345 replybriefinsupportofmotionforsummaryjudgement kroger

Case: 1:11-cv-00103-GHD-DAS Doc #: 345 Filed: 11/22/13 1 of 14 PageID #: 6690

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI KMART CORPORATION VS.

PLAINTIFF CIVIL ACTION NO. 1:11-CV-103-GHD-JAD

THE KROGER CO., E&A SOUTHEAST LIMITED PARTNERSHIP, FULTON IMPROVEMENTS, LLC, KANSAS CITY SOUTHERN RAILWAY COMPANY, CITY OF CORINTH, THE UNITED STATES OF AMERICA, JOHN DOE, and ABC CORPORATION

DEFENDANTS

REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT COMES NOW, The Kroger Co. (“Kroger”), by and through its counsel of record, and files this its Reply Brief in Support of Motion for Summary Judgment, and in support thereof would state unto the Court as follows, to-wit: I.

KMART CANNOT RELY UPON MR. KREWSON’S RECENT “CORRECTIONS” IN OPPOSITION TO KROGER’S MOTION FOR SUMMARY JUDGMENT. Pursuant to the Order entered on August 2, 2013, the motion deadline in this matter was

October 8, 2013, see Doc. No. 202 at 1, and Kroger filed its Motion to Exclude the Testimony of John R. Krewson (“Kroger’s Motion to Exclude”), as well as its supporting memorandum, on October 8, 2013. [Doc. Nos. 259 and 260] As of October 8, this matter was in the following procedural status as it relates to Mr. Krewson and his opinions.

Kmart filed a Motion for Leave to File Amended Report of John R. Krewson, Motion to Continue Discovery Deadline, or, in the Alternative, Motion to Continue Trial Date (“Kmart’s Motion for Leave to File Amended Report”) on July 25, 2013, in which Kmart admitted that “the models relied on by Mr. Krewson contained a mistake that affected the conclusions contained in his Initial Report” (“Krewson’s September 20, 2012 Report”). [Doc. No. 176 at 1] Attached to

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Kmart’s Motion for Leave to File Amended Report was John R. Krewson’s Amended Flooding Evaluation dated July 23, 2013 (“Krewson’s July 23, 2013 Report”), which purported to correct the admitted error in Krewson’s September 20, 2012 Report. [Doc. No. 176-5; see also Doc. No. 176-1 at 2-3] Kmart’s Motion for Leave to File Amended Report was denied on August 21, 2013. [Doc. No. 213 at 7] Kmart filed Plaintiff’s Objections to the Magistrate Judge’s Order Denying Plaintiff’s Motion for Leave to File the Amended Report of John R. Krewson (“Plaintiff’s Objections”) and a supporting memorandum on September 4, 2013. [Doc. Nos. 227 and 228] The Court entered an Order on September 27, 2013 in which it advised that it would “consider an amendment of mathematical errors only” and requested that Kmart submit a “proposed amendment.” [Doc. No. 243 at 1] Kroger filed its Motion for Summary Judgment and its supporting memorandum on October 10, 2013. [Doc. Nos. 269 and 270] On October 11, 2013, Kmart filed its Motion for Leave to File Amended Report of John R. Krewson Pursuant to Court Order on October 11, 2013, see Doc. No. 271, which attached John R. Krewson’s Amended Flooding Evaluation dated October 11, 2013 (“Krewson’s October 11, 2013 Report”). [Doc. No. 271-1] Mr. Krewson has not given a deposition regarding either his July 13, 2013 Report or his October 11, 2013 report.

Kmart repeatedly relies upon Krewson’s October 11, 2013 Report in opposing Kroger’s Motion for Summary Judgment. However, Krewson’s October 11, 2013 Report is not properly before the Court. No order has been entered granting leave to amend as to Krewson’s October 11, 2013 Report.1 As such, neither Krewson’s October 11, 2013 report nor his commentary

1

Kmart states that “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.” [Doc. No. 308 at 20] This statement is grossly presumptuous and factually incorrect. No such order has been entered.

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regarding that Report are competent evidence which may be used to oppose a motion for summary judgment.

