296 memoinsupportresponsetomotionforsummaryjudgement fulton kmart

Case: 1:11-cv-00103-GHD-DAS Doc #: 296 Filed: 10/30/13 1 of 20 PageID #: 4868

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

MEMORANDUM IN SUPPORT OF RESPONSE TO FULTON IMPROVEMENTS, LLC’S MOTION FOR SUMMARY JUDGMENT May It Please the Court: Plaintiff, Kmart Corporation, submits this Memorandum in Support of its Response to Fulton Improvements, LLC’s Motion for Summary Judgment. Fulton’s motion should be denied because material issues of fact exist regarding the effect of the Kroger store’s presence on Kmart’s flooding; regarding Fulton’s knowledge of Kroger’s presence in a flood-prone area; regarding issues of alleged estoppel; regarding causation; and regarding whether the flood event at issue is an Act of God as defined by jurisprudence. Issues of contractual interpretation also preclude summary judgment in favor of Fulton.

I.

Background On May 2, 2010, Kmart Store #4833 in Corinth, Mississippi was heavily damaged by over

two feet of high velocity flood water overflowing from nearby Elam Creek. As part of its negligence claims, Kmart alleges that actions and/or omissions of the Kroger Co., Kansas City Southern Railway, E&A Southeast Limited Partnership, and Fulton Improvements caused or contributed to

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its damages.1 Kmart also alleges contractual claims against Fulton Improvements by failing to keep the leased premises in a safe, dry, and tenantable condition as required under the lease.2 Fulton was the landlord of Kmart at the time of the flood event.3 Fulton also was the assignee of the lease entered between Kmart and the original landlord in 1991.4 That lease obligated Fulton to maintain Kmart’s store in a “safe, dry and tenantable condition.”5 Fulton has admitted that it did nothing in the way of flood protection for the buildings at the Fulton Crossing Shopping Center, including Kmart, other than sweeping the parking lot, cleaning the retention pond, and making sure storm drains were clear.6 II.

Law and Argument A.

Summary judgment standard

Federal Rule of Civil Procedure 56(c) provides that summary judgment may be rendered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”7 The party moving for summary judgment bears the

1

See Kmart’s Complaint ¶¶ 23-62.

2

See id. ¶¶ 59-62.

3

See Fulton’s Memorandum of Law in Support of Motion for Summary Judgment at 5.

4

See id. at 3-5.

5

See Fulton’s Motion for Summary Judgment, Exhibit D, Lease at 11, § 15, “Repairs and Maintenance.”

6

See Kmart’s Response to Fulton’s Motion for Summary Judgment, Exhibit 1, Depo. of Fulton at p. 125, l. 25 - p. 126, l. 21.

7

Fed. R. Civ. Proc. 56(c).

2

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initial burden of demonstrating the absence of a genuine issue of material fact.8 If the moving party fails to meet this initial burden, the motion must be denied, regardless of the nonmovant’s response.9 Unsupported allegations, conclusory facts, and conclusions of law are insufficient to support a motion for summary judgment.10 Moreover, a court must resolve all reasonable factual inferences from the record in favor of the non-movant.11 Summary judgment is improper when the court merely believes it unlikely that the non-moving party will prevail at trial.12 The district court 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.”13 As demonstrated below, there are genuine issues of material fact, as well as disputed issued of law, regarding Fulton’s negligence and breach of contract with regard to the Kroger store and its effect on Kmart’s store during the flood. Therefore, this Court should deny Fulton’s motion for summary judgment.

8

See Ford-Evans v. Smith, 206 Fed. Appx. 332, 334 (5th Cir. 2006).

9

See id.

10

See Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).

11

Id.

12

Nat’l Screen Serv. Corp. v. Poster Exchange, Inc., 305 F.2d 647, 651 (5th Cir. 1962).

13

Kennett-Murray Corp. v. Bone, 622 F.2d 887, 882 (5th Cir. 1980) (citations omitted).

3

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B.

Issues of fact and law preclude summary dismissal of Kmart’s negligence claims against Fulton.

1.

The effect of the Kroger store’s presence on Kmart’s flooding is an issue of fact.

