270 memoinsupportmotionforsummaryjudgement kroger kmart

Case: 1:11-cv-00103-GHD-DAS Doc #: 270 Filed: 10/10/13 1 of 27 PageID #: 3673

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

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

THE KROGER CO., E&A SOUTHEAST LIMITED PARTNERSHIP, FULTON IMPROVEMENTS, LLC, 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 MOTION FOR SUMMARY JUDGMENT COMES NOW, The Kroger Co. (“Kroger”), by and through its counsel of record, and files this its Memorandum of Authorities in Support of Motion for Summary Judgment, and in support thereof would state unto the Court as follows, to-wit: I.

INTRODUCTION. On May 2, 2011, the Plaintiff, Kmart Corporation (“Kmart”) filed its Complaint against

Kroger, E&A Southeast Limited Partnership (“E&A”), Fulton Improvements, LLC (“Fulton”), Kansas City Southern Railway Company (“KCSR”), the City of Corinth (“Corinth”), and the United States of America (“United States”) based on claims arising from floods which occurred on May 2, 2010.1 [Doc. No. 1 at 1, 5] In its Complaint, Kmart alleges its store in Corinth “incurred flood damages as a result of Kroger’s location within a floodway, which was allowed pursuant to a Letter of Map Revision.” [Doc. 1 at 1-2] In response to the Complaint, Kroger filed a Motion for Judgment on the Pleadings pursuant to FED.R.CIV.P. 12(c) and a supporting

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In its Complaint, Kmart also asserts claims relating to a flood event that took place on April 27, 2011, but Kmart’s counsel has advised the Defendants that Kmart will not pursue those claims. [Exhibit A] Kmart admitted in its deposition that it was only pursuing claims relating to the May 2, 2010 flood event in this action. [Exhibit B at 195]

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memorandum. [Doc. Nos. 66 and 67] On August 9, 2013, the Court entered an Order which granted in part and denied in part Kroger’s Motion for Judgment on the Pleadings and which left only one claim remaining against Kroger, i.e. common law negligence.2 [See Doc. Nos. 207 and 208 at 5-6] In making its determination on Kroger’s Motion for Judgment on the Pleading, the Court explained that it would allow Kmart the opportunity to present evidence in support of its negligence claim. [See Doc. No. 208 at 6, 7-8] Now, after many months of time for discovery, it is time for Kmart to present that evidence, and as Kroger will show herein, Kmart cannot present sufficient evidence to survive a motion for summary judgment.

Kroger is merely a tenant in the building made the subject of this action, which was actually constructed several years prior to the time when Kroger began leasing it.3 [Exhibit C at 9] Under the terms of Kroger’s lease, matters regarding drainage and the approval of the construction of the building at issue by all regulating authorities are the responsibility of the landlord. [Exhibit C at 9] Further, Kroger’s lease provides that it is the responsibility of the landlord that said building be constructed and maintained so as to comply and conform to all applicable ordnances, rules, statutes, and regulations. [Exhibit C at 9] Kroger has no records that would have placed it on notice that a portion of its retail location made the subject of this 2

Only “Kmart’s claims that Kroger negligently remained in the floodway and otherwise failed to exercise reasonable care to prevent harm to the Corinth Kmart store from flooding survive[d]” Kroger’s Motion for Judgment on the Pleadings. [Doc. No. 207 at 1] 3

As to Kmart’s allegations against Kroger regarding the construction of the store, the Court made the following comments: Kmart additionally alleges in its complaint that the Corinth “Kroger store was built in a floodway that existed at the time of the store’s construction.” Kmart’s Compl. [1] ¶ 15. However, it is now an undisputed fact that the building occupied by Kroger was not constructed, owned, or initially occupied by Kroger following the building’s construction. Kmart concedes that “Kmart has not sued Kroger for the construction of the Kroger store in a floodway.” See Kmart’s Resp. Opp’n to Kroger’s Rule 12(c) Mot. [78] at 8. Thus, it is not necessary for the Court to address this factual allegation.

[Doc. No. 208 at 4 n. 2]

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action was located in the floodway designated by map and panel number 280020003B, dated March 16, 1981, prior to the receipt of Plaintiff’s Complaint. [Exhibit C at 19] The building which houses the Kroger store was removed from the floodway by the Federal Emergency Management Agency (“FEMA”) through a “Letter of Map Revision Floodway Determination Document (Removal)” (the “LOMR”) issued on November 18, 2005, because of FEMA’s determination that the structure was inadvertently included in the floodway.

[Exhibit D at 1] John R. Krewson, Kmart’s designated causation expert, reviewed the original construction plans for the development in which the building housing the Kroger store is located, and he testified that those plans show that said building is not in the floodway. [Exhibit E at 241-42] The construction plans that Krewson reviewed showed the actual elevations of the building which houses Kroger’s store, and he testified that the construction plans were more reflective of the terrain as it actually was at the time of construction than the FEMA flood maps that he reviewed. [Exhibit E at 241-42, 244-45] The removal of the Kroger store from the floodway by the issuance of the LOMR in 2005 was re-validated by FEMA for the new flood maps which became effective in September 2010. [Exhibit E, exhibit 2 thereto] Kmart admits that it is aware of no evidence whatsoever that tends to show that Kroger was involved in any way in the acquisition of the LOMR made this subject of this action. [Exhibit B at 191, 193-94] In fact, Kroger had no involvement in FEMA’s issuance of the LOMR at issue in this matter and did not participate in the process pursuant to which said LOMR was issued. [Exhibit C at 5-6] In connection with preparing his report, Kmart’s causation expert evaluated the building that houses the Kroger store in his computer modeling. [Exhibit E at 236] In performing that modeling, Kmart’s causation expert did not take into account any of the operations within the building, and he admitted that his modeling doesn’t depend on who is operating inside the 3

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building. [Exhibit E at 236-37] In fact, Kmart’s causation expert testified that none of his opinions depend in any way on the identity of the actual tenant at the time of the May 2, 2010 flood event. [Exhibit E at 237] Kmart’s causation expert is not aware of anything that Kroger did that would have increased a risk of flooding at the Kmart store, and he is likewise not aware of any omission of Kroger that would have increased the risk of flooding at the Kmart store.

