Stonestreet v. United States of America et al
ORDER denying 98 Motion to Dismiss; denying 100 Motion for Summary Judgment Signed by District Judge Louis Guirola, Jr on 10/06/2021 (Guirola, Louis)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
CAUSE NO. 1:20cv65-LG-RPM
UNITED STATES OF
AMERICA and JOHN DOES 1-5
MEMORANDUM OPINION AND ORDER DENYING
THE GOVERNMENT’S MOTION TO DISMISS AND
MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT are the  Motion to Dismiss and the  Motion
for Summary Judgment filed by the Government in this premises liability case. The
plaintiff, June Stonestreet, has filed responses to both Motions, and the
Government has filed replies. After reviewing the submissions of the parties, the
record in this matter, and the applicable law, the Court finds that the Motion to
Dismiss should be denied because the independent contractor and discretionary
function exceptions to the Government’s waiver of sovereign immunity do not apply
to Stonestreet’s claims. The Government’s Motion for Summary Judgment is
denied because a reasonable jury could find that the Government failed to keep its
premises in a reasonably safe condition.
Stonestreet suffered injuries in a fall at the Keesler Air Force Base
Commissary in Biloxi, Mississippi, on May 3, 2018, near the close of business at
7:00 p.m. Stonestreet claims that the commissary’s egg rack rolled while she was
reaching for eggs on the top shelf, causing her to fall into the store’s cooler. The
commissary is operated by the Government’s Defense Commissary Agency
(“DeCA”). The DeCA had entered into a Brand Name Resale Ordering Agreement
with Eggland’s Best, Inc., that provided that Eggland’s responsibility included:
pulling cases of product from a warehouse or holding area utilizing a
stocking cart to deliver products to the sales floor at designated times,
opening cases and stocking products on retail shelving. Products are
required to be properly merchandized whereby the product is lined up
and/or stacked with labels facing forward. The designated space as
identified by the product label should be filled to the maximum extent
possible within a full case. Product must be properly rotated to
preclude out-of-date situations and stocked as frequently as necessary
to ensure adequate product availability during store operating hours.
(Def.’s Mot., Ex. C at 9-10, ECF No. 98-3).
Stonestreet filed this lawsuit against the Government pursuant to the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq. She alleges that the
Government was negligent in, inter alia, failing to provide a safe environment for
invitees, failing to inspect for dangerous conditions, and failing to properly train,
hire, and/or supervise employees to ensure that the premises was safe for invitees.
I. THE GOVERNMENT’S MOTION TO DISMISS
The Government seeks dismissal of this lawsuit pursuant to Fed. R. Civ. P.
12(b)(1) because it claims it has not waived its sovereign immunity. The
Government argues, “Because independent contractors rather than the government
employees were responsible for delivering eggs and stocking the egg cart at issue,
the [G]overnment has not waived its sovereign immunity.” (Def.’s Mem. at8, ECF
No. 99. The Government also argues that the FTCA’s discretionary function
exception limits the Government’s waiver of sovereign immunity here because “the
[G]overnment’s act of engaging an independent contractor to deliver and stock eggs
within the Commissary involves judgment or choice” and the Government’s decision
to enter into the Eggland’s Best contract was based on economic and policy
The Fifth Circuit has explained:
[T]he United States, as sovereign, is immune from suits save as it
consents to be sued. Pursuant to the FTCA, Congress has waived
sovereign immunity and has granted consent for the government to be
sued for acts committed by any employee of the Government while
acting within the scope of his office or employment. The FTCA,
however, does not cover acts committed by independent contractors.
