Smith v. Wal-Mart Stores, Inc.
ORDER denying 46 Motion for Summary Judgment; granting in part and denying in part 46 Motion for Partial Summary Judgment. Signed by District Judge Carlton W. Reeves on 6/23/17.(rg)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
CAUSE NO. 3:16-CV-00539-CWR-LRA
WAL-MART STORES, INC.
Defendant has moved for summary judgment. After reviewing the facts and briefing, the
Court has determined that defendant’s motion must be denied. Defendant’s motion in the
alternative for partial summary judgment is granted in part and denied in part.
On November 18, 2012,1 William Smith was violently assaulted in the parking lot of
Wal-Mart Stores East, LP (“Wal-Mart”) in Philadelphia, Mississippi. Smith—a high school
student at the time—and two friends were seated inside a car, when a pick-up truck approached
then circled their vehicle. Shortly thereafter, the pick-up parked directly behind their car. Two
white males in their twenties—later identified as Adam Thrash and Bobby Cumberland—exited
the truck and walked up to the car. The assailants hurled racial epithets as they approached, and
the high-schoolers exited their vehicle. The two white men escalated their verbal abuse into a
potentially deadly physical assault, and one of them ultimately stabbed Smith multiple times.
Wal-Mart appears to concede that the events unfolded over at least a few minutes. Docket No.
53, at 6.
Upon recognizing the severity of his wounds, Smith and his friends sought help and firstaid from the employees at Wal-Mart. Smith alerted store employees, some of whom were
Plaintiff was a minor at the time of the incident, and defendant concedes that this action was timely brought
pursuant to the minor’s savings clause. See Docket No. 47 at 1 n.1; Miss. Code Ann. § 15-1-59.
smoking cigarettes outside of the store and at least one of whom witnessed and joked about the
assault. The police were not called; an ambulance was not summoned; the manager was not
informed; and when asked for bandages to stymie Smith’s bleeding, a store cashier informed
Smith where he could purchase them. Plaintiff’s friends retrieved bandages, waited in the
checkout line and purchased them, administered what immediate medical aid they could in WalMart’s restroom, then drove Smith to the Emergency Room at Neshoba General Hospital. His
injuries included a knife wound, which required stitches, a fracture to two of his vertebrae and a
Rule 56 directs courts to “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). “The pleadings, depositions, admissions, and answers to
interrogatories, together with affidavits, must demonstrate that no genuine issue of material fact
remains.” Sims v. Monumental Gen. Ins. Co., 960 F.2d 478, 479 (5th Cir. 1992) (citing Celotex
Corp. v. Catrett, 477 U.S. 317 (1986)). “An issue is genuine if the evidence supporting its
resolution in favor of the party opposing summary judgment, together with any inferences in
such party’s favor that the evidence allows, would be sufficient to support a verdict in favor of
that party.” St. Amant v. Benoit, 806 F.2d 1294, 1297 (5th Cir. 1987) (citation omitted).
Because subject matter jurisdiction of this case is based on diversity, the applicable
substantive law is that of the forum state, Mississippi. State law is determined by looking to the
decisions of the state’s highest court. Delancey v. MedAmerica Ins. Co., --- F.Supp.3d ----, 2017
WL 1241434, at *1 (S.D. Miss. Mar. 31, 2017).
Plaintiff seeks to recover on a negligence claim of premises liability for defendant’s
alleged failure to provide adequate security.2 “In a premises liability action, the plaintiff must
prove the familiar elements of duty, breach of duty, proximate cause, and damages.” Holmes v.
