Kinsella v. OfficeMax Incorporated et al
ORDER denying 40 Motion for Summary Judgment. Signed by District Judge Michael P. Mills on 4/3/2017. (lpm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
Civil Action No.: 3:15-cv-00194-MPM-JMV
OFFICEMAX, INC. et al.
Presently before the Court is defendants OfficeMax Incorporated, OfficeMax North
America, Inc., and OfficeMax, Inc.’s (“OfficeMax”) Motion for Summary Judgment .
Plaintiff Ronna Kinsella (“Kinsella”) responded in opposition to the motion, and OfficeMax filed
a reply. Having reviewed these submissions, along with relevant authorities and evidence, the
Court is now prepared to rule.
On the evening of January 9, 2013, Kinsella and her mother entered an OfficeMax store
located in Southaven, Mississippi. Prior to their arrival at the store, another customer spilled ink
toner on the floor in or around the store’s ink aisle.1 Justin Bernero—an OfficeMax employee—
mopped up the spill and placed a yellow caution sign in the area. Shortly thereafter, Kinsella
arrived and began walking down the “main center aisle” toward the restroom in the back of the
building and “slipped and fell in a puddle of water while passing an end-cap display.” Kinsella
allegedly suffered severe injuries as a result of the fall.
In her response, Kinsella emphasizes that OfficeMax previously stated that the customer had
spilled a “liquid substance” rather than ink toner. OfficeMax also stated in a discovery document
that the floor was wet due to rainy weather outside. While Kinsella makes a point to note this
distinction, it does not appear, in the Court’s view, to have any legal relevance to this motion. It
is undisputed that the floor surrounding the area where Kinsella eventually fell was wet.
The parties do not dispute that a yellow caution sign was placed somewhere near the area
where Kinsella fell. In fact, Kinsella herself testified that she “noticed a wet floor sign . . . [and
that] somewhere around there was where [she] fell.” The parties do, however, dispute the exact
placement of the sign. OfficeMax asserts that “[t]he yellow caution sign was positioned in the
middle of the center aisle so that the front of the sign was facing customers walking straight on
the center aisle toward the back of the store.” Kinsella disagrees, asserting that her testimony
and photographs from the surveillance video directly refute this allegation. In her deposition,
Kinsella testified that the caution sign was placed at an angle “in between the smallest aisle and
the first tall aisle, not in the main center aisle where I was walking.”
Nevertheless, Kinsella walked past the sign, slipped and fell, and allegedly suffered
serious injuries. On November 10, 2015, she filed this action. In her complaint, she asserts that
OfficeMax’s negligence, gross negligence, and/or recklessness were the proximate cause of her
injuries. On February 6, 2017, OfficeMax filed the present motion, arguing that Kinsella has not
come forward with sufficient evidence to survive summary judgment. Having given due
consideration to the motion, the Court finds that it is not well-taken and should be denied.
Rule 56 Standard
Summary 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 inferences 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.3d 1069, 1075 (5th Cir. 1994)). However, “[s]ummary judgment is  improper where the
court merely believes it unlikely that the non-moving party will prevail at trial.” U.S v. Miss.
Dep’t of Pub. Safety, 309 F.Supp.2d 837, 840 (S.D. Miss. 2004) (citing Nat’l Screen Serv. Corp.
v. Poster Exch., Inc., 305 F.2d 647, 651 (5th Cir. 1962)).
The Court first notes that because this is a diversity jurisdiction case, Mississippi
substantive law is applicable. See Chambliss v. Wal-Mart Stores, Inc., 2015 WL 5009698, *8
(S.D. Miss. Aug. 21, 2015); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed.
1188 (1938). Under Mississippi law, “[t]he analysis of premises liability involves three steps:
first, the court must determine the status of the injured party as invitee, licensee, or trespasser;
second, based on the injured’s status, the court must determine what duty the landowner/business
operator owed the injured party; and third, the court must determine whether the
landowner/business operator breached the duty owed the injured party.” Thomas v. Columbia
Grp., LLC, 969 So.2d 849, 852 (Miss. 2007) (citing Little ex rel. Little v. Bell, 719 So.2d 757,
760 (Miss. 1998)).2
See also Cox v. Wal-Mart Stores East, L.P., 755 F.3d 231, 233 (5th Cir. 2014) (“Premises
liability analysis under Mississippi law requires three determinations: (1) legal status of the
Regarding the first step of this analysis, the parties agree that Kinsella was an invitee at
the time the fall occurred. This is in accordance with Mississippi law, which has recognized that
“[a] business invitee is defined as someone who enters onto another’s premises at the invitation
of the owner for the purpose of benefitting both parties.” Grammar v. Dollar, 911 So.2d 619,
624 (Miss. Ct. App. 2005). Kinsella’s presence at the store was undoubtedly based upon
OfficeMax’s implied invitation and for the mutual benefit of the parties. Therefore, the Court
finds that Kinsella’s legal status at the time of the fall was that of an invitee.