Additionally, Krewson’s “corrections” are simply more improper and unreliable methodology. In its Motion in Limine to Exclude Testimony of James Monohan, Doc. No. 263, and its supporting memorandum, Kmart finally disclosed how Krewson calculated what he contends to be the “correct” flow rate that should be used for his HEC-RAS model. [Doc. No. 264 at 2 n. 5] Utilizing certain data in FEMA’s 2009 Flood Insurance Study, Krewson has added together the peak discharge value for a 100-year flood in Elam Creek at Highway 45, i.e. 3,702 cfs, to the peak discharge value for a 100-year flood in Turner Creek at its mouth, i.e. 1,500 cfs, which yields a total of 5,202 cfs. [Doc. No. 264 at 2 n. 5] Kmart offers no explanation for why it is permissible to add these two peak discharge values together to arrive at a flow rate of 5,202 cfs for Krewson’s model.

According to Kroger’s expert, James Monohan, the only certified floodplain manager identified as an expert in this matter, it is not permissible to add these two peak discharge values together to calculate a flow rate of 5,202 cfs: The 5,202 cfs value which Kmart claims to be correct in the motion to exclude a portion of my testimony is not correct. Kmart’s value of 5,202 cfs was computed by adding together the peak 100-year flow of Elam Creek at Highway 45 and the peak 100-year flow of Turner Creek at its mouth, which are listed in Table 1 of the FEMA Flood Insurance Study relied upon by Mr. Krewson. In accordance with sound engineering and hydrologic practices, peak flows on tributary streams typically can’t be added together because the flood peaks occur at different times.

[Doc. No. 301-5 at ¶ 10 (emphasis added)] A smaller tributary’s peak flow occurs prior to the larger tributary’s peak flow, due to the shorter travel time needed for the smaller tributary’s flood wave to reach the confluence. [Doc. No. 301-5 at ¶ 10] The peak flow of the combined tributaries at the confluence is therefore less than the sum of the two tributary peak flows. [Doc. 3

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No. 301-5 at ¶ 11] Turner Creek, with a drainage area of 2.34 square miles, would peak prior to the peaking of Elam Creek, which has a drainage area of 6.09 square miles, at their confluence near Highway 45. [Doc. No. 301-5 at ¶ 11] Consequently, Krewson’s methodology in this instance is flawed, and results in an erroneous and unreliable estimation of the FEMA 100-year peak flow. [Doc. No. 301-5 at ¶ 11] In fact, even if one were to assume – solely for the sake of argument – that it was appropriate to use the FEMA 100-year flow rate for Krewson’s evaluation, the peak flow rate for the property made the subject of this litigation can be found in the HEC-2 computer code for the May 1979 study2 of Elam Creek. [Doc. No. 301-5 at ¶ 9] As indicated by the HEC-2 computer code for the May 1979 study of Elam Creek, the FEMA 100-year flow value for Elam Creek at the Kmart-Kroger building site is 4,900 cfs, not 5,202 cfs as contended by Krewson. [Doc. No. 301-5 at ¶ 10] Consequently, Kmart has failed to submit any competent evidence which demonstrates that the existence of the building which housed the Kroger store on May 2, 2010 proximately caused any damage to Kmart’s Corinth store, and Kroger is entitled to summary judgment as a matter of law as to the only remaining claim, i.e. common-law negligence, against it.

II.

KMART HAS STILL PROVEN NO ACT OR OMISSION OF KROGER THAT WILL SUPPORT A CLAIM OF NEGLIGENCE. This Court stated that, “[u]nder general negligence principles, it is conceivable that

Kroger and Kmart were neighboring store tenants with a duty of reasonable care to prevent harm to each other,” based on the authority of Rhaly v. Waste Mgmt. of Miss., Inc., 43 So.3d 509, 511-

2

This data is still the effective FEMA model for Elam Creek, and the FEMA Flood Insurance Study on which Krewson relied in selecting flow rate values is based on that data from 1979. [See Doc. No. 301-5 at ¶ 9] While Krewson testified that he could not find this data,2 see Doc. No. 301-2 at 239, it “is still available from the FEMA Library and was included as Appendix I in [Monohan’s] expert report.” [Doc. No. 301-5 at ¶ 9]

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12 (Miss.App. 2010). [Doc. No. 208 at 5] Kmart’s sole remaining cause of action against Kroger is for common law negligence, i.e. “Kmart’s claims that Kroger negligently remained in the floodway and otherwise failed to exercise reasonable care to prevent harm to the Corinth Kmart store from flooding.” [See Doc. No. 207 at 1] In a negligence claim, there are four elements that must be established by the plaintiff: (1) duty or standard of care, (2) breach of that duty or standard of care, (3) proximate cause, and (4) damages or injuries. See Lopez v.

