is Defendant Thompson Square LLC's
Motion for Summary Judgment . Having considered the
matter, the Court finds the motion should be granted.
On December 30, 2016, Plaintiff Sherian Smithy fell while in
the parking lot of Defendant Kroger's store in Tupelo,
Mississippi. Compl.  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.
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.
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
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
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)).
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  that the
operator caused the dangerous condition, or,  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)).
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?
Q. Since you don't remember the fall, is it fair to say
that you don't ...