308 memoinsupportresponsetokrogermotionforsummaryjudgement kmart

Case: 1:11-cv-00103-GHD-DAS Doc #: 308 Filed: 11/05/13 1 of 27 PageID #: 5765

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 THE KROGER CO.’S MOTION FOR SUMMARY JUDGMENT May It Please the Court: Plaintiff, Kmart Corporation submits this Memorandum in Support of its Response to the Motion for Summary Judgment filed by Defendant, The Kroger Co. Kroger’s Motion for Summary Judgment should be denied because genuine issues of material fact exist regarding whether Kroger knew or should have known that its store was located in a flood-prone area, and yet failed to take adequate measures to protect the Kmart store against the risk of flooding on May 2, 2010. As more fully discussed below, summary judgment is not proper because: •

Kroger had notice that, more than eight years before the date of the flood, its Corinth store was located in a flood-prone area. Yet Kroger failed to exercise proper due diligence to ensure its Corinth store would be flood-neutral to its neighboring stores.

•

Kroger’s failure to take adequate measures to protect the Kmart against the risk of flooding serves as the basis for Kmart’s negligence claim against Kroger.

•

Even if Kroger is not required by law to demolish its own store due to its presence in the floodway, if Kroger keeps its store there, it is obligated to maintain it in such a way that it is flood-neutral to its neighbor, Kmart.

1

Case: 1:11-cv-00103-GHD-DAS Doc #: 308 Filed: 11/05/13 2 of 27 PageID #: 5766

I.

•

Kmart has competent evidence that the Kroger building caused flood damage to its store. John Krewson’s October 11, 2013 Supplemental Report concluded that the “presence of the Kroger store in the FEMA floodway reduced the flooding width, which increased velocities as anticipated by FEMA, ultimately increasing the depth of flooding and the impact on the Kmart store.”1

•

The Kroger building location and the site development plans were based on flawed site plans.

Background2 On May 2, 2011, Kmart filed its complaint to recover damages against Defendants as a result

of their negligent acts or omissions that caused or contributed to the flooding at Kmart’s Store No. 4833 in Corinth, Mississippi. Particularly, Kmart alleges that the location of the adjacent Kroger building and other obstructions caused or contributed to high velocity flood waters that entered mostly through the front entryway doors of Kmart’s Corinth store and caused damages to Kmart in excess of $3 million.

In particular, Kmart brought suit against Kroger, its neighboring tenant, for damages Kmart incurred as a result of Kroger’s location within a floodway. The Kroger store was improperly located in a floodway that existed at the time the store was constructed and while Kroger was tenant of the property. The Kroger store’s presence in the floodway caused a displacement of water and a rise in the water level, resulting in the flood damage incurred at the neighboring Kmart store.

1

See Kmart’s Response to Kroger’s Motion for Summary Judgment, Exhibit A, John Krewson’s Amended Flooding Evaluation (Oct. 11, 2013).

2

Although the Federal Rules of Civil Procedure and the Local Rules require neither a Statement of Uncontested Facts nor a Response thereto, Kroger’s Statement of Uncontested Facts is denied by Kmart to the extent Kmart’s Response to Kroger’s Motion for Summary Judgment addresses those facts.

2

Case: 1:11-cv-00103-GHD-DAS Doc #: 308 Filed: 11/05/13 3 of 27 PageID #: 5767

II.

Law and Argument A.

Summary judgment standard

Rule 56 (c) of the Federal Rules of Civil Procedure provides for summary judgment if “the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.”3 The existence of a material question of fact is itself a question of law that the district court must consider before granting summary judgment.4 Summary judgment is improper when the court merely believes it unlikely that the non-moving party will prevail at trial.5 In making determinations of fact on a motion for summary judgment, the Court must view the evidence submitted by the parties in a light most favorable to the non-moving party.6 Summary judgment can be granted only if everything in the record demonstrates that no genuine issue of material fact exists. The district court, therefore, 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.”7 As demonstrated below, there remain genuine issues of material fact, as well as disputed issues of law, regarding Kroger’s negligence with regard to the Kroger store and its effect on Kmart’s

3

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

4

John v. La. ex rel. Bd. of Trustees for State College & Universities, 757 F.2d 698, 712 (5th Cir.

5

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

6

McPherson v. Rankin, 736 F. 2d 117 (5th Cir. 1982).

7

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

1985).

3

Case: 1:11-cv-00103-GHD-DAS Doc #: 308 Filed: 11/05/13 4 of 27 PageID #: 5768

store during the flooding. Therefore, this Court should deny Kroger’s motion for summary judgment.

B.

Kroger had notice that its Corinth store was located in a flood-prone area.

Kroger contends that it “had 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, 1991.”8 To support its assertion, Kroger contends that “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.”9 But Kroger admits that it purchased the store in 1994.10 Yet the LOMR supposedly removing the Kroger store from the floodway was not issued until 2005.11 Kroger’s testimony that it did not know, or could not have known, that its store was in a floodway simply is neither credible nor accurate.

