Eschete v. Edgewater Mall et al
MEMORANDUM OPINION AND ORDER finding as moot 54 Motion for Summary Judgment; granting 56 Motion for Summary Judgment; granting in part and denying in part 58 Motion for Summary Judgment. Signed by District Judge Halil S. Ozerden on 1/31/17. (JCH)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
Civil No. 1:16CV89-HSO-JCG
JIM WILSON & ASSOCIATES, LLC
and CRUISIN’ THE COAST, INC.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT
CRUISIN’ THE COAST, INC.’S FIRST MOTION FOR SUMMARY
JUDGMENT , DENYING AS MOOT DEFENDANT CRUISIN’ THE
COAST, INC.’S SECOND MOTION FOR SUMMARY JUDGMENT , AND
GRANTING IN PART AND DENYING IN PART DEFENDANT JIM WILSON
& ASSOCIATES, LLC’S MOTION FOR SUMMARY JUDGMENT 
BEFORE THE COURT are the Motion for Summary Judgment  filed by
Defendant Jim Wilson & Associates, LLC; the First Motion for Summary Judgment
 filed by Defendant Cruisin’ the Coast, Inc.; and the Second Motion for
Summary Judgment  filed by Defendant Cruisin’ the Coast, Inc.
Motions are fully briefed.
After due consideration of the record, the submissions on
file, and relevant legal authority, the Court finds that Defendant Jim Wilson &
Associates, LLC’s Motion for Summary Judgment  should be granted in part
and denied in part; that the First Motion for Summary Judgment  filed by
Defendant Cruisin’ the Coast, Inc. should be granted; and that the Second Motion
for Summary Judgment  filed by Defendant Cruisin’ the Coast, Inc. should be
denied as moot.
This case will be dismissed with prejudice.
This case arises out of a trip and fall incident involving Plaintiff Theresa
Eschete (“Plaintiff”) that occurred while she and her husband, Carol Eschete, Jr.
(“Mr. Eschete”), were attending a “Cruisin’ the Coast” event at Edgewater Mall in
Biloxi, Mississippi, on October 11, 2013.
Am. Compl.  at 3.
The annual car
show was hosted by Defendant Cruisin’ the Coast, Inc. (“CRC”), which had obtained
permission to use the parking lot at Edgewater Mall, which was operated by
Defendant Jim Wilson & Associates, LLC (“JWA”).1 Id. at 2.
The Amended Complaint  alleges that Plaintiff and her husband were
walking around the Edgewater Mall parking lot and viewing the classic automobiles
parked at the event when she stepped “into a hole about 6 inches wide, by about 7
inches deep” in the parking lot.
Id. at 3-4. Plaintiff claims that she sprained her
right ankle and broke her left leg as a result.
Id. at 4.
In her deposition, however,
Plaintiff was unable to precisely describe the characteristics of the hole, including
Q. All right. Can you describe for me what you fell on?
A. A hole in the - - it was black, I guess, asphalt.
Q. And it was a circle, rectangle, what shape was it in?
A. To the best of my knowledge, it was probably a circle, maybe about a
size of a plate or a saucer maybe, I don’t know how deep.
Q. So maybe the size of a dinner plate?
A. I think smaller than a dinner plate, bigger than a saucer.
According to JWA, Edgewater Mall is managed by JWA and is owned by American
National Insurance Company, which is not a party to this lawsuit. JWA Mot. Summ. J.
 at 1 n.1.
Q. But you don’t know how deep it was?
Q. And you told [counsel] that the hole was about as big around as a
A. Smaller, probably between a dinner and a saucer.
Q. Between a dinner and a saucer. And you don’t know how deep it
A. No. I could guess, but it would be guessing.
Q. And you didn’t see the hole before you fell?
Q. And you don’t know what caused the hole to be there?
Q. You don’t know how long it had been there?
Q. Was there anything, a piece of paper, a napkin, anything that was
covering the hole that would have caused it to be hidden from your
view as you walked along the parking lot?
A. Not that I remember.
Pl.’s Dep. [56-1] at 42, 84-86.
Mr. Eschete testified that, although he was walking behind his wife when she
fell, he did not actually see her fall.
Mr. Eschete Dep. [56-2] at 15.
did not describe the hole in his deposition, and he did not know what caused
Plaintiff to trip:
Q. Okay. Do you know why she fell?
A. She must have walked into a hole on the parking lot.
Q. You said she must have?
Q. Do you know that’s why she fell or you’re just guessing.
A. I guess I’m guessing.
Q. All right. Now, after your wife fell, did you look around and see if
you could find anything that maybe caused her to fall?