Campbell Prop., Inc., 47 So. 3d 721, 724 (Miss. Ct. App. 2010) (citing Crain v. Cleveland Lodge
1532, Order of Moose, Inc., 641 So. 2d 1186, 1189 (Miss. 1994)). “A business owner owes an
invitee a duty to exercise reasonable care to protect the invitee from reasonably foreseeable
injury at the hands of another.”3 Ellis v. Gresham Serv. Stations, Inc., 55 So. 3d 1123, 1127
(Miss. Ct. App. 2011) (citing Lyle v. Mladinich, 584 So. 2d 397, 399 (Miss. 1991)). To recover
from defendant’s alleged failure to take reasonable care to extinguish the threat of assault, “the
plaintiff must prove the defendant had either (1) actual or constructive knowledge of the
assailant’s violent nature, or (2) actual or constructive knowledge that an atmosphere of violence
existed on the premises.” Wright v. R.M. Smith Inv., L.P., 210 So. 3d 555, 559 (Miss. Ct. App.
2016) (citing Kroger v. Knox, 98 So. 3d 441, 443 (Miss. 2012)). The present motion argues that
plaintiff cannot make either showing.
Smith makes no attempt to demonstrate that Wal-Mart had actual or constructive
knowledge of Thrash’s or Cumberland’s violent nature. He does, however, assert that Wal-Mart
had constructive knowledge that an atmosphere of violence existed on its premises. “[F]actors
for consideration of whether a defendant had such notice have been held to include ‘the overall
pattern of criminal activity prior to the event in question that occurred in the general vicinity of
the defendant’s business premises, as well as the frequency of criminal activity on the
Plaintiff also seeks punitive damages due to alleged gross negligence and reckless disregard for plaintiff’s safety.
The Court discusses this request infra.
Defendant’s argument presumes plaintiff’s status as an invitee, discussing what duty is owed to insure an invitee’s
safety and making no mention of licensees or trespassers.
premises.’” Ellis, 55 So. 3d at 1127 (quoting Gatewood v. Sampson, 812 So. 2d 212, 220 (Miss.
To that end, Smith has submitted, inter alia, 911 dispatch records of calls regarding
events in defendant’s parking lot for the three years prior to the stabbing. This submission
reveals nearly four hundred calls made to 911 requesting emergency assistance. Aside from
plaintiff’s stabbing, there were calls concerning fights involving groups of juveniles, assaults,
kidnapping, robberies, shootings, possession of explosives, missing persons, theft, and
vandalism. Remarkably, those hundreds of calls did not encompass the allowable “general
vicinity of defendant’s business premises,” rather each call related to a specific instance of
suspected “criminal activity on the premises.” Gatewood, 812 So. 2d at 220.
In rebuttal, defendant offered the sworn statement of Officer Barry Smith, the police
officer who investigated plaintiff’s stabbing. Therein Officer Smith explains that defendant’s
parking lot was part of his regular patrol, and he provides an anecdotal description of defendant’s
parking lot as having been relatively safe. Notably, Officer Smith’s statement does not explain
what the “patrol” entails and the frequency with which the patrols were conducted.
Drawing all inferences in the non-movant’s favor, to the extent allowed by the evidence,
there certainly exists a genuine issue as to Wal-Mart’s constructive knowledge that an
atmosphere of violence existed on its premises. Even if it is found to have been negligent, WalMart argues that it is still entitled to judgment as a matter of law, because the evidence could
never support a claim that its negligence was the proximate cause of plaintiff’s damages.
“Proximate cause is a concept which is more accurately defined by reference to the distinct
concepts of which it is comprised, which are: (1) cause in fact; and (2) foreseeability.” Davis v.
Christian Bhd. Homes of Jackson, Miss., Inc., 957 So. 2d 390, 404 (Miss. Ct. App. 2007)
(quotation marks and citation omitted). “Cause in fact means that the act or omission was a
substantial factor in bringing about the injury, and without it the harm would not have occurred.
Foreseeability means that a person of ordinary intelligence should have anticipated the dangers
that his negligent act created for others.” Id. (quotation marks and citation omitted).