McClellan, --- So.3d ---, 2010 WL 1664937, *6 (Miss. App. 2010). In order for Kmart’s claim to survive a motion for summary judgment, Kmart must set forth facts sufficient to establish the existence of each element of negligence. See Smith v. Campus Edge of Hattiesburg, LLC, 30 So.3d 1284, 1287-88 (Miss.App. 2010). Proximate cause is a concept which is more accurately defined by reference to the distinct concepts of which it is comprised, which are: (1) cause in fact; and (2) foreseeability. See Lopez, 2010 WL 1664937, *7. “Cause in fact means that, but for the defendant’s negligence, the injury would not have occurred.” Huynh v. Phillips, 95 So.3d 1259, 1263 (Miss. 2012).

In opposition to Kroger’s Motion for Summary Judgment, Kmart states that “the affirmative omission is Kroger’s failure to take adequate measures to protect its neighboring store from the risk of flooding . . . despite its knowledge that its property was located in a floodprone area, which serves as the basis for liability against Kroger.” [Doc. No. 308 at 11] However, Kmart has never specified exactly what adequate measures Kroger failed to take.

The reason for this failure is simple: Kmart cannot do so. In fact, Kmart’s causation expert testified that he was not aware of anything that Kroger did that would have increased a risk of flooding at the Kmart store and that he was not aware of any omission of Kroger that would have

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increased the risk of flooding at the Kmart store. [Doc. No. 269-5 at 3-4] Consequently, Kmart’s argument runs contrary to the testimony of its own causation expert.

When asked what Kroger did to increase the risk of flooding at the Kmart store, Kmart’s corporate deponent testified only that it “[c]ontinued to occupy [the building].” [Doc. No. 269-2 at 4-5] Kmart’s corporate deponent explained further that Kmart’s claim that Kroger’s presence in the building increased the risk of flooding at the Kmart store is based solely upon the fact that it had a lease with the landlord. [Doc. No. 269-2 at 6] While Kmart’s corporate deponent has not been identified or qualified as an expert on hydrology, which means his statement as to causation is not competent evidence to oppose summary judgment on this issue, that statement is, nevertheless, contrary to the law of Mississippi. 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 the property. See Smith v. Campus Edge of Hattiesburg, LLC, 30 So.3d 1284 (Miss.App. 2010).

Similarly, a tenant’s mere use of property to engage in an economic endeavor does not constitute a sufficient affirmative act upon which to base liability either. See Martin v. Flanagan, 818 So.2d 1124 (Miss. 2002). Moreover, this statement by Kmart’s corporate deponent defies simple common sense; the building would have remained even if Kroger had left it, and it is the building about which Kmart complains increased the risk of flooding to its store.3 Consequently, because Kmart has still failed to prove a breach of any duty, Kroger is entitled to summary judgment as a matter of law as to Kmart’s sole remaining claim against it.

3

“Cause in fact means that, but for the defendant’s negligence, the injury would not have occurred.” Huynh v.

Phillips, 95 So.3d 1259, 1263 (Miss. 2012). Because Kmart cannot show that “but-for” something Kroger did or did not do Kmart was damaged, Kroger is entitled to summary judgment as a matter of law. See Huynh v. Phillips, 95 So.3d 1259, 1263 (Miss. 2012).

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III.

THE DUTY CONTENDED BY KMART HAS NO BASIS IN THE LAW. Kmart contends that “Kroger can be negligent if it knew or should have known that its

property was in a flood-prone area and yet took inadequate measures to protect Kmart against the risk of flooding.” [Doc. No. 308 at 6] Elaborating further, Kmart adds that “there remain issues of fact related to whether Kroger’s affirmative omission to ensure its store was flood neutral to its neighboring store serves a[s] the basis for Kmart’s negligence claims against Kroger.” [Doc. No. 308 at 16-17] In other words, if a possessor of property knows or should know that his or her property is in a flood-prone area, Kmart contends that said possessor has an affirmative duty to ensure that said property is “flood-neutral”4 to neighboring property.

Kmart has supplied the Court with no legal authority for this proposed – and expansively burdensome – duty that it contends is owed by possessors of property in allegedly flood-prone areas. This purported duty runs directly contrary to the holdings of Smith and Martin, supra.