[Exhibit E at 237-38] When asked what Kroger did to increase the risk of flooding at the Kmart store, Kmart’s corporate deponent testified only that it “[c]ontinued to occupy [the building].”

[Exhibit B at 192-93] Kmart’s corporate deponent explained further that Kmart’s claim that Kroger’s presence in the building increased the risk of flooding at the Kmart store is based solely upon the fact that it had a lease with the landlord. [Exhibit B at 194] For the reasons set forth herein and in Kroger’s Motion for Summary Judgment, there is no genuine dispute of material fact in this matter as to the claim asserted against Kroger, and Kroger is entitled to judgment as a matter of law as to the claim asserted against it. See FED.R.CIV.P. 56. Given the undisputed facts, Kmart cannot prove the necessary elements of its claim for negligence against Kroger.

II.

RELEVANT PROCEDURAL HISTORY AND STATEMENT OF UNDISPUTED FACTS. A.

Relevant Procedural History.

On May 2, 2011, the Plaintiff, Kmart filed its Complaint against Kroger, E&A, Fulton, KCSR, Corinth, and the United States based on claims arising from floods which occurred on May 2, 2010 and April 27, 2011. [Doc. No. 1 at 1, 5] On August 5, 2011, Kroger filed its Answer and Affirmative Defenses in which it denied the substantive allegations made against it.

[Doc. No. 22 at ¶¶ 23 – 28]

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On September 16, 2011, the United States filed a Motion to Dismiss, see Doc. No. 30, and a Memorandum of Law in support of said Motion to Dismiss. [Doc. No. 31] The United States thereafter filed a Motion to Stay Discovery on November 21, 2011, in which it sought a stay of all discovery not related to the immunity and jurisdictional issues presented by its Motion to Dismiss until the Court had ruled on its Motion. [Doc. No. 47] The Court granted the United States’ Motion to Stay Discovery on November 22, 2011. [Doc. No. 48] Thereafter, on June 11, 2012, the Court entered an Order which granted the United States’ Motion to Dismiss and lifted the previously entered stay, see Doc. No. 50, and issued a Memorandum Opinion in connection with said Order. [Doc. No. 51] Kroger thereafter filed a Motion for Judgment on the Pleadings and a supporting memorandum of authorities on September 26, 2012. [Doc. Nos. 66 and 67] Kmart filed its Response to Motion for Judgment on the Pleadings and a supporting memorandum on October 17, 2012. [Doc. Nos. 77 and 78] On November 1, 2012, Kroger filed a Rebuttal Memorandum in Support of Kroger’s Motion for Judgment on the Pleadings. [Doc. No. 90] On October 26, 2012, Corinth filed Defendant City of Corinth’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment4 and a memorandum in support. [Doc. Nos. 84 and 86]

Kmart filed its Response to the City of Corinth’s Motion to Dismiss or, in the

Alternative, Motion for Summary Judgment and a supporting memorandum on November 26, 2012. [Doc. Nos. 100 and 101] On December 13, 2012, Corinth filed a rebuttal and a rebuttal memorandum in support of its Motion to Dismiss. [Doc. Nos. 106 and 107]

4 Corinth also filed an amended motion to dismiss, or in the alternative, a motion for summary judgment shortly thereafter on October 26, 2012.

[Doc. No. 85]

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On August 9, 2013, the Court entered an Order, see Doc. No. 207, granting in part and denying in part Kroger’s Motion for Judgment on the Pleadings, see Doc. No. 66, and issued a memorandum opinion regarding the same. [Doc. No. 208] Only Kmart’s claim for common law negligence survived Kroger’s Motion. [Doc. No. 207 at 1] In an Order entered on August 9, 2013, see Doc. No. 209, the Court granted Corinth’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment. [Doc. No. 85] B.

Statement of Undisputed Facts.

On or about April 28, 1994, Kroger entered into an Asset Purchase Agreement with Bruno’s, Inc., an Alabama corporation, pursuant to which Bruno’s, Inc. sold Kroger the assets and property used in Bruno’s, Inc’s retail supermarket operation in Corinth, Mississippi.5 [Exhibit F at 58 and exhibit 2 thereto at 1] Bruno’s, Inc. further agreed to assign to Kroger all of its interest in Bruno’s, Inc.’s lease with its landlord. [Exhibit F, exhibit 2 thereto at 1] In connection with the Asset Purchase Agreement, Bruno’s, Inc. represented to Kroger as follows: To the best of Seller[‘]s knowledge, Seller has complied in all respects with all federal, state, and local laws, rules and regulations applicable to the Store and the Property, including but not limited to all environmental laws, rules and regulations.

[Exhibit F, exhibit 2 thereto at 4] Kroger and Bruno’s, Inc. entered into an Assignment of Lease on or about April 29, 1994 in which Bruno’s, Inc. assigned all of its interest in the lease Bruno’s, Inc. had with its landlord as to the store made the subject of this litigation. [Exhibit F at 87 and exhibit 3 thereto at 1] The lease made the subject of that Assignment of Lease was entered into between Bruno’s, Inc. and its landlord on or about December 18, 1991. [Exhibit F at 89 and exhibit 4 thereto at 1]

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Bruno’s, Inc. utilized the trade name of “Food World” in connection with its operations at the store made the subject of this action. [Exhibit F, exhibit 2 thereto at 9]

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The lease assigned to Kroger (hereinafter “Kroger’s Lease”) prohibited Kroger from performing any acts or carry on any practices that might injure the building. [Exhibit F at 89, exhibit 4 thereto at 3]

Kroger’s Lease further provided that the landlord would provide and

maintain proper and adequate water drainage. [Exhibit F, exhibit 4 thereto at 10] The landlord further agreed that it would be responsible for submitting plans for the construction of the development and the building to all regulating authorities for approval prior to construction.