A. No, sir.
Q. Do you have any idea why she fell?
A. No, sir.
Q. Did you ever ask why she fell?
A. No, sir.
Id. at 15, 19.
Mr. Eschete further testified that he had not spoken to any other
witnesses to the accident.
Id. at 26.
Defendants describe the area at issue as a minor depression in the asphalt, of
the type that visitors would normally expect to see in a parking lot.
Supp. CTC’s First Mot. Summ. J.  at 7; Mem. Supp. JWA’s Mot. Summ. J. 
The general manager of the mall, Terry Powell (“Mr. Powell”), testified that
the premises in that vicinity was inspected daily by maintenance and security
Powell Dep. [56-3] at 4, 6.
Mr. Powell also testified that there had
been no previous slip and fall incidents in the subject parking lot prior to October
Id. at 7-8.
Kenneth Ravenell (“Mr. Ravenell”), a mall security officer who was present
on the day of the accident, stated that he observed a “clearly visible small
depression in the asphalt that can best be described as though someone had
dropped a bowling ball in the asphalt and created a rounded depression.”
Aff. [58-4] at 2.
Mr. Ravenell took five color photographs of the subject area shortly
after the accident.
The photographs depict a depression matching the
description provided in Mr. Ravenell’s Affidavit [58-4]. See Photographs [56-4].
Plaintiff filed her Complaint [1-1] in the Circuit Court of Harrison County,
Mississippi, Second Judicial District, on February 12, 2016, naming JWA and
Edgewater Mall as Defendants.
Compl. [1-1] at 2.
JWA removed the case to this
Court on March 9, 2016, invoking jurisdiction based upon diversity of citizenship.
Not. of Removal  at 1B2.
On May 16, 2016, Plaintiff voluntarily dismissed
Defendant Edgewater Mall. Not. of Vol. Dismissal  at 1.
On June 29, 2016, Plaintiff filed an Amended Complaint  adding CTC, a
Mississippi corporation, as a Defendant.
Am. Compl.  at 2.
negligence claims against Defendants for allegedly breaching their legal duties
owed to Plaintiff as a business invitee.
Id. at 4. In relevant part, Plaintiff
contends that Defendants failed to maintain the premises in a reasonably safe
condition; failed to properly inspect and maintain the premises to protect Plaintiff
from the danger of reasonably foreseeable injury from occurring; and failed to warn
Plaintiff of the existence of the dangerous condition.
As a direct and
proximate result of Defendants’ negligence, Plaintiff alleges that she has suffered
severe personal injuries, including physical pain, nervous shock, and mental
anguish; loss of enjoyment of life; permanent weakness and disability; lost wages
and future income; and past and future medical expenses.
Id. at 5.
Defendants now move for summary judgment on Plaintiff’s claims.
First Motion for Summary Judgment , CTC asserts that it did not breach any
duty owed to Plaintiff because the area Plaintiff claims caused her injury did not
constitute an unreasonably dangerous condition. CTC’s First Mot. Summ. J. 
CTC argues that the “small depression in the parking lot” does not qualify as
an unreasonably dangerous condition under Mississippi law.
Id. at 1.
In the alternative, CTC seeks summary judgment on grounds that Plaintiff
held the status of a licensee, rather than invitee, at the time of the incident.
Second Mot. Summ. J.  at 1. CTC argues that because the duty owed to a
licensee is to refrain from willfully or wantonly injuring the licensee, and because
there is no evidence that CTC willfully or wantonly injured Plaintiff, Plaintiff’s
claims must be dismissed.
Id. at 2.
JWA also contends that it is entitled to summary judgment because, as a
licensee, Plaintiff cannot establish that JWA willfully or wantonly injured her.
JWA’s Mot. Summ. J.  at 7.
Alternatively, even if Plaintiff is classified as an
invitee, JWA argues that the “clearly visible small depression in the asphalt” was a
normally occurring condition which was not unreasonably dangerous as a matter of
law. Id. at 8. JWA further maintains that, even if a genuine issue of fact exists
regarding whether the depression in the pavement was a dangerous condition,
Plaintiff cannot demonstrate that JWA either caused the dangerous condition or
had actual or constructive knowledge of it.
Id. at 9.
In addition, JWA argues that
liability for Plaintiff’s injuries, if any, belongs to CTC because CTC was in control of
the area of the parking lot where Plaintiff fell on the day of the incident.
Id. at 11-
CTC has responded in opposition to JWA’s Motion with respect to JWA’s
assertion that CTC controlled the area of the parking lot where Plaintiff fell, rather
CTC’s Resp. to JWA Mot.  at 1-2.