Creel v. United States, 598 F.3d 210, 213 (5th Cir. 2010). Meanwhile, the
discretionary function exception to the FTCA waiver of sovereign immunity applies
“when the plaintiff’s claim is based on an act by a government employee that falls
within the employee’s discretionary authority.” Tsolmon v. United States, 841 F.3d
378, 382 (5th Cir. 2016). “Whether an official’s actions fall within the exception
involves two inquiries: (1) the conduct must be a matter of choice for the acting
employee; and (2) the judgment must be of the kind that the discretionary function
exception was designed to shield.” Id. (internal citations and quotation marks
The independent contractor exception applies “only to the extent that the
claims arise from the duties delegated” to an independent contractor. Verizon
Washington, D.C., Inc. v. United States, 254 F. Supp. 3d 208, 219 (D.D.C. 2017). In
the present case, the Government delegated the duty of stocking the egg carts to
Eggland’s. The independent contractor exception does not apply to Stonestreet’s
claims because she is not suing the Government for Eggland’s alleged negligence;
she is suing the Government for the alleged negligence of its own employees. For
example, Stonestreet asserts that the Government failed to maintain its premises in
a reasonably safe condition, failed to adequately inspect its premises, and failed to
properly train and supervise its employees. As the Ninth Circuit has explained,
The independent contractor exception . . . has no bearing on the United
States’ FTCA liability for its own acts or omissions. Many cases
recognize that it is not a defense, to liability for one’s own negligence in
connection with an actor whose conduct injured a third party, that the
actor was not an agent or an employee, but rather an independent
contractor. Even where an employer has delegated some
responsibilities to an independent contractor, the employer may still be
held separately and directly liable for its own negligence. Thus, a
determination that the United States has declined to exercise control
over the day-to-day operations of its contractor is not the end of the
analysis. We must also determine whether Plaintiffs have alleged a
separate nondelegable or undelegated duty, which the United States
could be held directly liable for breaching. Only upon a finding that
the government delegated its entire duty of care may the court dismiss
the claim for lack of jurisdiction under the FTCA’s independent
Edison v. United States, 822 F.3d 510, 518 (9th Cir. 2016). Under Mississippi
premises liability law, a plaintiff must demonstrate that the premises owner either
negligently created the condition that caused the plaintiff’s injury or failed to
remedy the dangerous condition after receiving actual or constructive knowledge.
Hearn v. Square Prop. Invs., Inc., 297 So. 3d 292, 295 (Miss. Ct. App. 2020). As
explained in more detail below, a reasonable jury could find that the Government
had constructive notice of the dangerous condition of the cart and failed to remedy
it. As a result, the independent contractor exception does not apply.1
As for the Government’s arguments concerning the discretionary function
exception, Stonestreet is not questioning the Government’s decision to retain an
independent contractor to stock eggs at the commissary. Her claims concern the
alleged failure to inspect for and remedy dangerous conditions in the store.
Therefore, the discretionary function exception does not apply. See Gibson v. United
States, 809 F.3d 807, 813 (5th Cir. 2016) (“The Government’s decisions about
routine property maintenance, decisions with which any private landowner would
be concerned, are not susceptible to the kind of policy analysis shielded by the
discretionary function exception.”).
Since neither the independent contractor exception nor the discretionary
function exception apply, the Government has waived its sovereign immunity as to
Stonestreet’s FTCA claims. The Motion to Dismiss is denied.
II. THE GOVERNMENT’S MOTION FOR SUMMARY JUDGMENT
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
The Government’s briefing primarily concerns the nature of the contractual
relationship between Eggland’s and the Government, i.e. whether Eggland’s was an
employee or independent contractor, and the extent of control that the Government
had over Eggland’s work. In the present case, the nature of the relationship
between Eggland’s and the Government is not disputed; thus, it was not necessary
for the Court to analyze the extent of control. See Kwitek v. U.S. Postal Serv., 694
F. Supp. 2d 219, 226-27 (W.D.N.Y. 2010).
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). Factual controversies are resolved in favor of the non-moving
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).
The Government first argues that it is entitled to summary judgment because
the egg cart was not a dangerous condition. The parties agree that Stonestreet was
an invitee of the Commissary. Therefore, the Government had a duty to keep the
premises in a reasonably safe condition and to warn Stonestreet of dangerous
conditions that were not readily apparent. See Venture, Inc. v. Harris, 307 So. 3d
427, 433 (Miss. 2020). “The owner of a business is not . . . liable for injuries caused
by conditions which are not dangerous.” Id. at 433. The plaintiff “must prove one of
the following to recover: (1) a negligent act of the defendant caused her injury; (2)
the defendant had actual knowledge of the dangerous condition [and failed to warn
her]; or (3) . . . the dangerous condition existed for a sufficient amount of time to
impute constructive knowledge to the defendant.” Hearn, 297 So. 3d at 295.
In Venture, the plaintiff suffered injuries when she tripped over a temporary
display rack in the aisle of a grocery store. The defendant argued that the rack was
not dangerous, because it was “a condition that a shopper would expect to encounter
in a grocery store and is not unusual or unreasonably dangerous.” Id. at 434. The
court explained that “a non-defective, temporary iron display rack would not
typically constitute a dangerous condition. But its use, positioning and placement
might.” Id. at 435. The Mississippi Supreme Court held that summary judgment in
favor of the defendant was inappropriate because there were fact questions
regarding whether the placement of the rack was dangerous. Id.
