Summary
holding that placing a warning sign that Plaintiff saw would prohibit Plaintiff from asserting a claim against a Defendant
Summary of this case from Scott v. Wal-Mart Stores East, Inc.Opinion
CIVIL ACTION NO.: 2:00CV55-D-B.
January 8, 2001.
OPINION
This cause is before the court on the Defendant Wal-Mart Stores, Inc's Motion for Summary Judgment and Defendant Diversified Services, Inc.'s Motion for Summary Judgment and Joinder in Wal-Mart Stores, Inc.'s Motion for Summary Judgment. After due consideration the court finds that the motions are well-taken and hence, should be granted.
Also pending is Defendant, Wal-Mart Stores, Inc.'s, Motion to Strike the Plaintiff's rebuttal to their motion as being untimely or in the alternative, Reply in Support of Motion for Summary Judgment. Additionally, pending is Defendant, Diversified Service's Inc.'s, Motion for Joinder in Wal-Mart's Motion to Strike, or in the alternative, Reply in Support of Motion for Summary Judgment.
Background
The Plaintiff, William Barnette (Barnette), originally filed this case in the Circuit Court of DeSoto County, Mississippi and Defendants, Wal-Mart Stores, Inc. (Wal-Mart), G.K.T. Services, Inc. (G.K.T.), and Diversified Services, Inc. (Diversified) removed it to this court, invoking the court's jurisdiction pursuant to 28 U.S.C. § 1332. Wal-Mart has filed a cross-claim against Diversified and G.K.T. for indemnification.
This is a slip and fall case arising out of an incident at the Wal-Mart store in Southaven, Mississippi, on November 21, 1998. Barnette, while shopping at Wal-Mart, slipped and fell on a substance, injuring himself. Barnette is not sure what he slipped on. He saw nothing on the floor, either before or after he fell. Barnette also admits that he does not know who left the substance on the floor and that his pants were not wet following his fall.
In ruling on a motion for summary judgment, the court shall not make credibility determinations, weigh the evidence or draw from the facts legitimate inferences for the movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rather, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor. Anderson, 477 U.S. at 255. This factual summary is drafted in accordance with this holding.
Wal-Mart hired Diversified, an independent contractor, to provide janitorial services at the Southaven store. Diversified in turn contracted with G.K.T. to clean the floors at the Southaven Wal-Mart. A cleaning crew was in the store at the time of Barnette's fall. Barnette himself acknowledges that he saw the cleaning crew three to four aisles down from where he was shopping before he fell. He believed they had just cleaned the aisle on which he fell. Additionally, Barnette admits in his deposition that he saw a yellow warning sign on the aisle the cleaning crew was working on before he fell.
Summary Judgment Standard
On a motion for summary judgment, the movant has the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265, 275 (1986) ("the burden on the moving party may be discharged by `showing'. . .that there is an absence of evidence to support the non-moving party's case"). Under Rule 56(e) of the Federal Rules of Civil Procedure, the burden then shifts to the non-movant to "go beyond the pleadings and by. . .affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553, 91 L.Ed.2d at 274. That burden is not discharged by "mere allegations or denials." Fed.R.Civ.P. 56(e). All legitimate factual inferences must be made in favor of the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202, 216 (1986). Rule 56(c) mandates the entry of summary judgment "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., 477 U.S. at 322, 106 S.Ct. at 2552, 91 L.Ed.2d at 273. Before finding that no genuine issue for trial exists, the court must first be satisfied that no reasonable trier of fact could find for the non-movant. Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538, 552 (1986).
Discussion
This court applies Mississippi law in this diversity action. Vaught v. Showa Denko K.K., 107 F.3d 1137, 1146 (5th Cir. 1997). In Mississippi, Barnette may espouse one of three theories in support of a claim of negligence such as this: (1) that the Defendants' own negligence created a dangerous condition which caused his injury; (2) that the Defendants had actual knowledge of a dangerous condition and failed to warn Barnette; or (3) that, based upon the passage of time, the Defendants should have known of the dangerous condition caused by another party, if the Defendants had acted reasonably, i.e., constructive knowledge of the condition should be imputed to the Defendants. Downs v. Choo, 656 So.2d 84, 86 (Miss. 1995) (citing Munford, Inc. v. Fleming, 597 So.2d 1282, 1284 (Miss. 1992); Moore v. Winn-Dixie Stores, Inc., 173 So.2d 603 (Miss. 1965)). In his complaint, Barnette alleges all three negligence theories.
Defendants' own negligence
Barnette maintains in his complaint that G.K.T., working as an agent of Wal-Mart, placed something on the floor which made it dangerously slippery. In order to prevail on his negligence claim, Barnette bears the burden of proving that (1) Wal-Mart, G.K.T., and/or Diversified owed him a duty, (2) that one or more of them breached that duty, and (3) that the breach was the proximate cause of his damages. Hardy v. K Mart Corp., 669 So.2d 34, 37-38 (Miss. 1996) (citing Palmer v. Biloxi Regional Medical Center, Inc., 564 So.2d 1346, 1354 (Miss. 1990)).
