O'Bryant v. Walgreen Co.

• Decision Date: 10 May 2019
• Docket Number: CAUSE NO. 1:18cv8-LG-JCG
• Citation: 387 F.Supp.3d 693
• Parties: Tommy O'BRYANT, Plaintiff v. WALGREEN CO., CBRE Group, Inc., and John or Jane Does 1-10, Defendants
• Court: U.S. District Court — Southern District of Mississippi

387 F.Supp.3d 693

Tommy O'BRYANT, Plaintiff

v.WALGREEN CO., CBRE Group, Inc., and John or Jane Does 1-10, Defendants

CAUSE NO. 1:18cv8-LG-JCG

United States District Court, S.D. Mississippi, Southern Division.

Signed May 10, 2019

Douglas L. Tynes, Jr., Courtney P. Wilson, Tynes Law Firm, PA, Pascagoula, MS, for Plaintiff.

Patrick R. Buchanan, Brown Buchanan, PA, Biloxi, MS, Edward Coleman Taylor, Christopher H. Murray, Daniel, Coker, Horton & Bell, Gulfport, MS, for Defendants.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

LOUIS GUIROLA, JR., UNITED STATES DISTRICT JUDGE

BEFORE THE COURT are four motions for summary judgment: the [104] Motion for Summary Judgment filed by Defendant CBRE GROUP, INC. ("CBRE"), the [217] Motion for Summary Judgment filed by Defendant Walgreen Co., the [234] Motion for Partial Summary Judgment against Walgreen Co. filed by Plaintiff Tommy O'Bryant, and the [238] Motion for Partial Summary Judgment against CBRE also filed by Plaintiff. The Motions are fully briefed. Having considered the submissions of the parties, the record, and relevant law, the Court finds that Defendants are entitled to summary judgment because, as a matter of law, they did not breach a duty of care owed to Plaintiff. Defendants' summary judgment motions will accordingly be granted, and Plaintiff's summary judgment motions will be denied.

I. BACKGROUND

On February 27, 2015, Plaintiff Tommy O'Bryant was smoking a cigarette and talking with his wife's cousin on the sidewalk abutting the east side of the Biloxi, Mississippi Walgreens store. A Dodge Ram truck operated by Edward Kersh pulled into a nose-in parking space in front of where O'Bryant was standing. Kersh's foot slipped off the brake pedal and onto the accelerator, causing his truck to lurch over the curb, onto the sidewalk, and into O'Bryant. The truck struck O'Bryant with enough force to pin him against the brick wall of the building and damage the brick façade. O'Bryant suffered significant injuries, ultimtely necessitating the amputation of his left leg.

O'Bryant filed suit against Walgreen Co. and CBRE, alleging their negligence and gross negligence were responsible for O'Bryant's injury. His claims are brought pursuant to theories of premises liability under Mississippi law. Walgreen Co. owns the store and parking lot where the incident occurred. Walgreen Co. contracted with CBRE for repairs to, and maintenance of its store premises nationwide, including repairs following incidents in which vehicles had struck store buildings.

Walgreen Co.'s Motion argues that it is entitled to summary judgment because it neither owed O'Bryant a relevant duty of care¹ nor breached any such duty. CBRE's Motion argues that it never had the requisite control over or responsibility for the conditions of the Walgreens parking lot to be a proper defendant in a premises liability case. O'Bryant's Motions contend that the undisputed evidence entitles him to partial summary judgment on the issues of duty, breach, and causation such that the only remaining issue for a jury is damages.²

II. DISCUSSION

a. Summary Judgment Standard

Federal Rule of Civil Procedure 56(a) provides that 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). "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "[T]he nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial." Little v. Liquid Air Corp. , 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).

"A genuine dispute of material fact means that ‘evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ " Royal v. CCC & R Tres Arboles, L.L.C. , 736 F.3d 396, 400 (5th Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). If the evidence presented by the nonmovant " ‘is merely colorable, or is not significantly probative,’ summary judgment is appropriate." Cutting Underwater Techs. USA, Inc. v. Eni U.S. Operating Co. , 671 F.3d 512, 516 (5th Cir. 2012) (quoting Anderson , 477 U.S. at 249, 106 S.Ct. 2505 ). In deciding whether summary judgment is appropriate, the Court views the evidence and inferences in the light most favorable to the nonmoving party. RSR Corp. v. Int'l Ins. Co. , 612 F.3d 851, 857 (5th Cir. 2010).

