254 memoinsupportmotionforsummaryjudgement kcsr kmart

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Case: 1:11-cv-00103-GHD-DAS Doc #: 254 Filed: 10/07/13 1 of 33 PageID #: 2521

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI EASTERN DIVISION KMART CORPORATION VS.

PLAINTIFF CIVIL ACTION NO. 1:11-CV-103-GHD-DAS

THE KROGER CO., E&A SOUTHEAST LIMITED PARTNERSHIP; FULTON IMPROVEMENTS LLC; THE KANSAS CITY SOUTHERN RAILWAY COMPANY; CITY OF CORINTH; THE UNITED STATES OF AMERICA; JOHN DOE; AND ABC CORPORATION

DEFENDANTS

______________________________________________________________________________ MEMORANDUM OF AUTHORITIES IN SUPPORT OF DEFENDANT THE KANSAS CITY SOUTHERN RAILWAY COMPANY’S MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ INTRODUCTION Plaintiff Kmart Corporation (“Plaintiff” or “Kmart”) alleges that negligent acts and/or omissions by Defendants proximately caused the flooding damages Plaintiff sustained at its Kmart Store #4883 in Corinth, Mississippi, on May 2, 2010, during an extraordinary flood that covered large parts of Corinth. As to Defendant, The Kansas City Southern Railway Company (“KCSR”), Kmart alleges that KCSR negligently allowed excessive debris to collect beneath its railroad bridge over Elam Creek, and that the resulting blockage caused the water level at the Kmart store, located some 2100 feet upstream, to be higher than it would have been otherwise. Complaint at 8 (Exhibit A). KCSR is entitled to summary judgment because Plaintiff has failed to show any material negligent act or omission which constitutes a breach of any duty to Plaintiff or, even assuming arguendo a breach, that such breach contributed to or proximately caused damages to Plaintiff. 1


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