Case v. Wal-Mart Stores, Inc.

• Decision Date: 03 August 1998
• Docket Number: No. CIV.A.3:97-CV-684.,CIV.A.3:97-CV-684.
• Citation: 13 F.Supp.2d 597
• Parties: Deborah K. CASE and Howard M. Case, Plaintiffs, v. WAL-MART STORES, INC., Defendant.
• Court: U.S. District Court — Southern District of Mississippi

13 F.Supp.2d 597

Deborah K. CASE and Howard M. Case, Plaintiffs, v. WAL-MART STORES, INC., Defendant.

No. CIV.A.3:97-CV-684.

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

August 3, 1998.

Alfred Lee Felder, Dwayne G. Deer, Alfred Lee Felder, Attorney, McComb, MS, for Plaintiffs.

Edley H. Jones, III, Kirkland & Barfield, Jackson, MS, for Defendants.

OPINION AND ORDER

BARBOUR, District Judge.

Deborah and Howard Case bring this action against Wal-Mart Stores, Inc. following an incident where Deborah Case slipped and fell on the premises of a Wal-Mart store. At the time of the injury, Deborah Case was an employee of Frito Lay, a vendor of Wal-Mart. This cause is before the Court on cross motions for summary judgment. At issue is whether Deborah Case should be classified as a licensee or an invitee.

Having considered the Motions, briefs of the parties, and applicable legal authorities, the Court finds as follows: (1) an employee of a vendor assigned to work full-time on the premises of a merchant vendee is a business invitee while on the premises of the merchant vendee, thus, Deborah Case was a business invitee at the time of her injury and Wal-Mart had a duty to provide to her a reasonably safe work environment, (2) the Motion for Summary Judgment filed by Wal-Mart should be denied because genuine issues of material fact exist as to whether Wal-Mart provided a reasonably safe work environment to Deborah Case; (3) the Motion for Summary Judgment filed by Plaintiffs should be denied.

I. BACKGROUND

This action involves a Wal-Mart store located in Brookhaven, Mississippi. Wal-Mart has a comparatively new arrangement in the merchandising business where vendors assign their employees to work on a full-time basis on the premises of Wal-Mart stocking shelves, watching for expiration dates on perishable items, and rotating merchandise. This arrangement is beneficial to Wal-Mart because it does not have to hire employees to perform these duties and does not have to perform any tax or other employment accounting for those people.

Wal-Mart had this arrangement with Frito-Lay. Frito-Lay was responsible for delivery of Frito-Lay products to Wal-mart, storing the products in the warehouse of Wal-Mart, and stocking the products on the store shelves. Deborah Case is an employee of Frito-Lay assigned to full-time duty at Wal-Mart. On February 11, 1995, Deborah Case and her husband, Howard Case, entered the Wal-Mart store for the purpose of stocking Frito-Lay products on the shelves. She asked her husband to accompany her because she did not feel well and needed assistance performing her duties. At some point, some vanilla ice cream melted on the floor of Wal-Mart. Deborah Case walked down the aisle and slipped on the ice cream. She subsequently filed this lawsuit for damages. Howard Case filed a claim for loss of consortium. Wal-Mart and the Plaintiffs have filed Motions for Summary Judgment.

II. SUMMARY JUDGMENT STANDARD

Rule 56 of the Federal Rules of Civil Procedure states in relevant part that summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56(c). The United States Supreme Court has held that this language "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing to establish the existence of an essential element 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Moore v. Mississippi Valley State Univ., 871 F.2d 545, 549 (5th Cir.1989); Washington v. Armstrong World Indus., 839 F.2d 1121, 1122 (5th Cir.1988).

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 in the case which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The movant need not, however, support the motion with materials that negate the opponent's claim. Id. As to issues on which the non-moving party has the burden of proof at trial, the moving party need only point to portions of the record that demonstrate an absence of evidence to support the non-moving party's claim. Id. at 323-324, 106 S.Ct. 2548. The non-moving party must then go beyond the pleadings and designate "specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. 2548.