Kmart’s allegations against Fulton are based both on common law negligence and on breach of contract. As for the negligence claims, Mississippi jurisprudence establishes that an individual owes a duty of reasonable care to avoid injury to nearby property owners.14 This Court recognized this principle when it sustained Kmart’s negligence claims against Kroger in partially denying Kroger’s motion to dismiss.15 Kmart has sued Fulton in part due to the fact that its “Kroger store was improperly located in a floodway that existed at the time the store was constructed and during Fulton’s ownership of the property” and “Fulton did not and has not taken the necessary action to ensure that Kmart’s premises and its contents are protected from possible flood waters.”16 Fulton contends that because Kmart’s expert professional engineer and hydrologist, John R. Krewson, made a mistake regarding flow rates in his initial report, “Kmart currently has no valid expert testimony to prove the effect of the Kroger on the Kmart building.”17 But Fulton neglects to mention that at the time it filed its motion for summary judgment, this Court already had issued an order allowing Mr. Krewson to amend his report to correct those errors. And after Fulton filed its motion, Kmart submitted Mr. Krewson’s amended report. As explained in Kmart’s responses to the various defendants’ motions to exclude Mr. Krewson’s testimony, Kmart has offered evidence, 14

See Rhaly v. Waste Mgmt. of Miss., Inc., 43 So. 3d 509 (Miss. App. 2010).

15

See Memorandum Opinion Granting in Part and Denying in Part Kroger’s Motion for Judgment on the Pleadings [Doc. 208] (Aug. 9, 2013) at 5 (citing Rhaly).

16

Kmart’s Complaint ¶¶ 53, 55.

17

Fulton’s Memorandum of Law in Support of Motion for Summary Judgment at 10.

4

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through Mr. Krewson, explaining why the Kroger store contributed to Kmart’s flooding.18 Kmart adopts its responses, exhibits thereto, and memoranda in support as if copied herein in extenso. At the very least, there is an issue of fact that precludes summary judgment in Fulton’s favor on the issue of the effect of the Kroger store, which is owned by Fulton, on Kmart’s flooding. Therefore, this Court should deny Fulton’s motion for summary judgment.

2.

Fulton’s knowledge of Kroger’s presence in a flood-prone area is an issue of fact.

Fulton contends that it cannot be liable to Kmart because the Kroger store is not in a floodway, was not in a floodway at the time of the May 2010 flood, and was incorrectly included in the floodway in previous FEMA Flood Insurance Rate Maps [“FIRM”].19 First, Fulton cites deposition testimony of Mr. Krewson stating that the Kroger store was not in a floodway in 2010.20 But Mr. Krewson made this statement simply because of the 2005 LOMR that issued, ostensibly removing the Kroger store from the floodway. But Fulton wants to disregard the 1981 FIRM that existed at the time of the construction of the Fulton Shopping Center around 1992. The original site development plans prepared by PRIME Engineer, a company retained by the landlord, showed the floodway boundary far to the east of where the Kroger building currently lies, whereas a portion of the Kroger building as-built would have been located within the floodway on the 1981 FEMA Firm. Indeed, Fulton and other defendants have gone as far as saying that the 1981 FEMA FIRM

18

See Kmart’s Response and Memorandum in Support of Response to KCSR’s Motion to Exclude Testimony of John R. Krewson; Kmart’s Omnibus Response and Memorandum in Support of Response to the Motions to Exclude the Opinions of John R. Krewson filed by the Kroger Co., E&A Southeast Limited Partnership, and Fulton Improvements, LLC. 19

See Fulton’s Memorandum of Law in Support of Motion for Summary Judgment at 11.

20

See id. at 12.

5

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is wrong, whereas the original construction drawings for the development of the Fulton Crossing Shopping Center that depicted the floodway are correct. Mr. Eley, a professional engineer retained

by Fulton and other defendants, testified in his deposition that the FEMA FIRM is wrong, but that the original site development plans by PRIME Engineering are correct, even though FEMA’s study was supported by a hydrologic report whereas the original site development plans were not supported by any scientific evidence.21 Notably, Mr. Krewson’s testimony as to the construction of a portion of the Kroger store in a FEMA floodway is consistent with the scientific-based 1981 FEMA FIRM (which was in effect at the time of the building’s construction), whereas Fulton’s proposed expert’s findings are not. But the apparent inconsistencies between the 1981 FEMA FIRM and the original site development plans are not the only twisted facts. Indeed, E&A requested a letter of map amendment [“LOMA”], but received a letter of map revision [“LOMR”]. As to the considerations listed in the LOMR obtained

by E&A, the LOMR provides “INADVERTENT INCLUSION IN FLOODWAY.”22 Mr. Krewson testified that just days after the May 2010 flood event, he had a conversation with David Huwe, who is the flood administrator for the City of Corinth, and both commented how they had never seen language like that in a LOMR.23 Additionally, James Monohan, who is a purported expert retained by Fulton, also testified that the language in the LOMR as to the “INADVERTENT INCLUSION IN FLOODWAY” was 21

See Kmart’s Response to Fulton’s Motion for Summary Judgment, Exhibit 2, Depo. of Robert Eley at p. 72, l. 11 - p. 73, l. 20.