The parties do not dispute that Stonestreet’s accident occurred just before the
store closed and that the egg cart was lightly stocked. Commissary employee
Shawn Wilson testified that he saw Stonestreet after her fall, and she was inside
the cooler from the waist up. (Pl.’s Mem., Ex. E at 65, ECF No. 104-5). He
explained that the cart must have moved backwards in order for her to fall into the
cooler. (Id. at 24). When she was asked to describe her accident, Stonestreet
testified, “I just reached up to get the eggs off the top rack at the back of it, and I
was in the floor inside the cooler the next thing I knew.” (Def.’s Mot., Ex. B at 44,
ECF No. 100-2). She explained that the eggs were sold out at the front of the cart,
so she had to reach toward the back. (Id. at 50).
The Government has submitted an expert report prepared by Alex J. Balian,
who has worked in the retail industry for sixty-five years. He explained that the
carts like the one at issue in this lawsuit are commonly used in the supermarket
industry to display items like milk and eggs. (Def.’s Mot., Ex. F, ECF No. 100-6).
He opined that “[t]he nature of these racks, due to the metal construction, are heavy
and require considerable [sic] amount of effort to move with or without product.”
(Id.) He further opined:
The wheels on these fixtures do not have wheel locks when in place
and the weight alone would secure the rack from moving. The floor of
the cooler also had an approximately ½” bracket attached to the front
left metal frame leg. When the rack is pushed in place, the wheel of
the rack, in front of the bracket, would be sufficiently secured in place
in front of the reach-in window. Wheels [sic] locks on these racks
although may [sic] possibly be available, are not a standard in the
industry. The decision to use locks on these rack [sic] would be the
decision of the vendor selling the product, not the supermarket. In this
case, the attached bracket and the weight of the rack was sufficient to
secure the fixture when given foreseeable customer activity. The
expectation is that the rack may be touched by [sic] customer when
purchasing eggs, but not leaned upon by the customer.
(Id.) He also claimed that there would be no need to inspect the positioning of the
Stonestreet has presented testimony from Eric White, a retail operations and
retail leadership expert with twenty-three years of experience. (Pl.’s Mem., Ex.,
ECF No. 104-11). He opined that “the industry standard is to ensure that mobile
merchandising displays are fully immobilized when they are within reach of
customers” through the use of wheel locks, “wheel chalks,” and other methods. (Id.)
He believes that the carts should have been inspected multiple times a day. (Id.)
Commissary employees Shawn Wilson and Rodney Carter testified that the
carts can easily be moved when they are not fully stocked. (Pl.’s Mem., Ex. E at 58,
ECF No. 104-5; Pl.’s Mem., Ex. G at 51-53, ECF No. 104-7).2 Commissary employee
Patrick Cute also testified that the carts have been moved by female commissary
employees who are the same height as Stonestreet. (Pl.’s Mem., Ex. B at 44-45,
ECF No. 104-2). Several employees believed that the carts should be checked at
least once daily to ensure that they are in place, over the bracket described in
Balian’s report.3 (Pl.’s Mem., Ex. B at 68, ECF No. 104-2; Def.’s Mot., Ex. D at 78,
ECF No. 100-4; Pl.’s Mem., Ex. J at 90-91, ECF No. 104-10).
A genuine issue of material fact exists regarding whether the egg cart was a
dangerous condition. The Court has been presented with vastly different expert
opinions regarding whether the cart met industry standards. In addition, the
Commissaries’ employees acknowledged that the cart should be inspected daily, and
it should be placed in front of the bracket or lip to prevent it from moving. The
Government has not produced any evidence or testimony regarding whether the
cart was inspected or placed in front of the bracket on the date of the accident. A
reasonable jury could find that the cart was not properly placed in the cooler area
since it rolled when Stonestreet reached for eggs. As in Venture, the egg cart itself
may not have been a dangerous condition, but a fact question exists regarding
Carter testified that the racks have locks on them, but other employees testified
that they did not know whether the racks had locks on them. The majority of
commissary employees testified that they viewed the bracket on the cooler floor as
the safety mechanism responsible for keeping the racks from rolling. Carter
believes that the lip or bracket is not tall enough to prevent the rack from moving.
(Pl.’s Mem., Ex. G at 64, ECF No. 104-7).