CTC argues that JWA is not
entitled to summary judgment on this basis because there is sworn testimony that
JWA maintained a substantial degree of control over the area in question.
Id. at 3.
Plaintiff opposes Defendants’ Motions, arguing that she qualified as an
invitee of Defendants and that any dispute over her status as an invitee or licensee
is a factual determination for the jury.
to CTC’s Second Mot.  at 5.
Pl.’s Resp. to JWA Mot.  at 5; Pl.’s Resp.
Plaintiff further argues that whether the
depression in the parking lot constituted an unreasonably dangerous condition
presents a genuine issue of material fact that precludes summary judgment,
particularly because no one measured the depression before it was filled a few days
after the accident occurred.
Pl.’s Resp. to JWA Mot.  at 7; Pl.’s Resp. to CTC’s
First Mot.  at 7. Plaintiff “concedes that she cannot prove that [JWA]
committed a negligent act or had actual knowledge” of the depression, but
maintains that she can establish that JWA had constructive knowledge of the
dangerous condition such that summary judgment in favor of JWA would be
Id. at 8.
Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides that summary judgment is
appropriate “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). “When the moving party has carried its burden under Rule 56(c), its
opponent must do more than simply show that there is some metaphysical doubt as
to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986). “[T]he nonmovant must go beyond the pleadings and designate
specific facts showing that there is a genuine issue for trial.” Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
“A genuine dispute of material fact means that ‘evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’” Royal v. CCC &
R Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). If the evidence presented by the
nonmovant “‘is merely colorable, or is not significantly probative,’ summary
judgment is appropriate.” Cutting Underwater Techs. USA, Inc. v. ENI U.S.
Operating Co., 671 F.3d 512, 516 (5th Cir. 2012) (quoting Anderson, 477 U.S. at
249). In deciding whether summary judgment is appropriate, the Court views the
evidence and inferences in the light most favorable to the nonmoving party. RSR
Corp. v. Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).
Premises Liability Under Mississippi Law
Because this is a case arising under the Court’s diversity jurisdiction,
Mississippi substantive law applies.
Cox v. Wal-Mart Stores E., L.P., 755 F.3d 231,
233 (5th Cir. 2014); see also Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
Mississippi law, the fact that a plaintiff was injured on a defendant’s property does
not by itself establish that the owner was negligent.
Ins. Co., 109 So. 3d 84, 87 (Miss. 2013).
See Karpinsky v. Am. Nat’l
“To recover on a negligence claim, a
plaintiff must show that the defendant breached a particular duty owed to the
plaintiff, and that the breach of duty proximately caused damages.”
Hughes, 191 So. 3d 1236, 1240 (Miss. 2016) (quotation omitted).
judgment is appropriate if a plaintiff cannot make a prima facie showing of all of
the elements to support her claim.
Huynh v. Phillips, 95 So. 3d 1259, 1262 (Miss.
Because Plaintiff’s negligence claims are grounded in premises liability law,
the Court applies Mississippi’s three-step analysis of premises liability claims:
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) (citation omitted).
[A]n 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 . . . A licensee is one who enters upon the property of
another for his own convenience, pleasure, or benefit pursuant to the
license or implied permission of the owner[,] whereas a trespasser is one
who enters upon another’s premises without license, invitation, or other
Corley v. Evans, 835 So. 2d 30, 37 (Miss. 2003) (quotation omitted).
The difference in classification is important; a landowner owes a much
higher duty of care to invitees than he or she does to licensees. The
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. On the other hand, the
landowner owes a licensee the duty only to refrain from willfully or
wantonly injuring him.
Olier v. Bailey, 164 So. 3d 982, 986-87 (Miss. 2015) (internal quotations and
Analysis of Plaintiff’s Claim
The parties in this case dispute whether Plaintiff qualified as an invitee or a
licensee at the time of her fall. See JWA’s Mot. Summ. J.  at 5-7; Pl.’s Resp. to
JWA Mot.  at 5. If Plaintiff was a licensee, her claims against Defendants
must fail because the record in this case is devoid of any evidence that either
Defendant acted willfully or wantonly, resulting in Plaintiff’s injury.
See Olier, 164
So. 3d at 986-87.
If Plaintiff was an invitee, as she claims, Defendants owed her a duty to
maintain the premises in a reasonably safe condition and to warn of any dangerous
conditions not readily apparent about which Defendants knew, or should have
known, through the exercise of reasonable care.
Pigg v. Express Hotel Partners,
LLC, 991 So. 2d 1197, 1199-1200 (Miss. 2008).
