Kinstley v. Dollar Tree Stores, Inc.
Filing
28
ORDER denying 20 Motion for Summary Judgment. Signed by Honorable David C. Bramlette, III on December 3, 2014. (AA)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
PATSY ANN KINSTLEY
VS.
PLAINTIFF
CIVIL ACTION NO: 5:14-cv-5-DCB-MTP
DOLLAR TREE STORES, INC.
DEFENDANT
ORDER DENYING SUMMARY JUDGMENT
This cause is before the Court on Defendant’s, Dollar Tree
Stores, Inc., Motion for Summary Judgment [docket entry no. 20].
Having reviewed the motion and response, applicable statutory and
case law, and being otherwise fully informed in the premises, the
Court finds as follows:
I. Factual and Procedural Background
On November 19, 2012, Plaintiff Patsy Ann Kinstley entered a
Dollar Tree store located in Brookhaven, Mississippi, to purchase
some items for Thanksgiving. Kinstley walked down an aisle and
turned suddenly at the end of the aisle to the right, tripping over
a store display made up of three stacks of canned beans. She landed
awkwardly on both her knees and her right elbow. As a result,
Kinstley suffered damages including
lost income, medical bills,
and pain and suffering.
Kinstley filed suit against Defendant, Dollar Tree Stores,
Inc. (“Dollar Tree”), in the Circuit Court of Lincoln County on
1
December 18, 2013. In her complaint, Kinstley requested $150,000 in
actual damages and punitive damages in the same amount based on a
theory of Dollar Tree’s gross negligence. On January 23, 2014,
Dollar Tree removed this case to federal court alleging diversity
jurisdiction.1
II. Analysis
A. Summary Judgment Standard
Summary judgment is appropriate “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 fact is ‘material’ if its resolution in favor of one party might
affect the outcome of the lawsuit under governing law. An issue is
‘genuine’ if the evidence is sufficient for a reasonable jury to
return a verdict for the non-moving party.” Ginsberg 1985 Real
Estate P’ship v. Cadle Co., 39 F.3d 528, 531 (5th Cir. 1994)
(citations
omitted).
The
moving
party
bears
the
initial
responsibility of apprising the district court of the basis for its
motion and the parts of the record which indicate the absence of a
genuine issue of material fact. Celotex Corp. V. Catrett, 477 U.S.
317, 323 (1986).
“Once the moving party presents the district court with a
properly supported summary judgment motion, the burden shifts to
1
Kinstley is a Mississippi resident, and Dollar Tree is
incorporated in Virginia. The amount in controversy exceeds
$75,000.
2
the
non-moving
party
to
show
that
summary
judgment
is
inappropriate.” Morris v. Covan World Wide Moving, Inc., 144 F.3d
377, 380 (5th Cir. 1998). “The evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his
favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
But the nonmovant must meet his burden with more than metaphysical
doubt, conclusory allegations, unsubstantiated assertions, or a
mere scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994). A party asserting a fact is “genuinely
disputed must support the assertion by: (A) citing to particular
parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations,
stipulations . . . admissions, interrogatory answers, or other
materials . . . .” Fed. R. Civ. P. 56(c)(1)(A).
Summary judgment must be rendered when the nonmovant “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, 477 U.S. at 322.
B. Kinstley’s Claim
“[F]ederal
courts
apply
substantive
state
law
when
adjudicating diversity-jurisdiction claims, but in doing so apply
federal procedural law to the proceedings.” Cates v. Sears, Roebuck
& Co., 928 F.2d 679, 687 (5th Cir. 1991). Although Kinstley styled
her complaint as one for gross negligence, the facts of this case
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support recovery on a theory of premises liability; it is this
theory of recovery that both parties argue in the current motion
and response. In Mississippi, “the analysis of premises liability
involves three steps.” Titus v. Williams, 844 So. 2d 459, 467
(Miss. 2003). “First, it is necessary to determine whether the
injured person is an invitee, licensee, or trespasser. Next, the
duty owed to the injured person must be determined. The final step
is the determination of whether the landowner breached that duty.”
Massey v. Tingle, 867 So.2d 235, 239 (Miss. 2004) (citing Titus,
844 So. 2d at 467); see also Cheeks v. AutoZone, Inc., — So. 3d —,
—, No. 2013-CA-00401-SCT, 2014 WL 4748099, at *4 (Miss. Sep. 25,
2014) (quoting Massey, 867 So. 2d at 239).
