296 memoinsupportresponsetomotionforsummaryjudgement fulton kmart

UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF MISSISSIPPI

ABERDEEN DIVISION

KMART CORPORATION,

PlaintiffCIV. ACT. NO. 1:11-CV-103-GHD-DAS

versus

THE KROGER CO., et al.

Defendants

MEMORANDUM IN SUPPORT OF RESPONSE TOFULTON IMPROVEMENTS, LLC’S MOTION FOR SUMMARY JUDGMENT

May It Please the Court:

Plaintiff, Kmart Corporation, submits this Memorandum in Support of its Response to Fulton

Improvements, LLC’s Motion for Summary Judgment. Fulton’s motion should be denied because

material issues of fact exist regarding the effect of the Kroger store’s presence on Kmart’s flooding;

regarding Fulton’s knowledge of Kroger’s presence in a flood-prone area; regarding issues of alleged

estoppel; regarding causation; and regarding whether the flood event at issue is an Act of God as

defined by jurisprudence. Issues of contractual interpretation also preclude summary judgment in

favor of Fulton.

I. Background

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

two feet of high velocity flood water overflowing from nearby Elam Creek. As part of its negligence

claims, Kmart alleges that actions and/or omissions of the Kroger Co., Kansas City Southern

Railway, E&A Southeast Limited Partnership, and Fulton Improvements caused or contributed to

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

its damages. Kmart also alleges contractual claims against Fulton Improvements by failing to keep1

the leased premises in a safe, dry, and tenantable condition as required under the lease.2

Fulton was the landlord of Kmart at the time of the flood event. Fulton also was the3

assignee of the lease entered between Kmart and the original landlord in 1991. That lease obligated4

Fulton to maintain Kmart’s store in a “safe, dry and tenantable condition.” Fulton has admitted that5

it did nothing in the way of flood protection for the buildings at the Fulton Crossing Shopping

Center, including Kmart, other than sweeping the parking lot, cleaning the retention pond, and

making sure storm drains were clear.6

II. Law and Argument

A. Summary judgment standard

Federal Rule of Civil Procedure 56(c) provides that summary judgment may be rendered “if

the pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.” The party moving for summary judgment bears the7

See Kmart’s Complaint ¶¶ 23-62.1

See id. ¶¶ 59-62.2

See Fulton’s Memorandum of Law in Support of Motion for Summary Judgment at 5.3

See id. at 3-5.4

See Fulton’s Motion for Summary Judgment, Exhibit D, Lease at 11, § 15, “Repairs and5

Maintenance.”

See Kmart’s Response to Fulton’s Motion for Summary Judgment, Exhibit 1, Depo. of Fulton at6

p. 125, l. 25 - p. 126, l. 21.

Fed. R. Civ. Proc. 56(c).7

2


initial burden of demonstrating the absence of a genuine issue of material fact. If the moving party8

fails to meet this initial burden, the motion must be denied, regardless of the nonmovant’s response. 9

Unsupported allegations, conclusory facts, and conclusions of law are insufficient to support a

motion for summary judgment. Moreover, a court must resolve all reasonable factual inferences10

from the record in favor of the non-movant. 11

Summary judgment is improper when the court merely believes it unlikely that the

non-moving party will prevail at trial. The district court must not “resolve factual disputes by12

weighing conflicting evidence, since it is the province of the jury to assess the probative value of the

evidence.” As demonstrated below, there are genuine issues of material fact, as well as disputed13

issued of law, regarding Fulton’s negligence and breach of contract with regard to the Kroger store

and its effect on Kmart’s store during the flood. Therefore, this Court should deny Fulton’s motion

for summary judgment.

