Pettaway v. Wal-Mart Stores East, LP et al

Filing 44

MEMORANDUM OPINION AND ORDER granting 37 Motion for Summary Judgment. Darrell Pettaways claims against Wal-Mart Stores East, LP are dismissed with prejudice; and Darrell Pettaways claims against John Does 1-5 are dismissed without prejudice, because the deadline for naming these parties has expired. Signed by District Judge Louis Guirola, Jr. on 3/15/18. (RLW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
DARRELL PETTAWAY
v.

PLAINTIFF
CAUSE NO. 1:17CV5-LG-RHW

WAL-MART STORES EAST,
LP and JOHN DOES 1-5

DEFENDANTS

MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT is the [37] Motion for Summary Judgment filed by
the defendant Wal-Mart Stores East, LP, in this premises liability lawsuit. The
parties have fully briefed the Motion. After reviewing the submissions of the
parties, the record in this matter, and the applicable law, the Court finds that the
Motion for Summary Judgment should be granted. The Court further finds that the
plaintiff Darrell Pettaway’s claims against John Does 1-5 should be dismissed,
because the deadline for naming these parties has expired.
BACKGROUND
On December 20, 2013, Pettaway slipped and fell in the automotive supply
section of the Wal-Mart store in Pascagoula, Mississippi. He testified during a
deposition that he is not sure what kind of substance he stepped in that caused him
to slip, but he believes it was a liquid soap, such as Armour All. (Pl.’s Resp., Ex. D
at 94, ECF No. 39-4). He does not where the substance came from, and he did not
see an open container in the aisle. (Id.) He does not know how long the substance
was on the floor or how the substance came to be on the floor. (Id.)

Pettaway filed this lawsuit in the County Court of Jackson County,
Mississippi, alleging negligence and negligent infliction of emotional distress claims
against Wal-Mart. Wal-Mart removed the case to this Court and filed the present
Motion for Summary Judgment.
DISCUSSION
A motion for summary judgment may be filed by any party asserting that
there is no genuine issue of material fact and that the movant is entitled to prevail
as a matter of law on any claim. Fed. R. Civ. P. 56. The movant bears the initial
burden of identifying those portions of the pleadings and discovery on file, together
with any affidavits, which it believes demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant
carries its burden, the burden shifts to the non-movant to show that summary
judgment should not be granted. Id. at 324-25. The non-movant may not rest upon
mere allegations or denials in its pleadings but must set forth specific facts showing
the existence of a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256-57 (1986).
The parties do not dispute that Pettaway was a business invitee when he
visited the Wal-Mart store. Therefore, Wal-Mart had a duty to “keep [the] premises
in a reasonably safe condition and to warn of dangerous conditions which are not
readily apparent to the invitee.” K-Mart Corp. v. Hardy, 735 So. 2d 975, 981 (¶14)
(Miss. 1999). Mere proof of a fall within a business is insufficient to recover on a
negligence claim. Rod v. Home Depot USA, Inc., 931 So. 2d 692, 695 (¶12) (Miss. Ct.

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App. 2006). “A business owner/operator is not the insurer of the invitee’s safety.”
Id.
In order for an invitee to recover in a slip-and-fall case, the invitee
must (1) show that some negligent act of the defendant caused his
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, in that the defendant
should have known of the dangerous condition.
Moore v. Rouse’s Enters., LLC, 219 So. 3d 599, 602 (¶7) (Miss. Ct. App. 2017)
(quoting Grammar v. Dollar, 911 So. 2d 619, 624 (¶12) (Miss. Ct. App. 2005)).
Pettaway has no evidence that Wal-Mart had actual or constructive
knowledge of the spill. However, he argues that this Court should presume that
Wal-Mart had knowledge of the spill pursuant to the spoliation doctrine, because
Wal-Mart has not produced surveillance video of his accident. “Under the spoliation
doctrine, a jury may draw an adverse inference that a party who intentionally
destroys important evidence in bad faith did so because the contents of those
documents were unfavorable to that party.” Schreane v. Beemon, 575 F. App’x 486,
490 (5th Cir. 2014) (quoting Whitt v. Stephens Cty., 529 F.3d 278, 284 (5th Cir.
2008)). “The Fifth Circuit permits an adverse inference against the destroyer of
evidence only upon a showing of ‘bad faith’ or ‘bad conduct.’” Id. “Bad faith, in the
context of spoliation, generally means destruction for the purpose of hiding adverse
evidence.” Guzman v. Jones, 804 F.3d 707, 713 (5th Cir. 2015). “In borderline
cases, an inference of spoliation, in combination with some (not insubstantial)
evidence for the plaintiff's cause of action, can allow the plaintiff to survive