Moreover, the implications of such a purported duty on the citizens of the State of Mississippi are staggering. If Kmart’s contended duty was, in fact, the law, then every person who owns or occupies property in a FEMA designated flood zone would have an affirmative duty to hire a hydrologist, conduct HEC-RAS modeling, and ensure that their property is “flood neutral” to neighboring properties. While such a duty might be a welcomed boon for hydrologists in Mississippi, it is not reasonable as to the owners and occupiers of property in FEMA designated flood zones given the enormous cost of such an undertaking. The standard of care in cases of alleged negligent conduct is whether the party charged with the negligent conduct acted as a reasonable and prudent person would under like circumstances. See McIntosh v. Victoria Corp., 877 So. 2d 519, 523 (Miss.App. 2004). Kmart has failed to offer this Court any legal authority 4

As Kmart has yet to prove what Kroger did or did not do that caused it damage, we still do not know what Kmart means by the term “flood-neutral” as it relates to Kroger and entities in similar positions.

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for the proposition that a reasonable and prudent person would undertake such efforts simply because they occupied property in a “flood prone” area or a FEMA designated flood zone, particularly in the absence of any notice that a condition on one property increased the likelihood of flooding on its neighboring property – which is the case here.

As recognized by the court in the case most relied upon by Kmart, “‘[i]f men went about to guard themselves against every risk to themselves or others which might by ingenious conjecture be conceived as possible, human affairs could not be carried on at all.’” Rhaly v.

Waste Management of Mississippi, Inc., 43 So. 3d 509, 513 (Miss.App. 2010)(quoting Rolison v.

City of Meridian, 691 So. 2d 440, 444 (Miss. 1997)). The reasonable man, to whose ideal behavior we are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on events that are barely possible. See Rhaly, 43 So. 3d at 513.

Kmart has failed to show that it was foreseeable that the Kmart store would suffer flood damage from Kroger’s simple occupation of the building housing the Kroger store, given the complete lack of any notice that Kroger’s store presented a risk of increased flooding to Kmart’s store.

Kmart’s alleged duty is unreasonable and is without legal support.

IV.

KMART STILL HAS NOT PROVEN THAT KROGER KNEW OR SHOULD HAVE KNOWN THAT THE BUILDING ITS CORINTH STORE OCCUPIED INCREASED THE RISK OF FLOODING TO THE KMART STORE. Even applying the holding and rationale of the decision in Rhaly, Kmart has still failed to

demonstrate liability as to Kroger. In Rhaly, the conduct at issue was the following: The Rhalys’ allegations center around a Waste Management dumpster serving Mike’s Gas Plus, located near State Street in Jackson. The Rhalys allege that Waste Management routinely placed the dumpster too close to the ditch and that prior to each of the flood events, rainwater had carried it into the ditch, where the dumpster became lodged against a downstream bridge over State Street. The dumpster then obstructed the ditch and caused it to overflow its banks, flooding the Rhalys’ nearby homes and properties.

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43 So. 3d at 511 (emphasis added). After the trial court granted summary judgment, see 43 So. 3d at 511, the appellate court reversed, explaining as follows: The Rhalys were not required to show that Waste Management was actually aware of the danger of flooding presented by the placement of the dumpster.

Instead, at issue is whether Waste Management should have reasonably foreseen that the dumpster, if placed on the banks of the ditch, could be carried into the ditch by runoff or rising water, obstruct the ditch, and thereby cause or intensify flooding of nearby properties.

43 So. 3d at 514. Kmart has failed to show that Kroger should have reasonably foreseen that its simple occupation of the building in Corinth would cause or intensify flooding of nearby properties. While Kmart complains that Kroger had notice as early as November 2001 that the Kroger store was vulnerable to flooding, see Doc. 308 at 13-14, Kmart has offered no evidence from which it can be inferred that Kroger knew or should have known that the building it occupied would cause or intensify flooding on nearby properties.

V.

THE HOLDING IN SMITH IS DIRECTLY ON POINT AND SHOWS THAT KROGER IS ENTITLED TO SUMMARY JUDGMENT. All of Kmart’s efforts to distinguish the decision in Smith v. Campus Edge of

Hattiesburg, LLC, 30 So.3d 1284 (Miss.App. 2010), are based upon Krewson’s October 11, 2013 Report and on Kmart’s corporate deponent’s testimony that “the known flood prevention measures in the form of a gate and membrane would have prevented the flooding in the store.”

See Doc. No. 308 at 15-16. As for Krewson’s October 11, 2013 Report, it is not properly before this Court and is not competent evidence with which to oppose a motion for summary judgment.

