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Simmons v. Home Depot

United States District Court, S.D. Mississippi, Northern Division

October 10, 2018

CONRAD SIMMONS, et al., PLAINTIFFS
v.
HOME DEPOT, et al., DEFENDANTS

          ORDER

          CARLTON W. REEVES UNITED STATES DISTRICT JUDGE

         Before the Court is Home Depot's Motion for Summary Judgment. After reviewing the parties' briefing, the Motion is denied.

         I. Factual and Procedural History

          On 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.

         Home 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 slipped.

         Plaintiffs 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 Conrad's fall.

         II. Law

         Summary 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).

         The 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.

         Since 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.

         III. Discussion

         A. Constructive Knowledge

         Home 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.

         Under 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 ...


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