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