310 memoinsupportresponsetoe&amotionforsummaryjudgement kmart

Case: 1:11-cv-00103-GHD-DAS Doc #: 310 Filed: 11/05/13 1 of 22 PageID #: 5884

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 E&A SOUTHEAST LIMITED PARTNERSHIP’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, E&A Southeast Limited Partnership. E&A’s Motion for Summary Judgment should be denied because genuine issues of material fact exist regarding whether Kmart’s claims against E&A are time-barred; regarding E&A’s knowledge of Kroger’s presence in a flood-prone area; regarding the legal causation of the flooding of the Kmart building; and regarding whether the flood event at issue is an Act of God as defined by jurisprudence.

I.

Background 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

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excess of $3 million.

In particular, Kmart brought suit against E&A, the former landlord of the Kroger building, for damages Kmart incurred as a result of Kroger’s location within a floodway. E&A owned the property from September 11, 1998 until December 14, 2007. The Kroger store was improperly located in a floodway that existed at the time the store was constructed and during E&A’s ownership 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.

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.”1 The existence of a material question of fact is itself a question of law that the district court must consider before granting summary judgment.2 Summary judgment is improper when the court merely believes it unlikely that the non-moving party will prevail at trial.3 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.4 Summary 1

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

2

John v. State of La. ex rel. Bd. of Trustees for State College & Universities, 757 F.2d 698, 712 (5th Cir. 1985).

3

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

4

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

2

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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.”5 As demonstrated below, there remain genuine issues of material fact regarding E&A’s negligence with regard to the Kroger store and its effects on Kmart’s store during the flood.

Therefore, this Court should deny E&A’s motion for summary judgment.

B.

Even if Kmart’s claims against E&A related to the LOMR are barred, its negligence claims against E&A remain valid.

E&A maintains that pursuant to this Court’s Memorandum Order Granting Kroger’s Motion to Dismiss, “all allegations against Defendant E&A that a LOMR was ‘improperly received’ or that the LOMR ‘improperly permitted the Kroger store to remain in a floodway’” are barred.6 Further, E&A contends that “the record is devoid of any evidence that E&A improperly sought a LOMR that allowed the Kroger store to remain in the flood,” and “[t]hus, this claim is also dismissible on its merits as a conclusory allegation unsupported by the record.”7 But Kmart disputes that the record is devoid of any evidence that E&A improperly sought a LOMR. Further, although Kmart recognized this Court held that its LOMR claims against Kroger were barred on a motion to dismiss, evidence of impropriety of E&A came to light during disovery.

5

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

6

See E&A’s Memorandum of Law in Support of Motion for Summary Judgment at 4-5.

7

Id. at 5 (emphasis in original).

3

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The original construction plans show the Kroger building to be built at a base floor elevation of 428.5 feet.8 But when E&A obtained the LOMR, the Kroger store was described as being above the 433-foot base floor elevation.9 How did the Kroger store suddenly rise 4.5 feet? In order to receive a LOMR, a building must not be elevated by the placement of fill, so E&A or its representatives checked the “No Fill” box on the LOMR application.10 The circumstances of how E&A obtained the LOMR are fishy, as E&A simply told FEMA that the Kroger store was 4.5 feet higher than its construction plans described. Thus, E&A’s position that the record is devoid of any evidence that E&A improperly sought a LOMR is incorrect.

Further, even if Kmart’s LOMR claims are barred, Kmart’s negligence claims against E&A still exist. Mississippi jurisprudence establishes that an individual owes a duty of reasonable care to avoid injury to nearby property owners.11 Indeed, this Court already recognized this principle when it sustained Kmart’s negligence claims against Kroger in partially denying Kroger’s motion to dismiss.12 Thus, E&A 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.

C.

The statute of limitations has not run on Kmart’s claims against E&A.

E&A contends that Kmart’s claims against it are untimely and barred. E&A relies on

8

See Kmart’s Response to E&A’s Motion for Summary Judgment, Exhibit A, Declaration of John R. Krewson ¶ 15.

9

See id.

10

Id. at 16.

11

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

12

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).