Viewing the facts in the light most
favorable to Plaintiff, and assuming arguendo that Plaintiff qualified as an invitee,
the threshold question presented is whether there is a genuine issue of material fact
as to whether a dangerous condition existed in the parking lot that caused Plaintiff
As a general matter,
Mississippi courts have repeatedly held that normally encountered
dangers such as curbs, sidewalks, and steps will not be considered
hazardous conditions. These normally occurring dangers often contain
cracks and changes in elevation; they do not become hazardous
conditions simply because they contain minor imperfections or defects.
Parker v. Wal-Mart Stores, Inc., 261 F. App’x 724, 726–27 (5th Cir. 2008); cf.
Rodriguez v. GPI MS-N, Inc., No. 1:15cv255-RHW, 2016 WL 5720765, at *2 (S.D.
Miss. Oct. 3, 2016) (distinguishing from the long line of precedent finding that
potholes were not dangerous conditions because the plaintiff alleged that a hole in a
grassy median was concealed from view, thus creating a fact question of whether a
dangerous condition existed).
More specifically, numerous Mississippi decisions have held that potholes or
depressions in pavement are not dangerous conditions as a matter of law.
Chance v. Wal-Mart E., L.P., No. 3:14cv363-WHB-RHW, 2015 WL 4496442, at *2
(S.D. Miss. July 23, 2015) (“Under Mississippi law, the complained of ‘pothole’ and
resulting difference in elevation in the parking lot is not a dangerous condition.”);
Quick v Strategic Restaurants Acquisition Co., No. 3:12cv301-CWR-LRA, 2013 WL
1305583, at *2 (S.D. Miss. Mar. 28, 2013) (holding that a pothole or shallow
depression in a parking was not an unreasonably dangerous condition under
Mississippi law); City of Greenville v. Laury, 159 So. 121, 122 (Miss. 1935) (holding
that no jury could have found that a crevice in a street varying from a half-inch to
three inches in width and depth and eighteen inches to two feet in length “was of
such character as to make the street unsafe for use by persons in the exercise of
reasonable care”); Knight v. Picayune Tire Servs., Inc., 78 So. 3d 356, 358–59 (Miss.
Ct. App. 2011) (holding that an uneven surface in a store’s asphalt parking lot was
not an unreasonably dangerous condition as a matter of law).
The foregoing authority supports the conclusion that Defendants have
established that “there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law” with respect to the issue of whether the
depression in the Edgewater Mall parking lot was an unreasonably dangerous
condition under Mississippi law. FED. R. CIV. P. 56(a). Because Defendants have
made a prima facie showing that they are entitled to summary judgment, the
burden has shifted to Plaintiff to “designate specific facts showing that there is a
genuine issue for trial.”
Little, 37 F.3d at 1075.
Mere allegations and conclusory
statements are insufficient to defeat a motion for summary judgment.
Here, Plaintiff has not carried her burden.
The Court notes that, while
Plaintiff’s Amended Complaint  describes the area where Plaintiff fell as a “hole
about 6 inches wide, by about 7 inches deep,” nowhere in the competent summary
judgment evidence, including Plaintiff’s deposition or her three Responses filed in
opposition to Defendants’ Motions, does Plaintiff offer any additional description of
the depression in this manner, and the record evidence does not support the
allegations in her Amended Complaint.
Am. Compl.  at 3-4; see Pl.’s Resp. to
JWA Mot. ; Pl.’s Resp. to CTC’s First Mot. ; Pl.’s Resp. to CTC’s Second Mot.
The deposition testimony shows that neither Plaintiff nor her husband know
how deep the depression was.
See Pl.’s Dep. [56-1] at 42, 84-86; Mr. Eschete Dep.
[56-2] at 15, 19, 32. Although the depression has been filled and can no longer be
measured, the Court has viewed the photographs of the subject area taken after the
accident and concludes that they do not depict a seven-inch deep hole.
Instead, the photographs are consistent with Mr. Ravenell’s
description of a “clearly visible small depression in the asphalt that can best be
described as though someone had dropped a bowling ball in the asphalt and created
a rounded depression.”
Ravenell Aff. [58-4] at 2; see also City of Biloxi v.
Schambach, 157 So. 2d 386, 392 (Miss. 1963) (finding no liability after examining
photographs that were “a fair and accurate representation of the condition of the
sidewalk at the time [the plaintiff] stumbled and fell”).
Regardless of the exact
dimensions of the depression, the Court finds that this was the type of condition
that patrons would normally expect to encounter in a parking lot.
See Jones v.
Wal-Mart Stores E., LP, 187 So. 3d 1100, 1106 (Miss. Ct. App. 2016) (affirming
summary judgment when the plaintiff tripped over a pothole that was “four inches
deep and four inches wide and twelve inches long,” concluding that “[t]he crack at
issue here, while perhaps slightly larger than those at issue in prior cases, remains
a crack of the sort that customers of a business may normally expect to encounter as
they traverse a parking lot or sidewalk”).
