Odom v. Wal-Mart Stores, Inc. et al

Filing 30

ORDER granting Defendant's 24 Motion for Summary Judgment and dismissing case. A separate Judgment shall be entered. Signed by District Judge Keith Starrett on March 28, 2013 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION
JOY ODOM

PLAINTIFF

v.

CIVIL ACTION NO. 2:12-CV-98-KS-MTP

WAL-MART STORES EAST, LP

DEFENDANT

MEMORANDUM OPINION AND ORDER
For the reasons stated below, the Court grants Defendant’s Motion for
Summary Judgment [24].
I. BACKGROUND
This is a slip-and-fall case. Plaintiff and two companions were walking through
Wal-Mart when Plaintiff slipped and fell. Neither Plaintiff nor her companions noticed
any substance on the floor prior to Plaintiff’s accident. After Plaintiff fell, they noticed
a clear liquid on the floor. There was no pool or puddle. Rather, the floor merely
appeared to be wet. The area was not dirty, and there were no signs that others had
walked through the substance. The only marking or debris was a long, black scuff
mark caused by Plaintiff’s heel. When Defendant’s employee arrived at the scene of the
accident, he inspected the substance on the floor and wiped it up, along with the scuff
mark created by Plaintiff’s shoe.
Plaintiff filed a Complaint in the Circuit Court of Lamar County, Mississippi,
asserting a negligence claim against Defendant. Plaintiff demands $100,000.00 in
actual damages, plus fees, interest, and punitive damages. Defendant removed the case

and eventually filed its Motion for Summary Judgment [24], which the Court now
considers.
II. DISCUSSION
Rule 56 provides that “[t]he court shall grant summary judgment 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); see also Sierra Club, Inc.
v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010). “Where the
burden of production at trial ultimately rests on the nonmovant, the movant must
merely demonstrate an absence of evidentiary support in the record for the
nonmovant’s case.” Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir.
2010) (punctuation omitted). The nonmovant “must come forward with specific facts
showing that there is a genuine issue for trial.” Id. (punctuation omitted). “An issue is
‘genuine’ if the evidence is sufficient for a reasonable jury to return a verdict for the
nonmoving party.” Cuadra, 626 F.3d at 812.
The Court is not permitted to make credibility determinations or weigh the
evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009). When deciding
whether a genuine fact issue exists, “the court must view the facts and the inference
to be drawn therefrom in the light most favorable to the nonmoving party.” Sierra
Club, Inc., 627 F.3d at 138. However, “[c]onclusional allegations and denials,
speculation, improbable inferences, unsubstantiated assertions, and legalistic
argumentation do not adequately substitute for specific facts showing a genuine issue
for trial.” Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002).
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“Premises

liability

analysis

under

Mississippi

law

requires

three

determinations: (1) legal status of the injured person, (2) relevant duty of care, and (3)
defendant’s compliance with that duty.” Wood v. RIH Acquisitions MS II LLC, 556 F.3d
274, 275 (5th Cir. 2009); see also Leffler v. Sharp, 891 So. 2d 152, 156 (Miss. 2004). It
is undisputed that Plaintiff was Defendant’s invitee. “Under Mississippi law, a
property owner is not the insurer of an invitee’s safety. Rather, he owes a duty to the
invitee to keep the premises reasonably safe and, when not reasonably safe, to warn
only of hidden dangers not in plain and open view.” Double Quick, Inc. v. Moore, 73 So.
3d 1162, 1166 (Miss. 2011); see also Leffler, 891 So. 2d at 157. Mississippi’s framework
for analyzing slip-and-fall cases is well-established:
In order for a plaintiff to recover in a slip-and-fall case, he 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.
Downs v. Choo, 656 So. 2d 84, 86 (Miss. 1995); see also Karpinsky v. Am. Nat’l Ins. Co.,
No. 2010-CT-02084-SCT, 2013 Miss. LEXIS 67, at *8-*9 (Miss. Mar. 7, 2013).
There are multiple reasons why the Court must grant Defendant’s motion for
summary judgment. First, Plaintiff has not presented any evidence that Defendant
created the hazard which caused her to slip and fall. Indeed, Defendant and her two
companions testified that they do not know how the substance came to be on the floor.
Second, Plaintiff has not presented any evidence that Defendant knew that the
substance was on the floor. Defendant and her two companions admitted that they do
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not know whether Defendant’s employees were aware of the substance. Finally,
Plaintiff has not presented any evidence that the substance had been on the floor for
a sufficient length of time to impute constructive knowledge to Defendant. Plaintiff and
her companions testified that they do not know how long the substance had been there.
They also testified that the liquid was clear, and that the only marking on the floor
near it was a scuff mark created by Plaintiff’s heel.
In summary, Plaintiff has offered no evidence whatsoever in support of her case.
The evidence shows that there was a slippery substance on the floor of Defendant’s
store and Plaintiff slipped on it. But the mere fact that Plaintiff was injured on
Defendant’s premises is not enough to create a genuine dispute as to Defendant’s
liability. See Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994) (res ipsa
loquitur is inapplicable in premises liability cases in Mississippi); Daniels v. Morgan
& Lindsey, Inc., 198 So. 2d 579, 584 (Miss. 1967) (res ipsa loquitur inapplicable in
premises liability cases).
Plaintiff argues that Defendant’s employee tried to hide the substance from her
by wiping it up. This contention is irrelevant to Plaintiff’s negligence claim. Plaintiff
and her companions testified that Defendant’s store manager wiped the substance from
the floor after the accident occurred. Actions taken by Defendant’s store manager after
Plaintiff had already slipped could not have caused her injuries.
III. CONCLUSION
For the reasons stated above, the Court grants Defendant’s Motion for
Summary Judgment [24]. The Court will enter a separate judgment in accordance with
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Rule 58.
SO ORDERED AND ADJUDGED this 28th day of March, 2013.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE

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