Mr. Krewson’s October 11, 2013 amended report also demonstrates that the Kroger building is, in fact, located in a floodway: The location of the Kroger in a floodway is a concern. As noted, approximately one half of the Kroger was built in the floodway for Elam Creek. . . . According to the records I have examined, the floodway shown on current FIRM is unchanged from the floodway shown on the prior FIRM panel, prior to the construction of the building.12

8

See Kroger’s Memorandum of Authorities in Support of Motion for Summary Judgment at 17.

9

See id.

10

Id. at 6.

11

See Kroger’s Memorandum in Support of Motion for Summary Judgment, Exhibit D, LOMR.

12

See Kmart’s Response to Kroger’s Motion for Summary Judgment, Exhibit A, John Krewson’s Amended Flooding Evaluation (Oct. 11, 2013).

4

Case: 1:11-cv-00103-GHD-DAS Doc #: 308 Filed: 11/05/13 5 of 27 PageID #: 5769

Further, Mr. Krewson’s amended report highlights that there is no evidence or recorded basis for FEMA’s decision to issue the LOMR that removed the Kroger property from the floodway: Although the Kroger and other structures along Elam Creek were constructed in the floodway without restriction, a review of FEMA’s records found that a “Letter of Map Revision” or LOMR was issued by FEMA in November 15, 2005, removing the Kroger property from the floodway due to “Inadvertent Inclusion in the Floodway 1". [sic] The records do not indicate how the LOMR originated, or what studies, review or public notice was given prior to issuance. FEMA regulations require a flood study be done to determine the impact of the encroachment of flood elevations and velocities. The studies are submitted to FEMA for review and approval. No record was found of such a study. Issuance also requires that other affected property owners along the creek be notified, and public notice be made. No record of this was found.

Once the studies and public notice are complete, the local governing and review agency responsible for flood management and oversight makes a final review of the LOMR and recommends approval. No record of this was found.13 Not only does Mr. Krewson, in his amended report, repeatedly state that the Kroger building is located within a floodway, but his amended report also emphasizes that there was no basis for the issuance or approval of FEMA’s November 2005 LOMR. 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 Kroger’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, during E&A’s ownership of the Kroger building, 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

13

Id.

5

Case: 1:11-cv-00103-GHD-DAS Doc #: 308 Filed: 11/05/13 6 of 27 PageID #: 5770

INCLUSION IN FLOODWAY.”14 Mr. Krewson testified that, just days after the May 2010 flooding event, he had a conversation with Mr. 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.15 Additionally, James Monohan, who was retained by Kroger, also testified that the language in the LOMR as to the “INADVERTENT INCLUSION IN FLOODWAY” was peculiar. Mr. Monohan testified that “Prior to this particular instance of it, [he] had not” seen a similar description as to the reason behind the LOMR.16 The testimony of the Defendants’ expert parallels Mr. Krewson’s opinion that there is no justifiable basis behind FEMA’s decision to issue the LOMR that removed the Kroger property from the floodway.

But second, Kroger improperly rests its defense on the technicality of whether the building is or is not located 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.”17 Whether the Kroger store is in a floodway is not the sole focus. Kroger can be negligent if it knew or should have known that its property was in a floodprone area and yet took inadequate measures to protect Kmart against the risk of flooding.

14

See Kroger’s Motion to Exclude Testimony of John R. Krewson, Rec. Doc. 259-1.

15

See Kmart’s Response to Kroger’s Motion for Summary Judgment, Exhibit B, Depo. of John R. Krewson at 27:21-28:18.

16

See Kmart’s Response to Kroger’s Motion for Summary Judgment, Exhibit C, Depo. of James D. Monohan at 27:3-15 (emphasis added).

17

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)).

6

Case: 1:11-cv-00103-GHD-DAS Doc #: 308 Filed: 11/05/13 7 of 27 PageID #: 5771

Kroger contends that “Kmart cannot present substantial evidence that Kroger knew or should have known that its location has been in a floodway at some point.”18 As explained above, it is a question of fact whether Kroger should have known of the floodway because that floodway designation existed at the time Kroger purchased the property and until at least 2005 when the LOMR was issued. And at the very least, Kmart can produce substantial evidence that Kroger knew or should have known that its property was vulnerable to flooding. For example, the City of Corinth has experienced, within the last twelve years, the type of flooding that occurred on May 2, 2010.

Notably, these two flooding events occurred while Kroger was tenant of the property. In the September 26, 2010 issue of Bridge, Phillips, Elam Drainage District News, a newsletter authored

by Sandy Milton, 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.19 The 2001 published article states, in pertinent part: 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....

The May 2, 2010 flood was not, as evidenced by the above-referenced news article, an unprecedented flooding event for Corinth, Mississippi. In fact, these 2001 flooding events occurred

18

See Kroger’s Memorandum of Authorities in Support of Motion for Summary Judgment at 17.