4

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Mississippi Code § 15-1-49, which “provides for a three-year statute of limitations for any claims resulting from E&A’s ownership of this facility.”13 E&A sold the shopping center in December 2007, and as such, E&A asserts that the statute of limitations ran in December 2010. E&A maintains that because suit was filed on May 2, 2011, Kmart’s claims are therefore time-barred. Further, E&A contends that Kmart is “estopped from arguing that the discovery exception should apply” because the discovery rule is only applicable “where the plaintiff will be precluded from discovering the harm or injury because of the secretive and inherently undiscoverable nature of the wrongdoing in question or . . . when it is unrealistic to expect a layman to perceive the injury at the time of the wrongful act.”14 Thus E&A maintains that “the discovery rule is not available because Kmart approved the original plans and signed off on them.”15 But whether the discovery rule is available to Kmart is of no moment. Mississippi Code § 15-1-49 states, “All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after.”16 Under Mississippi law, a cause of action does not accrue until an injury occurs.17 Further, “a cause of action accrues when it comes into existence as an enforceable claim; that is, when the right to sue becomes vested.”18 The injury occurred on May 2, 2010 when the Kmart store flooded. It was on

13

See id. at 5.

14

Id. at 6 (citing Angle v. Koppers, 42 So. 3d 1, 7 (Miss. 2010)).

15

Id.

16

Miss. Code § 15-1-49 (emphasis added).

17

Matter of Wheeler, 137 F.3d 299, 300 (5th Cir. 1998) (citing Owens-Illinois v. Edwards, 573 So. 2d 704, 706-07 (Miss.1990)).

18

See id. at 837 (quoting Schiro v. Am. Tobacco Co., 611 So. 2d 962, 964 (Miss. 1992)).

5

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that date when the cause of action accrued, and when the time period for the three-year statute of limitations started to run. In other words, Kmart’s negligence cause of action against E&A was not enforceable against E&A until May 2, 2010, i.e., when Kmart’s right to sue E&A for negligently maintaining the Kroger building in a floodway became vested. No provision of Section 15-1-49 provides that a plaintiff must have knowledge of the cause of the injury — here, the approval of the original site plans (as asserted by E&A, but denied by Kmart) — before the cause of action accrues, initiating the running of the statute of limitations.19 Accordingly, because the right to sue E&A for negligence became vested on May 2, 2010 — the date of the injury — and because Kmart filed suit on May 2, 2011, well within the three-year statute of limitations time period, Kmart’s claims against E&A are timely and are not barred.

Therefore, E&A’s motion for summary judgment should be denied.

D.

Kmart has produced competent evidence that the Kroger building is located within a flood-prone area.

E&A argues that Kmart “can present no evidence to show that the Kroger store is or ever was in a floodway,” and “[a]ll of the evidence proves quite the opposite.”20 E&A’s assertion is wholly incorrect.

To support this bold assertion, Kroger cites the deposition testimony of Mr. Krewson when he “admitted that the building is not located within a floodway as displayed in the original construction plans.”21 Kroger’s argument is, however, factually misguided. The original plans and

19

See Angle, 43 So. 3d at 7.

20

See E&A’s Memorandum of Law in Support of Motion for Summary Judgment at 7.

21

Id.

6

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drawings as to the entire site development for the Fulton Shopping Center show that Kmart was led to believe by the landlord that the floodway was located well to the east of the future actual location of the Kroger building.22 This is the engineering and design map that Kmart relied upon in approving the location of its building. But Robert Eley, a professional engineer retained by Defendants as a purported expert witness, testified that the original drawings and plans are inconsistent with FEMA’s depiction of the floodway: Q.

Okay. You agree with me that the Prime Engineering drawing C2, which we’ve labeled as Exhibit 3, is inconsistent with the depiction of the boundaries of the floodway in what we’ve labeled as Exhibit 4, which is the FIRM, flood insurance rate map, effective date of September 17, 2010:

A.

I do agree with that.

Q.

So those two things are just inconsistent. Right?

A.

That is exactly right.23

Even E&A’s own purported expert admits there is a discrepancy regarding whether the property ever was located in a floodway.

E&A also relies on specific excerpts of Mr. Krewson’s deposition testimony to demonstrate that the Kroger store was not in a floodway in 2010.24 But Mr. Krewson made this statement simply because of the 2005 LOMR that was issued, ostensibly removing the Kroger store from the

22

See Kmart’s Response to E&A’s Motion for Summary Judgment, Exhibit B, PRIME Engineering Original Conditions Plan. The red “x” denotes approximately where the Kroger building is located today.

