Hersey et al v. Food Giant Supermarkets, Inc.
MEMORANDUM OPINION re 41 Order on Motion for Summary Judgment. Signed by District Judge Sharion Aycock on 1/9/2017. (dbm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
JOHN HERSEY, and
CIVIL ACTION NO. 1:15-CV-127-SA-RP
FOOD GIANT SUPERMARKETS, INC.
Now before the Court is Food Giant Supermarkets Inc.’s Motion for Summary Judgment
. John and Ella Hersey responded  by requesting under Federal Rule of Civil Procedure
56(d) that the Court defer consideration of Food Giant’s motion until the close of discovery. The
Court granted the Herseys’ request and extended the time for them to respond beyond the close
of discovery. The Herseys failed to respond.1
Factual and Procedural Background
On May 20, 2014 John Hersey drove his wife Ella to the Food Giant supermarket in
Okolona, Mississippi. John Hersey remained outside while Ella Hersey went inside the store to
shop. As she entered the store, Ella Hersey tripped and fell over a rubber backed rug in the
entryway. Ella Hersey was injured in the fall and does not remember whether the rug was
upturned when she tripped. Other customers and assistant store manager Amanda Red came to
her assistance. The store video camera recording system may have captured Ella Hersey’s fall
but the quality of the images is extraordinarily poor, in part because a strong glare from the sun
blocks out the majority of the video. In addition, due to technical difficulties, Food Giant was
unable to capture the footage directly from the recording system. Instead, store manager Red
The Plaintiffs’ original Response  requesting deferral under Rule 56(d) did contain some brief responses to
Food Giant’s summary judgment arguments which the Court will consider.
took a second video with her cell phone of the store’s monitor replaying the original video. This
additional recording layer further degraded the quality of the recording.
The Herseys filed their Complaint  against Food Giant Supermarkets, Inc. in July of
2015. Ella Hersey asserts a claim for negligence based on premises liability and requests actual
and punitive damages. John Hersey asserts a claim for loss of consortium. Mississippi
substantive law applies in this diversity case. See Cox v. Wal-Mart Stores E., L.P., 755 F.3d 231,
233 (5th Cir. 2014) (citing Wood v. RIH Acquisitions MS II, LLC, 556 F.3d 274, 275 (5th Cir.
Summary Judgment Standard
Federal Rule of Civil Procedure 56 governs summary judgment. Summary judgment is
warranted when the evidence reveals no genuine dispute regarding any material fact, and the
moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). The rule
“mandates the entry of summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient 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. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
The moving party “bears the initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of [the record] which it believes demonstrate
the absence of a genuine issue of material fact.” Id. at 323, 106 S. Ct. 2548. The nonmoving
party must then “go beyond the pleadings” and “designate ‘specific facts showing that there is a
genuine issue for trial.’” Id. at 324, 106 S. Ct. 2548 (citation omitted). In reviewing the evidence,
factual controversies are to be resolved in favor of the non-movant, “but only when . . . both
parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994) (en banc). When such contradictory facts exist, the Court may “not make
credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000).
Even though the Plaintiffs did not respond to the instant summary judgment motion, Rule
56 makes it clear that there is “no summary judgment by default” and the lack of a response by
the Plaintiff does not alter the Court’s summary judgment inquiry. See FED. R. CIV. P. 56(e)
advisory committee notes to 2010 amendments. Summary judgment may only be granted if it is
appropriate to do so. See FED R. CIV. P. 56(a) The Fifth Circuit has held that “although ‘[a]
motion for summary judgment cannot be granted simply because there is no opposition’ . . . a
court may grant an unopposed summary judgment motion if the undisputed facts show that the
movant is entitled to judgment as a matter of law.” Calais v. Theriot, 589 F. App’x 310, 311 (5th
Cir. 2015) (quoting Hibernia Nat’l Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d
1277, 1279 (5th Cir. 1985)).
