Clawson v. Wal-Mart Stores, Inc.

Filing 22

MEMORANDUM OPINION AND ORDER granting 20 Motion for Summary Judgment. Plaintiff's claims are Dismissed. Signed by Chief District Judge Louis Guirola, Jr. on 9/18/2017 (wld)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
THOMAS A. CLAWSON
v.

PLAINTIFF
CAUSE NO. 1:16CV240-LG-RHW

WAL-MART STORES, INC.

DEFENDANT

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT is the [20] Motion for Summary Judgment filed by
the defendant, Wal-Mart Stores, Inc., in this premises liability case. The plaintiff
has not responded. After due consideration of the defendant’s submissions and the
relevant law, it is the Court’s opinion that there is no question of material fact for
the jury in this case. Accordingly, the summary judgment motion will be granted
and this case dismissed.
BACKGROUND
Thomas Clawson alleges that while he was shopping in the Wal-Mart store in
Gulfport, Mississippi, he “suddenly and without warning slipped in a wet slippery
area of a store passageway.” (Compl. 2, ECF No. 1). He claims to have suffered
serious physical and emotional injuries as a result. (Id.). Wal-Mart seeks summary
judgment on the basis that Clawson has produced no evidence showing that it is
liable for his injuries under Mississippi premises liability law.
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). Clawson has
not submitted any argument or evidence in opposition to Wal-Mart’s Motion.
Nevertheless, Wal-Mart has the burden of establishing the absence of a genuine
issue of material fact and, unless it has done so, the Court may not grant the
Motion, regardless of whether any response was filed. Hibernia Nat. Bank v.
Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985).
PREMISES LIABILITY
There is no question that Mississippi law classifies Clawson as a business
invitee on the premises of Wal-Mart at the time of his alleged injury. Little by Little
v. Bell, 719 So. 2d 757, 760 (Miss. 1998) (“An 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 duty “to exercise reasonable or ordinary care to keep the
premises in a reasonably safe condition or to warn of dangerous conditions not
readily apparent, which the owner knows of, or should know of, in the exercise of
reasonable care.” Hartford v. Beau Rivage Resorts, Inc., 179 So. 3d 89, 91 (Miss. Ct.
App. 2015) (citation omitted). However, “the owner/occupier is not an insurer of the

-2-

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) (citation omitted). Mere proof of an injury
by a business invitee “is 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 on a premises liability claim,
the plaintiff must show: (1) a negligent act by the defendant caused the plaintiff’s
injury; or, (2) 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. Garson v. Circus
Circus Miss., Inc., 135 So. 3d 932, 934 (Miss. Ct. App. 2014) (citations and quotation
marks omitted).
Wal-Mart argues that Clawson cannot show evidence of any of the three
liability alternatives above, attaching deposition testimony from Clawson and his
fiancé in support. Specifically, Clawson testified that he slipped and fell in what he
described as “little spots” of a clear liquid consistent with something leaking from a
customer’s cart. (Def. Mot. Ex. A 81-82, ECF No. 21-1). There were no footprints or
tracks through the liquid. (Id. at 86). He did not know how the liquid came to be on
the floor, how long it was there, or if any Wal-Mart employee knew it was there.
(Id. at 86-87, 95).
Clawson’s fiancé was shopping with him at the time of the incident. She

-3-

testified that Clawson had slipped in a little puddle of water with buggy tracks
going through it. (Def. Ex. B 24, ECF No. 21-2). She did not know how long the
liquid had been on the floor, where it had come from, if Wal-Mart was responsible
for putting it there, or if Wal-Mart knew it was there. (Id. at 24, 27, 36-37).
The store manager on duty at the time of the incident provided an affidavit
regarding store procedures. (Def. Mot. Ex. C, ECF No. 21-3). Associates were
instructed to be on the lookout for spills and potential hazards. (Id. at 1). They
were required to carry pocket towels for small spills, and cleaning stations were
located throughout the store. (Id.). Spills were to be guarded until cleaned or
corrected. (Id. at 2). Additionally, managers and maintenance personnel performed
sweeps during the day to check for hazards. (Id.).
The evidence submitted in this case fails to substantiate Clawson’s claim of
premises liability. There is no indication that the liquid was on the floor because
Wal-Mart committed some negligent act, that Wal-Mart had knowledge of the liquid
on the floor, or that the liquid was on the floor long enough that Wal-Mart should
have known it was there. The evidence shows only that Clawson was injured in the
Wal-Mart store, which is not sufficient to establish premises liability under
Mississippi law. Accordingly, Wal-Mart has shown there is no question of material
fact for the jury. The Motion for Summary Judgment will be granted.
IT IS THEREFORE ORDERED AND ADJUDGED that the [20] Motion
for Summary Judgment filed by Defendant Wal-Mart Stores, Inc. is GRANTED.
Plaintiff’s claims are DISMISSED.
-4-

SO ORDERED AND ADJUDGED this the 18th day of September, 2017.

s/

Louis Guirola, Jr.

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

-5-