Burress v. Belk Stores of Mississippi, LLC
MEMORANDUM OPINION re 45 Order on Motion for Summary Judgment. Signed by Senior Judge Glen H. Davidson on 6/15/15. (rel)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO.1: 13-cv-00230-GHD-SAA
BELK STORES OF MISSISSIPPI, LLC
MEMORANDUM OPINION GRANTING
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Presently before the Court is Defendant Belk Stores of Mississippi, LLC's motion for
summary judgment . Upon due consideration, the Court finds that the motion should be
A. Factual and Procedural Background
On November 15, 2013, Plaintiff Linda Burress ("Plaintiff') filed a complaint in the
Circuit Court of Lee County, Mississippi, against Defendant Belk Stores of Mississippi, LLC
("Defendant"). Plaintiff alleges that while she was shopping at the Belk department store in
Tupelo, Mississippi on November 23, 2012, the Friday after Thanksgiving and the day
commonly known as Black Friday, a clothing rack fell on her, causing her to sustain injuries.
Plaintiff maintains that Defendant negligently constructed and erected the rack and/or failed to
provide her a safe shopping environment, and thus, that Defendant breached the duty it owed to
her as a Belk shopper and is liable to her for compensatory damages. See Pl.'s Compl. 
10; Def.'s Mot. Summ. J.  at 1; Pl.'s Resp. Opp'n to Def.'s Mot. Summ. J.  at 1.
Defendant filed an answer  to the complaint .
Plaintiff then filed a motion to
remand  the case to state court. This Court subsequently denied the motion in an Order 
and memorandum opinion  dated August 11, 2014, finding that the exercise of diversity
jurisdiction was proper.
On April 8, 2015, Defendant filed the present motion for summary judgment  on
Plaintiffs claims. Plaintiff filed a response, and Defendant filed a reply. In addition, the Court
held a hearing on the motion for summary judgment  on Wednesday, June 10,2015, during
which time the Court allowed the parties an opportunity to present oral argument on the issues
presented in the motion for summary judgment .
B. 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). See Fed. R. Civ. P. 56(a); Johnston &
Johnston v. Conseco Life Ins. Co., 732 F.3d 555, 561 (5th Cir. 2013). 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." Celotex Corp., 477
U.S. 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. at 323, 106 S. Ct. 2548.
Under Rule 56(a), 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.' " Id. at 324, 106 S. Ct. 2548;
Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir. 2001); Willis v. Roche
Biomedical Labs., Inc., 61 F.3d 3l3, 315 (5th Cir. 1995).
It is axiomatic that in ruling on a motion for summary judgment "[t]he evidence of the
nonmovant is to be believed[ ] and all justifiable inferences are to be drawn in his favor." Tolan
v. Cotton, - - U.S. - - , - , 134 S. Ct. 1861, 1863, 188 L. Ed. 2d 895 (2014) (per curiam)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,255, 106 S. Ct. 2505, 91 L. Ed. 2d 202
(1986»; see, e.g., Ard v. Rushing, 597 F. App'x 2l3, 217 (5th Cir. 2014) (per curiam) (quoting
United Fire & Cas. Co. v. Hixson Bros., Inc., 453 F.3d 283, 285 (5th Cir. 2006) (on summary
judgment, " '[w]e view the evidence in the light most favorable to the non-moving party' "».
The Court" 'resolvers] 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.''' Thomas v. Baldwin, 595 F. App'x 378, 378 (5th Cir. 2014) (per curiam)
(quoting Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th Cir. 20l3) (internal quotation
marks and citation omitted». "[T]he nonmoving party cannot defeat summary judgment with
conc1usory allegations, unsubstantiated assertions, or only a scintilla of evidence.' " Id. at 380
(quoting Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007».
"[A] 'judge's function' at summary judgment is not 'to weigh the evidence and determine
the truth of the matter but to determine whether there is a genuine issue for triaL'" Cotton, 134
S. Ct. at 1866 (quoting Anderson, 477 U.S. at 249, 106 S. Ct. 2505); see Stewart v. Guzman, 555
F. App'x 425, 430 (5th Cir. 2014) (per curiam) (citing Vaughn v. Wood/orest Bank, 665 F.3d
632, 635 (5th Cir. 2011) (In ruling on a summary judgment motion, "[w]e neither engage in
credibility determinations nor weigh the evidence."». With the foregoing standard in mind, the
Court turns to the issues before it.
Defendant maintains that Plaintiff s claims for negligent construction and premises
liability should be dismissed because Plaintiff has failed to substantiate her allegations.
