Levin v. Lowe's Home Centers, LLC

Filing 30

MEMORANDUM OPINION AND ORDER granting 24 Motion for Summary Judgment Signed by Chief District Judge Louis Guirola, Jr. on 1/20/2017 (wld)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION

KENNETH A. LEVIN

PLAINTIFF

v.

CAUSE NO. 1:16CV110-LG-RHW

LOWE’S HOME CENTERS, LLC

DEFENDANT

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT is the [24] Motion for Summary Judgment filed by
Lowe’s Home Centers, LLC, in this premises liability case. The issues have been
fully briefed. After due consideration of the Motion and the relevant law, it is the
Court’s opinion that there is no question of material fact for the jury. The Motion
will be granted and this case dismissed.
BACKGROUND
Levin alleges he was shopping at the Lowe’s store in Gautier, Mississippi,
when he requested assistance to pick up a roll of wire mesh. No store personnel
came to help him, so Levin attempted to pick up the mesh himself. When he
touched it, the roll began to fall toward him. He reached out his hand to catch it,
and his finger was pinned between the roll and a cord across the bin holding the
mesh rolls. The sharp ends of the wire mesh roll caused lacerations on his left ring
finger, which required multiple sutures. Levin alleges that the roll of wire mesh
was a hazardous condition that Lowe’s failed to mitigate or warn him about. He
brings claims of negligence and premises liability against Lowe’s. (Compl. 3-4, ECF
No. 1-1).