Defendants acknowledge that as business entities, they owe an invitee or visitor the duty to exercise ordinary care in keeping the premises in a reasonably safe condition, or warning invitees or visitors of dangerous conditions not readily apparent of which they have knowledge of or should have had knowledge of, in the exercise of reasonable care. Kroger, Inc., v. Ware, 512 So.2d 1281, 1282 (Miss. 1987); Waller v. Dixieland Food Stores, Inc., 492 So.2d 283, 285 (Miss. 1986). However, they are not insurers of all injuries which occur on their property. Kroger, 512 so.2d at 1282; First National Bank of Vicksburg v. Cutrer, 214 So.2d 465, 466, (Miss. 1968); Sears, Roebuck Co. v. Tisdale, 185 So.2d 916, 917 (Miss. 1966).
The next inquiry, accordingly, is whether Wal-Mart, G.K.T. and/or Diversified breached their duty to Barnette. The court finds they did not. Barnette can prove none of the facts he alleges and mere allegations are not enough. He claims there was a substance on the floor, placed there by a cleaning crew, which caused him to slip. However, he saw no substance either on the floor or on his pants following the fall. Further, he has brought forth no evidence that the cleaning crew placed anything on that aisle; indeed, he only assumes that the cleaning crew was even on the aisle where he slipped prior to his fall. They were cleaning three to four aisles away from where Barnette fell and he admits in his deposition that, "[i]t could have been (something the cleaning crew placed on the floor). I'm not stating that it was. I said it could have been." See Depo of W. Barnette, P. 49, L. 2-11. The court finds that Barnette has a fatal lack of evidence to support his claim that an employee and/or agent of Wal-Mart placed something slippery on the floor, thereby breaching their duty owed to keep the premises reasonably safe. Thus, his theory fails.
Defendants' actual knowledge and failure to warn.
Barnette's next theory is based on Defendants' actual knowledge of a condition, i.e., slippery floors, of which they failed to adequately warn him. Again, this theory fails for lack of evidence. Barnette neglects to point to one bit of evidence, facts, or knowledge to prove that the Defendants knew there was a slippery substance on the floor. Furthermore, Wal-Mart, G.K.T, and/or Diversified can not be expected to warn of a condition of which they had no knowledge. Moreover, by Barnette's own admission, he saw the cleaning crew and a yellow warning sign before he fell, and assumed the cleaning crew had cleaned the area he was in prior to his entering the area. All Barnette can offer is mere speculation and therefore, he has failed to meet his burden of proof.
Defendants' constructive knowledge.
Finally, Barnette contends that the Defendants had constructive knowledge of the slippery conditions. "Constructive knowledge is established by proof that the condition existed for such a length of time that, in the exercise of reasonable care, the proprietor should have known of it." Waller, 492 So.2d at 285. Barnette has not produced any evidence that shows whether, or for how long, the dangerous condition existed prior to his fall. In fact, Barnette alleges that the cleaning crew was three to four aisles from the place he slipped and that from the pattern of their activity, they had been in his area just prior to his fall. Taking this fact as true, the floor was inspected just prior to Barnette's fall and thus his theory of constructive knowledge fails. See Waller, 492 So.2d at 286 (holding that, in a case in which a man was injured after slipping in a puddle of pink liquid on the floor of a supermarket, a two and one half hour lapse between the accident and the last inspection by an employee is insufficient to establish liability). To avoid summary judgment, Barnette must show how long the unknown substance had been on the floor. No evidence has been presented to this court to indicate how long the substance if any, may have been on the floor. Accordingly, summary judgment is appropriate.
Conclusion
For the above and foregoing stated reasons, this court finds that under Mississippi law, Barnette has provided no evidence that there is a genuine issue of material fact that the Defendants' employees and/or agent placed a substance on the floor of the Southaven, Mississippi, Wal-Mart store or that they had actual or constructive knowledge of such a substance. Accordingly, Wal-Mart's Motion for Summary Judgment and Diversified's Motion for Summary Judgment and Joinder in Wal-Mart's motion are granted.
A separate order in accordance with this opinion shall issue this day.
ORDER GRANTING SUMMARY JUDGMENT
Pursuant to a memorandum opinion issued this day, it is hereby ORDERED that
Defendant, Wal-Mart Stores, Inc.'s Motion for Summary Judgment (Docket entry # 43) is GRANTED;
Defendant, Diversified Services, Inc.'s Motion for Summary Judgment and Joinder in Wal-Mart Stores, Inc.'s Motion for Summary Judgment (Docket entry # 44) is GRANTED;
the Plaintiff's claims are DISMISSED with PREJUDICE; and
this case is CLOSED.
SO ORDERED.