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Turner v. Belk, Inc.

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

June 5, 2019

AUBRA TURNER PLAINTIFF
v.
BELK, INC. DEFENDANT

          ORDER

          SHARION AYCOCK UNITED STATES DISTRICT JUDGE.

         Aubra Turner originally filed her Complaint [2] against Belk, Inc. in the Circuit Court of Lowndes County on March 6, 2018. In her Complaint, the Plaintiff asserts negligence and premises liability claims arising from a slip and fall on October 24, 2015. The Defendant removed the action to this Court on March 14, 2018. Now before the Court is the Defendant's Motion for Summary Judgment [43]. The issues are fully briefed and ripe for review.[1]

         Factual Background

         The Plaintiff was shopping at Belk in Columbus, Mississippi on the afternoon of October 24, 2015. While walking to the men's department to purchase a shirt for her husband, the Plaintiff slipped and fell on a 5x7 cardstock sign. In her deposition, the Plaintiff described the sign as one that would normally hang on a display to advertise a sale. The Plaintiff also stated in her deposition that she did not see the sign on the floor before she fell, as the color of the sign blended in with the color of the tile floor. Alleging physical and mental injuries, the Plaintiff asserts that the Defendant negligently maintained their store property and failed to provide her a safe shopping environment.

         Standard of Review

         Summary judgment is warranted under Rule 56(c) when evidence reveals no genuine dispute regarding any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). To award summary judgment, “[a] court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

         The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The non-moving party must then go beyond the pleadings and designate “specific facts showing that there is a genuine issue for trial.” Id. at 324, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265. Conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments are not an adequate substitute for specific facts showing a genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir.1997); Little, 37 F.3d at 1075. In reviewing the evidence, factual controversies are to be resolved in favor of the nonmovant, “but only when . . . both parties have submitted evidence of contradictory facts.” Id.

         Premises Liability

         “Premises 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) (citing Massey v. Tingle, 867 So.2d 235, 239 (Miss. 2004)). In the present case, it is undisputed that Plaintiff was a business invitee at the time of the incident. “[A] business invitee [is] a person who goes upon the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual advantage.” Hersey v. Food Giant Supermarkets, Inc., No. 1:15-CV-127-SA, 2017 WL 81770, *2 (N.D. Miss. Jan. 9, 2017) (citing Kinstley v. Dollar Tree Stores, Inc., 63 F.Supp.3d 658, 661 (S.D.Miss. Dec. 3, 2014) (internal quotations omitted)).

         Mississippi law imposes upon a business owner a duty to keep the business premises “reasonably safe and to warn of any dangerous condition that is not readily apparent.” Parker v. Wal-Mart Stores, Inc., 261 Fed.Appx. 724, 725-26 (5th Cir. 2008); Munford, Inc. v. Fleming, 597 So.2d 1282, 1284 (Miss. 1992).[2] This includes the duty to “warn of any dangerous conditions not readily apparent which the owner knew, or should have known, in the exercise of reasonable care, and the duty to conduct reasonable inspections to discover dangerous conditions existing on the premises.” Pigg, 991 So.2d at 1199-1200 (quoting Gaines v. K-Mart Corp., 860 So.2d 1214, 1216 (Miss. 2003)). The breach of either duty supports a claim of negligence. Pigg, 991 So.2d at 1200; Mayfield v. The Hairbender, 903 So.2d 733, 738 (Miss. 2005); Sears, Roebuck & Co. v. Tisdale, 185 So.2d 916, 917 (Miss. 1966) (“The basis of liability is negligence and not injury.”).

         In order to prove breach in a slip-and-fall case, a plaintiff must:

(1) show that some negligent act of the defendant caused [her] injury; or (2) show that the defendant had actual knowledge of a dangerous condition and failed to warn the plaintiff; or (3) show that the dangerous condition existed for a sufficient amount of time to impute constructive knowledge to the defendant, in that the defendant should have known of the dangerous condition.

Kinstley, 63 F.Supp.3d at 661 (quoting Anderson v. B.H. Acquisition, Inc., 771 So.2d 914, 918 (Miss. 2000)). Stated simply, a plaintiff “cannot succeed on a premises-liability claim without showing either that the defendant created the dangerous condition or that the defendant possessed actual or constructive knowledge of the dangerous condition in sufficient time to remedy it.” Jones v. Imperial Palace of Mississippi, LLC, 147 So.3d 318, 322 (Miss. 2014).

         Discussion ...


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