22

Kroger’s Motion to Exclude Testimony of John R. Krewson, Exhibit A, LOMR, which is adopted and incorporated herein in extenso.

23

See Kmart’s Response to Fulton’s Motion for Summary Judgment, Exhibit 3, Depo. of John R. Krewson at p. 27, l. 21 - p. 28, l. 18.

6

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peculiar. Mr. Monohan testified that “Prior to this particular instance of it, I had not” seen a similar description as to the reason behind the LOMR.24 Fact issues remain with regard to the floowday.

But second, Fulton improperly rests its defense on the technicality of whether the building is or is not in a FEMA floodway. Instead, in order to prevail on a negligence claim, “a plaintiff must prove by a preponderance of the evidence each element of negligence: duty, breach of duty, proximate causation and injury.”25 Whether the Kroger store is in a floodway is not the sole focus.

Fulton can be negligent if it knew that this property was in a flood-prone area yet took inadequate measures to protect Kmart against the risk of flooding.

Although Fulton claimed in its deposition that it knew of no investigation before acquiring the property in 2007 whether the property was vulnerable to flooding,26 such ignorance does not jive with the well-reported flood problems of the area. The City of Corinth has experienced, within the last twelve years, the type of flooding that occurred on May 2, 2010. In the September 26, 2010 issue of Bridge, Phillips, Elam Drainage District News, a newsletter authored by Milton Sandy, Jr., the purpose of which is to “get something done about the repetitive flooding in Corinth and Alcorn County,” a December 1, 2001 article was reproduced from the Northeast Mississippi Daily Journal.27 This 2001 published article states, in pertinent part:

24

Kmart’s Response to Fulton’s Motion for Summary Judgment, Exhibit 4, Depo. of James D. Monohan at p. 27, ll. 3-15.

25

Schepens v. City of Long Beach, 924 So. 2d 620, 623 (Miss. App. 2006) (quoting K-Mart Corp. v. Hardy ex rel. Hardy, 735 So. 2d 975 (Miss.1999)).

26

See Kmart’s Response to Fulton’s Motion for Summary Judgment, Exhibit 1, Depo. of Fulton at p. 27, l. 10 - p. 30, l. 15.

27

See Kmart’s Response to Fulton’s Motion for Summary Judgment, Exhibit 5, Bridge, Philips, Elam Drainage District News, dated Sept. 26, 2010 at 6.

7

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Corinth — Flash Flood Part II might well be the name of Thursday’s weather bashing in Corinth and Alcorn County. It was a repeat of what some called a 100-year flood recorded about six weeks ago.

The chief estimated that 10 inches of rain fell within a 24-hour period. Last month, the same area was inundated by what [Corinth Police Chief Fred Johnson] called a 100-year flood. “This time, we may have had a 200-year flood,” he said, only halfjokingly . . . .28 The May 2, 2010 flood was not, as evidenced by the above-referenced news article, an unprecedented flooding event for Corinth, Mississippi. There is an issue of fact regarding what Fulton knew or should have known with regard to flooding at the property, and thus whether preventive measures should have been taken to protect Kmart. Therefore, this Court should deny Fulton’s motion for summary judgment.

3.

Kmart’s alleged approval of Kroger’s location does not relieve Fulton of responsibility for the building’s effect on others.

Fulton alleges that because Kmart approved the location of the Kroger store, Kmart cannot now repudiate that which it agreed and approved.29 First, Kmart’s corporate representative disputed that it had expressly “approved” of the store location, noting that Kmart “had the opportunity, not the obligation,” to comment regarding the location of the grocery store to be built by the Kmart.30 Regardless, Fulton acts as if it were Kmart’s sole idea to place the Kroger where it is. But the lease shows that the requirement of a grocery tenant was a covenant of the landlord: “Landlord represents, warrants and covenants that a grocery Tenant . . . shall be located within a shopping

28

Id.

