United States District Court, N.D. Mississippi, Oxford Division
MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE
cause comes before the Court on the Plaintiff's motion
for partial summary judgment [Doc. 13] and the Defendant
having responded and the Court having reviewed the
parties' submissions, now finds as follows:
Tracy Moore (hereinafter “Moore), on March 16, 2018
purchased from the Defendant, Wal-Mart Stores East, LP
(hereinafter “Wal-Mart”), two new tires for her
vehicle. Wal-Mart placed the two new tires on the front of
the vehicle and removed the back tires from the vehicle and
replaced them with the vehicles' old front tires. On
March 24, 2018, Moore and her family were travelling in her
vehicle when allegedly a tire came off causing damages. The
pleadings do not elaborate whether it was a front or rear
tire that detached. Moore filed two claims with
Wal-Mart's self-insurance company: one for property
damages and the other for bodily injuries. Wal-Mart paid the
claim for property damages on April 4, 2018 and denied
payment for Moore's bodily injury claim. This civil
action concerns Moore's alleged bodily injury claim.
judgment is proper “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). A genuine dispute of material fact exists “if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505,
91 L.Ed.2d 202 (1986). At the summary judgment stage, the
court must “draw all reasonable inference in favor of
the nonmoving party, and it may not make credibility
determinations or weigh the evidence.” Reeves v.
Sanderson Plumbing Prods., 530 U.S. 133, 150, 120 S.Ct.
2097, 147 L.Ed.2d 105 (2000). Once the moving party shows
there is no genuine dispute as to any material fact, the
nonmoving party “must come forward with specific facts
showing a genuine factual issue for trial.” Harris
ex rel. Harris v. Pontotoc Cty. Sch. Dist., 635 F.3d
685, 690 (5th Cir. 2011). “[A] party cannot defeat
summary judgment with conclusory allegations, unsubstantiated
assertions, or ‘only a scintilla of
evidence.'” Turner v. Baylor Richardson Med.
Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (quoting
Little v. Liquid Air Corp., 37 F.2d 1069, 1075 (5th
alleges a negligence claim and a vicarious liability claim
under respondeat superior. She has filed for partial summary
judgment for her vicarious liability claim under respondeat
superior. Moore argues there is no genuine issue of material
fact concerning liability for her alleged bodily injuries
because Wal-Mart admitted its technician's fault caused
Moore's property damages. However, Wal-Mart argues that
discovery is needed to determine liability.
Court will proceed to determine if there is a genuine issue
of material fact concerning liability when Wal-Mart
previously provided Moore payment for property damages.
law provides that “[u]nder the doctrine of respondeat
superior, the employer and employee are jointly and severally
liable for injury caused by the employee's negligence.
The practical implication of joint and several liability is
that a plaintiff in a respondeat superior action may sue
either the employer or the employee, or both.”
Sykes v. Home Health Care Affiliates, Inc., 125
So.3d 107, 109 (Miss. Ct. App. 2013) (citations omitted)
(emphasis added). Before a respondeat superior claim can be
proved, the plaintiff must prove negligence.
Mississippi, “[t]he elements of a negligence claim are
duty, breach of duty, proximate cause, and damages.”
Mladineo v. Schmidt, 52 So.3d 1154, 11162 (Miss.
is able to prove negligence from two emails sent by
Walmart's self-insured representatives. On March 28,
2018, a representative of Wal-Mart's self-insurance
company stated “Per our conversation, I found the
technician is at fault for the broken studs by over
tightening the lug nuts during the service.”
(Plaintiff's Supporting Memorandum for Partial Summary
Judgment, P. 13). On November 28, 2018, a different
representative of Wal-Mart's self-insurance company
stated “Payment was issued on 4/4/18 for the property
damage claim ...