19

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

7

Case: 1:11-cv-00103-GHD-DAS Doc #: 308 Filed: 11/05/13 8 of 27 PageID #: 5772

during the period of time when Kroger leased the building and operated its store.

In addition, there are several communications demonstrating Kroger had notice that the Kroger store was located in a flood-prone area.20 For example, on February 10, 2002, Jeffrey Brown, a Real Estate Specialist with Delta Marketing Area, wrote a letter to Mayor Jerry Latch on behalf of Kroger, which states: I am sure you are well aware of the flooding problems experienced in the Corinth area over the past [two] to [three] months. On [two] separate occasions[,] the Kroger store [at] Fulton was adversely affected by flooding. Backflow valves have been installed to circumvent the flooding, but based on the information provided in a hydrologist’s study, the problem is not completely solved.21 Mr. Brown’s letter again demonstrates Kroger knew that its building was located in a floodprone area. When asked if Kroger sent a follow-up letter in an effort to seek more information regarding the flooding at the Kroger building, its corporate representative testified that he “could not find anything in [Kroger’s] records” to confirm.22 There is an issue of fact regarding what Kroger knew or should have known with regard to the flooding at the property, and thus whether preventive measures should have been taken to protect Kmart. Therefore, this Court should deny Kroger’s motion for summary judgment.

20

See Kmart’s Response to Kroger’s Motion for Summary Judgment, Exhibit E, Letters dated Dec. 24, 2001, Feb. 4, 2002, Mar. 28, 2002, Apr. 1, 2002.

21

See Kmart’s Response to Kroger’s Motion for Summary Judgment, Exhibit F, Letter (Feb. 19,

22

See Kroger’s Memorandum of Authorities in Support of Motion for Summary Judgment at 19.

2002).

8

Case: 1:11-cv-00103-GHD-DAS Doc #: 308 Filed: 11/05/13 9 of 27 PageID #: 5773

C.

Kroger’s failure to take adequate measures to protect the Kmart against the risk of flooding, despite Kroger’s knowledge that its store was located in a floodprone area, serves as the basis for Kmart’s negligence claim against Kroger.

As previously stated, Kroger can be negligent if it knew or should have known that its property was in a floodway or a flood-prone area, yet took inadequate measures to protect Kmart against the risk of flooding. As such, whether the Kroger store is in a floodway is not necessarily the sole focus. Mississippi jurisprudence establishes that an individual owes a duty of reasonable care to avoid injury to nearby property owners.23 Indeed, this Court already recognized this principle when it sustained Kmart’s negligence claims against Kroger in partially denying Kroger’s motion to dismiss.24 Kroger contends, however, that the case relied on by this Court for this proposition, Rhaly v. Waste Management of Mississippi, Inc., is “entirely distinguishable and serves as no basis for liability against Kroger.”25 Kroger’s position is incorrect.

First, this Court already has ruled that the principle behind Rhaly applies to Kroger’s duty to its neighbor Kmart. That ruling is now law of the case. “Generally, ‘when a court decides upon a rule of law that decision should continue to govern the same issues in subsequent stages of the same case.’”26 “This is known as the ‘law of the case’ doctrine which was developed to ‘maintain consistency and avoid [needless] reconsideration of matters once decided during the course of a

23

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

24

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).

25

See Kroger’s Memorandum of Authorities in Support of Motion for Summary Judgment at 14.

26

See Bigsby v. Runyon, 950 F. Supp. 761, 764-765 (N.D. Miss. 1996) (quoting Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 814 (1988)).

9

Case: 1:11-cv-00103-GHD-DAS Doc #: 308 Filed: 11/05/13 10 of 27 PageID #: 5774

single continuing lawsuit.’”27 “This principle applies equally to the court’s own decisions as well as the decisions of a coordinate court.”28 Second, Rhaly does apply to the case at hand. In Rhaly, property owners brought suit against a waste management company that served the neighboring store. The plaintiffs claimed that the company placed a dumpster too close to a ditch and that during a flood, the dumpster obstructed the ditch and caused the overflow of its banks, which resulted in flooding to the plaintiff property.

Notably, the waste management company was not the owner or even the tenant of the neighboring property. The court found that a genuine issue of material fact existed as to causation and that there was a triable question as to the negligence of the waste management company.

Similarly, here, and as this Court has noted, Kmart has presented a viable cause of action against Kroger, as a neighboring tenant, for negligence, just as the plaintiffs in Rhaly presented a viable cause of action against the waste management company, a non-property owner. Kroger contends that Rhaly is distinguishable because “Mike’s Gas Plus, the business served by Waste Management and either the tenant or the owner of the property on which the offending dumpster was placed, was not a defendant to the action.”29 But this argument does not really support Kroger’s position. As noted above, the waste management company was not the owner or even the tenant of the neighboring property, yet the Rhaly court still found that a genuine issue of material fact existed as to causation and negligence of the waste management company.

