McElveen et al v. Wal-Mart Stores, Inc. et al
Filing
117
MEMORANDUM OPINION AND ORDER granting in part and denying in part 93 Motion for Partial Summary Judgment. The Court grants the motion with respect to Plaintiffs' claim for punitive damages, but the Court denies it in all other respects. Signed by District Judge Keith Starrett on 1/8/19. (cb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
EVAN MCELVEEN, et al.,
PLAINTIFFS
v.
CIVIL ACTION NO. 2:17-CV-90-KS-MTP
WAL-MART STORES, INC., et al.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
For the reasons below, the Court grants in part and denies in part
Defendant’s Motion for Summary Judgment [93].
I. BACKGROUND
This is a slip-and-fall case. Plaintiffs Buddy and Kay McElveen visited a WalMart store in Hattiesburg, Mississippi. Shortly after entering the store, Mr. McElveen
slipped in a puddle of french onion dip and fell, injuring himself. The record contains
no evidence as to the cause of the spill. Defendant filed a Motion for Summary
Judgment [93], arguing that Plaintiff could not present evidence that it had actual or
constructive notice of the spill. Alternatively, Defendant argues that Plaintiff does not
have evidence to support a claim for punitive damages.
II. STANDARD OF REVIEW
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). “An issue is
material if its resolution could affect the outcome of the action.” Sierra Club, Inc., 627
F.3d at 138. “An issue is ‘genuine’ if the evidence is sufficient for a reasonable jury to
return a verdict for the nonmoving party.” Cuadra v. Houston Indep. Sch. Dist., 626
F.3d 808, 812 (5th Cir. 2010).
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).
III. DISCUSSION
First, Defendant argues that Plaintiffs do not have sufficient evidence to
establish liability. In a premises liability case, the plaintiff must prove the four
elements of common-law negligence: (1) duty, (2) breach of duty, (3) causation, and (4)
damages. Rogers v. Sunbelt Mgmt. Co., 52 F. Supp. 3d 816, 822 (S.D. Miss. 2014). The
duty owed to the plaintiff depends on his or her status as an invitee, licensee, or
trespasser. Doe v. Miss. State Fed’n of Colored Women’s Club Housing for the Elderly
in Clinton, Inc., 941 So. 2d 820, 826 (Miss. Ct. App. 2006). Therefore, “[p]remises
liability analysis under Mississippi law requires three determinations: (1) legal status
2
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 an invitee at the time of the accident.
“Mississippi law imposes upon a business owner or operator a duty to the invitee to
keep its 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 (Miss. 1999). However, a business owner is not an insurer against all accidents and
injuries that may occur on its premises. Anderson v. B. H. Acquisitions, Inc., 771 So.
2d 914, 918 (Miss. 2000). 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 (Miss. Ct.
App. 2006). To prove a premises liability claim, a plaintiff-invitee must show either:
(1) a negligent act of the defendant caused her injury; (2) the defendant
had actual knowledge of the dangerous condition, but failed to warn the
plaintiff; or (3) the defendant should have known about the dangerous
condition, in that the dangerous condition existed for a sufficient amount
of time to impute constructive knowledge to the defendant.
Id. at 694-95 (citing Byrne v. Wal-Mart Stores, Inc., 877 So. 2d 462, 465 (Miss. Ct. App.
2004)); see also Downs v. Choo, 656 So. 2d 84, 86 (Miss. 1995); Karpinsky v. Am. Nat’l
Ins. Co., 109 So. 3d 84, 89 (Miss. 2013).
The record contains evidence from which a jury could infer that Defendant had
notice of the spill in time to rectify it before Mr. McElveen slipped. Specifically,
surveillance camera footage shows a Wal-Mart employee pushing a cart in the
3
direction of the spill shortly before Mr. McElveen slipped. See Exhibit I to Response,
McElveen v. Wal-Mart Stores, Inc., No. 2:17-CV-90-KS-MTP (S.D. Miss. Dec. 4, 2018),
ECF No. 98-9 (conventionally filed). It is undisputed that the employee in question was
Marcus Hutton, a Wal-Mart Maintenance Associate, and that he was pushing a
cleaning cart directly toward the spill. See Reply at 1, McElveen v. Wal-Mart Stores,
Inc., No. 2:17-CV-90-KS-MTP (S.D. Miss. Dec. 11, 2018), ECF No. 100.