See Ford-Evans v. Smith, 206 Fed. Appx. 332, 334 (5th Cir. 2006). 8

See id. 9

See Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985). 10

Id.11

Nat’l Screen Serv. Corp. v. Poster Exchange, Inc., 305 F.2d 647, 651 (5th Cir. 1962).12

Kennett-Murray Corp. v. Bone, 622 F.2d 887, 882 (5th Cir. 1980) (citations omitted).13

3


B. Issues of fact and law preclude summary dismissal of Kmart’s negligence claimsagainst Fulton.

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

Kmart’s allegations against Fulton are based both on common law negligence and on breach

of contract. As for the negligence claims, Mississippi jurisprudence establishes that an individual

owes a duty of reasonable care to avoid injury to nearby property owners. This Court recognized14

this principle when it sustained Kmart’s negligence claims against Kroger in partially denying

Kroger’s motion to dismiss. Kmart has sued Fulton in part due to the fact that its “Kroger store15

was improperly located in a floodway that existed at the time the store was constructed and during

Fulton’s ownership of the property” and “Fulton did not and has not taken the necessary action to

ensure that Kmart’s premises and its contents are protected from possible flood waters.”16

Fulton contends that because Kmart’s expert professional engineer and hydrologist, John R.

Krewson, made a mistake regarding flow rates in his initial report, “Kmart currently has no valid

expert testimony to prove the effect of the Kroger on the Kmart building.” But Fulton neglects to17

mention that at the time it filed its motion for summary judgment, this Court already had issued an

order allowing Mr. Krewson to amend his report to correct those errors. And after Fulton filed its

motion, Kmart submitted Mr. Krewson’s amended report. As explained in Kmart’s responses to the

various defendants’ motions to exclude Mr. Krewson’s testimony, Kmart has offered evidence,

See Rhaly v. Waste Mgmt. of Miss., Inc., 43 So. 3d 509 (Miss. App. 2010).14

See Memorandum Opinion Granting in Part and Denying in Part Kroger’s Motion for Judgment15

on the Pleadings [Doc. 208] (Aug. 9, 2013) at 5 (citing Rhaly).

Kmart’s Complaint ¶¶ 53, 55.16

Fulton’s Memorandum of Law in Support of Motion for Summary Judgment at 10.17

4


through Mr. Krewson, explaining why the Kroger store contributed to Kmart’s flooding. Kmart18

adopts its responses, exhibits thereto, and memoranda in support as if copied herein in extenso. At

the very least, there is an issue of fact that precludes summary judgment in Fulton’s favor on the

issue of the effect of the Kroger store, which is owned by Fulton, on Kmart’s flooding. Therefore,

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

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

Fulton contends that it cannot be liable to Kmart because the Kroger store is not in a

floodway, was not in a floodway at the time of the May 2010 flood, and was incorrectly included in

the floodway in previous FEMA Flood Insurance Rate Maps [“FIRM”]. First, Fulton cites19

deposition testimony of Mr. Krewson stating that the Kroger store was not in a floodway in 2010. 20

But Mr. Krewson made this statement simply because of the 2005 LOMR that issued, ostensibly

removing the Kroger store from the floodway. But Fulton wants to disregard the 1981 FIRM that

existed at the time of the construction of the Fulton Shopping Center around 1992. The original

site development plans prepared by PRIME Engineer, a company retained by the landlord, showed

the floodway boundary far to the east of where the Kroger building currently lies, whereas a portion

of the Kroger building as-built would have been located within the floodway on the 1981 FEMA

Firm. Indeed, Fulton and other defendants have gone as far as saying that the 1981 FEMA FIRM

See Kmart’s Response and Memorandum in Support of Response to KCSR’s Motion to Exclude18

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


See id. at 12.20

5


is wrong, whereas the original construction drawings for the development of the Fulton Crossing