27

See id. (quoting 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure: Jurisdiction 2d § 4478 at 788 (1981)).

28

See id. (citing Christianson, 486 U.S. at 814).

29

Kroger’s Memorandum of Authorities in Support of Motion for Summary Judgment at 14.

10

Case: 1:11-cv-00103-GHD-DAS Doc #: 308 Filed: 11/05/13 11 of 27 PageID #: 5775

Further, Kroger argues that Rhaly is distinguishable because “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.”30 In support of this argument, Kroger cites deposition testimony from Kmart’s expert and Kmart’s corporate representative claiming that they were not aware of Kroger doing anything other than occupying the building.31 First, a defendant’s duty is a legal duty defined by the court and is not defined by witnesses in the case.32 Second, the affirmative omission is Kroger’s failure to take adequate measures to protect its neighboring store from the risk of flooding — a duty already recognized by this Court — despite its knowledge that its property was located in a flood-prone area, which omission serves as the basis for liability against Kroger.

As evidenced by the deposition testimony of Kroger’s corporate representative, Wissam Shtaih, Kroger’s vulnerability to flooding and its effect on a neighboring store would be imperative for Kroger to know: Q:

You agree, Mr. Shtaih, that the vulnerability of a property to flooding would be something that Kroger would want to know, right?

A:

Yes.

Q:

Any why would that be important to Kroger?

30

Id.

31

Id.

32

“The existence vel non of a duty of care is a question of law to be decided by the Court.” Foster

by Foster v. Bass, 575 So. 2d 967, 972-73 (Miss. 1990) (citing Ward v. Hobart Mfg. Co., 450 F.2d 1176, 1181 n.15 (5th Cir. 1971)).

11

Case: 1:11-cv-00103-GHD-DAS Doc #: 308 Filed: 11/05/13 12 of 27 PageID #: 5776

A:

Because we would not be able to operate the store and it is subject to risk.

Q:

What types of risk?

A:

A flooding risk.

Q:

And what type of negative impacts would result from the flooding risk?

A:

Shutting down the store and loss of product and loss of sales and business. Once again, I mean, if we became aware of it, we would evaluate the risks and determine the — really the risks, that’s something that would happen internally and then decide if we want to move forward or not.

Now, if we are absolutely sure that it’s going to be flooded or the property is subject to flooding and the risk is high, yeah, that’s something very important for us to know.33 *

*

*

Q:

I want to get back to — you mention to the extent Kroger would become aware of it.

I just want to recap what we talked about earlier as to Kroger’s awareness of knowledge or something like that as to an already existing store. A store that’s already built that Kroger’s assuming the obligations under the lease with another tenant. That Kroger would not — you’re not aware whether Kroger would do an investigation as to whether that property would be located within a floodway or a floodplain because that building is already there, right?

A:

Most likely, yes.

Q:

Would the answer — do you have any information, sitting here today, to suggest the answer to that question would be different back in 1994 when Kroger assumed the lease from Food World and Bruno’s?

A:

I don’t have a reason to believe that, no.34 *

*

33

*

See Kmart’s Response to Kroger’s Motion for Summary Judgment, Exhibit G, Depo. of Kroger at 76:4 to 77:1.

34

Id. at 78:17 to 79:10.

12

Case: 1:11-cv-00103-GHD-DAS Doc #: 308 Filed: 11/05/13 13 of 27 PageID #: 5777

Q:

So you agree with me that Kroger would be concerned whether its store, location of its store causes damages or contributes flooding to another store on the same property, right?

A:

To a degree.35

Mr. Shtaih testified, however, that Kroger fails to undertake any flood preventive measures when it leases an existing building: Q:

...what would Kroger do to investigate the drainage or flooding or topography associated with the property or lease that it’s acquiring or assuming?

A:

I personally have to assume that if a building exists, it meets all the laws and regulations. So I personally would not be too worried that its it’s in a floodplain or flood zone. I mean, it is — as long as we know that it is — I mean, I only have to assume if the building exists then it meets all the laws and regulations and the zoning and all that.

Q:

So as a real estate manager for Kroger, if the building already exists you’re not doing any type of investigation as to whether it’s in a floodway or a floodplain, correct?

A:

Not specifically to that area, no.

Q:

And you’re not going to coordinate that issue with the engineering department, right?

If the building is already existing.

A:

Correct.36

Notably, Mr. Shtaih testified that when Kroger is “absolutely sure that it’s going to be flooded or the property is subject to flooding and the risk is high” before it leases a property, then “that’s something very important for us to know.”37 Yet Kroger admits it fails to do anything to investigate or mitigate that risk with regard to itself or neighbors. Kroger had notice that as early as

35

Id. at 78:2-9.

36

Id. at 74:14 to 75:15.

37

Id. at 194:12-15.

