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Smithy v. Kroger Co., Inc.

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

October 18, 2018



         Now before this Court is Defendant Kroger Co., Inc.'s motion for summary judgment [40]. 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 [2]. Smithy alleges after that putting groceries purchased from Kroger in her car, she went to push her shopping cart away from her vehicle, and that as she did, she tripped and fell. Id. ¶ 10. 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 at 33-34 [26-1]. According to Smithy, this individual stated that Smithy fell because of a hole in the parking lot. Id.

         Smithy brought this negligence action against Kroger and Defendant Thompson Square, the owner of the parking lot, in state court. After the case was removed to this Court, Thompson Square moved for summary judgment. The Court granted summary judgment, holding that Smithy could not establish that a particular hole caused her fall, and further that hole did not constitute an unreasonably dangerous condition under Mississippi law. See Smithy v. Kroger Co., No. 1:17-cv-00205-GHD-DAS, 2018 WL 3384305 at *2-3 (N.D. Miss. July 11, 2018)

         Kroger now moves for summary judgment as well arguing (1) that it cannot be liable for the condition of the premises because it was not in control of the parking lot nor did it have a duty to maintain it under the lease agreement it had with Thompson Square; and (2) that Smithy cannot establish an unreasonably dangerous condition caused her fall.

         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.); 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." Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013) (quoting Boudreaux 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)).


         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." Kern v. Wal-Mart Stores, Inc., 174 F.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)).

         I. A jury could find Kroger controlled the parking lot enough to warrant liability.

         Kroger first argues that under its lease with Thompson Square, it does not have any liability for the maintenance of the parking lot. Smithy does not respond to this argument.

         The general rule is that a "tenant/lessee/occupier of premises owes a duty of reasonable care to its invitees for the demised property and such necessary incidental areas substantially under its control.... and which he invites the public to use." Wilson v. Allday, 487 So.2d 793, 798 (Miss. 1986). The landlord and tenant may "allocate responsibility for keeping a leased premises in a safe condition through contract." Titus v. Williams,844 So.2d 459, 466 (Miss. 2003). But even when there is a contractual allocation of responsibility between the lessee and the lessor, the lessee can be held liable, "so long as the lessee exercised some degree ...

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