Hutton entered the central “Action Alley” aisle that runs perpendicular to the
checkout stations at approximately 8:34:58 P.M. and began traveling toward the spill.
At 8:35:04 P.M., he stopped, left his cart in the aisle, and walked over to one of the
checkout stations. At approximately 8:35:34 P.M., Hutton returned to the cleaning
cart, and at approximately 8:35:37 P.M., he started moving toward the spill again. One
second or less later, Mr. McElveen slipped and fell.1
Rahm Singh, Defendant’s Asset Protection Manager, testified that when a WalMart associate encounters a spill, “[t]hey’re supposed to stand and guard the spill until
they can have maintenance come clean it up. They can clean it up themselves or
another associate can guard the spill while they go get clean-up materials.” Exhibit C
to Response at 2-3, McElveen v. Wal-Mart Stores, Inc., No. 2:17-CV-90-KS-MTP (S.D.
Miss. Dec. 4, 2018), ECF No. 98-3. He also testified that if an associate is told by a
customer that there is a spill, they are expected to “walk right over to that area . . . and
go stand on this spill.” Id. at 4. He confirmed that associates were expected to
1
Defendant does not dispute the authenticity of the video or the identification
of Hutton or Mr. McElveen.
4
“immediately” proceed to the location of the spill. Id. Likewise, Betty James,
Defendant’s Customer Service Manager, testified that “[i]f you find a spill, you have
to guard the spill until somebody shows up to clean up the spill.” Exhibit D to Response
at 4, McElveen v. Wal-Mart Stores, Inc., No. 2:17-CV-90-KS-MTP (S.D. Miss. Dec. 4,
2018). Moreover, she testified that maintenance employees were expected to proceed
straight to a spill when called for clean up. Id. at 9.
Plaintiffs argue that a jury could infer from the surveillance video that Hutton
had been called to clean up the spill. The Court agrees. The video shows Hutton
moving directly toward the spill, and after he stopped he continued in the same
direction until he reached the spill. The spill was generally in his line of sight once he
entered “Action Alley.” A jury could reasonably infer from the video that Defendant had
notice of the spill, and that Hutton was on his way to clean it up. Additionally, Hutton
stopped for approximately thirty-three seconds. A jury could reasonably infer that if
he had proceeded directly to the spill, rather than stopping at the check out station, he
would have arrived before Mr. McElveen slipped and fell, preventing the subject
accident from occurring. For these reasons, the Court finds that Plaintiffs have
presented sufficient evidence to create a genuine dispute of material fact as to
Defendant’s liability.
Alternatively, Defendant argues that Plaintiffs do not have sufficient evidence
to justify an award of punitive damages. “Punitive damages may not be awarded if the
claimant does not prove by clear and convincing evidence that the defendant against
whom punitive damages are sought acted with actual malice, gross negligence which
5
evidences a willful, wanton or reckless disregard for the safety of others, or committed
actual fraud.” MISS. CODE ANN. § 11-1-65(1)(a). Punitive damages are generally only
allowed “where the facts are highly unusual and the cases extreme.” Wise v. Valley
Bank, 861 So. 2d 1029, at 1035 (Miss. 2003). “[S]imple negligence is not of itself
evidence sufficient to support punitive damages, but accompanying facts and
circumstances may be used to show that that portion of defendant’s conduct which
constituted proximate cause of the accident was willful and wanton or grossly
negligent.” Choctaw Maid Farms v. Hailey, 822 So. 2d 911, 924 (Miss. 2002).
Plaintiffs argue that Hutton’s delay in proceeding to the area of the spill
constitutes gross negligence and/or willful indifference, but Plaintiffs cited no
Mississippi law in support of their argument that a momentary pause in proceeding
to clean up a known hazard constitutes “gross negligence which evidences a willful,
wanton or reckless disregard for the safety of others.” MISS. CODE ANN. § 11-1-65(1)(a).
Therefore, the Court finds that Plaintiffs have not presented sufficient evidence to
justify an award of punitive damages, and the Court grants Defendant’s Motion for
Summary Judgment [93] in that respect.
IV. CONCLUSION
For these reasons, the Court grants in part and denies in part Defendant’s
Motion for Summary Judgment [93]. The Court grants the motion with respect to
Plaintiffs’ punitive damages claim, but the Court denies it in all other respects.
SO ORDERED AND ADJUDGED this 8th day of January, 2019.
6
/s/ Keith Starrett
KEITH STARRETT
UNITED STATES DISTRICT JUDGE
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?