[Exhibit F, exhibit 4 thereto at 16]

The landlord also agreed that the building would be

constructed and maintained at all times so as structurally to comply with and conform to the requirements prescribed by any and all ordinances, statutes, rules or regulations of municipal or other governmental authority relating to public health and sanitation or safety and that it would promptly make any changes in the premises which might become necessary in order for the premises to conform to such requirements. [Exhibit F, exhibit 4 thereto at 23] The landlord warranted that there were no zoning or other restriction preventing or restricting the use of the premises for any lawful commercial retail business. [Exhibit F, exhibit 4 thereto at 33] Prior to the receipt of Plaintiff’s Complaint, Kroger has no records that would have placed it on notice that a portion of its retail location made the subject of this action was located in the floodway designated by map and panel number 280020003B, dated March 16, 1981.

[Exhibit C at 19] Kmart’s causation expert, reviewed the original construction plans for the development in which the building housing the Kroger store is located, and he testified that those plans show that said building is not in a floodway. [Exhibit E at 241-42] The construction plans that Kmart’s causation expert reviewed showed the actual elevations of the building which houses Kroger’s store, and he testified that the construction plans were more reflective of the

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terrain as it actually was at the time of construction than the FEMA flood maps that he reviewed.

[Exhibit E at 241-42, 244-45] The building which houses the Kroger store was removed from the floodway by FEMA through a LOMR issued on November 18, 2005, because of FEMA’s determination that the structure was inadvertently included in the floodway. [Exhibit D at 1] The removal of the Kroger store from the floodway by the 2005 LOMR was re-validated by FEMA for the new flood maps which became effective in September 2010. [Exhibit E, exhibit 2 thereto] Kmart admits that it is aware of no evidence whatsoever that tends to show that Kroger was involved in any way in the acquisition of the LOMR made this subject of this action. [Exhibit B at 191, 19394] In fact, Kroger had no involvement in FEMA’s issuance of the LOMR at issue in this matter and did not participate in the process pursuant to which said LOMR was issued. [Exhibit C at 5-6] Kmart’s causation expert evaluated the building that houses the Kroger store in his computer modeling for this case. [Exhibit E at 236] In performing that modeling, Kmart’s causation expert did not take into account any of the operations within the building, and he admitted that his modeling doesn’t depend on who is operating inside the building. [Exhibit E at 236-37] In fact, Kmart’s causation expert testified that none of his opinions depend in any way on the identity of the actual tenant at the time of the May 2, 2010 flood event. [Exhibit E at 237] Kmart’s causation expert is not aware of anything that Kroger did that would have increased a risk of flooding at the Kmart store, and he is likewise not aware of any omission of Kroger that would have increased the risk of flooding at the Kmart store. [Exhibit E at 237-38] When asked what Kroger did to increase the risk of flooding at the Kmart store, Kmart’s corporate deponent testified only that it “[c]ontinued to occupy [the building].” [Exhibit B at 192-93] Kmart’s 8

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corporate deponent explained further that Kmart’s claim that Kroger’s presence in the building increased the risk of flooding at the Kmart store is based solely upon the fact that it had a lease with the landlord. [Exhibit B at 194] Kmart claims that its store in Corinth, Mississippi suffered flood damage on May 2, 2010. [Doc. No. 1 at 3] Kmart specifically alleges that its store suffered flood damage as a result of the Kroger store’s location within a floodway, which Kmart contends was allowed pursuant to the LOMR referenced above. [Doc. No. 1 at 3-4] Kmart alleges that the building housing the Kroger location in Corinth, Mississippi was built in a floodway that existed at the time of its construction and that it should have been “leveled.” [Doc. No. 1 at 4] Kmart claims that the Kroger store was permitted to remain in the floodway pursuant to the LOMR referenced above. [Doc. No. 1 at 4] Curiously, Kmart’s causation expert claims that had standard design practices been followed in the construction of the Kmart store, it would have suffered no flooding on May 2, 2010: Typically, standard design and permitting practice require building floor elevations in flood prone areas, especially in designated flood areas to be at least 3.0 feet above the 100 year flooding elevation. In the case of the Kmart and the Kroger, this would place the floor elevations at 435.2, approximately 3 feet higher than the actual elevation. Had the construction of the building followed the FEMA guidelines, flooding would not have occurred.

[Exhibit G at 4] In other words, had the Kmart store been built three feet above the 100-year flood elevation, it would not have flooded according to Kmart’s causation expert.

These conclusions regarding the construction of the Kmart store are significant as they relate to the allegations of Kmart for the reasons that follow. Kmart’s lease shows that it had to approve the plans for the construction of its store location in Corinth:

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7.

Tenant’s said buildings and site improvements shall be constructed by Landlord, at its sole cost and expense, in accordance with the working drawings and specifications prepared by Landlord which shall, with respect to standards of construction and division of responsibility for supplying Tenant’s typical store drawings and specifications, prior receipt of which Landlord hereby acknowledges and which are identified as Set No. K-0859 containing such additions, changes, and modifications as are more particularly set forth in that certain letter dated September 18, 1991, written by Steve Li, Design Division, to Mr. Joseph Hardage, a copy of which letter is attached hereto and marked Exhibit “C”. ...

Said typical drawings and specifications, and working drawings and specifications as approved by Tenant shall constitute a part of this lease.

[Exhibit B at 54, exhibit 2 thereto at 7-8] The letter referenced above and attached as an exhibit to the Kmart lease shows that it was sent to the owner of the property in 1991 by a representative of Kmart. [Exhibit B, exhibit 2 thereto at exhibit C] This letter (the “Kmart Letter”) sets forth certain design specifications for the site and the proposed Kmart store. [Id.] The Kmart Letter states the following regarding decisions concerning site development, elevations, and drainage: Kmart Corporation shall be a party to the initial site development decisions. To enable Kmart Corporation to properly evaluate the site conditions and have a meaningful input in these major decisions, the Developer shall submit to Kmart Corporation, in written and drawing form, a description of his proposed preliminary site development design.

