Stanton v. Food Giant Supermarkets, Inc. et al

Filing 110

ORDER denying 46 Motion for Summary Judgment. Signed by Magistrate Judge Robert H. Walker on December 4, 2013 (King, Steve)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
MARCELLA MCCANN STANTON
VERSUS

PLAINTIFF
CIVIL ACTION NO. 1:12CV261-RHW

FOOD GIANT SUPERMARKETS, INC.

DEFENDANT

ORDER DENYING MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendant Food Giant Supermarkets, Inc's (Food Giant) [46] Motion
for Summary Judgment. In her complaint, Plaintiff Marcella McCann Stanton alleges that on
July 22, 2009, while shopping at Defendant's Piggly Wiggly store in Escatawpa, Mississippi, she
slipped and fell on water or some other foreign substance on the floor of the store. As a result of
the fall, she alleges various injuries.
Food Giant argues that it is entitled to summary judgment because there is no admissible
evidence that it created, or had prior actual knowledge of a dangerous condition that caused
Plaintiff's fall. Even if Defendant had notice of a dangerous condition, it argues that there is no
evidence that it had a sufficient and reasonable time to correct the dangerous condition, yet failed
to do so.
Fed. R. Civ. P. 56(a) provides that summary judgment is appropriate "[i]f 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." "A fact is 'material' if its resolution in favor of one party might
affect the outcome of the lawsuit under governing law. An issue is 'genuine' if the evidence is
sufficient for a reasonable jury to return a verdict for the nonmoving party." Hamilton v. Segue
Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000).
In reviewing the evidence, the court makes all reasonable inferences in favor of the non-

moving party. James v. State Farm Mutual Ins. Co., 719 F.3d 447, 466 (5th Cir. 2013). Factual
controversies are to be resolved in favor of the nonmovant, "but only when there is an actual
controversy, that is, when both parties have submitted evidence of contradictory facts." Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). The Court does not "in the absence of any
proof, assume that the nonmoving party could or would prove the necessary facts." Id. To rebut
a properly supported motion for summary judgment, the opposing party must show, with
"significant probative evidence", that there exists a genuine issue of material fact. Hamilton, 232
F.3d at 477. "[M]ere conclusory allegations are not competent summary judgment evidence, and
such allegations are insufficient, therefore, to defeat a motion for summary judgment." Eason v.
Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). "[T]he party opposing summary judgment is
required to identify specific evidence in the record and to articulate precisely how this evidence
supports his claim." RSR Corp. v. Int'l Ins. Co., 612 F.3d 851, 858 (5th Cir. 2010).
Because jurisdiction in this case is based upon diversity of citizenship, Mississippi
substantive law applies. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). At issue is the narrow
question of whether Food Giant had notice of the spill that allegedly caused Plaintiff to slip and
fall, and whether Food Giant had a reasonable time to correct the dangerous condition, yet failed
to do so. See Karpinsky v. American Nat. Ins. Co., 109 So. 3d 84, 92 (Miss. 2013); see also
Haggard v. Wal-Mart Stores, Inc., 75 So. 3d. 1120, 1126-27 (Miss. Ct. App. 2011).
There is no evidence, nor allegation, that Defendant's negligence caused the liquid
substance to be on the floor. At her deposition, Plaintiff testified that she did not know how the
liquid came to be on the floor and did not see anybody put it on the floor. Moreover, she
conceded that she did not know how long the liquid had been on the floor before she fell. Ricky
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Dunaway, the store manager on duty the day of the incident, stated that neither he nor any other
store employee had knowledge of the foreign substance being on the floor prior to Plaintiff's fall.
Dunaway also testified at his deposition that he had inspected the area where Plaintiff fell
immediately prior to her fall and no water or foreign substance existed in the area. He stated it
was only after the incident that he saw some kind of liquid on the floor.
In response, Plaintiff points to her deposition testimony. She stated that Terry Patrick
was the store manager on the day of the incident (July 22, 2009). She further stated that the
manager "was coming past me, and when I got up there by that first cash register--last cash
register on the end right there, I slipped and fell in water. And he spoke and said, I told y'all to
clean this water up. This lady done fell." Plaintiff does not identify any other summary
judgment evidence related to the issue of Defendant's knowledge of the spill and/or whether
Defendant had a reasonable time to remove the dangerous condition.
Plaintiff has demonstrated a genuine issue of material fact regarding Defendant's
knowledge. Specifically, Plaintiff indicated that immediately after her fall, the store manager
said "I told y'all to clean this water up." This statement indicates an awareness of the dangerous
condition prior to Plaintiff’s fall. Moreover, a jury could infer from the store manager's
statement that there had been an opportunity for the store employees to clean up the spill but they
had failed to do so. Although there is some question regarding the identity of the store manager
who allegedly made the statement, i.e. Patrick or Dunaway, this issue can be explored at trial.
Defendant's reliance on Karpinsky and Haggard is misplaced. In Karpinsky the only
competent summary judgment evidence was an incident report that established at best only that
defendants knew of the spill some time prior to the plaintiff's fall; however, the plaintiff
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presented no evidence that the defendants had a reasonable time to correct the dangerous
condition. See Karpinsky, 109 So. 3d at 92. Likewise in Haggard there was no evidence of how
long the dangerous condition existed prior to the plaintiff's fall. See Haggard, 75 So. 3d at 112627. In the instant case, the store manager's hearsay statement does not establish a precise
quantitative measure of time; however, a jury still could reasonably conclude from the store
manager's statement that there had been a failed opportunity to clean up the spill prior to
Plaintiff's fall. A more precise measurement of time is required in cases based on constructive
knowledge of the hazard. See Dickens v. Wal-Mart Stores, Inc., 841 F.Supp. 768, 771 (S.D.
Miss. 1994); see e.g. Haggard, 75 So. 3d at 1126-27 (holding that plaintiff’s constructive
knowledge theory failed to set forth specific facts to establish a time frame for defendant's
knowledge of the spill); Jacox v. Circus Circus Mississippi, Inc., 908 So. 2d 181, 184 (Miss. Ct.
App. 2005)(holding that to establish constructive knowledge "plaintiff must produce admissible
evidence of the length of time that the hazard existed"). In the instant case, however, Plaintiff
has demonstrated a genuine issue of material fact as to actual knowledge of the hazardous
condition.
IT IS THEREFORE ORDERED AND ADJUDGED that the [46] Motion for Summary
Judgment is DENIED. The Court will conduct a telephone conference to set a trial date.
SO ORDERED, this the 4th day of December, 2013.

/s/

Robert H. Walker

ROBERT H. WALKER
UNITED STATES MAGISTRATE JUDGE

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