3 Commissary employees often call the bracket a “lip.”
whether its placement and use constituted a dangerous condition. See Venture, 307
So. 3d at 433.
The Government also argues that it did not create a dangerous condition and
had no actual or constructive notice of a dangerous condition. The Government
claims that the placement of the cart was the responsibility of Eggland’s since it
was responsible for stocking the eggs. However, Commissary employees testified
that they sometimes move the egg carts in order to clean them, and they perform
stocking when supplies get low during the day. Even if Eggland’s had improperly
placed the cart in the cooler, the Government can still be liable if it had constructive
knowledge of the dangerous condition.
Constructive knowledge is established where the condition is shown to
have existed for such a length of time that the operator, through the
exercise of reasonable care, should have known of its existence.
Further, the court will not indulge presumptions for the deficiencies in
plaintiff’s evidence as to the length of time the hazard existed;
therefore, the plaintiff must produce admissible evidence as to the time
period in order to establish the operator’s constructive knowledge. The
plaintiff must present specific proof as to the relevant actual length of
Hearn, 297 So. 3d at 296 (citations and quotation marks omitted). Multiple
commissary employees testified that vendors stock products at night, after the store
closes. (Pl.’s Mem., Ex. B at 39-40, ECF No. 104-2; Pl.’s Mem., Ex. E at 44, ECF No.
104-5). The parties agree that Stonestreet’s accident occurred near the close of
business. Therefore, several hours had passed between the vendors handling the
carts and Stonestreet’s accident. A reasonable jury could find that the Government
had constructive knowledge that the cart was not secure.
Furthermore, “[n]egligence may be found from circumstantial evidence of
adequate probative value.” Clinton Healthcare, LLC v. Atkinson, 294 So. 3d 66, 72
[T]he plaintiff may prove circumstances from which the jury might
conclude reasonably that the [dangerous condition] was one which was
traceable to the proprietor’s own act or omission, in which no proof of
notice is necessary. Juries may reasonably infer the existence of one
fact from the existence of another fact or set of facts. Verdicts may rest
upon reasonable probabilities.
Id. (citations and quotation marks omitted). The record reflects that the cart was
placed at the door of the cooler by either Eggland’s or Commissary employees. As
explained previously, if Eggland’s placed the cart, a jury could find that the
Government had constructive knowledge. If Commissary employees placed the cart,
then a jury could find that the Government created the dangerous condition.
The Government next argues that Stonestreet had a duty to exercise
reasonable care. The Government produced testimony that no other person has
ever fallen while trying to reach for eggs at the Commissary. It also points out that
Stonestreet did not ask for help in reaching the eggs. The Government argues:
The only rational conclusion that a factfinder can draw from these
facts is that Plaintiff failed in her duty to engage with the egg cart in a
way that other prudent and intelligent people would (e.g., by leaning
heavily upon the cart, by climbing on the cart, or through some other
imprudent means). The Commissary had no duty to foresee such
unusual or imprudent interactions with its egg cart, especially given
that it had no knowledge of any similar, prior event.
(Gov.’s Mem. at 17, ECF No. 101). First, Mississippi is a comparative negligence
state, so any negligence on the part of Stonestreet will not necessarily defeat her
claims. Second, Commissary employees testified that the cart can be easily moved
if it is not fully stocked or if it is not placed in front of the lip. Therefore, a
reasonable jury could find that Stonestreet did not mishandle the cart. Third,
Commissary employee Rodney Carter testified that he believes the carts should be
locked because of customer behavior that he has witnessed concerning the egg cart.
(Pl.’s Mem., Ex. G at 74-76, ECF No. 104-7). For example, he has seen children
trying to climb on the carts, and adults sticking their heads and arms far into the
carts to reach fresh eggs at the back. He has even seen customers try to move the
carts. Stonestreet has also presented expert testimony that it is the industry
standard for carts accessible to customers to be locked or otherwise immovable. As
a result, the questions of whether the Government followed industry standards and
whether the Government was on notice that the cart was dangerous should be
resolved by a jury.
For the foregoing reasons, the Government’s Motion to Dismiss and Motion
for Summary Judgment must be denied.
IT IS THEREFORE ORDERED AND ADJUDGED that the  Motion to
Dismiss and the  Motion for Summary Judgment filed by the Government are
SO ORDERED AND ADJUDGED this the 6th day of October, 2021.
Louis Guirola, Jr.
LOUIS GUIROLA, JR.
UNITED STATES DISTRICT JUDGE
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