United States District Court, S.D. Mississippi, Eastern Division
MEMORANDUM OPINION AND ORDER
STARRETT UNITED STATES DISTRICT JUDGE
reasons below, the Court grants in part and denies in
part Defendant's Motion for Summary Judgment
a slip-and-fall case. Plaintiffs Buddy and Kay McElveen
visited a Wal-Mart store in Hattiesburg, Mississippi. Shortly
after entering the store, Mr. McElveen slipped in a puddle of
french onion dip and fell, injuring himself. The record
contains no evidence as to the cause of the spill. Defendant
filed a Motion for Summary Judgment , arguing that
Plaintiff could not present evidence that it had actual or
constructive notice of the spill. Alternatively, Defendant
argues that Plaintiff does not have evidence to support a
claim for punitive damages.
Standard of Review
provides that “[t]he court shall grant summary judgment
if 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); see also Sierra
Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d
134, 138 (5th Cir. 2010). “An issue is material if its
resolution could affect the outcome of the action.”
Sierra Club, Inc., 627 F.3d at 138. “An issue
is ‘genuine' if the evidence is sufficient for a
reasonable jury to return a verdict for the nonmoving
party.” Cuadra v. Houston Indep. Sch. Dist.,
626 F.3d 808, 812 (5th Cir. 2010).
Court is not permitted to make credibility determinations or
weigh the evidence. Deville v. Marcantel, 567 F.3d
156, 164 (5th Cir. 2009). When deciding whether a genuine
fact issue exists, “the court must view the facts and
the inference to be drawn therefrom in the light most
favorable to the nonmoving party.” Sierra Club,
Inc., 627 F.3d at 138. However, “[c]onclusional
allegations and denials, speculation, improbable inferences,
unsubstantiated assertions, and legalistic argumentation do
not adequately substitute for specific facts showing a
genuine issue for trial.” Oliver v. Scott, 276
F.3d 736, 744 (5th Cir. 2002).
Defendant argues that Plaintiffs do not have sufficient
evidence to establish liability. In a premises liability
case, the plaintiff must prove the four elements of
common-law negligence: (1) duty, (2) breach of duty, (3)
causation, and (4) damages. Rogers v. Sunbelt Mgmt.
Co., 52 F.Supp.3d 816, 822 (S.D.Miss. 2014). The duty
owed to the plaintiff depends on his or her status as an
invitee, licensee, or trespasser. Doe v. Miss. State
Fed'n of Colored Women's Club Housing for the Elderly
in Clinton, Inc., 941 So.2d 820, 826 (Miss. Ct. App.
2006). Therefore, “[p]remises liability analysis under
Mississippi law requires three determinations: (1) legal
status of the injured person, (2) relevant duty of care, and
(3) defendant's compliance with that duty.”
Wood v. RIH Acquisitions MS II LLC, 556 F.3d 274,
275 (5th Cir. 2009); see also Leffler v.
Sharp, 891 So.2d 152, 156 (Miss. 2004).
undisputed that Plaintiff was an invitee at the time of the
accident. “Mississippi law imposes upon a business
owner or operator a duty to the invitee to keep its premises
in a reasonably safe condition and to warn of dangerous
conditions which are not readily apparent to the
invitee.” K-Mart Corp. v. Hardy, 735 So.2d
975, 981 (Miss. 1999). However, a business owner is not an
insurer against all accidents and injuries that may occur on
its premises. Anderson v. B. H. Acquisitions, Inc.,
771 So.2d 914, 918 (Miss. 2000). Mere proof of a fall within
a business is insufficient to recover on a negligence claim.
Rod v. Home Depot USA, Inc., 931 So.2d 692, 695
(Miss. Ct. App. 2006). To prove a premises liability claim, a
plaintiff-invitee must show either:
(1) a negligent act of the defendant caused her injury; (2)
the defendant had actual knowledge of the dangerous
condition, but failed to warn the plaintiff; or (3) the
defendant should have known about the dangerous condition, in
that the dangerous condition existed for a sufficient amount
of time to impute constructive knowledge to the defendant.
Id. at 694-95 (citing Byrne v. Wal-Mart Stores,
Inc., 877 So.2d 462, 465 (Miss. Ct. App. 2004)); see
also Downs v. Choo, 656 So.2d 84, 86 (Miss. 1995);
Karpinsky v. Am. Nat'l Ins. Co., 109
So.3d 84, 89 (Miss. 2013).
record contains evidence from which a jury could infer that
Defendant had notice of the spill in time to rectify it
before Mr. McElveen slipped. Specifically, surveillance
camera footage shows a Wal-Mart employee pushing a cart in
the direction of the spill shortly before Mr. McElveen
slipped. See Exhibit I to Response, McElveen v.
Wal-Mart Stores, Inc., No. 2:17-CV-90-KS-MTP (S.D.Miss.
Dec. 4, 2018), ECF No. 98-9 (conventionally filed). It is
undisputed that the employee in question was Marcus Hutton, a
Wal-Mart Maintenance Associate, and that he was pushing a
cleaning cart directly toward the spill. See Reply
at 1, McElveen v. Wal-Mart Stores, Inc., No.
2:17-CV-90-KS-MTP (S.D.Miss. Dec. 11, 2018), ECF No. 100.
entered the central “Action Alley” aisle that
runs perpendicular to the checkout stations at approximately
8:34:58 P.M. and began traveling toward the spill. At 8:35:04
P.M., he stopped, left his cart in the aisle, and walked over
to one of the checkout stations. At approximately 8:35:34
P.M., Hutton returned to the cleaning cart, and at
approximately 8:35:37 ...