The Court now turns to the second step of the premises liability analysis, which requires
that it determine the relevant duty of care OfficeMax owed Kinsella. Under Mississippi law, “[a]
landowner owes an invitee the duty to keep the premises reasonably safe[.]” Thomas, 969 So.2d
at 853. “While a premises owner is not an insurer of the safety of invitees, the premises owner
does have a duty of reasonable care, to maintain its premises in a reasonably safe condition.”
Pigg v. Express Hotel Partners, LLC, 991 So.2d 1197, 1199 (Miss. 2008).3 Moreover, “[t]hat
duty includes not only the duty to keep its premises in a reasonably safe condition, but the duty
to ‘warn of any dangerous conditions not readily apparent [of] 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.’” Id. at 1199-1200 (quoting Gaines v.
K-Mart Corp., 860 So.2d 1214, 1216 (Miss. 2003)). Stated concisely, “[a] landowner owes an
invitee the duty ‘to keep the premises reasonably safe and when not reasonably safe to warn only
where there is hidden danger or peril that is not in plain and open view.’” Mayfield v. The
injured person, (2) relevant duty of care, and (3) defendant’s compliance with that duty.”)
(additional citations omitted).
The Mississippi Court of Appeals has recognized that the duty to exercise reasonable or
ordinary care is “[t]he highest burden” that can be placed upon a property owner. Day v. Ocean
Springs Hosp. Sys., 923 So.2d 246, 249 (Miss. Ct. App. 2006) (additional citations omitted).
Hairbender, 903 So.2d 733, 737-38 (Miss. 2005) (quoting Massey v. Tingle, 867 So.2d 235, 239
(Miss. 2004) (additional citations omitted)). The Mississippi Supreme Court has further held
that these two duties—(1) to keep the premises reasonably safe and (2) to warn of hidden
dangers—must be analyzed separately, and “[t]he breach of either duty supports a claim of
negligence.” Id. (emphasis added).
Having determined the relevant duty—the second step of the analysis, the Court will now
consider whether OfficeMax breached that duty. This third step provides the basis for the
parties’ dispute. “Mere proof of the occurrence of a fall on a floor within the business premises
is insufficient to show negligence of the part of the proprietor.” Chambliss, 2015 WL 5339698,
at *9 (quoting Bonner v. Imperial Palace of Miss., LLC, 117 So.3d 678, 682 (Miss. Ct. App.
2013) (additional citation omitted)).
Specifically concerning slip-and-fall cases, the Mississippi Court of Appeals has
explained that, in order to recover, 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[.]” Bonner, 117
So.3d at 682.
Kinsella’s argument is based on the second theory of breach listed above—specifically,
that OfficeMax had knowledge of a dangerous condition and failed to adequately warn her of
that condition. In her complaint, Kinsella asserts that “OfficeMax only placed a single ‘wetfloor’ sign in the area of the original spill, and failed to place any warning signs or take other
preventative and/or precautionary measures to protect store patrons from the excess
Based on the circumstances surrounding Kinsella’s fall, the wet floor undoubtedly
created a dangerous condition.4 This is evinced by the fact that Kinsella actually slipped on the
floor and injured herself. Moreover, it appears clear that Bernero—the OfficeMax employee—
perceived the wet floor as a dangerous condition since he placed a yellow caution sign in the area
where he had recently mopped. This fact also tends to show that OfficeMax had actual
knowledge of the dangerous condition. Nevertheless, Kinsella still must show that OfficeMax
failed to adequately warn her of the dangerous condition. Upon review of the arguments and
evidence she has submitted, the Court finds that she has come forward with sufficient evidence
to create a genuine issue of material fact on this issue, making summary judgment improper.
As previously stated, Kinsella does not dispute that a yellow caution sign was placed in
the area where she fell. In fact, she specifically testified in her deposition that she remembered
seeing the sign prior to falling and the photographs provided to the Court show her walking just
to the left of the sign prior to her fall. Instead, Kinsella argues that the single caution sign failed
to adequately warn her of the dangerous condition and that OfficeMax should have taken
additional precautionary measures to protect her.