Defendant contends that the negligent construction claim should be dismissed because Plaintiff
has failed to present proof that Defendant either constructed or erected the subject clothing rack.
Defendant further contends that the premises liability claim should be dismissed because
Plaintiff has failed to present proof either that Defendant knew the subject clothing rack would
fall or that Defendant failed to take any action to prevent the subject clothing rack from falling.
In support of its contentions for dismissal, Defendant cites to and attaches Plaintiffs responses to
Defendant's interrogatories, wherein Plaintiff apparently did not identify facts showing that
Defendant either constructed or erected the subject clothing rack, stated that she did not know
what wrong Defendant or its employees had committed that contributed to the subject clothing
rack falling upon her, and stated that neither she nor anyone on her behalf had conducted an
investigation into the facts and circumstances surrounding the subject incident. See Pl.'s Suppl.
Answers to Def.'s First Set of Interrogs. [32-2] at 1-2. Defendant further cites to and attaches
Plaintiffs deposition testimony, wherein Plaintiff stated she had no knowledge of who
manufactured or designed the subject clothing rack, that she had not talked with anyone at Belk
regarding when the rack was installed or used, and that she had no knowledge of any wrong
Defendant committed that contributed to or caused the subject clothing rack to fall. See PI.' s
Dep. [32.3] at 6, 1. Defendant attaches to its summary·judgment motion a copy of Plaintiffs
complaint, Plaintiffs deposition, and Defendant's answer to the complaint.
Plaintiff argues in response: "Due to the facts of the case, Plaintiff has had a difficult time
providing answers that comply with the phrasing of Defendant's interrogatories." PI.'s Resp.
Opp'n to Defo's Mot. Summ. J.  at 1. Plaintiff further argues that she urges her claims under
the doctrine of res ipsa loquitur (a theory not pled in her complaint) and argues in support the
following: "Defendant had complete control and management of the rack that caused the injury
to Plaintiff' and "situated the rack in the store and loaded it with clothes, which, subsequently,
was the proximate cause of the rack falling apart and hurting Plaintiff'; "Plaintiff had no reason
to think a clothing rack would fall apart and strike her in the head while she was shopping, nor
would she have reasonably had that expectation"; "the rack would not have fallen apart, injuring
Plaintiff, if proper care had been taken by Defendant"; and "the injury sustained by Plaintiff was
in no way caused by a voluntary act on her behalf," as according to her deposition testimony,
Plaintiff "placed the boots she was going to purchase on the floor next to the rack and ... had no
direct contact with the rack before it collapsed on her." Pl.'s Mem. Br. SUpp. Resp. Opp'n to
Def.' s Mot. Summ. J.  at 3. Plaintiff further argues that "Defendant owed Plaintiff a duty of
reasonable care to maintain the clothing rack that fell apart and injured Plaintiff' and that "there
is clearly a dispute in the facts between Plaintiff and Defendant" that renders summary judgment
inappropriate. !d. at 4. Aside from a passing reference to Plaintiffs own deposition testimony,
Plaintiff presents no proof to support her allegations.
Defendant contends in reply that the doctrine of res ipsa loquitur does not apply in this
case because Plaintiff has failed to show that Defendant had exclusive control of the subject
clothing rack. Defendant further contends that such a theory is not tenable, as the rack was on
the sales floor with many shoppers around it on Black Friday. Finally, Defendant maintains that
Plaintiff has failed to demonstrate a breach of duty. Thus, Defendant maintains that no genuine
dispute of material fact remains on Plaintiff's claims and the same should be dismissed as a
In the opinion of the Court, Defendant has met its 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 Celotex Corp., 477 U.S. at 323, 106 S. Ct.
2548. Thus, the burden has now shifted to Plaintiff 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.' " See id. at 324, 106 S. Ct. 2548.
Although this Court must make all reasonable inferences in Plaintiff's favor, she "cannot defeat
summary judgment with conclusory allegations, unsubstantiated assertions, or only a scintilla of
evidence." See Thomas, 595 F. App'x at 380.
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 F. App'x 476, 478 (5th Cir. 2010) (per curiam) (citing
Simpson v. Watson, 14 So. 3d 86, 88 (Miss. Ct. App. 2009». A business owner's duty depends
on the plaintiff s 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) (per curiam) (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». "Conduct is reasonable if it is fair, proper, just,
or suitable under the circumstances, and there is no liability for conduct from which no
unreasonable risk was to be anticipated." Id. (citing Evans v. United States, 824 F. Supp. 93, 97
(S.D. Miss. 1993».