29

See Fulton’s Memorandum of Law in Support of Motion for Summary Judgment at 13.

30

See Kmart’s Response to Fulton’s Motion for Summary Judgment, Exhibit 6, Depo. of Kmart at p. 127, ll. 3-17.

8

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center premises as depicted on Exhibit ‘B.’”31 Kmart’s representative explained in his deposition that this was not a requirement of Kmart, and that both the landlord and Kmart would benefit from such a provision.32 The cases cited by Fulton are nothing like the situation here. In Brown v. Anderson,33 the purchaser of a home had signed a release expressly stating that the house’s systems were in good and working order, which the court held that purchaser was bound by.34 In American Olean Tile Co. v.

Morton,35 the court found that the defendants wer bound by a settlement agreement they had executed.36 But here, there is no express acknowledgment by Kmart that the Kroger store is a problem-free location, nor is there a release of the landlord for claims arising from the grocery store building. Kmart simply signed a lease in which the landlord provided for a grocery store to be in the shopping center as well. But Kmart did not sign its rights away to complain of damage to it caused by that store, unlike in the aforementioned cases.

The other cases relied upon by Fulton — Walker v. Walker37 and Koch v. H & S Development Co.38 — are essentially cited for the proposition that parties are bound by the terms of their contract.

31

Fulton’s Motion for Summary Judgment, Exhibit D, Lease at 10, ¶ 12, “Landlord’s Representations and Warranties.”

32

See Kmart’s Response to Fulton’s Motion for Summary Judgment, Exhibit 6, Depo. of Kmart at p. 57, l. 22 - p. 58, l. 13.

33

80 So. 3d 878 (Miss. App. 2012).

34

See id. at 882.

35

247 Miss. 886, 157 So. 2d 788 (1963).

36

See id., 247 Miss. at 894, 157 So. 2d at 791.

37

214 Miss. 529, 59 So. 2d 277 (1952).

38

249 Miss. 590, 163 So. 2d 710 (1964).

9

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Again, even if the Kroger store cannot be demolished, there is nothing in the lease stating that Kmart must suffer damages caused by the Kroger store owned by Fulton. If Fulton must allow Kroger to operate that store, then Fulton must maintain the building in a manner that does no harm to Kmart’s neighboring store.

This Court essentially found as much when it previously denied Kroger’s motion to dismiss.

Again, the negligence allegation against Fulton is that the Kroger store was improperly located in a floodway that existed at the time the store was constructed and during Fulton’s ownership of the property.39 A similar allegation was made against Kroger.40 In denying Kroger’s request to dismiss that negligence allegation, this Court allowed the claim to go forward, noting, “It is apparent to the Court that Kmart is attempting to state a claim for Kroger’s alleged negligence in remaining in the floodway.”41 This Court further found that with regard to that allegation, “Kmart should be allowed to present evidence to support this allegation, as the same supports Kmart’s common-law negligence claim.”42 The similar negligence claim against Fulton inherently involves issues of fact. Therefore, this Court should deny Fulton’s motion for summary judgment.

4.

Kmart’s execution of the lease does not give rise to estoppel claims.

For similar reasons, Fulton does not have defenses to quasi-estoppel or equitable estoppel under the facts of this case. The case of Bailey v. Estate of Kemp43 cited by Fulton states that quasi-

39

See Kmart’s Complaint ¶ 53.

40

See id. ¶ 23.

41

Memorandum Opinion Granting in Part and Denying in Part Kroger’s Motion for Judgment on the Pleadings [Doc. 208] (Aug. 9, 2013) at 6.

42

Id. at 8.

43

955 So. 2d 777 (Miss. 2007).

10

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estoppel “precludes a party from asserting, to another’s disadvantage, a right inconsistent with a position [it has] previously taken.”44 In that case, the court held that the plaintiffs could not profit under a contract and also seek to have it declared invalid regarding other obligations.45 But this case does not involve the same direct quid pro quo that would be necessary to invoke quasi-estoppel claims against Fulton. At best, there is an indirect benefit to Kmart in having additional traffic near its store from Kroger patrons, as explained above. But Fulton’s argument that any time there is assent to a contract and receipt of benefits under that contract, then it precludes a remedy by one contracting party against another, is a bridge too far. An employee who receives pay from his or her employer may still sue for discrimination. Similarly, a tenant that is damaged by its landlord may still sue to be compensated as well.