Shopping Center that depicted the floodway are correct. Mr. Eley, a professional engineer retained

by Fulton and other defendants, testified in his deposition that the FEMA FIRM is wrong, but that

the original site development plans by PRIME Engineering are correct, even though FEMA’s study

was supported by a hydrologic report whereas the original site development plans were not supported

by any scientific evidence.21

Notably, Mr. Krewson’s testimony as to the construction of a portion of the Kroger store in

a FEMA floodway is consistent with the scientific-based 1981 FEMA FIRM (which was in effect

at the time of the building’s construction), whereas Fulton’s proposed expert’s findings are not. But

the apparent inconsistencies between the 1981 FEMA FIRM and the original site development plans

are not the only twisted facts. Indeed, E&A requested a letter of map amendment [“LOMA”], but

received a letter of map revision [“LOMR”]. As to the considerations listed in the LOMR obtained

by E&A, the LOMR provides “INADVERTENT INCLUSION IN FLOODWAY.” Mr. Krewson22

testified that just days after the May 2010 flood event, he had a conversation with David Huwe, who

is the flood administrator for the City of Corinth, and both commented how they had never seen

language like that in a LOMR.23

Additionally, James Monohan, who is a purported expert retained by Fulton, also testified

that the language in the LOMR as to the “INADVERTENT INCLUSION IN FLOODWAY” was

See Kmart’s Response to Fulton’s Motion for Summary Judgment, Exhibit 2, Depo. of Robert21

Eley at p. 72, l. 11 - p. 73, l. 20.

Kroger’s Motion to Exclude Testimony of John R. Krewson, Exhibit A, LOMR, which is adopted22

and incorporated herein in extenso.

See Kmart’s Response to Fulton’s Motion for Summary Judgment, Exhibit 3, Depo. of John R.23

Krewson at p. 27, l. 21 - p. 28, l. 18.

6


peculiar. Mr. Monohan testified that “Prior to this particular instance of it, I had not” seen a similar

description as to the reason behind the LOMR. Fact issues remain with regard to the floowday.24

But second, Fulton improperly rests its defense on the technicality of whether the building

is or is not in a FEMA floodway. Instead, in order to prevail on a negligence claim, “a plaintiff must

prove by a preponderance of the evidence each element of negligence: duty, breach of duty,

proximate causation and injury.” Whether the Kroger store is in a floodway is not the sole focus. 25

Fulton can be negligent if it knew that this property was in a flood-prone area yet took inadequate

measures to protect Kmart against the risk of flooding.

Although Fulton claimed in its deposition that it knew of no investigation before acquiring

the property in 2007 whether the property was vulnerable to flooding, such ignorance does not jive26

with the well-reported flood problems of the area. The City of Corinth has experienced, within the

last twelve years, the type of flooding that occurred on May 2, 2010. In the September 26, 2010

issue of Bridge, Phillips, Elam Drainage District News, a newsletter authored by Milton Sandy, Jr.,

the purpose of which is to “get something done about the repetitive flooding in Corinth and Alcorn

County,” a December 1, 2001 article was reproduced from the Northeast Mississippi Daily Journal. 27

This 2001 published article states, in pertinent part:

Kmart’s Response to Fulton’s Motion for Summary Judgment, Exhibit 4, Depo. of James D.24

Monohan at p. 27, ll. 3-15.

Schepens v. City of Long Beach, 924 So. 2d 620, 623 (Miss. App. 2006) (quoting K-Mart Corp.25

v. Hardy ex rel. Hardy, 735 So. 2d 975 (Miss.1999)).

See Kmart’s Response to Fulton’s Motion for Summary Judgment, Exhibit 1, Depo. of Fulton at26

p. 27, l. 10 - p. 30, l. 15.

See Kmart’s Response to Fulton’s Motion for Summary Judgment, Exhibit 5, Bridge, Philips,27

Elam Drainage District News, dated Sept. 26, 2010 at 6.

7


Corinth — Flash Flood Part II might well be the name of Thursday’s weather bashingin Corinth and Alcorn County. It was a repeat of what some called a 100-year floodrecorded 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 a100-year flood. “This time, we may have had a 200-year flood,” he said, only half-jokingly . . . .28

The May 2, 2010 flood was not, as evidenced by the above-referenced news article, an

unprecedented flooding event for Corinth, Mississippi. There is an issue of fact regarding what

Fulton knew or should have known with regard to flooding at the property, and thus whether

preventive measures should have been taken to protect Kmart. Therefore, this Court should deny

Fulton’s motion for summary judgment.