Plaintiff has not submitted sufficient, competent summary judgment proof
from which a reasonable jury would have a legally sufficient evidentiary basis to
find that the depression in the pavement constituted a dangerous condition.
Anderson, 477 U.S. at 248; Waller v. Dixieland Food Stores, Inc., 492 So. 2d 283, 286
(Miss. 1986) (affirming summary judgment in a slip and fall case when “[t]he only
way a jury could have found against the defendants in this case was through
The following excerpt is illustrative of Plaintiff’s
arguments that Defendants are not entitled to summary judgment:
[Plaintiff] would argue that the circumstances in this case raise a
dispute of fact as to whether the depression in the parking lot at the Jim
Wilson & Associates, LLC., was unreasonably dangerous or not. While
in the cited cases the hole and cracks had been measured [sic]. Here, the
depression was filled within days of the accident. The Plaintiff nor the
Defendant has any measurements of the depression. This may create a
dispute in fact of whether the depression was unreasonably dangerous
or not. If it does create a dispute of fact, then it should be submitted to
a jury to decide. Therefore, Defendants [sic] motion for Summary
Judgment should be denied.
Pl.’s Resp. to JWA Mot.  at 8.
Plaintiff has not submitted any competent proof to support her allegation
that the “circumstances in this case” give rise to a dispute of material fact.
RSR Corp., 612 F.3d at 857 (“The court has no duty to search the record for
material fact issues.”).
The fact that the depression was not and cannot be
measured does not by itself create a genuine issue for trial.
See Little, 37 F. 3d at
1075 (“[Plaintiff’s] burden is not satisfied with ‘some metaphysical doubt as to the
material facts.’”) (quoting Matsushita, 475 U.S. 574 at 586); see also Jones, 187 So.
3d at 1106 n.3 (affirming summary judgment for the defendant despite the fact that
an uneven surface in asphalt had subsequently been filled, when photographs had
been taken shortly after the accident and the defendant “was not obligated to leave
an allegedly injury-causing crack in its parking lot indefinitely”). Viewing all facts
and inferences in the light most favorable to Plaintiff as the nonmoving party, the
Court finds that these allegations, absent any supporting evidence, are insufficient
to create a genuine issue of material fact as to whether the depression qualified as
an unreasonably dangerous condition.
Because the Court concludes that the depression at issue here did not
constitute an unreasonably dangerous condition under Mississippi law, Plaintiff
cannot establish that Defendants breached any duty to her. The Court need not
reach the question of whether Plaintiff should be classified as an invitee or a
licensee because Plaintiff cannot prevail against Defendants under either scenario.
Accordingly, CTC’s First Motion for Summary Judgment  should be
granted, and JWA’s Motion for Summary Judgment  should be granted in part
with respect to its assertion that the depression in the asphalt was not
unreasonably dangerous as a matter of law.
See JWA’s Mot. Summ. J.  at 8.
JWA’s Motion  will be denied as moot in all other respects.
Because the Court
does not reach the issue of Plaintiff’s classification as an invitee or a licensee, CTC’s
Second Motion for Summary Judgment  should also be denied as moot.
Plaintiff’s claims against JWA and CTC will be dismissed with prejudice.
For the foregoing reasons, the Court concludes that Defendants are entitled
to summary judgment because Plaintiff has not shown that there is a genuine issue
of material fact as to whether the depression in the pavement constituted an
unreasonably dangerous condition as a matter of law.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Motion for
Summary Judgment  filed by Defendant Jim Wilson & Associates, LLC is
GRANTED IN PART with respect to the Court’s finding that the condition in the
parking lot was not unreasonably dangerous as a matter of law.
In all other
respects, the Motion  is DENIED AS MOOT.
IT IS, FURTHER, ORDERED AND ADJUDGED that the First Motion for
Summary Judgment  filed by Defendant Cruisin’ the Coast, Inc. is GRANTED.
IT IS, FURTHER, ORDERED AND ADJUDGED that the Second Motion
for Summary Judgment  filed by Defendant Cruisin’ the Coast, Inc. is DENIED
IT IS, FURTHER, ORDERED AND ADJUDGED that Plaintiff’s claims in
this case are DISMISSED WITH PREJUDICE, and with costs. A separate final
judgment dismissing this civil action with prejudice will be entered pursuant to
Federal Rule of Civil Procedure 58.
SO ORDERED AND ADJUDGED, this the 31st day of January, 2017.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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