Lewis v. Kroger Limited Partnership I et al

Filing 53

**ORDER*** granting 31 MOTION for Summary Judgment as to Liability and 47 MOTION to Strike Affidavit of Plaintiff filed in Response to Kroger's Motion for Summary Judgment, as set out herein. A separate judgment will be entered. Signed by District Judge Tom S. Lee on 10/13/17 (LWE) Modified on 10/13/2017 (LWE). (Modified to reflect that this document is an "order" rather than "memorandum opinion and order")

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
KRISTEN LEWIS

PLAINTIFF

VS.

CIVIL ACTION NO. 3:16CV724TSL-RHW

KROGER LIMITED PARTNERSHIP I
AND THE KROGER CO.

DEFENDANTS
ORDER

Plaintiff Kristen Lewis filed this action against defendants
The Kroger Company and Kroger Limited Partnership I (Kroger)
seeking to recover damages for injuries she sustained in a slipand-fall at a local Kroger store.

Kroger has now moved for

summary judgment pursuant to Federal Rule of Civil Procedure 56.
In addition, Kroger has filed a motion to strike an affidavit
which plaintiff submitted in support of her response to Kroger’s
summary judgment motion.

Lewis has responded in opposition to

Kroger’s motion for summary judgment, but has not responded to the
motion to strike.

The court, having considered the memoranda of

authorities, together with attachments, submitted by the parties,
concludes that the motion to strike should be granted and that the
motion for summary judgment should also be granted.
It is undisputed that on July 12, 2015, while shopping at the
Kroger store in Byram, Mississippi, Lewis fell in the seafood
department and sustained injuries as a result.

Kroger contends it

is entitled to summary judgment on Lewis’s claim against it since
she has no evidence tending to show that Kroger created any
condition resulting in her slip-and-fall or that Kroger had actual

or constructive knowledge of any allegedly dangerous condition
which may have caused her fall.
Summary judgment is proper “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).

A genuine dispute of material fact exists “if the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106

S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

At the summary judgment

stage, the court must view the evidence in the light most
favorable to the non-movant, and it may not make credibility
determinations or weigh the evidence.

Abarca v. Metro. Transit

Auth., 404 F.3d 938, 940 (5th Cir. 2005); Reeves v. Sanderson
Plumbing Prods., 530 U.S. 133, 150, 120 S. Ct. 2097, 147 L. Ed. 2d
105 (2000).

Once the moving party shows there is no genuine

dispute as to any material fact, the nonmoving party “must come
forward with specific facts showing a genuine factual issue for
trial.”

Harris ex rel. Harris v. Pontotoc Cty. Sch. Dist., 635

F.3d 685, 690 (5th Cir. 2011).
A premises-liability plaintiff is not entitled to recover
simply because she fell on the defendant’s premises.

See Bonner

v. Imperial Palace of Miss., LLC, 117 So. 3d 678 at *6

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(Miss. App. 2013) (“Mere proof of the occurrence of a fall on a
floor within [the] business premises is insufficient to show
negligence on the part of the proprietor.”) (internal quotation
marks and citation omitted).

A premises owner is not required to

insure against all injuries, even for an invitee such as
plaintiff; rather, its duty to an invitee is “to exercise
reasonable or ordinary care to keep the premises in a reasonably
safe condition or [to] warn of dangerous conditions not readily
apparent, which the owner or occupant knows of, or should know of,
in the exercise of reasonable care.”

Robinson v. Ratliff, 757 So.

2d 1098, 1101–02 (Miss. Ct. App. 2000).

To succeed on her claim,

plaintiff
must prove either that (1) that defendant’s own
negligence created a dangerous condition which caused
plaintiff’s injury; (2) that defendant had actual
knowledge of a condition which defendant itself did not
cause, but defendant failed to adequately warn plaintiff
of the danger . . . faced as an invitee; or (3) that,
based upon the passage of time, defendant should have
known of the dangerous condition caused by another party
if defendant had acted reasonably, i.e., constructive
knowledge of the condition should be imputed to the
defendant.
Vu v. Clayton, 765 So. 2d 1253, 1255 (Miss. 2000) (citations
omitted).

Plaintiff has failed to present evidence sufficient to

create an issue for trial under any of these alternatives.
In her complaint, plaintiff alleged that a “wet substance on
the floor” of the Kroger caused her to slip and fall.

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She charged

that Kroger was negligent in that it “maintained said premises in
a dangerous and unsafe condition by failing to replace or repair a
leaking freezer unit and by failing to clean, sweep and/or mop the
affected area where Plaintiff fell” and by failing to warn
plaintiff and other customers of the dangerous condition.

In her

deposition, plaintiff was shown a photograph of the area taken
immediately after her fall which depicts a couple of small spots
or puddles of liquid and asked whether that “[was] even what she
fell in.”

She responded, “I’m not sure.

something.”

I just know I fell from

Asked whether she believed that the display

cooler/freezer was leaking, as she had alleged in her complaint,
she responded, “I’m not sure.”

Asked whether she contended Kroger

knew there was water on the floor before she fell, she again
responded, “I’m not sure.”

Asked whether she knew what she

slipped in, she replied, “Water.
don’t know.”

I don’t know.

I mean I ... I

Again asked whether she slipped in the water shown

in the photograph, she responded, as she had previously, “I mean I
don’t know.

I know I just slipped.

That’s all I know.”