Lowe’s moves for summary judgment on Levin’s claims, arguing that Levin
fails to establish a premises liability claim because he cannot show that Lowe’s was
negligent, that a dangerous condition existed, or that Lowe’s had knowledge of a
dangerous condition. The evidence submitted by the parties is minimal, consisting
only of excerpts from Levin’s deposition testimony and a one-page incident report
filled out by a Lowe’s employee after Levin reported his injury.
DISCUSSION
1. The Legal Standard
Summary judgment is mandated against the 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 has the burden of proof at trial. Fed. R. Civ. P. 56(e);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Factual controversies are
resolved in favor of the nonmoving party, 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).
2. Mississippi Premises Liability Law
Mississippi law classifies Levin as a business invitee on the premises of
Lowe’s. Little by Little v. Bell, 719 So. 2d 757, 760 (Miss. 1998) (AAn 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.@).
The duty owed by a premises owner to a business invitee is the Aduty
to exercise reasonable or ordinary care to keep the premises in a
reasonably safe condition.@ However, Athe owner/occupier is not an
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insurer of the invitee=s safety, and he is not liable for injuries which
are not dangerous or which are, or should be known to the business
invitee.@
McSwain v. Sys. Energy Res., Inc., 97 So. 3d 102, 107 (Miss. Ct. App. 2012) (quoting
Jones v. James Reeves Contractors, Inc., 701 So. 2d 774, 782 (Miss. 1997)). Mere
proof of an injury by a business invitee Ais not the basis for premises liability,
rather negligence of the business owner must be shown.@ Almond v. Flying J Gas
Co., 957 So. 2d 437, 439 (Miss. Ct. App. 2007) (citation omitted). To succeed in a
premises liability claim, the plaintiff must show: “(1) a negligent act by the
defendant caused the plaintiff's injury; or, (2) that the defendant had actual
knowledge of a dangerous condition, but failed to warn the plaintiff of the danger;
or, (3) the dangerous condition remained long enough to impute constructive
knowledge to the defendant.” Byrne v. Wal–Mart Stores Inc., 877 So.2d 462, 465
(¶5) (Miss. Ct. App. 2003) (citing Downs v. Choo, 656 So. 2d 84, 86 (Miss. 1995)).
“Each of these premises liability claims requires that the party show a dangerous
condition existed.” Walz v. HWCC-Tunica, Inc., 186 So. 3d 375, 377 (Miss. Ct. App.
2016).
3. Did A Dangerous Condition Exist?
Levin alleges that Lowe’s caused a dangerous condition by placing the roll in
the bin in an unstable condition and failing to cover the sharp, protruding ends of
the wire mesh. He further alleges that Lowe’s had a duty to warn him about the
dangerous condition, or provide assistance in removing the roll from the bin.
Lowe’s first argues that Levin has no evidence that a sharp end to the roll
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existed, or that this alleged hazard caused his injury, citing Levin’s testimony.
Levin testified that he reached over the safety cord across the bin to move the roll of
wire mesh to see how heavy it was. As he touched it, the roll tipped over. (Def.
Mot. Ex. A 45, ECF No. 24-1). Although his Complaint alleged that the sharp wire
ends lacerated his finger when the roll fell and pinned his finger between it and the
cord, (Compl. 2 (¶ IV), ECF No. 101), Levin testified that,
to be honest, in hindsight, I can’t be sure exactly how my finger got
injured. All I know is I moved away. I thought I would get my hand
out of the way. I assume it was the [cord] that stopped me. But I don’t
really know. It happened so quickly.
(Def. Mot. Ex. A 45, ECF No. 24-1). He agreed that he did not know if his finger
was cut by the wire mesh or by being caught between the safety cord and the roll of
mesh. (Id. at 46). Lowe’s argues that Levin’s uncertainty and speculation about
what caused his injury means that Levin “cannot show that whatever he cut his
finger on was an unreasonably dangerous condition.” (Def. Mem. 5, ECF No. 25).
Levin seems to argue that the roll of wire mesh was self-evidently a
dangerous condition because 1) the cut ends of the mesh were not covered and 2)
the roll was unstable enough to tip over when Levin tried to move it. Levin
submitted only his own testimony and a copy of the Lowe’s Incident Report1 to
support his claims. He does not provide evidence that it is an industry standard for
a retailer to cover the ends of rolled wire mesh, prevent customers from handling
rolls of wire mesh, warn customers about the potential hazards of handling rolls of
Levin’s description of the incident was recorded as “while loading rebar material
slipped and lacerated hand.” (Pl. Resp. Ex. A, ECF No. 27-1).
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wire mesh, or store rolls of wire mesh in a particular way. See Farmer v. Sam’s
East Inc., 253 F. App’x 352, 355 (5th Cir. 2007); see also Wilson, 161 So. 3d at 1131
(plaintiff failed to show dangerous condition without expert reports or evidence of
industry standards or store policy). There is similarly no evidence that the roll was
unstable because of an act or omission of a Lowe’s employee. In fact, the incident
here was set in motion by Levin’s own action.
Levin argues that this case is similar to Pigg v. Express Hotel Partners, LLC,
991 So. 2d 1197 (Miss. 2008). In Pigg, a family rented a hotel room. Id. at 1199.
When the minor child of the family shut a bathroom door, the mirror on the back of
the door fell, shattered, and injured the child. Id. The plaintiffs presented evidence
of “loosely-attached mirrors in two adjacent rooms . . . . ” Id. at 1200. Accordingly,
the Mississippi Supreme Court held that there was a genuine issue of fact as to
whether the defendant “knew or should have known of the loose mirror, and
whether it was negligent in inspecting its premises.” Id. Levin contends that the
facts that 1) Lowe’s had a hazardous object on its premises, and 2) “by its own
admission in the Incident Report [Lowe’s] had no idea when the area had last been
inspected for hazards,” constitute sufficient circumstantial evidence to overcome
summary judgment. (Pl. Resp. 5, ECF No. 28). This argument is flawed by the
mischaracterization of the incident report. There is a “U” in the space for the name
of the “employee who last inspected, stocked and/or cleaned the area before the
incident.” (Pl. Resp. Ex. A, ECF No. 27-1) (emphasis in original). Whatever the “U”
might mean (and there is no explanation of the report provided), it is not an
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admission that Lowe’s did not know when the area had been inspected. Evidence of
Lowe’s inspection schedule and/or routine is not in the record. The Court finds Pigg
distinguishable, as there is no evidence in this case that Lowe’s was negligent in
inspecting its premises or that there is some pattern of negligence concerning rolls
of wire mesh.2
CONCLUSION
“[A] ‘property owner cannot be found liable for the plaintiff’s injury where no
dangerous condition exists.’” Stanley v. Boyd Tunica, Inc., 29 So.3d 95, 97-98 (¶10)
(Miss. Ct. App. 2010) (quoting Delmont v. Harrison Cnty. Sch. Dist., 944 So. 2d 131,
133 (¶5) (Miss. Ct. App. 2006)). Levin does not show that the roll of wire mesh,
confined to a bin with a cord across the front, in and of itself constituted a
dangerous condition. Lowe’s need not “ensure that the premises are completely
risk-free.” See Sullivan v. Skate Zone, Inc., 946 So. 2d 828, 832 (Miss. Ct. App.
2007). The Court therefore concludes that there is inadequate evidence from which
a jury could reasonably conclude that Lowe’s breached its duty to keep its store
reasonably safe, making summary judgment appropriate.
IT IS THEREFORE ORDERED AND ADJUDGED that the [24] Motion
for Summary Judgment filed by Lowe’s Home Centers, LLC, is GRANTED.
Levin’s deposition excerpts include two photographs he took of other wire mesh
rolls at either the Gautier or D’Iberville Lowe’s store after the incident. They show
wire rolls with protruding ends, just as Levin described the wire roll he handled.
Lowe’s objects to these photographs, but it is unnecessary to determine whether
they are admissible. Evidence of other wire rolls like the one at issue does not
impact the Court’s decision since there is no indication that the rolls constitute a
dangerous condition.
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Plaintiff’s claims are DISMISSED.
SO ORDERED AND ADJUDGED this the 20th day of January, 2017.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE

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