13

Case: 1:11-cv-00103-GHD-DAS Doc #: 308 Filed: 11/05/13 14 of 27 PageID #: 5778

November 2001 (if not sooner because of the store’s FEMA designation in a floodway), its property was vulnerable to flooding. Just as Kroger exercises its due diligence by inquiring about a flooding risk before leasing a property it knows is subject to flooding, Kroger also had the same duty to exercise due diligence after it leased the property. Kroger admits it failed to do so.

Thus, like the plaintiffs in Rhaly who proved an affirmative act on behalf of the defendant, here Kmart demonstrates that Kroger’s omission to take adequate measures to ensure its store was flood neutral to its neighboring stores, despite its knowledge that its store was located in a floodprone area, is the basis for liability against Kroger. This is a factual issue left to the jury.

Kroger also cites Smith v. Campus Edge of Hattiesburg, LLC38 for the proposition that “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 property.”39 In Smith, the landowner brought a negligence action against the current and previous owners of the neighboring property — Associates and Campus Edge, respectively — for the flooding of the landowner’s property.

The pertinent facts of Smith are as follows: Smith owned land in Hattiesburg, Mississippi, on which four duplexes that he rented were located. He later purchased another piece of property that is adjacent to the property of Terra Firma. Previously, there had been a trailer park located partly on Smith's property and partly on the adjacent property owned by Terra Firma. According to Smith, Terra Firma broke up the old concrete trailer pads and arranged them on its property in a

38

30 So. 3d 1284 (Miss. App. 2010).

39

See Kroger’s Memorandum of Authorities in Support of Motion for Summary Judgment at 15.

14

Case: 1:11-cv-00103-GHD-DAS Doc #: 308 Filed: 11/05/13 15 of 27 PageID #: 5779

manner that created a flooding problem on Smith's adjacent property. Smith and Terra Firma, however, reached an agreement concerning drainage across his property, wherein Terra Firma agreed to install a drainage line across Smith's property and to secure and provide the work necessary to install the drainage line. Terra Firma later sold its property to Campus Edge, which built an apartment complex on the property. During construction of the apartments, however, Campus Edge constructed 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.40 The appellate court in Smith affirmed the trial court’s holding: “we agree with the circuit court that Smith has not produced competent evidence to show that the injury of which he complains — the ponding or flooding of his property — was proximately caused by a breach of duty owed to Smith by Associates.”41 The Smith case is distinguishable because here, unlike in Smith, Kmart has produced competent evidence to show that the injury of which it complains — the flooding of its Corinth store — was proximately caused by a breach of duty owed to Kmart by Kroger. For example, Mr. Krewson notes in his Amended Flooding Evaluation dated October 11, 2013 that “A review of the flow and velocity data from the model show that the addition of the Kroger to the Kmart building reduced the overbank width of flow at the building by 209 feet and increased the average velocity

40

See Smith, 30 So. 3d at 1286.

41

See id. (emphasis added).

15

Case: 1:11-cv-00103-GHD-DAS Doc #: 308 Filed: 11/05/13 16 of 27 PageID #: 5780

of flow at the building by 16 percent.”42 Further, Kmart’s representative testified that the known flood prevention measures in the form of a gate and membrane would have prevented the flooding in the store. If a gate and membrane or similar flood prevention had been installed on the building, they would have been ready to deploy in defense of the building.43 In addition, Kroger relies on Martin v. Flanagan44 for its contention that the “tenant’s mere use of the property to engage in the economic endeavor of farming did not constitute an ‘affirmative act’ upon which to base liability.”45 In Martin, survivors and representative of the decedent’s heirs brought suit against the landowner and tenant of land as a result of an automobile accident on an icy road. The plaintiffs alleged that water ran off from the defendants’ property and subsequently froze, which created a hazard on the public road. The Martin court held that use of the field by the tenant was not an unreasonable affirmative act.46 The Martin case is distinguishable because here, unlike in Martin, the issue is not whether Kroger’s mere use of the property was unreasonable. It is Kroger’s affirmative failure to take flood mitigation efforts that is unreasonable. The Martin court focused on the presence of an affirmative act: “In the absence of proof of an affirmative act creating an artificial condition, the upper landowner cannot be liable for the damage allegedly caused by the diffusion of surface waters.”47 Here, there remain issues of fact related to whether Kroger’s

42

See Exhibit A, John R. Krewson’s Amended Flooding Evaluation (Oct. 11, 2013) at 8-9.

43

See Kmart’s Response to Kroger’s Motion for Summary Judgment, Exhibit H, Depo. of Kmart at 247:4 to 251:4.

44

818 So. 2d 1124 (Miss. 2002).

45

See Kroger’s Memorandum of Authorities in Support of Motion for Summary Judgment at 16.

46

Id.

47

Id. at 1127 (emphasis added).

16

Case: 1:11-cv-00103-GHD-DAS Doc #: 308 Filed: 11/05/13 17 of 27 PageID #: 5781

affirmative omission to ensure its store was flood neutral to its neighboring store serves at the basis for Kmart’s negligence claim against Kroger.

