Owens v. The Kroger Co. et al
Filing
46
ORDER granting in part and denying in part 38 Motion for Summary Judgment for the reasons set out in the order. Signed by Chief District Judge Daniel P. Jordan III on May 3, 2018. (SP)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
JOHNNIE MAE OWENS
PLAINTIFF
V.
CIVIL ACTION NO. 3:17-CV-314-DPJ-FKB
THE KROGER CO.
DEFENDANT
ORDER
Defendant The Kroger Co. (“Kroger”) requests summary judgment [38] on Plaintiff
Johnnie Mae Owens’s negligence and false-light claims. For the reasons that follow, Kroger’s
Motion for Summary Judgment [38] is granted in part and denied in part.
I.
Facts and Procedural History
Owens says Kroger’s negligence proximately caused a local media station to broadcast a
surveillance image of Owens with the caption “wallet thief.” The dispute began November 24,
2014, when Owens discovered a wallet while checking out at the Clinton, Mississippi, Kroger
store. The wallet belonged to the preceding customer, Ezella Lewis. Owens informed the
cashier and was instructed to take the wallet to the Customer Service Representative (“CSR”).
Instead, Owens left the store hoping to catch Lewis in the parking lot. Unfortunately, Lewis was
gone, so Owens returned to the store and handed the wallet to the CSR, Tawanna Cavett. She
also asked Cavett how Kroger documents that an item was returned and not stolen. Cavett
responded by pointing to the security cameras. Cavett then placed the wallet in the lost-andfound drawer. When Lewis called Kroger and asked whether anyone had found her wallet, it
appears that no one checked the drawer before informing Lewis it had been taken. She then
called the Clinton Police Department (“CPD”).
CPD investigated the alleged crime by requesting surveillance footage from Kroger. And
pursuant to that request, Kroger provided footage depicting Owens leaving Kroger with Lewis’s
wallet in hand. Kroger did not, however, give CPD the video from the customer-service area
where Owens returned Lewis’s wallet. And Kroger again failed to check the lost-and-found
drawer. Believing that the person in the video (Owens) stole Lewis’s wallet, CPD released still
images to Crime Stoppers which, in turn, released them to the media with the description “wallet
thief.” The images were then broadcasted on television.
Aggrieved, Owens filed the instant suit against Kroger alleging various negligence
theories and a false-light claim. Compl. [1-2]. Kroger now seeks summary judgment. Def.’s
Mot. [38]. The issues have been briefed, and the Court has subject-matter and personal
jurisdiction.
II.
Standard
Summary judgment is warranted under Federal Rule of Civil Procedure 56(a) when
evidence reveals no genuine dispute regarding any material fact and that the moving party is
entitled to judgment as a matter of law. The rule “mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The party moving for summary judgment “bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of [the record] which it
believes demonstrate the absence of a genuine issue of material fact.” Id. at 323. The
nonmoving party must then “go beyond the pleadings” and “designate ‘specific facts showing
that there is a genuine issue for trial.’” Id. at 324 (citation omitted). In reviewing the evidence,
2
factual controversies are to be resolved in favor of the nonmovant, “but only when . . . both
parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994) (en banc). When such contradictory facts exist, the court may “not make
credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150 (2000). Conclusory allegations, speculation, unsubstantiated assertions, and
legalistic arguments have never constituted an adequate substitute for specific facts showing a
genuine issue for trial. See TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir.
2002); Little, 37 F.3d at 1075; SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993).
III.
Analysis
A.
Negligence Claim
Owens says Kroger’s negligence caused her injuries. To establish negligence, “the
plaintiff must show duty, breach of duty, causation, and damages.” Presswood v. Cook, 658 So.
2d 859, 862 (Miss. 1995). But before addressing those elements, the Court must square-up the
parties’ briefs and identify the allegedly negligent acts Owens asserts.
In its opening memorandum, Kroger focuses on the allegation that it provided false or
incomplete information to CPD when it produced the surveillance video from the register while
withholding the second video from the customer-service area. See Def.’s Mem. [39] at 6–8.
Kroger argues that this conduct breached no duties, see id., and Owens takes no real issue with
that argument. So to the extent her Complaint can be read to include a negligence claim based
on producing only one video, she waived it. See Hensley v. Wal-Mart Stores Inc., 290 F. App’x
742, 743–44 (5th Cir. 2008) (holding that “arguments not raised in response to” dispositive
motions are waived).
3
That said, Owens’s summary-judgment response focuses on a different basis for her
negligence claim. According to her, “Kroger breached its duty twice by failing to act with
reasonable care to look inside its own Lost & Found drawer before telling Ms. Lewis her wallet
was not found or turned in, and when it failed to look inside its own Lost & Found drawer before
it provided the CPD the video.” Pl.’s Resp. [42] at 4, 6.
