293 memoinsupportresponsetomotionforsummaryjudgement kcsr kmart

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Case: 1:11-cv-00103-GHD-DAS Doc #: 293 Filed: 10/30/13 1 of 30 PageID #: 4561

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF MISSISSIPPI ABERDEEN DIVISION KMART CORPORATION, Plaintiff CIV. ACT. NO. 1:11-CV-103-GHD-DAS versus THE KROGER CO., et al. Defendants KMART’S MEMORANDUM IN SUPPORT OF RESPONSE TO KANSAS CITY SOUTHERN RAILWAY COMPANY’S MOTION FOR SUMMARY JUDGMENT May It Please the Court: Plaintiff, Kmart Corporation, submits this Memorandum in Support of its Response to Kansas City Southern Railway Company’s Motion for Summary Judgment. KCSR’s Motion should be denied because material issues of fact exist regarding whether KCSR breached a duty owed to Kmart when it failed to maintain its railroad underpass at Elam Creek in Corinth, Mississippi and whether that breach contributed to the damages incurred by Kmart during a May 2, 2010 flood event. I.

Background Kmart has alleged that KCSR “failed to maintain a railroad underpass in the vicinity of Store

4883 by leaving it cluttered with debris, which prevented water flow and displacement, thereby contributing to the flood damages incurred by Store 4883 on May 2, 2010.”1 Specifically, Kmart alleged that KCSR permitted excessive debris to collect at its railroad bridge at mile 328.13 over Elam Creek and that the debris blockage contributed to flooding damage at Kmart’s store.

1

See Kmart’s Complaint, Doc. 1, ¶ 36.


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293 memoinsupportresponsetomotionforsummaryjudgement kcsr kmart by Milton Sandy - Issuu