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

Fulton alleges that because Kmart approved the location of the Kroger store, Kmart cannot

now repudiate that which it agreed and approved. First, Kmart’s corporate representative disputed29

that it had expressly “approved” of the store location, noting that Kmart “had the opportunity, not

the obligation,” to comment regarding the location of the grocery store to be built by the Kmart. 30

Regardless, Fulton acts as if it were Kmart’s sole idea to place the Kroger where it is. But the lease

shows that the requirement of a grocery tenant was a covenant of the landlord: “Landlord

represents, warrants and covenants that a grocery Tenant . . . shall be located within a shopping

Id.28


See Kmart’s Response to Fulton’s Motion for Summary Judgment, Exhibit 6, Depo. of Kmart at30

p. 127, ll. 3-17.

8


center premises as depicted on Exhibit ‘B.’” Kmart’s representative explained in his deposition31

that this was not a requirement of Kmart, and that both the landlord and Kmart would benefit from

such a provision.32

The cases cited by Fulton are nothing like the situation here. In Brown v. Anderson, the33

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. In American Olean Tile Co. v.34

Morton, the court found that the defendants wer bound by a settlement agreement they had35

executed. But here, there is no express acknowledgment by Kmart that the Kroger store is a36

problem-free location, nor is there a release of the landlord for claims arising from the grocery store

building. Kmart simply signed a lease in which the landlord provided for a grocery store to be in the

shopping center as well. But Kmart did not sign its rights away to complain of damage to it caused

by that store, unlike in the aforementioned cases.

The other cases relied upon by Fulton — Walker v. Walker and Koch v. H & S Development37

Co. — are essentially cited for the proposition that parties are bound by the terms of their contract. 38

Fulton’s Motion for Summary Judgment, Exhibit D, Lease at 10, ¶ 12, “Landlord’s31

Representations and Warranties.”


p. 57, l. 22 - p. 58, l. 13.

80 So. 3d 878 (Miss. App. 2012).33

See id. at 882.34

247 Miss. 886, 157 So. 2d 788 (1963).35

See id., 247 Miss. at 894, 157 So. 2d at 791.36

214 Miss. 529, 59 So. 2d 277 (1952).37

249 Miss. 590, 163 So. 2d 710 (1964).38

9


Again, even if the Kroger store cannot be demolished, there is nothing in the lease stating that Kmart

must suffer damages caused by the Kroger store owned by Fulton. If Fulton must allow Kroger to

operate that store, then Fulton must maintain the building in a manner that does no harm to Kmart’s

neighboring store.

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

Again, the negligence allegation against Fulton is that the Kroger store was improperly located in

a floodway that existed at the time the store was constructed and during Fulton’s ownership of the

property. A similar allegation was made against Kroger. In denying Kroger’s request to dismiss39 40

that negligence allegation, this Court allowed the claim to go forward, noting, “It is apparent to the

Court that Kmart is attempting to state a claim for Kroger’s alleged negligence in remaining in the

floodway.” This Court further found that with regard to that allegation, “Kmart should be allowed41

to present evidence to support this allegation, as the same supports Kmart’s common-law negligence

claim.” The similar negligence claim against Fulton inherently involves issues of fact. Therefore,42

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

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

For similar reasons, Fulton does not have defenses to quasi-estoppel or equitable estoppel

under the facts of this case. The case of Bailey v. Estate of Kemp cited by Fulton states that quasi-43

See Kmart’s Complaint ¶ 53.39

See id. ¶ 23.40

Memorandum Opinion Granting in Part and Denying in Part Kroger’s Motion for Judgment on41

the Pleadings [Doc. 208] (Aug. 9, 2013) at 6.