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summary judgment.” Whitt, 529 F.3d at 285 (quoting Byrnie v. Cromwell Bd. of
Educ., 243 F.3d 93, 107 (2d Cir. 2001). However, a spoliation inference is
insufficient to survive summary judgment where “there is little other substantial
summary judgment evidence of liability against” the defendant. Id.
In its interrogatory responses, Wal-Mart testified that its former asset
protection manager “attempted to download and copy video of the incident but was
unable to do so due to a mechanical problem with the video system.” (Pl.’s Resp.,
Ex. G at 7-8, ECF No. 39-7). Wal-Mart also testified that “it has no video of the
incident, or the area of the incident obtained at any time on the day of the incident .
. . .” (Id. at 9).1 Wal-Mart’s current asset protection manager has testified by
affidavit that surveillance cameras in the area of Pettaway’s accident would not
have captured the accident or an individual spilling a product on the floor, as the
camera only captures the top portion of the aisle. (Def.’s Mot., Ex. 7, ECF No. 37-8).
In his memorandum in response to the Motion for Summary Judgment,
Pettaway claims that Wal-Mart’s 30(b)(6) designee testified that Wal-Mart “had
video surveillance over its entire store and the areas in questions [sic].” (Pl.’s Mem.
at 2, 6, ECF No. 40). However, the designee actually testified that the surveillance
cameras in the store do not cover every aisle and that he did not know whether the

Initially, Wal-Mart also testified that it did not have photographs of the area
where Pettaway fell, but photographs were later located on a Wal-Mart employee’s
phone and were provided to counsel for Pettaway and the Court. (Pl.’s Resp., Ex. G
at 9, ECF No. 39-7; Pl.’s Resp., Ex. H, ECF No. 39-8). The photographs show a
large, gold-colored spill with an open bottle in the center of the spill. (Def.’s Mot.,
Ex. 2A, ECF No. 37-3).
1

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aisle where Pettaway fell would have been captured on video. (Pl.’s Resp., Ex. A at
48-50, ECF No. 39-1). Pettaway also argues that Wal-Mart’s 30(b)(6) designee
“concedes that Mr. Pettaway received a call from a Wal-Mart representative saying
she had reviewed the video footage.” (Pl.’s Mem. at 10, ECF No. 40). The 30(b)(6)
designee actually testified that he did not know whether Pettaway would have
received such a call, but if Pettaway had received such a call it would have been
from Claims Management, Incorporated, the company that handles Wal-Mart’s
claims. (Pl.’s Resp., Ex. A at 27-28, ECF No. 40).
The Court finds that there is no evidence of bad faith or bad conduct on the
part of Wal-Mart. Pettaway has not produced any testimony or evidence to
contradict testimony given by Wal-Mart’s former asset protection manager that the
video could not be copied or downloaded due to a mechanical problem with the video
system. A mechanical problem is not indicative of bad faith or an attempt to
destroy adverse evidence. Furthermore, even if Pettaway had demonstrated
spoliation, the adverse inference would have been insufficient to survive summary
judgment because Pettaway has no evidence of liability on the part of Wal-Mart.
See Whitt, 529 F.3d at 285. Therefore, Wal-Mart is entitled to summary judgment
as to all of the claims asserted by Pettaway.2

Pettaway also asks the Court to infer that Wal-Mart failed to follow its policies
requiring hourly safety sweeps of the area where he fell, because Wal-Mart’s
30(b)(6) designee did not know whether the sweeps were performed. However, as
this Court has previously held in response to a similar argument, Wal-Mart is “not
obligated to disprove its liability. Plaintiff bears the burden of proof on her own
claims.” Wallace v. Wal-Mart Stores, Inc., No. 5:16cv106-KS-MTP, 2017 WL
2

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CONCLUSION
For the foregoing reasons, the Court finds that Wal-Mart is entitled to
judgment as a matter of law.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the [37] Motion
for Summary Judgment filed by the defendant Wal-Mart Stores East, LP, is
GRANTED. Darrell Pettaway’s claims against Wal-Mart Stores East, LP are
hereby DISMISSED WITH PREJUDICE.
IT IS, FURTHER, ORDERED AND ADJUDGED that Darrell Pettaway’s
claims against John Does 1-5 are DISMISSED WITHOUT PREJUDICE, because
the deadline for naming these parties has expired. The Court will enter a separate
judgment pursuant to Fed. R. Civ. P. 58.
SO ORDERED AND ADJUDGED this the 15th day of March, 2018.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
UNITED STATES DISTRICT JUDGE

7037741, at *2 n.15 (S.D. Miss. Oct. 18, 2017). Therefore, such an inference would
be improper.
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