The site development design shall encompass all aspects of the proposed Kmart operation i.e. access, site drainage and relationship of the Kmart floor elevation to adjacent grades, roads and buildings. Land balance shall be given consideration but shall not be the overriding factor in the ultimate site design.

Preparation of final engineering drawings or commitments affecting site improvements and development shall not be made by the Developer until approval has been granted by Kmart Corporation.

The design package shall indicate the proposed building location, floor elevation, site drainage pattern and utilities. The design package shall also include a topographical survey of the entire site including an area extending approximately 150’ onto all adjacent properties and to the centerline of all boundary roads, or as may be required to determine any adjacent terrain conditions which might 10

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influence the site development design. The survey shall also include the site description, measurements and all existing utilities. Preliminary test boring reports indicating the sub-surface soil conditions shall also be submitted.

Kmart Corporation will review all submitted data and if necessary, visit the site.

If in the judgment of Kmart Corporation the proposed site development design would be detrimental to the Kmart operation, the design will be returned to the Developer for re-study. Upon approval of the Site Development Design by Kmart Corporation, the Developer may proceed with final engineering drawing.

[Exhibit B, exhibit 2 thereto at exhibit C] Kmart’s lease and the Kmart Letter attached thereto clearly show that Kmart had to approve the floor elevation and site drainage for Kmart’s store and the development of the site. In fact, as referenced above, these matters were made part of the terms of the Kmart lease.

Furthermore, Kmart’s lease required that the buildings in the development be constructed in accordance with exhibit “B” to the lease, which specifies the location of the building that would later house the Kroger store: 12.

Landlord represents, warrants and covenants that it shall, prior to commencement of the lease term, complete the buildings and site improvements substantially in accordance with the site plan depicted on said Exhibit “B”, including completion of said common areas in accordance with the provisions of Article 10 hereof. Landlord further covenants that it will not erect any building or other structures on the land described in Exhibit “A” except as shown on said Exhibit “B”.

Landlord also represents, warrants, and covenants that a grocery Tenant of, at least, 45,674 square feet shall be located within a shopping center premises as depicted on Exhibit “B” and shall open for business or ready to open for business concurrently with Tenant’s opening.

[Exhibit B, exhibit 2 thereto at 10] Exhibit “B” to the Kmart Lease is an engineering drawing that specifies the exact location for the construction of the building that would later house the Kroger store (on the drawing it is identified as a “Foodworld” store which was the original tenant that occupied the location prior to Kroger). [Exhibit B, exhibit 2 thereto at exhibit B]

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III.

ARGUMENT. A.

Standard of Review.

FED. R. CIV. P. 56 requires that summary judgment be entered in the absence of any genuine issues of material fact, and where the movant is entitled to judgment as a matter of law.

Williams v. CXF Transportation, Inc., 925 F. Supp. 447, 449 (S.D. Miss. 1996), aff’d, 139 F.3d 899 (5th Cir. 1998). Although given the benefit of all favorable inferences which may be drawn from the evidence, the non-movant may not rest solely upon unsupported allegations in order to withstand a motion for summary judgment. Moore v. Mississippi Valley State University, 871 F.2d 545, 549 (5th Cir. 1989); Williams, 925 F. Supp. at 449. “We resolve factual controversies in favor of the nonmoving party, but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts. We do not, however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts.” Little v.

Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

“Rule 56 states that a court may consider only admissible evidence in ruling on a summary judgment motion.” Mersch v. City of Dallas, 207 F.3d 732, 734-735 (5th Cir. 2000).

To screen out incompetent summary judgment evidence, the Court must determine the admissibility of the expert’s opinion “before reaching the question whether a fact issue exists,” see Mersch, supra, which is a determination that the Fifth Circuit does not disturb on appeal absent an abuse of discretion. See Mersch, 207 F.3d at 735; Allen v. Pa. Eng’g Corp., 102 F.3d 194, 196 (5th Cir. 1996); Christophersen v. Allied-Signal Corp., 939 F.2d 1006, 1009 (5th Cir. 1991). Where an expert’s opinion is inadmissible, it “cannot be relied upon by plaintiffs to prevent summary judgment.” Salas v. Carpenter, 980 F.2d 299, 305 (5th Cir. 1992).

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B.

Kmart’s Claim for Negligence.

As stated above, Kmart’s sole remaining cause of action against Kroger is for common law negligence, i.e. “Kmart’s claims that Kroger negligently remained in the floodway and otherwise failed to exercise reasonable care to prevent harm to the Corinth Kmart store from flooding.” [See Doc. No. 207 at 1] In a negligence claim, there are four elements that must be established by the plaintiff: (1) duty or standard of care, (2) breach of that duty or standard of care, (3) proximate cause, and (4) damages or injuries. See Lopez v. McClellan, --- So.3d ---, 2010 WL 1664937, *6 (Miss. App. 2010). In order for Kmart’s claim to survive a motion for summary judgment, Kmart must set forth facts sufficient to establish the existence of each element of negligence. See Smith v. Campus Edge of Hattiesburg, LLC, 30 So.3d 1284, 1287-88 (Miss.App. 2010). Proximate cause is a concept which is more accurately defined by reference to the distinct concepts of which it is comprised, which are:

(1) cause in fact; and (2)

foreseeability. See Lopez, 2010 WL 1664937, *7. “Cause in fact means that, but for the defendant’s negligence, the injury would not have occurred.” Huynh v. Phillips, 95 So.3d 1259, 1263 (Miss. 2012).

C.

Kmart Can Prove No Act or Omission of Kroger that Will Support a Claim for Negligence.