Id. at 8.42

955 So. 2d 777 (Miss. 2007).43

10


estoppel “precludes a party from asserting, to another’s disadvantage, a right inconsistent with a

position [it has] previously taken.” In that case, the court held that the plaintiffs could not profit44

under a contract and also seek to have it declared invalid regarding other obligations.45

But this case does not involve the same direct quid pro quo that would be necessary to invoke

quasi-estoppel claims against Fulton. At best, there is an indirect benefit to Kmart in having

additional traffic near its store from Kroger patrons, as explained above. But Fulton’s argument that

any time there is assent to a contract and receipt of benefits under that contract, then it precludes a

remedy by one contracting party against another, is a bridge too far. An employee who receives pay

from his or her employer may still sue for discrimination. Similarly, a tenant that is damaged by its

landlord may still sue to be compensated as well.

Fulton’s equitable estoppel defense also must fall. As Fulton explains, that defense requires

(1) a belief and reliance on some representation, (2) a change of position as a result thereof, and (3)

detriment or prejudice caused by the change of position. There was no affirmative representation46

by Kmart here regarding the propriety of Kroger’s location. At most, Fulton is arguing that Kmart

has given tacit “approval” of the Kroger location simply by signing the lease. Therefore, this Court

should deny Fulton’s motion for summary judgment.

Id. at 782 (brackets in original).44

See id.45

See Fulton’s Memorandum of Law in Support of Motion for Summary Judgment at 16 (citing46

Community Extended Care Ctrs., Inc. v. Bd. of Supervisors for Humphreys County, 756 So. 2d 798, 804(Miss. App. 1999)).

11


C. Issues of fact and law preclude summary dismissal of Kmart’s contractualclaims against Fulton.

1. Kmart’s approval of its own building specifications does not relieveFulton of the responsibility to keep Kmart in a safe, dry, and tenantablecondition.

Fulton contends that it is entitled to summary judgment on Kmart’s breach of lease claim

because Kmart had a role in approving the building specifications for the Kmart store. But Fulton47

overstates Kmart’s role in the design of hte Kmart building. At the very least, there is an issue of

fact regarding the parties’ responsibility with regard to building design. Further, regardless of

Kmart’s role in designing the building, it does not negate Fulton’s contractual obligation to provide

Kmart with a safe, dry, and tenantable condition.

Fulton highlights a good deal of language from the 1991 lease between Kmart and the

original landlord Fulton Crossing, Ltd., which lease Fulton admits has been assigned to it. That48 49

language shows that the landlord Fulton Crossing was to construct the shopping center, including

the Kmart building, and Kmart would provide certain specifications for the landlord to use and then

turn around and offer to Kmart for review. But the lease notes that the “working drawings and

specifications” are to be “prepared by Landlord,” which shall be in accordance with Kmart’s

“typical store” specifications. Further specifications were outlined in Exhibit C to the lease. That50

See id. at 17.47

See id. at 5-9.48

See id. at 4-5; see also id. at Exhibit I, Assignment of Lease to E&A, and Exhibit L, Assignment49

of Leases to Fulton.

Fulton’s Motion for Summary Judgment, Exhibit D, Lease at 7, § 7, “Drawings and50

Specifications” (emphasis added).

12


exhibit explained that the typical drawings covered Kmart’s “minimum requirements.” Thus the51

plans were not developed solely by Kmart and instead there was input from the landlord as well. As

Kmart’s corporate designee explained at Kmart’s deposition, the lease simply provided that Kmart

“shall be party to” the site development, meaning there was more than one party responsible for the

plans.52

Fulton neglects to cite language from Exhibit C stating that at least some of the Kmart

specifications were provided for pricing purposes only and not for construction guidelines: “These

sets of Typical plans and specifications are to be used only as a guide for pricing purposes and as

such are not intended, nor will their use be permitted, for construction purposes.” Construction53

design was the ultimate province of the landlord.

Fulton also omits relevant language from the last page of Exhibit C of the lease. Kmart

informed the landlord representative, “This project has been assigned a number (#4883) and you are

at liberty to proceed with your site development design and building design development

packages.” And most salient for purposes of this case, Kmart instructed that the landlord would54

be solely responsible for the total project and expressly for the consideration of topographic and

weather conditions: “Your Architect/Engineers will . . . remain solely responsible for the total

project, including without limitation, structural integrity, consideration of topographic and

Id. at Exhibit C at 1.51


p. 71, ll. 3-9; see also Fulton’s Memorandum of Law in Support of Motion for Summary Judgment, ExhibitD, Lease at Exhibit C at 3, “Site Development.”