"[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  that the operator caused the dangerous condition, or,  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».
"Constructive knowledge is established by proof that the
dangerous condition existed for such a length of time that, in the exercise of reasonable care, the
proprietor should have known of that condition." Id. (citing Fleming, 597 So. 2d at 1284).
Plaintiff attempts to undergird her claims with the doctrine of res ipsa loquitur. "The
doctrine of res ipsa loquitur is a form of circumstantial evidence 'that allows negligence to be
inferred in certain fact situations.''' Dorsey, 378 F. App'x at 479 (quoting Winters v. Wright,
869 So. 2d 357, 363 (Miss. 2003». "To apply the doctrine, the plaintiff must prove: (1) the
defendant had control and management of the instnunentality that caused the injury, (2) the
injury is one that 'in the ordinary course of things [ ] would not occur if those in control of the
instrumentality used proper care,' and (3) the injury was not the result of the plaintiffs own
voluntary act." Id. (quoting Powell v. Methodist Health Care-Jackson Hosps., 876 So. 2d 347,
349 (Miss. 2004».
However, under Mississippi law, "the doctrine of res ipsa loquitur is
inapplicable in premises liability cases" and slip-and-fall cases. Lindsey, 16 F.3d at 618 (citing
Tisdale, 185 So. 2d at 917); Douglas v. Great Atl. & Pac. Tea Co., 405 So. 2d 107, 111 (Miss.
1981); Tisdale, 185 So. 2d at 917.
Thus, res ipsa loquitur is inapplicable to Plaintiffs claims.
Furthennore, even if the doctrine could somehow apply to the facts of this case, Plaintiff has
failed to demonstrate key elements of res ipsa loquitur: that Defendant had control and
management of the clothing rack that fell upon Plaintiff and that the rack could only have fallen
on her due to Defendant's negligence. See Dorsey, 378 F. App'x at 479. These deficiencies are
fatal to her res ipsa loquitur theory.
Because Plaintiffs claims cannot prevail under a res ipsa loquitur theory, to survive
summary judgment, Plaintiff must offer proof on the customary negligence elements. Although
it is "generally true" that negligence cases "require the trier to pass upon the reasonableness of
the defendant's conduct in detennining whether that conduct constitutes negligence," this is only
the case when "the plaintiff has produced, with respect to each element of his cause of action,
competent proof that will withstand summary judgment." Lindsey, 16 F.3d at 618. Under
Mississippi law, "the plaintiff [must] demonstrate that the dangerous condition was the result of
an affinnative act ofthe proprietor." Id. (citing Tisdale, 185 So. 2d at 917).
Plaintiff states her belief that "Defendant had complete control and management of the
rack that caused the injury to Plaintiff' and "situated the rack in the store and loaded it with
clothes, which, subsequently, was the proximate cause of the rack falling apart and hurting
Plaintiff." However, Plaintiff offers no evidence of an affinnative act on the part of Defendant
that caused the subject clothing rack to fall. Nor has she provided evidence of any knowledge or
constructive knowledge on the part of Defendant as to the condition of the rack or of Defendant's
role in the construction of the rack.
"Reli[ance] on mere allegations and speculation" is
insufficient to carry negligence claims past summary judgment. See Patterson v. T.L. Wallace
Constr., Inc., 133 So. 325, 332 (Miss. 2013). Also, the mere fact that Plaintiff sustained an
injury while she was on Defendant's premises is not sufficient to sustain her case past summary
judgment. See Lindsey, 16 F .3d at 618. Due to the lack of proof on the elements of her premises
liability and negligent construction claims, summary judgment in favor of Defendant is
appropriate. See Saucier v. Waf-Mart Stores, Inc., 55 F.3d 633,1995 WL 314416, at *2 (5th Cir.
May 12, 1995) (per curiam); Lindsey, 16 F.3d at 618-19; Odom v. Waf-Mart Stores E., LP, No.
2: 12-CV-98-KS-MTP, 2013 WL 1310509, at *2 (S.D. Miss. Mar. 28,2013).
In sum, because there is no genuine dispute of material fact on Plaintiff's claims, the
same must be dismissed as a matter oflaw. Defendant's motion for summary judgment  is
GRANTED; Plaintiffs claims are DISMISSED; and this case is CLOSED.
An order in accordance with this opinion shall issue this day.
day of June, 2015.
SENIOR U.S. DISTRICT JUDGE
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