This Court stated that, “[u]nder general negligence principles, it is conceivable that Kroger and Kmart were neighboring store tenants with a duty of reasonable care to prevent harm to each other,” based on the authority of Rhaly v. Waste Mgmt. of Miss., Inc., 43 So.3d 509, 51112 (Miss.App. 2010). [Doc. No. 208 at 5] Given the undisputed facts of the instant case, however, the decision in Rhaly is entirely distinguishable and serves as no basis for liability against Kroger.

The court in Rhaly described the primary allegations of the plaintiffs’ claims in that case: 13

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The Rhalys’ allegations center around a Waste Management dumpster serving Mike’s Gas Plus, located near State Street in Jackson. The Rhalys allege that Waste Management routinely placed the dumpster too close to the ditch and that prior to each of the flood events, rainwater had carried it into the ditch, where the dumpster became lodged against a downstream bridge over State Street. The dumpster then obstructed the ditch and caused it to overflow its banks, flooding the Rhalys’ nearby homes and properties.

Suit was initially filed after the 2002 flood naming Waste Management as a defendant; it also named BFI, Inc., another waste services company, and the City of Jackson as co-defendants. The Rhalys alleged that the City had negligently maintained the drainage ditch, and that a BFI dumpster had contributed to the 2002 flood. After the 2003 flood, another suit was filed, naming only Waste Management and the City as defendants. These actions were later consolidated into the instant suit. Prior to this appeal being taken, BFI was dismissed as a defendant, and a default judgment was entered against the City.

Rhaly, 43 So.3d at 511. The decision in Rhaly is initially distinguishable for the simple fact that the opinion discloses that Mike’s Gas Plus, the business served by Waste Management and either the tenant or owner of the property on which the offending dumpster was placed, was not a defendant to the action, and the opinion in Rhaly does not discuss the principles of liability of a tenant or owner of property to a tenant or owner of adjacent property.

Moreover, unlike the evidence showing that Waste Management placed a dumpster on property adjoining the property owned by the plaintiffs in Rhaly, Kmart cannot prove any affirmative act or omission that can serve as the basis for liability against Kroger. Kmart’s causation expert testified that he was not aware of anything that Kroger did that would have increased a risk of flooding at the Kmart store and that he was not aware of any omission of Kroger that would have increased the risk of flooding at the Kmart store. [Exhibit E at 237-38] When asked what Kroger did to increase the risk of flooding at the Kmart store, Kmart’s corporate deponent testified only that it “[c]ontinued to occupy [the building].” [Exhibit B at 192-93]

Kmart’s corporate deponent explained further that Kmart’s claim that Kroger’s

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presence in the building increased the risk of flooding at the Kmart store is based solely upon the fact that it had a lease with the landlord. [Exhibit B at 194] However, consistent with the holding in Smith v. Campus Edge of Hattiesburg, LLC, 30 So.3d 1284 (Miss.App. 2010), simple occupation of property on which a condition was created by a prior landowner that causes flooding of an adjacent property cannot serve as the basis for liability for negligence in an action against the current owner or tenant of the property. The following facts from Smith were critical to the Court’s analysis and conclusion that the current landowner in that case could not be held liable for negligence: Terra Firma later sold its property to Campus Edge, which built an apartment complex on the property. According to Smith, during construction of the apartments, Campus Edge constructed what Smith refers to as a dam or berm on the line between Smith’s property and Campus Edge’s property. Smith complained that the berm caused water to flood his adjacent property. He also complained that Associates allowed the problem to persist after it purchased the property from Campus Edge.

Smith, 30 So.3d at 1286. Smith filed a complaint which alleged claims for negligence against, inter alia, Associates, the current landowner, and Campus Edge, the prior landowner which constructed the berm. See id. The trial court granted summary judgment to Associates and to Campus Edge based on a finding that there was no negligence by either. See id. The appellate court in Smith found no error with the trial court’s consideration of whether Smith put on competent evidence of damages proximately caused or contributed to by the alleged negligence of Associates, the current owner, but the court did find error with the trial court’s consideration of whether Smith put on competent evidence of damages that were proximately caused or contributed to by the alleged negligence of Campus Edge, the prior owner which constructed the berm. See Smith, 30 So.3d at 1288. The court in Smith elaborated on its reasoning of the differences in its rulings as to Associates and Campus Edge: 15

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Generally, proximate cause is an issue for the jury to decide; however, the “nonmoving party must present evidence that would allow a jury to find that the breach proximately caused the injury at issue.” Davis v. Christian Bhd. Homes of Jackson, Miss., Inc., 957 So.2d 390, 409-10 (¶48) (Miss.Ct.App. 2007). In the present case, the circuit court held that Smith presented no evidence of an injury he sustained that was proximately caused by either Campus Edge’s or Associate’s breach of a duty owed to Smith. We find that this ruling is correct as it relates to Associates. However, because Campus Edge constructed the dam/berm that Smith alleges caused water to flood onto his adjacent property, we find that there is evidence that would allow a jury to find that Campus Edge breached the duty it owed to Smith.

Smith, 30 So.3d at 1288. Consequently, Associates’ simple occupation or ownership of the property on which the berm was created by a prior landowner was not sufficient to show liability for negligence as to it, even though Associates, i.e. the current owner, clearly had to have actual knowledge of the existence of that berm.

The decision in Smith is consistent with prior Mississippi law. In Martin v. Flanagan, 818 So.2d 1124 (Miss. 2002), the Court analyzed a claim for damages due to the accumulation of water on a public road which caused a motor vehicle accident, and sued the landowner and tenant who was farming the property. The Court found that the tenant’s mere use of the property to engage in the economic endeavor of farming did not constitute a sufficient “affirmative act” upon which to base liability.