Fulton’s Motion for Summary Judgment, Exhibit D, Lease at Exhibit C at 4.53

Id. at 5 (emphasis added).54

13


weather conditions and soil characteristics, and conformace with all applicable codes and other

legal requirements.” Therefore, the landlord, not Kmart, was responsible for considering weather55

conditions, such as the potential for flooding and how to mitigate, prevent, and/or protect against it.

Fulton’s cases — City of Columbus v. Clark-Dietz & Associates-Engineers, Inc. and56

Havard v. Board of Supervisors, Humphreys County, which supposedly deflect liability from a57

contractor who complies with another’s specifications — do not even apply to this situation. The

contract of lease provides that the landlord, not Kmart, was responsible for items such as flood

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

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

Fulton asserts that it cannot be held liable for lack of maintenance of the property, when

landscape timbers pushed open the Kmart door and allowed flood waters in. In other words, Fulton58

contends that the timbers caused the store flooding and not any lack of maintenance by Fulton in the

form of flood protection.59

But Fulton’s argument assumes that the flood protection measures would not have halted the

timbers. In fact, Kmart’s corporation representative was asked this question at his deposition, and

he explained that gates and a membrane could have protected against the timbers. And again, as60

Id. (emphasis added).55

550 F. Supp. 610 (N.D. Miss. 1982).56

220 Miss. 359, 70 So. 2d 875 (1954).57


See id. at 19.59


p. 247, l. 4 - p. 251, l. 4.

14


with much of Fulton’s motion, this argument raises an unresolved issue of fact as to whether flood

protection measures would have acted as additional protection against the timbers. Therefore, this

Court should deny Fulton’s motion for summary judgment.

3. Causation is an issue of fact.

Fulton contends that without testimony from Mr. Krewson, Kmart cannot prove causation

against Fulton on the breach of contract claim. But Fulton fails to recognize that it needs no expert

testimony to prove its breach of contract claim against Fulton. Proof of causation for that claim is

a straightforward one:

• Fulton had a contractual obligation to maintain Kmart’s store in a “safe, dry and

tenantable condition.”61

• Kmart’s store flooded due to Fulton’s admitted failure to take adequate flood

protection measures, and thus Fulton did not maintain Kmart’s store in a safe, dry,

and tenantable condition;

• Fulton is liable to Kmart for damages that occurred due to the breach of this

contractual obligation.

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

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

Fulton contends that it is entitled to summary judgment because the May 2, 2010 flood event

was an unforeseeable act of God that could not have been prevented with reasonable care and

Fulton’s Motion for Summary Judgment, Exhibit D, Lease at 11, § 15, “Repairs and61

Maintenance.”

15


foresight. But the fact that Fulton must prove that the flood could not have been prevented, no62

matter what actions were taken, necessarily raises an issue of fact.

Fulton bears the burden of proving its Act of God defense and “must establish ‘beyond

peradventure all of the essential elements of the . . . defense.’” An Act of God is “an injury due63

directly and exclusively to natural causes without human intervention, which could not have been

prevented by the exercise of reasonable care and foresight. “In other words, ‘[t]his defense applies

where an injury is attributable solely to natural cause.’” “An act ‘which may be prevented by the64

exercise of ordinary care is not an act of God.’” “However, if the injury is caused by an act of God,65

in connection with which the negligence of the defendant is a concurring cause, and the injury would

not have occurred except for such negligence, then defendant is liable.” 66

As explained above, Kmart’s representative testified that known flood prevention measures

in the form of a gate and membrane could have prevented the flooding in the store. Fulton confuses

the suddenness of the storm with the inability to prepare for it. If a gate and membrane or similar

flood prevention measures had been installed on the building, they would have been ready to deploy

in defense of the building.67


Biloxi Yacht Club, Inc. v. Grand Casinos of Miss., Inc. - Biloxi, 2009 WL 801635, *4 (S.D. Miss.63

