Fagnant v. Johnson
| Decision Date | 03 July 2013 |
| Docket Number | Civil Action No.: 4:11-cv-00302-RBH |
| Court | U.S. District Court — District of South Carolina |
| Parties | Mary Fagnant, Brenda Dewitt-Williams and Betty Bey, as Power of Attorney for Brenda Dewitt-Williams, Plaintiffs, v. Kathryn Michelle Johnson, K-Mart Corporation, Kings Festival Corp., Inc. and Gator Investors, Inc., Defendants. |
The above-captioned Plaintiffs filed this action against the above-captioned Defendants in this Court's diversity jurisdiction, alleging several claims arising from South Carolina tort law. Defendants Gator Investors, Inc. ("Gator") and Kings Festival Corp. ("Kings")1 filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Def. Gator Investors, Inc.'s Mot. for Summ. J., ECF No. 75. Subsequently, Defendant Kmart Corporation ("Kmart") filed its own motion for summary judgment, as well as a motion for leave to amend its answer to Plaintiffs' second amended complaint to add two cross-claims against Gator. ECF Nos. 88, 90. These three motions are now before the Court. The parties appeared before the Court for a May 9, 2013 hearing, and the motions were taken under advisement. After reviewing the parties' motions and briefs, and considering the parties' arguments and supporting evidence, the Court denies both Defendants' motions for summary judgment, as well as Kmart's motion for leave to amend its answer.
This case arises out of a series of events that occurred on November 9, 2009, and that resulted in severe injuries to Plaintiffs Mary Fagnant and Brenda Dewitt-Williams in the parking lot of a Kmart store in Myrtle Beach, South Carolina. Much of the background facts surrounding this incident were revealed in the deposition testimony of Shonta Dennison, a Kmart employee. Shonta Dennison Depo., ECF No. 87-1. According to Dennison's testimony, she opened the store at approximately 8:00 a.m. and took her place at the customer service desk, located near the front door of the store. Id. at 15. A little while later, Dennison observed a woman, later identified as Kathryn Johnson, approach another woman on a pay phone and try to get her attention. Id. at 18. According to Dennison, "after the lady turned around and continued to talk on the, the payphone, [Johnson] tried to grab her purse." Id. at 18-19. While the two women tussled over the purse, Dennison called the store's loss prevention office, opting to not immediately call 911. Id. at 19. When her attempts to reach loss prevention over the phone failed, Dennison attempted to call for loss prevention over the store's loudspeaker. Id. Ultimately, Johnson was unsuccessful in stealing the purse, left the payphone area, and walked further into the store. Id. at 19-20.
Dennison continued her efforts to reach loss prevention. Id. The next time Dennison saw Johnson, Johnson was running with a purse and was being chased by Fagnant, who was yelling, "She stole my purse." Id. Once the two were outside, Fagnant continued to yell, and they continued to fight over the purse. Id. When they reached the parking lot, Johnson went to her vehicle. Id. Dewitt-Williams, who was nearby unloading the items she bought at the store, noticed the commotion and proceeded to assist Fagnant in retrieving her purse. Id. During the confrontation with Johnson in the open doorway of Johnson's car, Johnson managed to start the car, put it in gear, and injured Fagnant and Dewitt-Williams with her vehicle as she sped from the parking lot. Severeinjuries to both women resulted. Id. at 27-30. Dennison then ran outside to assist Dewitt-Williams and call 911 on her cell phone. Id. at 31. Once the Myrtle Beach Police Department was notified, there was an immediate response. Johnson was ultimately indicted on several counts, including assault and battery with intent to kill, purse snatching, and leaving the scene of an accident resulting in great bodily injury. She pled guilty before a South Carolina circuit court to three counts of leaving the scene of an accident resulting in great bodily injury, and she is currently serving her sentence in a state prison.
The Court shall grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine dispute for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;" or by "showing . . . that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1).
Accordingly, to prevail on a motion for summary judgment, the movant must demonstrate that (1) there is no genuine dispute as to any material fact and (2) that he is entitled to judgment as a matter of law. As to the first of these determinations, a fact is deemed "material" if proof of itsexistence or nonexistence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of material fact is "genuine" if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine dispute has been raised, a court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand a summary judgment motion. Id. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Ross v. Commc'n Satellite Corp., 759 F.2d 355, 365 (4th Cir.1985). Anderson, 477 U.S. at 248.
Kmart filed a motion for summary judgment on February 28, 2013. Def. Kmart Corp.'s Mot. for Summ. J., ECF No. 88. In the motion, Kmart makes several arguments in support of its motion. First, it argues that it "did not have a duty to protect the Plaintiff given the facts of this case." Memo. in Supp. Def. Kmart Corp.'s Mot. for Summ. J. 8, ECF No. 88-1. Second, Kmart contends that, even if there was a duty, Plaintiffs have failed to present evidence showing that any action or inaction of Kmart was the proximate cause of Plaintiffs' injuries. Id. at 16. Third, Kmart contends that Plaintiffs were negligent in responding to the theft and that their negligence bars recovery against Kmart. Id. at 17-18. Finally, Kmart argues that the opinions of Plaintiff's expert witness, Howard B. Wood, should be excluded under the Federal Rules of Evidence. Id. at 19. Because theexclusion of Wood's expert opinions affects the evidence that the Court must consider, the Court addresses Kmart's objections to Wood's expert opinions first.
Kmart moves to exclude Wood's expert opinions pursuant to Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993). Kmart argues that "Wood's proposed opinions fail to meet the requirements of Rule 702." Memo. in Supp. Def. Kmart Corp.'s Mot. for Summ. J. 19. Furthermore, Kmart contends that the opinion testimony "is unduly prejudicial given its limited probative value and should be excluded pursuant to Rule 403" of the Federal Rules of Evidence. Id.
Under Rule 702, expert testimony is admissible if it will assist the trier of fact and is (1) "based upon sufficient facts or data," (2) "the product of reliable principles and methods," and (3) "the expert has reliably applied the principles and methods to the facts of the case." Fed. R. Evid. 702. As the United States Supreme Court has explained, evidence is admissible under Rule 702 if "it rests on a reliable foundation and is relevant." Daubert, 509 U.S. at 597. Because "expert witnesses have the potential to be both powerful and quite misleading," courts must "ensure that any and all [expert] testimony . . . is not only relevant, but reliable." Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001) (citing Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999); Daubert, 509 U.S. at 588, 595). "Rule 702 grants the district judge the discretionary authority . . . to determine reliability in light of the particular facts and circumstances of the particular case." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 158 (1999).
First, Kmart argues that "nothing in Wood's background suggests he is qualified to provide testimony about the security measures in place at a department store like Kmart." Memo. in Supp. Def. Kmart Corp.'s Mot. for Summ. J. 20. Specifically, it points out that Wood has never workedfor a retail store and is unfamiliar with Kmart's policies and procedures. In their response, Plaintiffs highlight Wood's qualifications as follows:
Wood has a Bachelor of Science in Criminology from Florida State University and has completed U.S. Treasury Law Enforcement School, U.S. Secret Service Special Agent Training School, Technical Operations Briefing and Protection Research Seminar. Wood has over 35 years of experience in the...
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