United States District Court, S.D. Mississippi, Northern Division
CARLTON W. REEVES UNITED STATES DISTRICT JUDGE
the Court is Home Depot's Motion for Summary Judgment.
After reviewing the parties' briefing, the Motion is
Factual and Procedural History
July 5, 2015, Conrad Simmons was in search of a two-wheeled
dolly when he slipped on a substance while walking down an
aisle in the outside garden area at Home Depot. After the
fall, Conrad experienced “extreme weakness and numbness
in his lower extremities.” Docket No. 57 at 2. On March
1, 2017, Conrad filed a lawsuit against Home Depot in Hinds
County Circuit Court, which Home Depot removed to this Court
pursuant to diversity jurisdiction. Conrad's complaint
alleged that Home Depot and its employees were negligent in
causing his fall and they should have warned him of the
spill. His wife, Kaye, also alleged a loss of consortium.
Depot has now moved for summary judgment on the constructive
knowledge and failure to warn claims. It alleges that Conrad
cannot prove his premises liability claim because he has no
evidence to prove that Home Depot had any actual or
constructive knowledge of the spill. Additionally, Home Depot
argues that it had no duty to warn customers of an open and
obvious condition, like the spill in the aisle where Conrad
respond that there is a material factual dispute in this
case. They argue that a Home Depot employee's claim that
the aisle was clear 15 minutes prior to Conrad's fall is
inaccurate, and as such, it is the role of the jury to weigh
the validity of the employee's testimony. Further,
Plaintiffs cite several cases to show that they have enough
circumstantial evidence under Mississippi law to prove Home
Depot had constructive knowledge of the spill that caused
judgment is appropriate when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “Once a summary judgment motion is
made and properly supported, the nonmovant must go beyond the
pleadings and designate specific facts in the record showing
that there is a genuine issue for trial.” Wallace
v. Tex. Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996)
(citations omitted). When considering a summary judgment
motion, the court “must view all facts and evidence in
the light most favorable to the non-moving party.”
Juino v. Livingston Parish Fire Dist. No. 5, 717
F.3d 431, 433 (5th Cir. 2013) (citations omitted).
complaint alleges two causes of action: (1) Home Depot was
“negligent in creating and failing to discern and
remedy” the spill which caused the fall, and (2) Home
Depot was “negligent in failing to warn Conrad Simmons
of the dangerous condition.” Docket No. 1-1 at 3.
this is an action in diversity, this Court interprets the
underlying claims based upon state law. See Gilbane Bldg.
Co. v. Admiral Ins. Co., 664 F.3d 589, 593-94 (5th Cir.
2011). In Mississippi, for a plaintiff to recover against a
property owner for a slip and fall, the plaintiff must prove
that a dangerous condition existed and “some negligent
act of the defendant cause [plaintiff's] injury”;
or that the “defendant had actual knowledge of a
dangerous condition and failed to warn the plaintiff”;
or “the dangerous condition existed for a sufficient
amount of time to impute constructive knowledge to the
defendant.” Downs v. Choo, 656 So.2d 84, 86
(Miss. 1995); Walz v. HWCC-Tunica, Inc., 186 So.3d
375, 377 (Miss. Ct. App. 2016). Plaintiffs allege that Home
Depot had constructive knowledge of the dangerous condition.
See Docket No. 51 at 10.
Depot argues that Plaintiffs have no evidence that can impute
constructive knowledge to it. It relies on Ingrid
Schoenborn-Mercer's testimony, the employee working in
the area during the fall. Schoenborn-Mercer did not see the
spill or the fall, and when she walked the aisle 15 minutes
prior to the spill, the aisle was clean. Thus, it argues, the
spill could not have been present for long enough to impute
constructive knowledge to Home Depot.
the summary judgment standard, after a moving party properly
raises an issue for summary judgment, it becomes
plaintiff's responsibility to show that there is a
genuine issue for trial. Wallace, 80 F.3d at 1047
(citations omitted). Unsubstantiated assertions are not
competent summary judgment evidence; parties must cite to
particular parts of the record, such as depositions and other
exhibits, to prove a genuine dispute of ...