As stated previously by this Court, it is an undisputed fact that the building occupied by Kroger was not constructed, owned, or initially occupied by Kroger following the building’s construction. [See Doc. 208 at 4 n. 2] Moreover, Kmart concedes that it has not sued Kroger for the construction of the Kroger store in a floodway. [See id.] Consequently, the reasoning applied by the courts in Smith and Martin applies directly to the facts before this Court to show that Kroger, the current tenant, cannot be held liable for a condition, i.e. the building constructed

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by a prior owner of the property, which may have caused flooding in the Kmart store based on Kroger’s simple occupation of the property.

D.

Kmart Cannot Prove that Kroger Had Notice that Its Corinth Store Was Previously Located in a Floodway.

While this Court has previously determined that Kmart is not entitled to offer evidence to prove the allegations concerning the issuance of the LOMR, specifically that the LOMR improperly permitted the Kroger store to remain in the floodway, this Court stated further that, “with respect to Kmart’s alternative allegation that Kroger was aware of the LOMR and knowingly and improperly allowed its store to remain in the floodway, the Court finds that Kmart should be allowed to present evidence to support this allegation, as the same supports Kmart’s common-law negligence claim.” [Doc. No. 208 at 7-8] Having had its opportunity to conduct discovery, Kmart cannot present substantial evidence that Kroger knew or should have known that its location had been in a floodway at some point.

Prior to the receipt of Plaintiff’s Complaint, Kroger has no records that would have placed it on notice that a portion of its retail location made the subject of this action was located in the floodway designated by map and panel number 280020003B, dated March 16, 1981.

[Exhibit C at 19] Kmart’s causation expert, reviewed the original construction plans for the development in which the building housing the Kroger store is located, and he testified that those plans show that said building is not in a floodway. [Exhibit E at 241-42] The construction plans that Kmart’s causation expert reviewed showed the actual elevations of the building which houses Kroger’s store, and he testified that the construction plans were more reflective of the terrain as it actually was at the time of construction than the FEMA flood maps that he reviewed.

[Exhibit E at 241-42, 244-45]

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The building which houses the Kroger store was removed from the floodway by FEMA through a LOMR issued on November 18, 2005, because of FEMA’s determination that the structure was inadvertently included in the floodway.6 [Exhibit D at 1] Kmart admits that it is aware of no evidence whatsoever that tends to show that Kroger was involved in any way in the acquisition of the LOMR made this subject of this action. [Exhibit B at 191, 193-94] In fact, Kroger had no involvement in FEMA’s issuance of the LOMR at issue in this matter and did not participate in the process pursuant to which said LOMR was issued. [Exhibit C at 5-6] Simply put, Kroger was not aware that the building which houses its Corinth store was ever located in a floodway until it received a copy of the Plaintiff’s Complaint, and it had no knowledge of or participation in the process that led to the issuance of the LOMR, and Kmart can offer no proof to the contrary. Further, Kmart has designated no expert witness to opine that Kroger negligently performed any “due diligence” in connection with its decision to lease the building at issue in this case or that it should have known that the store had ever been in a floodway. Indeed, it is hard to conceive that Kmart could have done so, in light of the fact that the best documents available for Kroger to have reviewed in connection with deciding whether to lease the building at issue, i.e. the original construction plans for the development, show that said building is not in a floodway. [Exhibit E at 241-42] E.

Kmart Cannot Show “But-For” Causation as to Kroger.

In a negligence claim, there are four elements that must be established by the plaintiff: (1) duty or standard of care, (2) breach of that duty or standard of care, (3) proximate cause, and (4) damages or injuries. See Lopez v. McClellan, --- So.3d ---, 2010 WL 1664937, *6 (Miss.

App. 2010). Proximate cause is a concept which is more accurately defined by reference to the 6

The removal of the Kroger store from the floodway was re-validated by FEMA for the new flood maps which became effective in September 2010. [Exhibit E, exhibit 2 thereto]

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distinct concepts of which it is comprised, which are: (1) cause in fact; and (2) foreseeability.

See id. at *7. “Cause in fact means that, but for the defendant’s negligence, the injury would not have occurred.” Huynh v. Phillips, 95 So.3d 1259, 1263 (Miss. 2012). In this case, Kmart cannot show that but for any action or omission of Kroger its injuries would not have occurred.

Kmart’s causation expert evaluated the building that houses the Kroger store in his computer modeling for this case. [Exhibit E at 236] In performing that modeling, Kmart’s causation expert did not take into account any of the operations within the building, and he admitted that his modeling doesn’t depend on who is operating inside the building. [Exhibit E at 236-37] In fact, Kmart’s causation expert testified that none of his opinions depend in any way on the identity of the actual tenant at the time of the May 2, 2010 flood event. [Exhibit E at 237] Kmart’s causation expert is not aware of anything that Kroger did that would have increased a risk of flooding at the Kmart store, and he is likewise not aware of any omission of Kroger that would have increased the risk of flooding at the Kmart store. [Exhibit E at 237-38] When asked what Kroger did to increase the risk of flooding at the Kmart store, Kmart’s corporate deponent testified only that it “[c]ontinued to occupy [the building].”7 [Exhibit B at 192-93] Kmart’s corporate deponent explained further that Kmart’s claim that Kroger’s presence in the building increased the risk of flooding at the Kmart store is based solely upon the fact that it had a lease with the landlord. [Exhibit B at 194] Had Kroger breached its lease with its landlord and left the building prior to the May 2, 2010 flood event, Kmart cannot show that it would not have suffered any injury because the building about which it complains would still be there. As such, Kroger’s occupation of the building cannot be said to be a “but for” cause of Kmart’s injuries.

7

As show by both Smith and Martin, discussed supra, a showing of simple occupation is not enough for negligence claim to survive summary judgment.

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F.

Kmart’s Claim for Negligence against Kroger Must Fail Because the Terms of Kroger’s Lease Prevented Kroger from “Leveling” the Building Leased by It.

