Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McElveen v. Wal-Mart Stores, Inc.

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

January 8, 2019

EVAN MCELVEEN, et al., PLAINTIFFS
v.
WAL-MART STORES, INC., et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          KEITH STARRETT UNITED STATES DISTRICT JUDGE

         For the reasons below, the Court grants in part and denies in part Defendant's Motion for Summary Judgment [93].

         I. Background

         This is 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 [93], 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.

         II. Standard of Review

         Rule 56 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).

         The 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).

         III. Discussion

         First, 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).

         It is 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).

         The 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.

         Hutton 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.