Owens asserted this theory in her Complaint. Compl. [1-2] ¶¶ 10, 11. Yet Kroger failed
to address it until rebuttal. Normally, the Court would ignore arguments first raised in reply.
See Gillaspy v. Dall. Indep. Sch. Dist., 278 F. App’x 307, 315 (5th Cir. 2008) (“It is the practice
of . . . the district courts to refuse to consider arguments raised for the first time in reply briefs.”
(citation omitted)). But even considering the issue and Kroger’s reply, questions of fact preclude
summary judgment.
In its reply, Kroger states that it owed Lewis, not Owens, the duty to check the lost-andfound drawer when Lewis called looking for her wallet. It further says that any breaches did not
proximately cause Owens’s alleged damages. See Def.’s Reply [44] at 4. Accordingly, the
parties dispute the duty and causation elements of the prima facie negligence case.
The duty and causation elements “both involve foreseeability.” Rein v. Benchmark
Constr. Co., 865 So. 2d 1134, 1143 (Miss. 2004). But “duty is an issue of law, and causation is
generally a matter for the jury.” Id. Thus the first issue is for the judge and the second is
reserved for the jury when the plaintiff satisfies Rule 56(c) by creating a material fact issue. See
id. The Court will therefore determine first whether a duty existed as a matter of law and second
whether any issues of material fact are present as to proximate cause.
4
1.
Duty
Under Mississippi law, there is a common-law duty imposed on everyone to conform his
voluntary actions to a standard of reasonable care. See Dr. Pepper Bottling Co. of Miss. v.
Bruner, 148 So. 2d 199, 201 (Miss. 1962).
As a general rule, it is the natural inherent duty owed by one person to his
fellowmen, in his intercourse with them, to protect life and limb against peril,
when it is in his power to reasonably do so. The law imposes upon every person
who undertakes the performance of an act—which, it is apparent, if not done
carefully, will be dangerous to other persons, or the property of other persons—
the duty to exercise his senses and intelligence to avoid injury, and he may be
held accountable at law for an injury to person or property which is directly
attributable to a breach of such duty.
Id.
Though far reaching, this common-law duty is tethered by a foreseeability requirement.
See Ready v. RWI Transp., LLC, 203 So. 3d 590, 595 (Miss. 2016) (discussing foreseeability).
“[I]n order for a person to be liable for an act which causes injury, the act must be of such
character, and done in such a situation, that the person doing it should reasonably have
anticipated that some injury to another will probably result therefrom.” Patterson v. Liberty
Assocs., L.P., 910 So. 2d 1014, 1019 (Miss. 2004) (citation omitted).
The question here is whether Kroger owed Owens a duty to check the lost-and-found
drawer before telling Lewis the wallet had been taken. Kroger says that duty flowed to Lewis
and not Owens, but it fails to cite any relevant legal authority supporting its argument.
On this record—when viewed in the light most favorable to Owens—the Court concludes
that Kroger owed Owens a duty of reasonable care. To begin, Kroger apparently instructed
Owens to take the wallet to customer service, so it created a duty as to Owens to take reasonable
steps to prevent someone from thinking she stole it. Moreover, Kroger adopted polices to record
who turned in lost-and-found items. For example, its lost-and-found log has a column for
5
“Finder Name and Phone Number,” which the CSR is allegedly directed to use. Log Form [425]. Kroger also videotaped the customer-service area, and, according to CSR Cavett, the
cameras documented who returned what. Cavett Dep. [42-2] at 16. These policies suggest an
understanding that harm could follow if Kroger mishandled a lost item another customer turned
in.
Finally, even assuming harm was not reasonably foreseeable when Kroger told Lewis her
wallet was taken, harm became even more foreseeable when CPD showed up asking for the tape.
By then, Kroger knew the video depicted someone (later identified as Owens) who was now
under investigation, and it should have recognized the potential for reputational and other
injuries. Indeed Kroger’s corporate representative acknowledged the surveillance video could
reach the public once produced to CPD, testifying, “[I]t’s always possible. However, it rarely
happens.” Kroger Rule 30(b)(6) Dep. [38-1] at 76.
Kroger dismisses this testimony, arguing that “[i]t is axiomatic tort law that a mere
possibility does not rise to the level of preponderance of the evidence.” Def.’s Reply [44] at 5.
