Case: 1:11-cv-00103-GHD-DAS Doc #: 253 Filed: 10/07/13 1 of 9 PageID #: 2250
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI EASTERN DIVISION KMART CORPORATION VS.
PLAINTIFF CIVIL ACTION NO. 1:11-CV-103-GHD-DAS
THE KROGER CO., E&A SOUTHEAST LIMITED PARTNERSHIP; FULTON IMPROVEMENTS LLC; THE KANSAS CITY SOUTHERN RAILWAY COMPANY; CITY OF CORINTH; THE UNITED STATES OF AMERICA; JOHN DOE; AND ABC CORPORATION
DEFENDANTS
______________________________________________________________________________ DEFENDANT THE KANSAS CITY SOUTHERN RAILWAY’S MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ COMES NOW Defendant The Kansas City Southern Railway Company (“KCSR”), by and through counsel, and moves this Court pursuant Fed. R. Civ. P 56 for summary judgment on all of Plaintiff’s claims against it and would show unto the Court the following: INTRODUCTION Plaintiff Kmart Corporation (“Plaintiff” or “Kmart”) brought this action on May 2, 2011, alleging that negligent acts and/or omissions by Defendants proximately caused the flooding damages Plaintiff sustained at its Kmart Store #4883 in Corinth, Mississippi, on May 2, 2010. With regard to KCSR, Kmart alleges that KCSR negligently allowed excessive debris to collect under its railroad bridge over Elam Creek, and that, blockage resulting from such alleged debris caused the level of water in the Kmart store, located some 2100 feet upstream, to be higher than it would have been otherwise. Plaintiff bears the burden to prove, by a preponderance of the evidence, duty, breach of duty, proximate cause and damages. McKee v. Bowers Window & Door Co., Inc., 64 So. 3d 926, 1