There is an issue of fact regarding what Kroger knew or should have known with regard to the flooding at the property, and thus whether preventative measures should have been taken by Kroger to protect the Kmart building. In turn, Kroger’s affirmative omission serves as the basis for Kmart’s negligence claims against Kroger. Therefore, this Court should deny Kroger’s motion for summary judgment.

D.

Kmart’s cause of action does not rely on Kroger’s destruction of its own store.

Kroger contends that implicit in Kmart’s claims against it is that Kroger had a duty to destroy the building it leased.48 But Kroger has assembled a strawman allegation that is simply not there.

As in any tort action, Kroger is responsible for damages caused by its fault. Kmart alleged that Kroger leased and operated a store in a floodway, causing damage to Kmart during two different flood events. Kroger cites its lease provisions and Mississippi jurisprudence for the proposition that Kroger, as a tenant, has no authority to destroy property not owned by it.49 Kroger misses the mark.

Even if Kroger is not required by law to demolish its own store due to its presence in the floodway, if Kroger keeps its store there, it is obligated to maintain it in such a way that it is flood-neutral to its neighbor, Kmart. That is, Kmart’s expert has shown that if the Kroger store were not in the floodway, it would not have sustained the flooding that overwhelmed Kmart’s store. Kroger should have taken steps to neutralize the effect its store located in the floodways had on others.

48

See Kroger’s Memorandum of Authorities in Support of Motion for Summary Judgment at 20.

49

Id.

17

Case: 1:11-cv-00103-GHD-DAS Doc #: 308 Filed: 11/05/13 18 of 27 PageID #: 5782

Under Mississippi law, when an animal causes damage, its owner is liable when he or she fails to exercise reasonable care to keep the animal from roaming at large.50 The law does not say that the owner should have put the animal down in order to prevent the accident. But if the animal causes damage and the owner is negligent, the owner must pay. Similarly, as owner or lessor of an oil well or industrial facility that pollutes neighboring land must pay damage caused by the pollution or fines levied as a result.51 The law does not say that the well should have been shut down or the facility demolished. But if they cause damage through their continued operations, the owner or lessor will be held responsible.

Similarly, Kmart has alleged that the presence of Kroger’s store in the floodway caused damage to Kmart. Thus Kmart has stated a cause of action for Kroger to compensate Kmart. Even if the store is not demolished, Kroger is responsible for the damage caused to Kmart during the flooding — every time, as long as Kroger chooses to operate its store in a floodway in a manner that can cause harm to Kmart.

Kroger also cites lease provisions between it and its landlord, Fulton, stating that the landlord would provide and maintain proper and adequate water drainage.52 But Kmart is not bound by that lease. Even though the lease provision deals with drainage, which is not the basis of Kmart’s claims, even if that lease provision applied, it would simply support indemnity by Fulton in favor of Kroger.

50

See, e.g., Ladnier v. Hester, No. 2010-CT-01267-SCT, 2012 WL 3516852 *4 (Miss. Aug. 16,

2012).

51

See, e.g., EOG Resources, Inc. v. Turner, 908 So. 2d 848, 854 (Miss. App. 2005); Barrett Refining Corp. v. Miss. Comm’n on Envtl. Quality, 751 So. 2d 1104, 1120, 1128 (Miss. App. 1999).

52

See Kroger’s Memorandum of Authorities in Support of Motion for Summary Judgment at 20.

18

Case: 1:11-cv-00103-GHD-DAS Doc #: 308 Filed: 11/05/13 19 of 27 PageID #: 5783

In no way does it limit Kroger’s duty to Kmart.

Further, Kroger cites Yazoo & Mississippi Valley Railroad Co. v. Sultan53 for the rule that “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.”54 But this rule is not a general rule that is recognized by Mississippi jurisprudence. Instead, this language was employed by counsel in Yazoo solely to determine if the tenant’s specific lease provision in that case authorized the tenant to change or alter certain property of the landlord.55 As such, Yazoo is not applicable to the facts of this case.

Accordingly, because Kmart’s cause of action does not rely on Kroger’s destruction of its own store, as alleged by Kroger, Kroger’s motion for summary judgment should be denied.

E.

Kmart can show but-for causation as to Kroger.

Kroger contends that “Kmart cannot show that but for any action or omission of Kroger its injuries would not have occurred.”56 Specifically, Kroger contends that its “occupation of the building cannot be said to be a ‘but for’ cause of Kmart’s injuries.”57 But Mr. Krewson’s expert report expressly says otherwise, as discussed below. Kmart has presented competent evidence of causation. At the very least, there is a genuine issue of fact as to the causation of Kmart’s injury.

Therefore, Kroger’s motion for summary judgment should be denied.

53

106 Miss. 373 (1913).

54 55

See Kroger’s Memorandum of Authorities in Support of Motion for Summary Judgment at 20.

See Yazoo, supra.

56

See Kroger’s Memorandum of Authorities in Support of Motion for Summary Judgment at 19.