In response plaintiff adduced the preliminary assessment and supplemental report
prepared by security expert John Tisdale. In his report Mr. Tisdale concludes that had defendant
established a proactive security presence in the parking lot, instead of permitting a complete
absence of on-site security to persist, the harm to plaintiff would not have occurred. Plaintiff also
pointed to deposition testimony detailing the stabbing, and argues that had security officers been
present, the racial epithets, taunting and other yelling that preceded the stabbing would have
given security ample time in which to respond and prevent the fight. Additionally, reasonable
inferences drawn from the 911 dispatch calls discussed supra would allow a reasonable jury to
find that plaintiff’s stabbing, i.e. criminal activity in defendant’s parking lot, was foreseeable, as
emergency calls related to suspected criminal activity on the premises were made with regularity.
Here, again drawing allowable inferences in favor of plaintiff, there exists a genuine issue
as to whether Wal-Mart’s negligence caused Smith’s injuries.
Finally, defendant moves in the alternative for partial summary judgment precluding
plaintiff from recovering (1) punitive damages due to defendant’s alleged gross negligence or
reckless disregard for plaintiff’s safety, and (2) future medical expenses.
Defendant argues “where Plaintiff cannot establish simple negligence on the part of WalMart, he certainly cannot establish that Wal-Mart was grossly negligent and/or reckless.” Docket
No. 47 at 9. In light of the Court’s findings supra that there exist genuine issues of material fact,
this argument is unavailing. Moreover, as plaintiff pointed out in his response, the deposition
testimony of Shawn Dixon—the store manager at the time—indicates that Wal-Mart maintained
and monitored security cameras filming the incidents taking place in its parking lot.
Additionally, Dixon’s affidavit merely says that Wal-Mart employees are trained to look for
suspicious persons and activity and inform management. But, here, no employee reported the
incident or if they did, management did nothing because no manager appeared nor were the
police called to the scene.4 Drawing favorable inferences from that testimony could allow jurors
to find actual knowledge of and reckless indifference to violence on Wal-Mart’s premises,
including plaintiff’s stabbing.
Defendant’s motion for summary judgment on the issue of future medical bills, however,
correctly states that plaintiff has failed to timely produce any evidence whatsoever establishing
with reasonable certainty the expenses he will incur in future medical treatment, pharmaceutical
prescriptions, or rehabilitation. See Potts v. Miss. Dept. of Transp., 3 So. 3d 810, 813 (Miss. Ct.
App. 2009) (“Damages cannot be based on mere speculation but must be proved to a reasonable
certainty.”). Plaintiff appears to have conceded the point. See Docket No. 52, at 18 (“The
Plaintiff does not dispute the caselaw referenced by the Defendant . . . as to future medical,
doctor, hospital and drug bills.”). As the deadline for expert designation has passed, any dollar
amount provided for Smith’s future medical expenses would necessarily rely on speculation.5
Defendant is therefore entitled to summary judgment on this issue.
Officer Smith was dispatched to the Neshoba County General Hospital Emergency Room. Docket No. 48-1.
Smith’s treating physician will be permitted to testify about the basic facts known to him as his treating physician.
See Payne v. Univ. of Southern Miss., No. 1:12-CV-41-KS-MTP, 2014 WL 1404732, at *4 (S.D. Miss. Apr. 10,
2014) (citing Robbins v. Ryan’s Family Steak Houses E., Inc., 223 F.R.D. 448, 453 (S.D. Miss. 2004)). See also,
Gerald v. Univ. Southern Miss., NO. 2:12cv147-KS-MTP, 2013 WL 5592454, at *6 (S.D. Miss. Oct. 10, 2013)
(allowing a treating physician to testify as a fact witness despite excluding his expert testimony as untimely).
Defendant has failed to demonstrate the absence of a genuine issue of material fact
entitling it to a judgment as a matter of law. Plaintiff has failed to include any evidence to
precisely determine future medical, pharmaceutical, or rehabilitation costs. Defendant’s motion
for summary judgment is denied. Defendant’s motion for partial summary judgment, with
respect to punitive damages is also denied. Defendant’s motion for partial summary judgment
with respect to future medical costs is granted.
SO ORDERED, this the 23rd day of June, 2017.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE
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