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

Id.(citing Shields v. Easterling, 676 So.2d 293, 296 (Miss. 1996)). 64

Id. (citing King v. Miss. Power & Light Co., 244 Miss. 486, 142 So.2d 222, 224-25 (Miss. 1962)). 65

Id. (citing McFarland v. Entergy Miss., Inc., 918 So.2d 679, 701 (Miss.Ct.App. 2004) (rev’d by66

919 So.2d 894 (Miss. 2005)).


p. 247, l. 4 - p. 251, l. 4.

16


Further, Fulton describes Acts of God as “events in nature so extraordinary that the history

of climactic variations and other conditions in the particular locality affords no warning of them.” 68

But as explained above, two similar storms — supposedly 100-years storms or greater — had

occurred within just nine years earlier of the May 2, 2010 storm, and just weeks after each other.

Thus the May 2, 2010 flood was not an unprecedented flooding event for Corinth, Mississippi. Mr.

Sandy, the author of the article and the commissioner of the Elam Creek Drainage District, was

identified by Kmart as a potential witness with knowledge of the history of flooding in and around

the City of Corinth. But the Defendants did not bother to depose Mr. Sandy regarding the history

of flooding in Corinth.

The Act of God defense does not apply because Kmart’s damage is not attributable solely to

the May 2, 2010, but resulted from the Fulton’s failure to provide adequate flood protection and keep

the property in a safe, dry, and tenantable condition. In City of Jackson v. Brummett, the plaintiff’s69

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.” There was70

disputed evidence regarding whether the ropes to tie the plane down were rotten. The plane blew71

over in the wind and was damaged. The City argued the sole cause was an act of God in the form of

Fulton’s Memorandum of Law in Support of Motion for Summary Judgment at 21 (quoting Bay68

Point High & Dry, L.L.C. v. New Palace Casino, L.L.C. 46 So. 3d 821, 835 (Miss. App. 2010)).

224 Miss. 501 (Miss. 1955).69

Id. at 505. 70

Id.71

17


“a sudden, extraordinary and unprecedented wind.” But the court affirmed the verdict for the72

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. Thus the court found the73

defendant was not entitled to judgment as a matter of law on the act of God defense. 74

In Biloxi Yacht Club Inc. v. Grand Casinos of Mississippi Inc.-Biloxi, the plaintiff’s75

property was damaged when the defendant’s barge broke free during Hurricane Katrina and became

dislodged form its moorings, striking the plaintiff’s property. The plaintiff brought an action for76

negligence against the defendant. The defendant argued that it was entitled to an Act of God77

defense because Hurricane Katrina was an unprecedented storm. The plaintiff responded that the78

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. The court held that the defendant was79

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

Id. at 507. 72

Id.73

Id.74

2009 WL 801635 (S.D. Miss. 2009). 75

Id. at *1.76

Id.77

Id. at *4. 78

Id.79

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to the plaintiff’s loss.80

Similarly, Fulton is not entitled to summary judgment based on its Act of God defense

because there are disputed issues of fact as to whether Fulton was negligent in its maintenance of the

Kmart store.

III. Conclusion

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

Fulton was negligent and whether it owes contractual obligations to Fulton. Summary judgment is,

therefore, improper and Fulton’s motion should be denied.

This the 30th day of October, 2013.

Respectfully submitted,

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

Id. at *5. 80

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CERTIFICATE OF SERVICE

I hereby certify that a copy of the above and foregoing has been served on all known counsel

of record with the Clerk of Court using the CM/ECF system which will automatically send-email

notification to all known counsel of record, this 30th day of October, 2013.

/s/ Ryan O. Luminais__________________________________________RYAN O. LUMINAIS

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296 memoinsupportresponsetomotionforsummaryjudgement fulton kmart

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