Asked

whether what was depicted in the photograph was a puddle, she
responded as follows:
A.

It’s something.

Q.

All right.

A.

It’s liquid.

What do you mean by it’s something?

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Q.

All right.

A.

No.

Q.

All right.

A.

Do you know where it came from?

No. ...

Do you know how long it had been there?

Q. All right. Do you know if that water was there at the
time you fell or that liquid was there at the time you
fell?
A.

I don’t know.

...
Q. You’ve testified you didn’t see that puddle of water
before you fell.
A.

Yes.

Q. And you can’t be certain as to whether or not that puddle
of water came before or after you fell?
Q. All right. Did you see any other liquid on the
floor other than what’s depicted in this photograph?
A.

No.

Q. And you don’t know how long that water was on the floor,
do you?
A.

No.

Plaintiff further testified:
Q. ... You didn’t see anything that looked like the
source of the water or where the water came from,
correct?
A.

Correct.

Q. All right.
correct?
A.

And you don’t know how the water got there,

Correct.
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Q. All right. And you don’t know one way or another whether
Kroger did anything to put that water there, do you?
A. Correct. I don’t know.
Notwithstanding this testimony, plaintiff submitted an
affidavit in response to Kroger’s summary judgment motion in which
she states as follows:
2. After I slipped and fell I noticed I was lying in a
wet substance on the floor at Kroger.
3. My jean shorts were wet from the wet substance that
was on the floor and they were wet from the pocket area
on my left buttock down the back side of my leg to the
lower part of my thigh.
4. As I lay on the ground in pain and waiting for
assistance. (sic) I could feel the wet substance underneath
my hands and it appeared to be water coming from underneath
the freezer.
Kroger has moved to strike plaintiff’s affidavit because it
directly contradicts her deposition testimony without any
explanation for the contradiction.

That motion is well-taken.1

The Fifth Circuit has held that a “nonmovant cannot defeat a
motion for summary judgment by submitting an affidavit which
directly contradicts, without explanation, his previous
testimony.”

Albertson v. T.J. Stevenson & Co., 749 F.2d 223, 228

(5th Cir. 1984) (citing Bank Leumi Le–Israel, B.M. v. Lee, 928 F.2d
232, 236–37 (7th Cir. 1991) (nonmovant cannot create a genuine
issue of material fact by contradicting his own earlier statements

1

Plaintiff did not respond to Kroger’s motion to strike.
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unless he offers a plausible explanation for the incongruity)).
That is precisely what plaintiff has done here.

As is clear from

her above-quoted testimony, plaintiff was questioned extensively
in her deposition about her fall, and she stated consistently and
repeatedly that she did not know the nature or source of the
substance on which she slipped.

More pertinently, she stated that

at no time prior to or after the fall did she see any liquid on
the floor other than that depicted in the photograph; that she did
not know whether that water had been on the floor prior to her
fall; and that she did not see anything that looked like the
source of the water.2
contradict this

The statements in her affidavit obviously

earlier testimony, and plaintiff has offered no

explanation for this incongruity.

Plaintiff has obviously

submitted this affidavit in an attempt to create a fact issue as
to Kroger’s alleged negligence when one otherwise would not exist,
for it is manifest from her deposition testimony – and she has not
offered evidence from any other witness – that she cannot show
that Kroger caused any liquid to be on the floor, or that Kroger
knew or should have known of the presence of any liquid on the
floor.

Under the circumstances, the court finds that her

2

The court would note, moreover, that the small spots or
puddles of liquid shown in the photograph appear to be around one
or two feet from the bottom edge of the freezer and clearly did
not seep from underneath the freezer, as claimed in plaintiff’s
affidavit.
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affidavit should be stricken.

It follows that Kroger is entitled

to summary judgment.
Kroger argues that even if the court were to consider
plaintiff’s affidavit, summary judgment would still be appropriate
as plaintiff has failed to produce evidence to show that Kroger
caused liquid to be on the floor or that Kroger had actual or
constructive notice of any water or other liquid on the floor
prior to her fall.

In this regard, to rebut plaintiff’s

affidavit, Kroger has presented evidence that a Kroger employee,
who had been trained to be on the lookout for spills, liquids or
debris on the floor, was in the area where plaintiff fell
approximately two minutes prior to her fall and did not observe
anything on the floor.3

In addition, it has presented the

affidavit of the seafood department manager, who routinely
inspected all the equipment in his department, who stated that he
did not find the cooler/freezer cited by plaintiff as a possible
source of a leak or to have been leaking at any time before her
fall and that he inspected the cooler/freezer after her fall in an
effort to determine the source of any water and found that neither
it nor any other equipment in the area was leaking or

3

Plaintiff does not contend that Kroger had actual notice
of any liquid being on the floor. She does argue that even if
Kroger did not create the condition, it had constructive notice of
the condition, as evidenced by the fact that her clothing was wet
after she fell. As Kroger notes in its rebuttal, this contention
makes no sense.
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malfunctioning.

In the court’s opinion, given this unequivocal

evidence, plaintiff’s affidavit, even if considered, would not be
sufficient to avoid summary judgment.
Based on the foregoing, it is ordered that Kroger’s motions
to strike and for summary judgment are granted.
A separate judgment will be entered in accordance with Rule
58 of the Federal Rules of Civil Procedure.
SO ORDERED this 13th day of October, 2017.

/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE

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