See also Declaration of John R. Krewson ¶¶ 11, 12 , Exhibit A. 23

See Kmart’s Response to E&A’s Motion for Summary Judgment, Exhibit C, Depo. of Robert Eley at 72:1-10 (emphasis added).

24

See E&A’s Memorandum of Law in Support of Motion for Summary Judgment at 12.

7

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floodway. Further, these testimonial excerpts only serve as an empty attempt to substantiate E&A’s claim that “[Mr. Krewson’s] report can provide no evidence showing that the Kroger building was located in a floodway.”25 However, Mr. Krewson’s October 11, 2013 amended report takes into account the issuance of the LOMR and 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.26 Further, Mr. Krewson’s expert 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.27

25

Id.

26

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

27

See id.

8

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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 E&A’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 INCLUSION IN FLOODWAY.”28 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.29 Additionally, James Monohan, who was retained by E&A, 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.30 The testimony of the E&A’s expert parallels Mr. Krewson’s opinion

28

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

29

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

30

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

9

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that there is no justifiable basis behind FEMA’s decision to issue the LOMR that removed the Kroger property from the floodway.

Moreover, E&A 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.”31 Whether the Kroger store is in a floodway is not the sole focus.

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

E&A asserts that “[Mr. Krewson’s] report can provide no evidence showing that the Kroger building was located in a floodway.”32 But as explained above, the 1981 FIRM supports the designation as a floodway. Further, 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 during E&A’s ownership of the Kroger store. 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.33 The 2001 published article states, in pertinent part:

31

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)).

32

See E&A’s Memorandum of Law in Support of Motion for Summary Judgment at 12.

33

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

10

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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....

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 during the period of time when E&A owned the Kroger building.

Indeed, E&A sent a letter dated February 13, 2002 to the City of Corinth Mayor’s Office stating that “[they] have felt pressure from [their] tenants to have the flooding issues assessed further to determine if there may be anything that [they] could do on [their] property to deter flooding problems,” and attached a copy of a report that Reaves Sweeney Marcom (Hydrological Engineers) prepared for them.34 E&A was clearly aware of the flooding issue in the area, and hired a hydrological engineer to determine the cause of flooding. Independent of that study, however, E&A’s efforts to ensure that its neighboring tenants would be free from the risk of flooding were minuscule.

In addition, there are several communications demonstrating E&A had notice that the Kroger store was located in a flood-prone area.35 For example, on December 24, 2001, Jeffrey Brown, a Real Estate Specialist with Delta Marketing Area, wrote a letter to E&A’s Rich Hering, which states:

34

See Kmart’s Response to E&A’s Motion for Summary Judgment, Exhibit H, Letter dated Feb. 13, 2002, with exhibits.

35

See Kmart’s Response to E&A’s Motion for Summary Judgment, Exhibit I, Letters dated Feb. 4, 2002, Feb. 19, 2002, Mar. 28, 2002, and Apr. 1, 2002.

11

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As you are aware, the Kroger store located in the Fulton Crossing Shopping Center experienced extensive flooding on both October 12th and November 28th. As you are also aware, these events caused damage to the building and product as well. It is our desire to proactively resolve this issue as expediently as possible, preventing any future events of this nature.36 Mr. Brown’s letter again demonstrates E&A knew that its building was located in a flood-prone area.

When it became known to E&A that its property was in a flood-prone area, E&A was in a position to further inquire into the cause of the flooding, yet it failed to do so.

There is an issue of fact regarding what E&A knew or should have known with regard to the flooding at the property, and thus whether preventive measures should have been taken during E&A’s ownership of the Kroger store to protect Kmart. Therefore, this Court should deny E&A’s motion for summary judgment.

E.

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

E&A contends that because Mr. Krewson used an incorrect flow value in his calculations of his models, “[Kmart’s] only evidence that the Kroger building caused damage to the Kmart store during the May 2010 flood is incorrect and thus unreliable.”37 Further, E&A contends that “[b]ecause inconsistent flood flows were used for HEC-RAS Runes 1 and 2, no conclusion can be drawn regarding the effect of the Kroger building on the flood elevation at Kmart.”38 E&A also

36

See Kmart’s Response to Kroger’s Motion for Summary Judgment, Exhibit J, Letter dated Dec.