The analysis of premises liability claims under Mississippi law requires a determination
on three fronts: (1) legal status of the injured person, (2) relevant duty of care, and (3)
defendant’s compliance with that duty.” Wood, 556 F.3d at 275 (citing Massey v. Tingle, 867 So.
2d 235, 239 (Miss. 2004)). In the instant case, the parties agree the Plaintiff was a business
invitee at the relevant times. “[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.’” Kinstley v. Dollar Tree Stores, Inc., 63 F. Supp. 3d 658, 661 (S.D. Miss. 2014)
(citing Turner v. Entergy Miss., Inc., 139 So. 3d 115, 117 (Miss. Ct. App. 2014)).
A premises owner owes invitees a duty of reasonable care, to “maintain its premises in a
reasonably safe condition,” but a premises owner is “not an insurer of the safety of invitees.”
Pigg v. Express Hotel Partners, LLC, 991 So. 2d 1197, 1199 (Miss. 2008); Wood, 556 F.3d at
275. This includes duties 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).
In order to prove breach in a slip-and-fall case, a plaintiff must:
(1) show that some negligent act of the defendant caused his
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 and Analysis
Defendant Food Giant argues that the Plaintiffs failed to allege any facts that show that
the Defendant created or had actual or constructive knowledge of a dangerous condition. Food
Giant now requests summary judgment in their favor because the Plaintiffs cannot prove these
essential elements of their claims.
A review of the record in this case reveals that the Plaintiffs have not alleged or cited any
facts that could show either that the Defendant created any dangerous condition or that the
Defendant possessed actual or constructive knowledge of any dangerous condition. The
Plaintiffs’ complaint contains a bare recitation of the elements of a premises liability claim. In
the summary judgment context, conclusory allegations 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.
The Plaintiffs do argue that the video is of such poor quality that it is unclear what it
depicts. The Court agrees. However, the Plaintiffs’ argument that the poor quality of the video
somehow creates a question of fact for a jury is incorrect. The lack of factual evidence in the
video does nothing to alleviate the absence of factual support for the elements of the Plaintiffs’
claims. The only other evidence brought forth by the Plaintiff was Ella Hersey’s deposition
which is likewise devoid of facts that could show either that the Defendant created a dangerous
condition or that the Defendant possessed actual or constructive knowledge of a dangerous
Although the moving party “bears the initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact,” the nonmoving party must then “go
beyond the pleadings” and “designate ‘specific facts showing that there is a genuine issue for
trial.’” Celotex, 477 U.S. at 323-24, 106 S. Ct. 2548 (citation omitted). In addition, to survive
summary judgment, the Plaintiffs “must produce more than evidence of an injury.” Pigg, 991 So.
2d at 1200 (citing Sears, Roebuck & Co. v. Tisdale, 185 So.2d 916, 917 (Miss.1966) (holding
that the basis of liability is negligence and not injury)). Because the Plaintiffs failed to make a
showing sufficient to establish the existence of several elements essential to their case on which
they will bear the burden of proof at trial, summary judgment is granted in the Defendant’s favor
on all of Ella Hersey’s claims. Celotex, 477 U.S. at 322, 106 S. Ct. 2548.
Because John Hersey’s loss of consortium claim is wholly derived from Ella Hersey’s
claims, it too must be dismissed. “Mississippi law dictates that if the underlying personal injury
claim is disposed of, the loss of consortium claim cannot be maintained on its own.” Cox v. WalMart Stores E., L.P., 755 F.3d 231, 235 (5th Cir. 2014) (quoting J & J Timber Co. v. Broome,
932 So.2d 1, 6 (Miss. 2006).
For these reasons, Defendant Food Giant Supermarkets, Inc.’s Motion for summary
judgment  is GRANTED, and all of the Plaintiffs’ claims are DISMISSED with prejudice.
This CASE is CLOSED.
SO ORDERED on this the 9th day of January 2016.
/s/ Sharion Aycock
UNITED STATES DISTRICT JUDGE
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