Fulton’s equitable estoppel defense also must fall. As Fulton explains, that defense requires (1) a belief and reliance on some representation, (2) a change of position as a result thereof, and (3) detriment or prejudice caused by the change of position.46 There was no affirmative representation

by Kmart here regarding the propriety of Kroger’s location. At most, Fulton is arguing that Kmart has given tacit “approval” of the Kroger location simply by signing the lease. Therefore, this Court should deny Fulton’s motion for summary judgment.

44

Id. at 782 (brackets in original).

45

See id.

46

See Fulton’s Memorandum of Law in Support of Motion for Summary Judgment at 16 (citing Community Extended Care Ctrs., Inc. v. Bd. of Supervisors for Humphreys County, 756 So. 2d 798, 804 (Miss. App. 1999)).

11

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C.

Issues of fact and law preclude summary dismissal of Kmart’s contractual claims against Fulton.

1.

Kmart’s approval of its own building specifications does not relieve Fulton of the responsibility to keep Kmart in a safe, dry, and tenantable condition.

Fulton contends that it is entitled to summary judgment on Kmart’s breach of lease claim because Kmart had a role in approving the building specifications for the Kmart store.47 But Fulton overstates Kmart’s role in the design of hte Kmart building. At the very least, there is an issue of fact regarding the parties’ responsibility with regard to building design. Further, regardless of Kmart’s role in designing the building, it does not negate Fulton’s contractual obligation to provide Kmart with a safe, dry, and tenantable condition.

Fulton highlights a good deal of language from the 1991 lease between Kmart and the original landlord Fulton Crossing, Ltd.,48 which lease Fulton admits has been assigned to it.49 That language shows that the landlord Fulton Crossing was to construct the shopping center, including the Kmart building, and Kmart would provide certain specifications for the landlord to use and then turn around and offer to Kmart for review. But the lease notes that the “working drawings and specifications” are to be “prepared by Landlord,” which shall be in accordance with Kmart’s “typical store” specifications.50 Further specifications were outlined in Exhibit C to the lease. That

47

See id. at 17.

48

See id. at 5-9.

49

See id. at 4-5; see also id. at Exhibit I, Assignment of Lease to E&A, and Exhibit L, Assignment of Leases to Fulton.

50

Fulton’s Motion for Summary Judgment, Exhibit D, Lease at 7, § 7, “Drawings and Specifications” (emphasis added).

12

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exhibit explained that the typical drawings covered Kmart’s “minimum requirements.”51 Thus the plans were not developed solely by Kmart and instead there was input from the landlord as well. As Kmart’s corporate designee explained at Kmart’s deposition, the lease simply provided that Kmart “shall be party to” the site development, meaning there was more than one party responsible for the plans.52 Fulton neglects to cite language from Exhibit C stating that at least some of the Kmart specifications were provided for pricing purposes only and not for construction guidelines: “These sets of Typical plans and specifications are to be used only as a guide for pricing purposes and as such are not intended, nor will their use be permitted, for construction purposes.”53 Construction design was the ultimate province of the landlord.

Fulton also omits relevant language from the last page of Exhibit C of the lease. Kmart informed the landlord representative, “This project has been assigned a number (#4883) and you are at liberty to proceed with your site development design and building design development packages.”54 And most salient for purposes of this case, Kmart instructed that the landlord would be solely responsible for the total project and expressly for the consideration of topographic and weather conditions: “Your Architect/Engineers will . . . remain solely responsible for the total project, including without limitation, structural integrity, consideration of topographic and

51

Id. at Exhibit C at 1.

52

See Kmart’s Response to Fulton’s Motion for Summary Judgment, Exhibit 6, Depo. of Kmart at p. 71, ll. 3-9; see also Fulton’s Memorandum of Law in Support of Motion for Summary Judgment, Exhibit D, Lease at Exhibit C at 3, “Site Development.”

53

Fulton’s Motion for Summary Judgment, Exhibit D, Lease at Exhibit C at 4.

54

Id. at 5 (emphasis added).

13

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weather conditions and soil characteristics, and conformace with all applicable codes and other legal requirements.”55 Therefore, the landlord, not Kmart, was responsible for considering weather conditions, such as the potential for flooding and how to mitigate, prevent, and/or protect against it.

Fulton’s cases — City of Columbus v. Clark-Dietz & Associates-Engineers, Inc.56 and Havard v. Board of Supervisors, Humphreys County,57 which supposedly deflect liability from a contractor who complies with another’s specifications — do not even apply to this situation. The contract of lease provides that the landlord, not Kmart, was responsible for items such as flood protection. Therefore, this Court should deny Fulton’s motion for summary judgment.