24, 2001.

37

See E&A’s Memorandum of Law in Support of Motion for Summary Judgment at 13.

38

Id.

12

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maintains that this Court denied Kmart’s motion to amend Krewson’s report.39 E&A’s statement is erroneous and disingenuous. E&A neglects to mention that at the time it filed its motion for summary judgment, this Court issued an order allowing Mr. Krewson to amend his report to correct those errors.40 After E&A 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.41 Kmart adopts its responses, exhibits thereto, and memoranda in support as if copied herein in extenso.

In response to E&A’s contention that Kmart cannot prove that the presence of the Kroger building caused any 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.”42 Mr. Krewson also opines that “[p]rior to the addition of the Kroger building the Kmart building was

39

Id. at 14.

40

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

41

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

13

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essentially outside the active overbank flow of water.”43 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.”44 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.

E&A should not “cast stones” as to Mr. Krewson’s mathematical correction of the inconsistent flow rates that appeared in his first flooding evaluation.

E&A’s 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.”45 Unlike, Mr. 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.46 In Wal-Mart Stores, Inc. v. Qore, Inc.,47 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.”48 In Qore, the plaintiff’s expert initially included the value of a fuel island canopy and store tank in his appraisal report and later 43

See id. at 9.

44

Id.

45 See Kmart’s Response to E&A’s Motion for Summary Judgment, Exhibit F, Depo. of James N. Monohan at 78:10-79:11.

46

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

47

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

48

See id. at *4.

14

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removed them.49 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.50 While this Court acknowledged those problems and found that the defendant’s counsel would certainly “illuminate these for the jury,”51 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: 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, 2014.52 Regardless, Kmart submitted Mr. Krewson’s amended flooding evaluation promptly after the mistake was discovered.

Further, the testimony of Mr. Huwe, the City of Corinth’s floodplain administrator, further evidences an issue of fact as to whether the location of the Kroger building had an impact on the Kmart building: 49

Id.

50

Id.

51

Id.

52

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

15

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Q:

Okay. So let’s say today someone is approaching you to build some type of structure or an improvement, a building in a floodway, tell me what types of special things that that person would need to do to construct in that area.

A:

They would – they would be required, I believe, to have an engineer do a technical study that would show that there would be no significant rise of the water, or maybe no rise, no change in the elevation as a result of that construction in there.

Q:

Why do you say “no rise”?

A:

There’s – it’s, I guess, referred to by MEMA people as a no rise certification. So...

Q:

And that no rise certification – MEMA, you mean the Mississippi Emergency Management Authority?

A:

Yes.

Q:

And that no rise certification would certify the study was done by an engineer, and that study would show that there’s been no rise if that building improvement were to be constructed in that floodway?

A:

There are different ways to do it. Sometimes you can generate a no rise by going someplace else. I mean, you know, allowing some other place for water to go. Or like I said, perhaps with the type of construction like piers would not generate any rise.

Q:

Other than the no rise certificate, are there any other type of special requirements that one would need to show to construct something within a floodway?

A:

I’m not certain of our current ordinance. In the past we may have required the person to seek a variance.

Q:

Why would a variance be needed?

A:

That would just be one of the steps required possibly by the ordinance.

Q:

And a variance is typically understood as an exceptions; right?

A:

Right.53

53

See Kmart’s Response to E&A’s Motion for Summary Judgment, Exhibit L, Depo. of David Huwe’s at 46:13 to 48:5.

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*

*

*

Q:

Are you aware of whether the developer of the Fulton improvement sites – and when I say Fulton site, I mean the improvements including the K-Mart, the Kroger and other structures that exist within that general area and the highway, whether that developer or anyone else obtained a no rise certification in developing that project?

A:

I’m not aware of any.

Q:

Are you aware of any variance that was obtained by the developer or anyone else in connection with the construction of the Fulton improvement site?

A:

I’m not aware of any.54

His testimony demonstrates that, at the time of the construction of the Kroger building, nothing was done to determine whether or not there would be a significant rise of the water as a result of that construction.