Kroger therefore argues—with no supporting authority—that the testimony fails to create a jury
question regarding foreseeability. See id. True enough, “remote possibilities do not constitute
negligence from the judicial standpoint.” Gulledge v. Shaw, 880 So. 2d 288, 293 (Miss. 2004)
(citation omitted). That is because the law does “not charge the actor with a prevision or
anticipation which would include an unusual, improbable, or extraordinary occurrence, although
such happening is within the range of possibilities.” Id. But, the “fact that an injury rarely
occurs [(as Kroger’s corporate representative stated)], or has never happened, is insufficient to
protect the actor from a finding of negligence. If some injury is to be anticipated, this Court will
find liability even if the particular injury could not be foreseen.” Id. (emphasis added).
6
Here, “some injury” was reasonably foreseeable when Kroger failed to take steps to
determine whether the wallet was truly missing before falsely informing Lewis and CPD that it
had been taken. See id. That may have been Owens’s fear when she returned the wallet and
asked the CSR how Kroger would document that she had turned it in. See Cavett Dep. [42-2] at
16. It was reasonably foreseeable that an unjustified criminal investigation and publication
would follow. Kroger therefore owed Owens a duty of reasonable care.
2.
Proximate Cause
Kroger says the failure to check the lost-and-found drawer did not proximately cause
Owens’s injury because the superseding acts by CPD and Crime Stoppers put the video in the
public realm. Def.’s Reply [44] at 5. So the question is whether Kroger proximately caused
Owens’s injuries.
Proximate cause has two components. “[I]n order for an act of negligence to proximately
cause the damage, the fact finder must find that the negligence was both the cause in fact and
legal cause of the damage.” Glenn v. Peoples, 185 So. 3d 981, 986 (Miss. 2015) (citation
omitted).
A defendant’s negligence is the cause in fact where the fact finder concludes that,
but for the defendant’s negligence, the injury would not have occurred. In other
words, the cause in fact of an injury is that cause which, in natural and continuous
sequence unbroken by any efficient intervening cause, produces the injury and
without which the injury would not have occurred. . . . Further, a defendant’s
negligence which is found to be the cause in fact will also be the legal cause
provided the damage is the type, or within the classification, of damage the
negligent actor should reasonably expect (or foresee) to result from the negligent
act.
Id.
Significant to Kroger’s defense, “a person is not liable where the original negligence
‘only furnished the condition or occasion from which the injuries were received, but it did not
7
put in motion the negligence and wrongful agency that caused the injury.’” Mitchell Crane
Servs., Inc. v. Page, 126 So. 3d 29, 32–33 (Miss. 2013) (quoting Hoke v. W.L. Holcomb &
Assocs., Inc., 186 So. 2d 474, 476–77 (Miss. 1966)). Thus, “if an independent intervening
agency was the proximate cause of the injury inflicted, the plaintiff can not recover upon the
original act of negligence.” Id. (quoting Permenter v. Milner Chevrolet Co., 91 So. 2d 243, 252
(Miss. 1956)). “An independent intervening cause is one that could not have been reasonably
foreseen by the defendant while exercising due care.” O’Cain v. Harvey Freeman & Sons, Inc.
of Miss., 603 So. 2d 824, 830 (Miss. 1991) (citation omitted).
In this case, there can be no dispute that Owens would not have been identified as a
“wallet thief” but for Kroger’s failure to simply check the lost-and-found drawer before telling
Lewis and CPD that the wallet had been taken. The real issue is whether CPD and Crime
Stoppers broke the causal link through unforeseeable acts. For the reasons listed in the preceding
section regarding duty, the foreseeability question presents a disputed material fact as to
proximate cause. Therefore, the Court denies Kroger’s motion [38] as it relates to Owens’s
negligence claim.1
1
The Mississippi Supreme Court has at times applied the six-factor test found in the Restatement
(Second) of Torts for determining whether a superseding cause exists:
(a) the fact that its intervention brings about harm different in kind from that
which would otherwise have resulted from the actor’s negligence;
(b) the fact that its operation or the consequences thereof appear after the event to
be extraordinary rather than normal in view of the circumstances existing at the
time of its operation;
(c) the fact that the intervening force is operating independently of any situation
created by the actor’s negligence, or, on the other hand, is or is not a normal result
of such a situation;
(d) the fact that the operation of the intervening force is due to a third person’s act
or to his failure to act;
8
B.
Negligent Infliction of Emotion Distress
Kroger says Owens’s negligent-infliction-of-emotional-distress (“NIED”) claim fails as a
matter of law. But as with the other negligence claims, the parties have addressed different
alleged acts. According to Kroger, the “sole basis” for Owens’s NIED claim is the assertion that
Kroger provided a “false” or “incomplete” video to CPD, yet Mississippi does not recognize the
“tort of negligent infliction of emotional distress arising from defamation or written noncommercial publication.” Def.’s Mem. [39] at 10. Owens fails to address that point and
therefore abandoned a NIED claim based on that issue. See Hensley, 290 F. App’x at 743–44.