Summary judgment can be granted only if everything in the record demonstrates that no genuine issue of material fact exists. The district court, therefore, must not "resolve factual disputes by weighing conflicting evidence, ... since it is the province of the jury to assess the probative value of the evidence." Kennett-Murray Corp. v. Bone, 622 F.2d 887, 892 (5th Cir.1980). Summary judgment is improper where the court merely believes it unlikely that the non-moving party will prevail at trial. National Screen Serv. Corp. v. Poster Exchange, Inc., 305 F.2d 647, 651 (5th Cir.1962).

III. DISCUSSION

A. Is Deborah Case a Licensee or an Invitee?

It is well settled that "an 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." Clark v. Moore Memorial United Methodist Church, 538 So.2d 760, 763-64 (Miss.1989). The Mississippi Supreme Court has recognized two classes of invitees. In Clark v. Moore Memorial United Methodist Church, 538 So.2d 760, 763 (Miss.1989) the Mississippi Supreme Court cited the Restatement (2d) of Torts, § 332 (1965), which provides:

(1) An invitee is either a public invitee or a business visitor.

(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.

(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.

However, "a licensee is one who enters upon the property of another for his own convenience, pleasure or benefit pursuant to the license or implied permission of the owner." Id. at 764. Since the facts are not in dispute, the question of Deborah Case's status is a question of law for the Court. Id.

The distinction between whether Deborah Case is a business invitee or a licensee has great significance. If the Court finds that she was a licensee at the time of her injury, the duty of Wal-Mart would be to refrain from willfully or wantonly injuring her. Lucas v. Buddy Jones Ford Lincoln Mercury, Inc., 518 So.2d 646, 648 (Miss. 1988). On the other hand, if the Court finds that Deborah case was a business invitee, then Wal-Mart would have a duty to exercise reasonable care to keep the premises in a safe condition. Skelton v. Twin County Rural Electric Assoc., 611 So.2d 931, 936 (Miss. 1992).

Since the jurisdictional basis of this lawsuit is diversity of citizenship between the parties, under Erie, the Court must apply Mississippi law in determining status of Deborah Case. The Court notes that no Mississippi case has dealt with the issue of the status of an employee of a vendor assigned to work full-time on the premises of a merchant vendee. The status of such an employee is somewhat analogous to the status of the employee of an independent contractor who is on the business premises of another. No Mississippi case has directly dealt with that issue either. This Court has examined Mississippi cases, case law from other states, and the opinions of legal commentators in the field of tort law. The Court has concluded that if faced with this issue before this Court, the Mississippi Supreme Court would find that an employee of vendor working full-time on the premises of a merchant vendee is a business invitee and not a mere licensee.

B. Mississippi Cases

In Ingalls Shipbuilding Corp. v. McDougald, the Mississippi Supreme Court stated, "one who employs an independent contractor is nevertheless answerable for his own negligence. So an employer owes a duty to an independent contractor and the latter's employees to turn over to them a reasonably safe place to work or to give warning of the danger." Ingalls Shipbuilding Corp. v. McDougald, 228 So.2d 365, 367 (Miss.1969). This language suggests that an employee of an independent contractor working for a contractee/owner is an invitee and not a mere licensee. If so, it appears that an employee of a vendor to a merchant vendee assigned full-time to the vendee's premises would be at least in an analogous position.

In General Tire and Rubber Company v. Darnell, 221 So.2d 104 (Miss.1969), the Mississippi Supreme Court stated that an employee of an independent contractor injured on a defendant's premises was an invitee. In Darnell, the plaintiff was an employee of a heating company. General Tire hired the heating company to install an air conditioner on its premises. The plaintiff's hand got caught in an elevator while he was installing the air conditioner. The Mississippi Supreme Court recognized that the plaintiff was an invitee. The court stated that "[t]he owner or occupier of business premises owes business invitees the duty to exercise reasonable or ordinary care to keep the premises in a reasonably safe condition." Darnell, 221 So.2d at 107.

Baptiste v. Jitney Jungle Stores of America, Inc., 651 So.2d 1063 (Miss.1995) is factually similar to the case at bar. In Baptiste, an employee of Archway Cookies went to Jitney Jungle to make a delivery. Deborah Case correctly points out that it could be inferred from Baptiste...