2.

Kmart’s flooding due to alleged lack of maintenance is an issue of fact.

Fulton asserts that it cannot be held liable for lack of maintenance of the property, when landscape timbers pushed open the Kmart door and allowed flood waters in.58 In other words, Fulton contends that the timbers caused the store flooding and not any lack of maintenance by Fulton in the form of flood protection.59 But Fulton’s argument assumes that the flood protection measures would not have halted the timbers. In fact, Kmart’s corporation representative was asked this question at his deposition, and he explained that gates and a membrane could have protected against the timbers.60 And again, as

55

Id. (emphasis added).

56

550 F. Supp. 610 (N.D. Miss. 1982).

57

220 Miss. 359, 70 So. 2d 875 (1954).

58

See Fulton’s Memorandum of Law in Support of Motion for Summary Judgment at 18.

59

See id. at 19.

60

See Kmart’s Response to Fulton’s Motion for Summary Judgment, Exhibit 6, Depo. of Kmart at p. 247, l. 4 - p. 251, l. 4.

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with much of Fulton’s motion, this argument raises an unresolved issue of fact as to whether flood protection measures would have acted as additional protection against the timbers. Therefore, this Court should deny Fulton’s motion for summary judgment.

3.

Causation is an issue of fact.

Fulton contends that without testimony from Mr. Krewson, Kmart cannot prove causation against Fulton on the breach of contract claim. But Fulton fails to recognize that it needs no expert testimony to prove its breach of contract claim against Fulton. Proof of causation for that claim is a straightforward one: •

Fulton had a contractual obligation to maintain Kmart’s store in a “safe, dry and tenantable condition.”61

•

Kmart’s store flooded due to Fulton’s admitted failure to take adequate flood protection measures, and thus Fulton did not maintain Kmart’s store in a safe, dry, and tenantable condition;

•

Fulton is liable to Kmart for damages that occurred due to the breach of this contractual obligation.

Therefore, this Court should deny Fulton’s motion for summary judgment.

4.

Whether the flood damage was due to an Act of God is an issue of fact.

Fulton contends that it is entitled to summary judgment because the May 2, 2010 flood event was an unforeseeable act of God that could not have been prevented with reasonable care and

61

Fulton’s Motion for Summary Judgment, Exhibit D, Lease at 11, § 15, “Repairs and Maintenance.”

15

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foresight.62 But the fact that Fulton must prove that the flood could not have been prevented, no matter what actions were taken, necessarily raises an issue of fact.

Fulton bears the burden of proving its Act of God defense and “must establish ‘beyond peradventure all of the essential elements of the . . . defense.’”63 An Act of God is “an injury due directly and exclusively to natural causes without human intervention, which could not have been prevented by the exercise of reasonable care and foresight. “In other words, ‘[t]his defense applies where an injury is attributable solely to natural cause.’”64 “An act ‘which may be prevented by the exercise of ordinary care is not an act of God.’”65 “However, if the injury is caused by an act of God, in connection with which the negligence of the defendant is a concurring cause, and the injury would not have occurred except for such negligence, then defendant is liable.”66 As explained above, Kmart’s representative testified that known flood prevention measures in the form of a gate and membrane could have prevented the flooding in the store. Fulton confuses the suddenness of the storm with the inability to prepare for it. If a gate and membrane or similar flood prevention measures had been installed on the building, they would have been ready to deploy in defense of the building.67

62

See Fulton’s Memorandum of Law in Support of Motion for Summary Judgment at 20.

63

Biloxi Yacht Club, Inc. v. Grand Casinos of Miss., Inc. - Biloxi, 2009 WL 801635, *4 (S.D. Miss.

2009) (citing Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)).

64

Id.(citing Shields v. Easterling, 676 So.2d 293, 296 (Miss. 1996)).

65

Id. (citing King v. Miss. Power & Light Co., 244 Miss. 486, 142 So.2d 222, 224-25 (Miss. 1962)).

66

Id. (citing McFarland v. Entergy Miss., Inc., 918 So.2d 679, 701 (Miss.Ct.App. 2004) (rev’d by 919 So.2d 894 (Miss. 2005)).

67

See Kmart’s Response to Fulton’s Motion for Summary Judgment, Exhibit 6, Depo. of Kmart at p. 247, l. 4 - p. 251, l. 4.