In its Complaint, Kmart alleges that “[t]he Kroger store was built in a floodway that existed at the time of the store’s construction” and that the “Kroger store should have been leveled, but in 2005 the Kroger store was permitted to remain in the floodway pursuant to a [LOMR] issued by [FEMA].” [Doc. No. 1 at ¶ 15] However, Kroger’s Lease prohibited it from performing any acts or carry on any practices that might injure the building. [Exhibit F, exhibit 4 thereto at Kroger/Kmart 000057] Accordingly, Kroger cannot be held liable for negligence for failing to perform an act that it was contractually prohibited from doing, i.e. destroying its landlord’s building.

Moreover, Kmart similarly cannot argue that that Kroger should have made some other alterations to the site’s water drainage to avoid risk of flooding to the Kmart store, because Kroger’s Lease further provided that the landlord would provide and maintain proper and adequate water drainage. [Exhibit F, exhibit 4 thereto at Kroger/Kmart 000064] Again, Kroger would have been in breach of its lease had it undertaken any such efforts.

Additionally, as found by the Court in the case of Yazoo and M.V.R. Co. v. Sultan, 63 So. 672 (Miss. 1913), the tenant has no authority to make any change or alteration to the property not owned by him, even if such action could have prevented damage to an adjoining landowner caused by surface water. Furthermore, the court in Sultan quoted with approval the case of The Kankakee & Seneca Railroad Co. v. Horan, 23 Ill. App. 259 (Ill.App. 2 Dist 1886), which stated “‘[t]he appellee was a mere tenant, and had no right to dig such a ditch, and was not compelled to do so.’” Sultan, 63 So. at 674. Based upon the fact that the defendant was a tenant, the court held that the plaintiff had no right to recovery against the tenant and all claims were dismissed.

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Accordingly, Kmart’s claim for negligence against Kroger cannot succeed under existing Mississippi law and the undisputed facts of this case.

G.

Kmart Has No Competent Evidence that the Building Made the Subject of This Action Caused Flood Damage to Its Store.

Kmart relies upon the opinions of its causation expert, John Krewson, to show that the location of the building which houses Kroger’s store caused flood damage to Kmart’s store in Corinth. [Exhibit H at 15-17] Krewson’s opinion that the Kroger store caused flood damage relies entirely upon the HEC-RAS models that he ran which allegedly showed that the existence of the Kroger store in its current location caused a rise in the flood water at the Kmart store on May 2, 2010. [Exhibit G at 6-7] Both Krewson and Kmart have now admitted that the HECRAS model he used was flawed due to a data entry error. Moreover, this error is significant, because as Kmart and Krewson have both admitted that the later HEC-RAS model, created in an effort to correct the flaw in the original HEC-RAS model, showed that the existence of the Kroger store in its current location caused “no significant difference in the rise of the flood at the Kmart building.” [Doc. No. 176-1 at 3] As such, Krewson’s expert testimony is not admissible because it fails to satisfy the standards articulated in Daubert v. Merrell Dow. Pharms., Inc., 509 U.S. 579 (1993), and the requirements of FED.R.EVID. 702. Kroger has filed a Motion to Exclude Testimony of John R. Krewson, see Doc. No. 259, along with a supporting memorandum, see Doc. No. 260, for the reason stated above and for other reasons as well.

Rather than re-state all of the reasons for why this Court should exclude the testimony of Krewson, Kroger incorporates herein by reference its Motion to Exclude the Testimony of John R. Krewson and its supporting memorandum in the interests of judicial economy. [See Doc. Nos. 259 and 260] Those pleadings amply demonstrate that this Court should exclude Krewson’s opinions.

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“Rule 56 states that a court may consider only admissible evidence in ruling on a summary judgment motion.” Mersch v. City of Dallas, 207 F.3d 732, 734-735 (5th Cir. 2000).

To screen out incompetent summary judgment evidence, the Court must determine the admissibility of the expert’s opinion “before reaching the question whether a fact issue exists,” see Mersch, supra, which is a determination that the Fifth Circuit does not disturb on appeal absent an abuse of discretion. See Mersch, 207 F.3d at 735; Allen v. Pa. Eng’g Corp., 102 F.3d 194, 196 (5th Cir. 1996); Christophersen v. Allied-Signal Corp., 939 F.2d 1006, 1009 (5th Cir. 1991). Where an expert’s opinion is inadmissible, it “cannot be relied upon by plaintiffs to prevent summary judgment.” Salas v. Carpenter, 980 F.2d 299, 305 (5th Cir. 1992).

Consequently, Kmart can show no evidence in opposition to Kroger’s Motion for Summary Judgment that the existence of the building which housed the Kroger store on May 2, 2010 caused flood damage to Kmart’s store in Corinth.

H.

Kroger Cannot Be Held Liable for the Location of the Building which Housed Its Store in Corinth, Mississippi Because Kmart Approved the Location of That Building and the Site Development Plans.

Kmart’s lease shows that it had to approve the plans for the construction of its store location in Corinth. [See Exhibit B, exhibit 2 thereto at 7-8] The Kmart Letter attached to Kmart’s lease sets forth certain design specifications for the site and the proposed Kmart store; it further provides that Kmart shall be a party to the initial site development decisions, including “all aspects of the proposed Kmart operation i.e. access, site drainage and relationship of the Kmart floor elevation to adjacent grades, roads and buildings.” [Exhibit B, exhibit 2 thereto at exhibit C] The Kmart Letter further provides that preparation of final engineering drawings or commitments affecting site improvements and development shall not be made until approval has been granted by Kmart. [Id.] Kmart’s lease and the Kmart Letter attached thereto clearly show 22

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that Kmart had to approve the floor elevation and site drainage for Kmart’s store and the development of the site. In fact, these matters were made part of the terms of the Kmart lease.

Furthermore, Kmart’s lease required that the buildings in the development be constructed in accordance with exhibit “B” to the lease, which specifies the location of the building that would later house the Kroger store: 12.