57

Id.

19

Case: 1:11-cv-00103-GHD-DAS Doc #: 308 Filed: 11/05/13 20 of 27 PageID #: 5784

F.

Kmart has competent evidence that the Kroger building caused flood damage to its store.

Kroger argues that the HEC-RAS model relied on by Kmart’s expert, John Krewson, in formulating his opinion that the Kroger store caused damage to Kmart’s store in Corinth was flawed due to a data entry error.58 In addition, Kroger contends that the error was “significant,” and demonstrates 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.’”59 Kroger 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.60 And after Kroger 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, through Mr. Krewson, explaining why the Kroger store contributed to the flooding.61 Further, Kroger contends that, because of Mr. Krewson’s miscalculations, “[his] 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.” Kmart explained, however, in its responses to Defendants’ motion in limine why

58

Id. at 21.

59

Id. (citing Doc. No. 176-1).

60

See Kmart’s Response to Kroger’s Motion for Summary Judgment, Exhibit I, Order Relative to Plaintiff’s Objections to Magistrate Judge’s Order Denying Request for Leave to File Amended Report.

61

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.

20

Case: 1:11-cv-00103-GHD-DAS Doc #: 308 Filed: 11/05/13 21 of 27 PageID #: 5785

Mr. Krewson’s expert testimony satisfies the Daubert standards. Kmart adopts its responses, exhibits thereto, and memoranda in support as if copied herein in extenso.

In response to Kroger’s contention that Kmart has produced no competent evidence that Kroger building caused flood damage to the Kmart store, Mr. Krewson notes in his Amended Flooding Evaluation dated October 11, 2013 that “A review of the flow and velocity data from the model show that the addition of the Kroger to the Kmart building reduced the overbank width of flow at the building by 209 feet and increased the average velocity of flow at the building by 16 percent.”62 Mr. Krewson also opines that “[p]rior to the addition of the Kroger building the Kmart building was essentially outside the active overbank flow of water.”63 Additionally, Mr. Krewson concludes that “[w]hen the Kroger building was added, the overbank flood overlapped the combined building by 129 feet, increasing the exposure of the building to flowing water.”64 Mr. Krewson’s opinions are entirely consistent with eyewitness testimony that rapidly flowing water carrying debris along the back of the Kmart building resulted in damage to the rear door and that this was the cause of the water intruding into the Kmart building.

Kroger should not “cast stones” as to Mr. Krewson’s mathematical correction of the inconsistent flow rates that appeared in his first flooding evaluation. Kroger’s purported professional engineering and hydrology expert, James Monohan, testified at his deposition that “I personally don’t know what the correct flow rate is because I haven’t done any modeling.”65 Unlike, Mr. 62

See Kmart’s Response to Kroger’s Motion for Summary Judgment, Exhibit A, John R. Krewson’s Amended Flooding Evaluation (Oct. 11, 2013) at 8-9.

63

Id. at 9.

64

Id.

65 See Kmart’s Response to Kroger’s Motion for Summary Judgment, Exhibit C, Depo. of James N. Monohan at 78:10-79:11.

21

Case: 1:11-cv-00103-GHD-DAS Doc #: 308 Filed: 11/05/13 22 of 27 PageID #: 5786

Krewson, who is more experienced than Mr. Monahan, Mr. Monohan did not do any modeling as he simply provided “commentary” to Mr. Krewson’s report.66 In Wal-Mart Stores, Inc. v. Qore, Inc.,67 a decision rendered by this Court, Chief Judge Mills found, “This Court is in no position to hold that experts can never make mistakes. When a mistake is discovered and fixed it advances the cause of justice.”68 In Qore, the plaintiff’s expert initially included the value of a fuel island canopy and store tank in his appraisal report and later removed them.69 The defendant argued that this error, along with other alleged problems associated with the plaintiff’s expert’s report, rendered the expert’s testimony unreliable and inadmissible.70 While this Court acknowledged those problems and found that the defendant’s counsel would certainly “illuminate these for the jury,”71 this Court found that the problems do not rise to the level to prevent the expert from testifying.

Here, Kmart has corrected the inconsistent flow rates used by Mr. Krewson in his original report. While Kmart submitted an amended report of Mr. Krewson after the plaintiff’s discovery deadline, the amended report was submitted in accordance with Rules 26(a)(2) and (e) of the Federal Rules of Civil Procedure. Rule 26(a)(2) provides that each party must supplement its expert disclosures when required under Rule 26(e). Rule 26(e) provides that:

66

See id. at 36:4-11, 43:7-12.

67

See 2009 WL 224908 (N.D. Miss. Jan. 28, 2009) (Mills, J.) (emphasis added).

68

See id. at *4.

69

Id.

70

Id.

71

Id.