As to the first step, “a business invitee [is] ‘a person who
goes upon the premises of another in answer to the express or
implied invitation of the owner or occupant for their mutual
advantage.’” Turney v. Entergy Miss., Inc., 139 So. 3d 115, 117
(Miss. Ct. App. 2014) (quoting Little v. Bell, 719 SO. 2d 757, 760
(Miss. 1998)). Dollar Tree concedes that Kinstley was a business
invitee at the time of her injury. Mem. Supp. p. 3, ECF No. 21.
As to the second step, Dollar Tree concedes it owed Kinstley
a duty of care. Mem. Supp. p. 3, ECF No. 21. Although Dollar Tree
was “not an insurer of [Kinstley]’s safety,” it owed her two
duties: (1) “a duty to keep the premises reasonably safe” and (2)
“when not reasonably safe to warn only where there is hidden danger
4
or peril that is not in plain and open view.” Caruso v. Picayune
Pizza Hut, Inc., 598 So. 2d 770, 773 (Miss. 1992). These two duties
are separate, and breach of either supports a claim of negligence.
Mayfield v. The Hairbender, 903 SO.2d 733, 738 (Miss. 2005).
As to the third step, Mississippi case law modifies the
analysis of breach in slip-and-fall cases.
Simply put, 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.
Anderson v. B. H. Acquisition, Inc., 771 So. 2d 914, 918 (Miss.
2000). In a more recent case, the Mississippi Supreme Court seemed
to clarify the first part of this analysis, requiring that the
negligent
act
created
the
dangerous
condition.
See
Jones
v.
Imperial Palace of Mississippi, LLC, 147 So. 3d 318, 322 (Miss.
2014) (“A plaintiff cannot succeed on a premises-liability claim
without showing either that the defendant created the dangerous
condition or that the defendant possessed actual or constructive
knowledge of the dangerous condition in sufficient time to remedy
it.”). Because Dollar Tree characterizes the stacked cans as a
display, discussed infra, the Court finds that the condition was
created by the defendant. Thus, the first question the Court must
answer is whether the stacked cans of beans were unreasonably
5
dangerous.
The
mere
existence
of
an
unreasonably
dangerous
condition would breach the first duty, but to breach the second
duty there must be (1) an unreasonably dangerous condition (2) that
is hidden and (3) a failure to warn.
Dollar Tree cites to an unpublished Fifth Circuit opinion, to
say that “Mississippi courts have routinely held that conditions
such as display stands, hand trucks, raised door threshold, curbs,
and steps are not unreasonably dangerous.” Mem. Supp. p. 4, ECF No.
21 (citing Smith v. Fed. Cleaning Contractors, Inc., 126 F. App’x
672, 674 (5th Cir. 2005) (per curiam) (listing cases)). However,
Smith cites to Ware v. Frantz, 87 F. Supp. 2d 643, 647 (Miss. S.D.
1999), a federal opinion, for the proposition that display stands
are per se reasonably safe.2 See Smith, 126 F. App’x at 674. The
Ware court lumped display stands into the category of “conditions
normally encountered” previously identified by the Mississippi
Supreme Court. Ware, 87 F. Supp. 2d at 646 (citing Tate v. So.
Jitney Jungle Co., 650 So. 2d 1347, 1351 (listing “thresholds,
curbs, and steps”)). Dollar Tree characterizes the stacked cans as
a display in its briefing, and so relies on Ware to absolve it of
liability. Based on more recent Fifth Circuit interpretation of the
category exemption in Tate, the Court declines to follow the rule
2
One other Fifth Circuit case, also unpublished, has cited
to Ware for its rule related to display stands. See McNamee v.
Jackson Simon Ltd., 54 F. App’x 793 (5th Cir. 2002) (per curiam).
But, just as in Parker, this rule was not required for that
case’s holding. No Mississippi appellate court has cited to Ware.
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announced in Ware.
Ware was decided in 1999, four years after Tate, and it was
not appealed to the Fifth Circuit. It is impossible to know what
the Fifth Circuit would have held then, but if it were appealed
today that Court would likely express concerns about extending
Tate’s categorical exemption for conditions that customers normally
encounter.