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Further, Fulton describes Acts of God as “events in nature so extraordinary that the history of climactic variations and other conditions in the particular locality affords no warning of them.”68 But as explained above, two similar storms — supposedly 100-years storms or greater — had occurred within just nine years earlier of the May 2, 2010 storm, and just weeks after each other.

Thus the May 2, 2010 flood was not an unprecedented flooding event for Corinth, Mississippi. Mr. Sandy, the author of the article and the commissioner of the Elam Creek Drainage District, was identified by Kmart as a potential witness with knowledge of the history of flooding in and around the City of Corinth. But the Defendants did not bother to depose Mr. Sandy regarding the history of flooding in Corinth.

The Act of God defense does not apply because Kmart’s damage is not attributable solely to the May 2, 2010, but resulted from the Fulton’s failure to provide adequate flood protection and keep the property in a safe, dry, and tenantable condition. In City of Jackson v. Brummett,69 the plaintiff’s private plane was parked at the city’s airport. The City agreed to provide a parking space and tiedown service for the plane. One day, “with very little warning, the wind velocity increased from 7 mph to 45 mph, and, . . . at the airport, there were wind gusts up to 65 miles per hour.”70 There was disputed evidence regarding whether the ropes to tie the plane down were rotten.71 The plane blew over in the wind and was damaged. The City argued the sole cause was an act of God in the form of

68

Fulton’s Memorandum of Law in Support of Motion for Summary Judgment at 21 (quoting Bay Point High & Dry, L.L.C. v. New Palace Casino, L.L.C. 46 So. 3d 821, 835 (Miss. App. 2010)).

69

224 Miss. 501 (Miss. 1955).

70

Id. at 505.

71

Id.

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“a sudden, extraordinary and unprecedented wind.”72 But the court affirmed the verdict for the plaintiff because there was evidence that the damage to the plane was not due exclusively to natural causes and that the damage could have been prevented by the exercise of reasonable care and foresight by the City to provide adequate ropes to tie the plane down.73 Thus the court found the defendant was not entitled to judgment as a matter of law on the act of God defense.74 In Biloxi Yacht Club Inc. v. Grand Casinos of Mississippi Inc.-Biloxi,75 the plaintiff’s property was damaged when the defendant’s barge broke free during Hurricane Katrina and became dislodged form its moorings, striking the plaintiff’s property.76 The plaintiff brought an action for negligence against the defendant.77 The defendant argued that it was entitled to an Act of God defense because Hurricane Katrina was an unprecedented storm.78 The plaintiff responded that the defense was not available because the defendant was negligent in failing to adequately secure the barge and that negligence contributed to the plaintiff’s loss.79 The court held that the defendant was not entitled to judgment in its favor based on the Act of God defense because there remained disputes of fact as to whether the defendant was negligent and whether that negligence contributed

72

Id. at 507.

73

Id.

74

Id.

75

2009 WL 801635 (S.D. Miss. 2009).

76

Id. at *1.

77

Id.

78

Id. at *4.

79

Id.

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to the plaintiff’s loss.80 Similarly, Fulton is not entitled to summary judgment based on its Act of God defense because there are disputed issues of fact as to whether Fulton was negligent in its maintenance of the Kmart store.

III.

Conclusion Kmart has demonstrated that genuine issues of material fact and law exist regarding whether

Fulton was negligent and whether it owes contractual obligations to Fulton. Summary judgment is, therefore, improper and Fulton’s motion should be denied.

This the 30th day of October, 2013.

Respectfully submitted,

/s/ Ryan O. Luminais __________________________________________ JAMES M. GARNER (La. Bar. No. 19589) JOHN T. BALHOFF, II (La. Bar. No. 24288) RYAN O. LUMINAIS (Miss. Bar. No. 101871) SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C. 909 Poydras Street, Twenty-eighth Floor New Orleans, Louisiana 70112 Telephone: (504) 299-2100 Facsimile: (504) 299-2300 ATTORNEYS FOR KMART CORPORATION

80

Id. at *5.

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CERTIFICATE OF SERVICE I hereby certify that a copy of the above and foregoing has been served on all known counsel of record with the Clerk of Court using the CM/ECF system which will automatically send-email notification to all known counsel of record, this 30th day of October, 2013.

/s/ Ryan O. Luminais __________________________________________ RYAN O. LUMINAIS

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