22

Case: 1:11-cv-00103-GHD-DAS Doc #: 308 Filed: 11/05/13 23 of 27 PageID #: 5787

For an expert whose report must be disclosed under Rule 26(a)(2)(B), the party’s duty to supplement extends both to information included in the report and to information given during the expert’s deposition. Any additions or changes to this information must be disclosed by the time the party’s pre-trial disclosures under Rule 26(a)(3) are due.

Here, pre-trial disclosures are not due until approximately one week before the pre-trial conference, which is scheduled to take place on February 3, 2014.72 Regardless, Kmart submitted Mr. Krewson’s amended flooding evaluation promptly after the mistake was discovered.

At the very least, there is an issue of fact that precludes summary judgment in Kroger’s favor on the issue of the effect of the Kroger store, which was previously owned by Kroger, on Kmart’s flooding. Therefore, this Court should deny Kroger’s motion for summary judgment.

G.

The Kroger building location and the site development plans was based on flawed site plans.

Kroger contends that Kmart approved the engineering drawing that specified “the exact location for the construction of the building that would later house the Kroger store,”73 and thus Kmart cannot pursue a claim for negligence against Kroger for improperly maintaining the building in a floodway when Kmart expressly approved that location. 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.74 Regardless, Kroger acts as if it were Kmart’s sole idea to place the Kroger where it is. But the lease shows that not to be the case. Kmart adopts its Response to Fulton’s Motion for 72

See Notice of Final Pre-Trial Conference, Rec. Doc. 63.

73

See Kroger’s Memorandum of Authorities in Support of Motion for Summary Judgment at 23.

74

See Kmart’s Response to Fulton’s Motion for Summary Judgment, Exhibit J, Depo. of Kmart at

127:3-17.

23

Case: 1:11-cv-00103-GHD-DAS Doc #: 308 Filed: 11/05/13 24 of 27 PageID #: 5788

Summary Judgment, the exhibits thereto, and the memorandum in support as if copied in extenso.

The cases cited by Kroger are nothing like the situation here. In Brown v. Anderson,59 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.60 But here, there is no express acknowledgment by Kmart that the Kroger store is a problem-free location. 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 case relied upon by Kroger — Walker v. Walker61 — is essentially cited for the proposition that parties are bound by the terms of their contract. 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. If Kroger is allowed to lease and occupy that store, then Kroger must maintain the building in a manner that does no harm to its neighboring Kmart store.

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

Again, the negligence allegation against Kroger is that Kroger knowingly and improperly allowed its store to remain in a floodway.62 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

59

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

60

See id. at 882.

61

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

62

See Complaint [R. Doc. 1] ¶ 23.

24

Case: 1:11-cv-00103-GHD-DAS Doc #: 308 Filed: 11/05/13 25 of 27 PageID #: 5789

attempting to state a claim for Kroger’s alleged negligence in remaining in the floodway.”63 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.”64 Further, Kmart’s supposed “approval” of the location for the Kroger store was based on Prime Engineering’s original construction plans for the site. Unbeknownst to Kmart, Prime Engineering’s original construction plans were different than the 1981 FEMA FIRM elevations. In fact, Kroger recognizes in its Memorandum that the original construction plans were flawed. Kroger contends that Kmart cannot prove that it “should have known that the store had ever been in a floodway” because “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.”65 Yet Kroger conveniently contends that Kmart’s approval of those same original construction plans should absolve Kroger from liability.

Kmart’s “approval” of the site specifications was based on Prime Engineering’s site plans, the same site plans on which Kroger admits it would have based its approval.

Kroger contends that 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.”66 However, it would be equally unjust to permit Kroger to point the finger at Kmart, and thus absolve 63

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

64

Id. at 8.

65

See Kroger’s Memorandum of Authorities in Support of Motion for Summary Judgment at 18.

66

See id. at 23.

25

Case: 1:11-cv-00103-GHD-DAS Doc #: 308 Filed: 11/05/13 26 of 27 PageID #: 5790

itself from liability, when Kroger expressly admits that it would have approved the site plans for the same reasons as Kmart. This negligence claim against Kroger inherently involves issues of fact.

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

Alternatively, summary judgment is inappropriate here because there also remains a genuine issue of fact regarding the comparative fault of Kmart. It is implicit in Kroger’s argument that Kmart’s “approval” of the original construction plans contributed to the flooding of the Kmart store.

Mississippi law provides that “the trier of fact should allocate fault to each party ‘alleged to be at fault.’”67 A comparative negligence determination should not be made on summary judgment, but should be made only after all the evidence has been presented and weighed. Summary judgment is therefore inappropriate.

III.

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

Kroger was negligent. Therefore, this Court should deny Kroger’s motion for summary judgment.

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 67

MISS. CODE ANN. § 57-7-5(7); see also Estate of Hunter v. Gen. Motors Corp., 729 So. 2d 1264, 1273 (Miss. 1999).

26

Case: 1:11-cv-00103-GHD-DAS Doc #: 308 Filed: 11/05/13 27 of 27 PageID #: 5791

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 5th day of November, 2013.

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

27