b. Premises Liability Under Mississippi Law

The parties agree that Mississippi law provides the substantive law governing the claims at issue in this case. "To prevail in [his] premises-liability action, [Plaintiff] must show (a) that [Defendants] owed a duty to [Plaintiff]; (b) that [Defendants] breached that duty; (c) damages; and (d) a causal connection between the breach of that duty and the damages, such that the breach is the proximate cause of [Plaintiff's] injuries." Galanis v. CMA Mgmt. Co. , 175 So. 3d 1213, 1216 (Miss. 2015). "Whether a duty exists is a question of law. To determine the duty owed in a premises-liability case, courts begin by classifying the status of the plaintiff. Mississippi law classifies a land entrant as either an invitee, a licensee, or a trespasser." Id. The parties agree that Plaintiff was an invitee. See Thomas v. Columbia Grp., LLC , 969 So. 2d 849, 852 (Miss. 2007) ("A person is considered an invitee if he enters the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual advantage.").

The premises owner owes the invitee "the duty to keep the premises reasonably safe, and when not reasonably safe, to warn only where there is hidden danger or peril that is not in plain and open view." Cheeks v. AutoZone, Inc. , 154 So. 3d 817, 822 (Miss. 2014) (citations and internal quotation marks omitted). However, "[t]he owner of the premises is not an insurer of the invitee's safety." Id. (internal quotation marks omitted). "While any condition on the premises can conceivably cause harm to an invitee, recovery will be allowed only when the condition involves an unreasonable risk of harm to invitees." Maddox v. Townsend & Sons, Inc. , 639 F.3d 214, 220 (5th Cir. 2011) (discussing Mississippi premises liability law and noting its consistency with the approach taken to invitees in other states).

The Mississippi Supreme Court "has emphasized that ‘the foreseeability of the injury sustained provide[s] the touchstone for liability.’ " Cheeks , 154 So. 3d at 823 (citations omitted). "Whether something is or is not within the realm of reasonable foreseeability depends upon the facts of the case and the duty which the plaintiff asserts for the particular defendant." Id. (citation and internal quotation marks omitted). "An independent intervening cause is one that could not have been reasonably foreseen by the defendant while exercising due care." Id. (citation and internal quotation marks omitted). With respect to the actions of third parties more generally, the supreme court has explained,

in determining the existence of a landowner's duty to protect invitees from the wrongful conduct of third persons, foreseeability is measured by all of the circumstances including the nature, condition and location of the defendant's premises and defendant's prior experience, bearing in mind that what is required to be foreseeable is the general nature of the event or harm, not its precise manner or occurrence .

Id. (emphasis in original) (quoting Crain v. Cleveland Lodge 1532, Order of Moose, Inc. , 641 So. 2d 1186, 1190 (Miss. 1994) ).³

c. Mississippi Law on the Premises Owner's Duty To Protect Patrons From Negligently Operated Vehicles

The Mississippi Supreme Court's statements on the duty a premises owner owes to an invitee are clear: the owner's duty to invitees is to keep the premises reasonably safe, and when not reasonably safe, to warn only where there is hidden danger or peril that is not in plain and open view. Whether the owner has breached that duty by failing to protect an invitee from the actions of a third party depends on the foreseeability of the injury sustained. See Restatement (Second) of Torts § 344. However, in specifically addressing the injury to an invitee caused by a third person's negligent operation of motor vehicle, the supreme court – while still using this language of foreseeability – speaks instead of the presence or absence of a duty. See Restatement (Third) of Torts § 7 cmt. a (explaining the functional difference between matter-of-law "no-duty rules" and matter-of-fact "scope-of-liability doctrines") & cmt. i (discussing the mistake that courts sometimes make when they "inaptly express" a determination that there was no breach of duty as a matter of law in terms of no duty).

This conflation of duty and breach is not unique to Mississippi. See Marshall v. Burger King Corp. , 222 Ill.2d 422, 305 Ill.Dec. 897, 856 N.E.2d 1048, 1057 (2006) ("Much confusion over duty stems from courts' tendency to attribute a variety of different meanings to the term."). While the existence of a duty of reasonable care is a question of law informed by public policy considerations, "[f]oreseeability and breach are questions that a jury considers when it decides whether a defendant acted reasonably under the circumstances of a case or legally caused injury to a particular plaintiff." Rodriguez v. Del Sol Shopping Ctr. Assocs., L.P. , 2014-NMSC-014, ¶ 4, 326 P.3d 465, 468 (N.M. 2014). "The duty of ordinary care applies unless the owner/occupier can establish a policy reason, unrelated to foreseeability considerations, that compels a limitation on the duty or an exemption from the duty to exercise ordinary care." Id. ¶ 5, 326 P.3d at 469....