She does, however, argue that Kroger was negligent for failing to check the lost-and-found
drawer. See Pl.’s Resp. [42] at 4, 6. Kroger’s motion fails to address that argument and does not
reach Owens’s claim for emotional-distress damages flowing from those allegedly negligent acts.
Kroger’s motion is therefore denied as to that claim.
C.
False-Light Claim
Owens says Kroger’s actions caused her image to be published in a false light—i.e., that
she was a “wallet thief.” To make a false-light invasion-of-privacy claim, the plaintiff must
show “(a) the false light in which the other was placed would be highly offensive to a reasonable
person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the
(e) the fact that the intervening force is due to an act of a third person which is
wrongful toward the other and as such subjects the third person to liability to him;
[and]
(f) the degree of culpability of a wrongful act of a third person which sets the
intervening force in motion.
Southland Mgmt. Co. v. Brown ex rel. Brown, 730 So. 2d 43, 46 (Miss. 1998) (quoting
Restatement (Second) of Torts § 440 (1965)). Neither party addressed these factors, so the Court
will not dwell on them. That said, only factor (d) arguably weighs in Kroger’s favor. The others
buttress the Court’s conclusion that a jury question exists regarding proximate cause.
9
publicized matter and the false light in which the other would be placed.” Cook v. Mardi Gras
Casino Corp., 697 So. 2d 378, 382 (Miss. 1997).
In this case, the picture of Owens under the heading “wallet thief” placed her in a light
that would offend a reasonable person. But the parties dispute (1) whether Kroger’s
communication with CPD was privileged, and (2) whether Kroger “publicized the matter.”
Because Kroger prevails on the first issue, the Court will not address the second, which turns on
an underdeveloped area of law.
Mississippi law recognizes a qualified privilege for communications with law
enforcement pursuant to official investigations, as “there is an unspoken civic duty to cooperate
with police officers.” Downtown Grill, Inc. v. Connell, 721 So. 2d 1113, 1119 (Miss. 1998).
A [qualified] privileged communication is one made in good faith on any subject
matter on which the person communicating has an interest or in reference to
which he has a duty to protect to a person having a corresponding interest or duty,
even though it contained matters, which, without this privilege, would be
actionable, and although the duty is not a legal one, but only moral and social
duty of imperfect obligation.
J.C. Penney Co. v. Cox, 148 So. 2d 679, 682 (Miss. 1963).
This qualified privilege is destroyed, however, if the speaker acted with “malice, bad
faith, or abuse.” Funderburk v. Johnson, 935 So. 2d 1084, 1105 (Miss. Ct. App. 2006). “Actual
malice means that, at the time the statements were published, the speaker knew them to be false
or made them with reckless disregard of their truth.” Id. at 1106. Significantly,
[a] reckless disregard for the truth requires more than a departure from reasonably
prudent conduct. There must be sufficient evidence to permit the conclusion that
the defendant in fact entertained serious doubt as to the truth of his publication. . .
. The standard is a subjective one—there must be sufficient evidence to permit
the conclusion that the defendant actually had a high degree of awareness of . . .
probable falsity.
Journal Publ’g Co. v. McCullough, 743 So. 2d 352, 361 (Miss. 1999) (citations omitted).
10
Owens offers no such evidence. Aside from conclusory statements that Kroger acted
with reckless disregard, Owens limits this portion of her response to the following: “Kroger had
in its possession a video of indisputable proof that Ms. Owens had turned in the wallet to the
customer service desk. This indisputable proof establishes that Kroger had knowledge that Ms.
Owens did not steal Ms. Lewis’s wallet.” Pl.’s Resp. [42] at 9. She therefore concludes that a
jury could “infer . . . Kroger acted in reckless disregard.” Id. at 9–10.
While these allegations are certainly enough to create a jury question on negligence, they
fall well short of showing that Kroger knew it was wrong or “actually had a high degree of
awareness” that the information it gave CPD was incorrect. Journal Publ’g Co., 743 So. 2d at
361. Speculation and conjecture are not sufficient to avoid summary judgment. See TIG Ins.
Co., 276 F.3d at 759. Kroger’s motion is therefore granted as to the false-light invasion-ofprivacy claim.
IV.
Conclusion
The Court has considered all arguments. Those not specifically addressed would not
have changed the outcome. For the foregoing reasons, Kroger’s Motion for Summary Judgment
[38] is granted as to the false-light claim and the uncontested negligence issues related to
providing the video to CPD. The motion is otherwise denied.
SO ORDERED AND ADJUDGED this the 3rd day of May, 2018.
s/ Daniel P. Jordan III
CHIEF UNITED STATES DISTRICT JUDGE
11
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?