As to Kmart’s corporate deponent’s testimony, Kmart has failed to show that Kroger was permitted under the terms of its lease or Mississippi law to install a “gate” and “membrane” on the Kmart store. Indeed, Kroger had no such right, and there is nothing in Kroger’s lease which

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permits it to make modifications to the buildings occupied by other tenants.5 [See Doc. No. 2696 at 25-82] As stated previously by this Court, it is an undisputed fact that the building occupied by Kroger was not constructed, owned, or initially occupied by Kroger following the building’s construction. [See Doc. 208 at 4 n. 2] Moreover, Kmart concedes that it has not sued Kroger for the construction of the Kroger store in a floodway. [See id.] Kmart’s causation expert testified that he was not aware of anything that Kroger did that would have increased a risk of flooding at the Kmart store and that he was not aware of any omission of Kroger that would have increased the risk of flooding at the Kmart store. [Doc. No. 269-5 at 3-4] Kmart’s corporate deponent testified that it was only Kroger’s continued occupation of the building housing its store that increased the risk of flooding at the Kmart Store. [Doc. No. 269-2 at 4-5] However, as the facts in Smith show, simple occupation of the property is not sufficient.

Consequently, based on the authority of Smith, as well as Martin v. Flanagan, 818 So.2d 1124 (Miss. 2002)(court found that the tenant’s mere use of the property to engage in the economic endeavor of farming did not constitute a sufficient “affirmative act” upon which to base liability), Kroger is entitled to judgment as a matter of law.

VI.

CONCLUSION. For the foregoing reasons, Kroger respectfully requests this Court to enter an order

granting Kroger’s Motion for Summary Judgment as to any and all claims against it.

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Indeed, Kroger’s lease specifically states that “[t]he Landlord shall provide proper and adequate water drainage . . .” [Doc. No. 269-6 at 36]

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THIS, the 22nd day of November 2013.

Respectfully submitted, THE KROGER CO.

By: s/David A. Norris Of Counsel

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Edley H. Jones III (MSB No. 3201) David A. Norris (MSB No. 100616) McGLINCHEY STAFFORD, PLLC City Center South, Suite 1100 200 South Lamar Street (Zip - 39201) Post Office Drawer 22949 Jackson, Mississippi 39225-2949 Telephone: (769) 524-2314 Facsimile: (769) 524-2333 dnorris@mcglinchey.com ejones@mcglinchey.com

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CERTIFICATE OF SERVICE I, the undersigned David A. Norris, McGlinchey Stafford PLLC, hereby certify that on this day, I electronically filed the foregoing with the Clerk of the Court using the ECF system, which sent notification of such filing to the following: Ryan O. Lumainis James M. Garner John T. Balhoff, II SHER GARNER CAHILL RICHTER KLEIN & HILBERT, LLC 909 Poydras Street, 28th Floor New Orleans, LA 70112 Email: rluminais@shergarner.com Mary Clift Abdalla FORMAN, PERRY, WATKINS, KRUTZ & TARDY, PLLC 200 S. Lamar Street, Suite 100 Jackson, MS 39201 Email: abdallamc@fpwk.com Walter G. Watkins , Jr. FORMAN, PERRY, WATKINS, KRUTZ & TARDY, PLLC P.O. Box 22608 Jackson, MS 39225-2608 Email: wwatkins@fpwk.com Walter Garner Watkins , III FORMAN, PERRY, WATKINS, KRUTZ & TARDY, PLLC P.O. Box 22608 Jackson, MS 39225-2608 Email: trey@fpwk.com Gerald Haggart Jacks JACKS LUCIANO, P.A. P. O. Box 1209 Cleveland, MS 38732-1209 Email: gjacks@jlpalaw.com Jamie Ferguson Jacks JACKS LUCIANO, P.A. P. O. Box 1209 Cleveland, MS 38732-1209 Email: jjacks@jlpalaw.com 13

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Charles E. Ross WISE, CARTER, CHILD & CARAWAY P. O. Box 651 Jackson, MS 39205-0651 Email: cer@wisecarter.com Terry Dwayne Little DANIEL, COKER, HORTON & BELL - Oxford P.O. Box 1396 Oxford, MS 38655 Email: tlittle@danielcoker.com Wilton V. Byars , III DANIEL, COKER, HORTON & BELL P.O. Box 1396 Oxford, MS 38655 Email: wbyars@danielcoker.com John Evans Gough , Jr. U.S. ATTORNEY'S OFFICE - Oxford 900 Jefferson Avenue Oxford, MS 38655-3608 Email: john.gough@usdoj.gov Linda F. Cooper WISE CARTER CHILD & CARAWAY, P.A. P.O. Box 651 Jackson, MS 39205-0651 and I hereby certify that I have mailed by United States Postal Service the document to the following non-ECF participants: None THIS, the 22nd day of November 2013.

s/ David A. Norris David A. Norris

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