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

F.

The May 2, 2010 flood was not an Act of God, as Kmart has presented evidence that its damages could have been prevented.

E&A contends that it is entitled to summary judgment because “any negligence claims stemming from the 2010 flood [] was an unforeseeable ‘Act of God.’”55 But that E&A must prove that the flood could not have been prevented, no matter what actions were taken, which necessarily raises an issue of fact.

54

See id. at 50:4-14.

55

See E&A’s Memorandum of Law in Support of Motion for Summary Judgment at 14.

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E&A bears the burden of proving its Act of God defense and “must establish ‘beyond peradventure all of the essential elements of the . . . defense.’”56 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.57 “In other words, ‘[t]his defense applies where an injury is attributable solely to natural cause.’”58 “An act ‘which may be prevented by the exercise of ordinary care is not an act of God.’”59 “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.”60 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. E&A confuses the suddenness of the storm with the inability to prepare for it. 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.61 Further, E&A 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.”62 But 56

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)).

57

See id. (citing City of Hattiesburg v. Hillman, 222 Miss. 443, 76 So. 2d 368, 371 (Miss. 1954)) (emphasis added).

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

59

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

60

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

61

See Kmart’s Response to E&A’s Motion for Summary Judgment, Exhibit M, Depo. of Kmart at 247:4 to 251:4.

62

See E&A’s Memorandum of Law in Support of Motion for Summary Judgment at 15 (quoting McFarland v. Entergy Miss., Inc., 919 So. 2d 894, 904 (Miss. 2004)).

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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. As mentioned earlier, these two flooding events occurred during E&A’s ownership of the Kroger store.

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.63 The Act of God defense does not apply because Kmart’s damage is not attributable solely to the May 2, 2010 event, but resulted from the E&A’s knowledge that its property was in a flood-prone area and yet took inadequate measures to protect Kmart against the risk of flooding. E&A cites Biloxi Yacht Club Inc. v. Grand Casinos of Mississippi Inc.-Biloxi64 for the rule that the “Act of God ‘defense applies where an injury is attributable solely to natural cause.’” The Biloxi court’s holding, however, supports Kmart’s position. The Biloxi court found 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 to the plaintiff’s loss.65

63

Kroger’s corporate representative, Willam Shtaih, even testified that a 100-year flood event was foreseeable. See Kmart’s Response to E&A Motion for Summary Judgment, Exhibit N, Depo. of Kroger at 152:14-19.

64

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

65

See id. at *5.

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In Biloxi, the plaintiff’s property was damaged when the defendant’s barge broke free during Hurricane Katrina and became dislodged from its moorings, striking the plaintiff’s property.66 The plaintiff brought an action for negligence against the defendant.67 The defendant argued that it was entitled to an act of God defense because Hurricane Katrina was an unprecedented storm.68 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. Similarly, E&A is not entitled to summary judgment based on its act of God defense because there are disputed issues of fact as to whether E&A was negligent in maintaining the Kroger building in a floodway and whether that negligence contributed to Kmart’s damages.

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 tie-down 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 “a sudden, extraordinary and unprecedented

66

Id. at *1.

67

Id.

68

Id. at *4.

69

224 Miss. 501 (Miss. 1955).

70

See id. at 505.

71

Id.

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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 The damages incurred by Kmart were the result of E&A’s knowledge that, during its ownership of the Kroger building, the property was in a flood-prone area, yet took inadequate measures to protect Kmart against the risk of flooding. E&A asserts that it cannot be held liable for the flood at Kmart’s store because the May 2, 2010 flood resulted from an act of God. But here, the cause of the flooding is a contested issues of fact. While E&A argues that the flood resulted from an act of God, Kmart has presented evidence that the flooding resulted from E&A’s failure to maintain the Kroger store in a flood-neutral manner and its failure to undertake adequate flood prevention methods at Kmart’s store, which witness testimony has shown would have prevented Kmart’s flooding. Because there is a genuine issue of fact as to the legal causation of Kmart’s injury, E&A’s motion for summary judgment should therefore be denied.

III.

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

E&A was negligent. Therefore, this Court should deny E&A’s motion for summary judgment.

This the 5th day of November, 2013.

72

Id. at 507.

73

Id.

74

Id.

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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

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

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