Landlord represents, warrants and covenants that it shall, prior to commencement of the lease term, complete the buildings and site improvements substantially in accordance with the site plan depicted on said Exhibit “B”, including completion of said common areas in accordance with the provisions of Article 10 hereof. Landlord further covenants that it will not erect any building or other structures on the land described in Exhibit “A” except as shown on said Exhibit “B”.

Landlord also represents, warrants, and covenants that a grocery Tenant of, at least, 45,674 square feet shall be located within a shopping center premises as depicted on Exhibit “B” and shall open for business or ready to open for business concurrently with Tenant’s opening.

[Exhibit B, exhibit 2 thereto at 10] Exhibit “B” to the Kmart Lease is an engineering drawing that specifies the exact location for the construction of the building that would later house the Kroger store (on the drawing it is identified as a “Foodworld” store which was the original tenant that occupied the location prior to Kroger). [Exhibit B, exhibit 2 thereto at exhibit B] Given these matters, it is fundamentally unfair to allow Kmart to pursue a claim for negligence against Kroger for the location of the building which houses Kroger’s store in Corinth, particularly when Kroger was not a party to the construction of the building. Not only is it fundamentally unfair, it is inconsistent with Mississippi law.

Where a party signs a contract, he is bound by it and cannot take a position which is inconsistent with his contract to the prejudice of another. See Brown v. Anderson, 80 So. 3d 878, 882 (Miss.App. 2012); American Olean Tile Company v. Morton, 157 So.2d 788, 791 (Miss.

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1963). “The consummation of an agreement may estop a party to the agreement from asserting a claim inconsistent therewith.” Walker v. Walker, 59 So.2d 277, 284 (Miss. 1952).

This argument is even more compelling when one considers certain language from the expert report of Kmart’s causation expert, John Krewson. Krewson claims that had standard design practices been followed in the construction of the Kmart store, it would have suffered no flooding on May 2, 2010: Typically, standard design and permitting practice require building floor elevations in flood prone areas, especially in designated flood areas to be at least 3.0 feet above the 100 year flooding elevation. In the case of the Kmart and the Kroger, this would place the floor elevations at 435.2, approximately 3 feet higher than the actual elevation. Had the construction of the building followed the FEMA guidelines, flooding would not have occurred.

[Exhibit G at 4] In other words, had the Kmart store been built three feet above the 100-year flood elevation, it would not have flooded according to Kmart’s causation expert. As shown above, the floor elevation of the Kmart store is among the matters which Kmart had the right to approve.

Accordingly, Kmart’s claim for negligence against Kroger cannot survive Kroger’s motion for summary judgment.

IV.

CONCLUSION. Kmart cannot prove the necessary elements of its claim for negligence against Kroger.

For the reasons set forth herein and in Kroger’s Motion for Summary Judgment, there is no genuine dispute of material fact in this matter as to the claim asserted against Kroger, and Kroger is entitled to judgment as a matter of law as to the claim asserted against it. See FED.R.CIV.P. 56.

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This, the 10th day of October 2013.

Respectfully submitted, THE KROGER COMPANY

By:_/s/ David A. Norris ____________ Of Counsel

OF COUNSEL: David A. Norris (MSB No. 100616) Edley H. Jones III (MSB No. 3201) Stephen F. Schelver (MSB No., 101889) McGLINCHEY STAFFORD, PLLC City Centre South, Suite 1100 200 South Lamar Street (Zip - 39201) Post Office Drawer 22949 Jackson, Mississippi 39225-2949 Telephone: (769) 524-2314 Facsimile: (769) 524-2333 Email: dnorris@mcglinchey.com; ejones@mcglinchey.com, sschelver@mcglinchey.com

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CERTIFICATE OF SERVICE I, the undersigned David A. Norris, McGlinchey Stafford PLLC, hereby certify that on this day, I electronically filed the foregoing with the Clerk of the Court using the ECF system, which sent notification of such filing to the following: Ryan O. Lumainis James M. Garner John T. Balhoff, II SHER GARNER CAHILL RICHTER KLEIN & HILBERT, LLC 909 Poydras Street, 28th Floor New Orleans, LA 70112 Email: rluminais@shergarner.com Mary Clift Abdalla FORMAN, PERRY, WATKINS, KRUTZ & TARDY, PLLC 200 S. Lamar Street, Suite 100 Jackson, MS 39201 Email: abdallamc@fpwk.com Walter G. Watkins , Jr. FORMAN, PERRY, WATKINS, KRUTZ & TARDY, PLLC P.O. Box 22608 Jackson, MS 39225-2608 Email: wwatkins@fpwk.com Walter Garner Watkins , III FORMAN, PERRY, WATKINS, KRUTZ & TARDY, PLLC P.O. Box 22608 Jackson, MS 39225-2608 Email: trey@fpwk.com Gerald Haggart Jacks JACKS, ADAMS & NORQUIST, P.A. P. O. Box 1209 Cleveland, MS 38732-1209 Email: gjacks@jacksadamsnorquist.com Jamie Ferguson Jacks JACKS, ADAMS & NORQUIST, P.A. P. O. Box 1209 Cleveland, MS 38732-1209 Email: jjacks@jacksadamsnorquist.com 26

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Charles E. Ross WISE, CARTER, CHILD & CARAWAY P. O. Box 651 Jackson, MS 39205-0651 Email: cer@wisecarter.com Terry Dwayne Little DANIEL, COKER, HORTON & BELL - Oxford P.O. Box 1396 Oxford, MS 38655 Email: tlittle@danielcoker.com Wilton V. Byars , III DANIEL, COKER, HORTON & BELL P.O. Box 1396 Oxford, MS 38655 Email: wbyars@danielcoker.com John Evans Gough , Jr. U.S. ATTORNEY'S OFFICE - Oxford 900 Jefferson Avenue Oxford, MS 38655-3608 Email: john.gough@usdoj.gov and I hereby certify that I have mailed by United States Postal Service the document to the following non-ECF participants: None THIS, the 10th day of October 2013.

s/ David A. Norris David A. Norris

275530.4

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