In
an
opinion
issued
in
2009,
the
Fifth
Circuit
expressed “uncertain[ty] about the present role in state law of
this principle that usual and normally expected hazards are not
unreasonably dangerous.” Wood v. RIH Acquisitions MS II, LLC, 556
F.3d 274, 276 (5th Cir. 2009). The doubts come from the facts: (1)
that the Tate rule comes from an opinion in which only four
justices join and a fifth concurs in the result, (2) that “the
principle was not part of the holding in the case,” and (3) that
the
categorical
exemption
has
been
quoted
only
once
by
the
Mississippi Supreme Court. Id. (Tate has not been cited by the
Mississippi Supreme Court since Wood was decided.) More recently,
the Fifth Circuit has struck down what it saw as extensions of the
categorical exemption. See e.g., Woten v. Am. Nat’l Ins. Co., 424
F. App’x 368, 371 (5th Cir. 2011) (inadequate lighting combined
with curb); Cox v. Wal-Mart Stores East, L.P., 755 F.3d 231, 235
(5th Cir. 2014) (defective thresholds). Therefore, the Court finds
that Ware does not correctly articulate the state of Mississippi
law.
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But even were the Court to accept Ware and find that display
cases are per se reasonably safe, the facts of this case can be
distinguished. The stacked cases seen in the photograph attached to
Kinstley’s brief do not appear as one expects a display would
appear. See Mem. Opp. Ex. 1, ECF No. 27-1. Without attempting to
create a judicial definition of a store display stand, the finder
of
fact
could
conclude
that
there
is
little
to
attract
the
customer’s eye to the product. There is no signage. Though the cans
are positioned beneath a hanging display of another product, they
do not appear related. Further, there is no actual stand in this
case. The cans are placed on the floor and, even at three cases
high, appear very low to the ground, barely rising to the level of
the first shelf above the ground in the picture. In Ware, the
plaintiff’s shopping cart struck the corner of a free-standing
display shelf, causing her to lose her balance and fall. Ware, 87
F. Supp. at 645. It appears from the photograph that the cans could
have been stacked there as much out of convenience as to display
them.
The question remains then whether the stacked cans were
unreasonably
Circuit
held
dangerous.
that
the
In
an
unpublished
question
of
opinion,
whether
a
the
Fifth
condition
is
unreasonably dangerous should be treated under Mississippi law the
same as a question of negligence. See Parker v. Wal-Mart Stores,
Inc., 261 F. App’x 724, 726 (5th Cir. 2008). The Parker court found
8
that “the question of negligence is for the jury ‘unless the doing
of the act which caused the injury complained of it not in dispute
or conclusively appears from the evidence, and no inference except
that
of
negligence
or
of
no
negligence
can
be
justly
drawn
therefrom.’” Id. (quoting City of Greenville v. Laury, 159 So. 121,
122 (Miss. 1935)). The court went on to quote that “if the ‘facts
are undisputed, but reasonable minds may draw different inferences
as to negligence therefrom, solution of the issue of negligence
should be left to the jury.’” Id. (quoting Mercy Reg’l Med. Ctr. V.
Doiron, 348 So. 2d 243, 246 (Miss. 1977)). The facts in Parker,
like here, were undisputed, and the court ruled that “the district
court was not required to submit the question [of unreasonable
dangerousness] to the jury.” Id. But unlike in Parker, reasonable
minds can differ here. Therefore, the Court finds the question
should be answered by a jury.
Since the Mississippi Supreme Court held that the open and
obvious
doctrine
does
not
completely
bar
recovery,
“summary
judgment for a defendant rarely is sustained.” Wood, 556 F.3d at
280. The Court finds that it is a fact issue whether the stacked
cans were an unreasonably dangerous condition and will, therefore,
deny summary judgment. The Court does not reach the questions of
whether the condition was hidden3 or whether Dollar Tree failed to
3
The Court notes, however, that a condition is “not either
open and obvious or not open and obvious. Common sense and
experience negates an either/or categorization of such
9
warn Kinstley of it.
III. Order
IT IS HEREBY ORDERED that the defendant’s Motion for Summary
Judgment is DENIED.
SO ORDERED this the 3rd day of December 2014.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
conditions. Just how open and obvious a condition may have been
is a question for the jury in all except the clearest cases.”
Bell v. City of Bay St. Louis, 467 So. 2d 657, 664 (Miss. 1985)
(citing Lancaster v. City of Clarksdale, 339 So. 2d 1359. 1360
(Miss. 1976); Wilson v. Kirkwood, 221 So. 2d 79, 81 (Miss.
1969)).
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