OfficeMax’s position is that the caution sign was placed in the “middle of the center
aisle[.]” Kinsella, of course, disputes this assertion, averring that the sign was placed “at an
angle in between those two [side] aisles[,]” as opposed to the main center aisle where she was
walking. She specifically testified that “[w]hat I understand is that wet floor signs, when they’re
usually placed in advance of a hazard, and the way I interpreted this sign was that it was
directing towards the hazard that was in between the small aisle and the first tall aisle, not the
main center aisle that I was walking on.” Thus, Kinsella’s position is that the placement of the
See IOC-Lula, Inc. v. Smartt, 198 So.3d 455, 459-60 (Miss. Ct. App. 2016) (recognizing a
freshly mopped floor as a dangerous condition).
sign did not put her on notice that the middle aisle, where she was walking, was wet. Moreover,
Kinsella further testified in her deposition that immediately after she fell, “the manager came up
and basically confirmed my initial thought, which was that the spill was in between these two
aisles. Because she said specifically, there had been a spill in between these two aisles and they
had mopped it up. They didn’t realize the water had gotten to where I was when I fell.”
Additionally, Kinsella attached to her motion multiple photographs from an OfficeMax
surveillance video, which depict her walking toward the sign prior to her fall. The Court has
reviewed the photographs but is unable to determine the angle of the sign based upon those
pictures. Thus, these photographs do not, in this Court’s view, undermine Kinsella’s position
that the sign was placed at an angle toward the side aisle.
Kinsella also attached to her motion another photograph, which was produced by
OfficeMax in discovery that clearly shows a yellow caution sign placed directly in the middle of
the store’s center aisle. The photograph, however, is dated January 1, 2009. Kinsella avers that
the photograph was not taken on the date in question, stating that the photograph “when
compared to the still shots from the video surveillance from the subject accident, depict[s] a
completely different placement of the ‘wet floor’ sign shown and signs hanging from the ceiling
not shown anywhere in the actual video surveillance from the accident.” Disputing Kinsella’s
argument, OfficeMax merely states that “[t]he date displayed on the camera is merely a default
Upon review of this evidence, the Court finds that genuine issues of material fact remain
in dispute, precluding summary judgment. As stated above, when the premises is not reasonably
safe, a landowner owes a duty to warn invitees “where there is hidden danger or peril[.]”
Mayfield, 903 S.2d 737-38. While OfficeMax argues that it complied with this duty because the
sign was placed in the middle of the center aisle in such a manner that Kinsella should have been
put on notice that the area was wet, Kinsella testified that, based upon the sign’s placement, she
thought that the dangerous area was in the side aisle, not in the center aisle where she was
walking. Kinsella also testified that the store manager informed her that she was unaware the
spill had reached the center aisle. This testimony, if accepted as true, tends to show that
OfficeMax did not sufficiently warn Kinsella of the hidden danger, which ultimately caused her
to sustain serious injuries. While Kinsella’s testimony is certainly self-serving, at this stage, the
Court “may not make credibility determinations or weigh the evidence” and must “draw all
reasonable inferences” in Kinsella’s favor, as the non-moving party. Reeves, 530 U.S. at 150.
Applying this standard, the Court finds that summary judgment is not appropriate.
Kinsella has come forward with evidence, which weighs in her favor and, if accepted as true,
tends to show that OfficeMax failed to sufficiently warn her of the dangerous condition on its
premises. Moreover, the photographs that have been provided do not strike the Court as
dispositive in favor of either party. Ultimately, Kinsella has come forward with sufficient
evidence to create a genuine issue of material fact as to the adequacy of OfficeMax’s warning.
At the summary judgment stage, the Court’s function is not to resolve factual disputes but,
rather, simply determine if such disputes exist. See Kennett-Murray Corp. v. Bone, 622 F.2d
887, 892 (5th Cir. 1980). Because such disputes remain in existence at this time, the Court finds
that OfficeMax’s motion should be denied.
“[S]ummary judgment for the moving party is only proper when a rational jury, looking
at the record as a whole, could not find for the nonmoving party.” Simmons v. Ford Motor Co.,
2006 WL 3760521, at *2 (S.D. Miss. Dec. 15, 2006) (citing Matshushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).5 Based on the
evidence provided, the Court finds that a rational jury could rule in Kinsella’s favor, making
summary judgment improper.
Accordingly, it is hereby ORDERED that OfficeMax’s Motion for Summary Judgment
 is DENIED.
SO ORDERED, this the 3rd day of April, 2017.
/s/ MICHAEL P. MILLS
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF MISSISSIPPI
On this point, the Mississippi Supreme Court has held that “a case should never be taken from
a jury ‘if, from the facts favorable to the party adversely affected together with all reasonable
inferences therefore, it can be said that a rational jury could find in [her] favor.’” Tate v.
Southern Jitney Jungle Co., 650 So.2d 1347, 1351 (Miss. 1995) (quoting McGovern v.
Scarborough, 566 So.2d 1225, 1228 (Miss. 1990)) (emphasis added).
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