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Case: 1:11-cv-00103-GHD-DAS Doc #: 270 Filed: 10/10/13 14 of 27 PageID #: 3686

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. Suit was initially filed after the 2002 flood naming Waste Management as a defendant; it also named BFI, Inc., another waste services company, and the City of Jackson as co-defendants. The Rhalys alleged that the City had negligently maintained the drainage ditch, and that a BFI dumpster had contributed to the 2002 flood. After the 2003 flood, another suit was filed, naming only Waste Management and the City as defendants. These actions were later consolidated into the instant suit. Prior to this appeal being taken, BFI was dismissed as a defendant, and a default judgment was entered against the City. Rhaly, 43 So.3d at 511. The decision in Rhaly is initially distinguishable for the simple fact that the opinion discloses that Mike’s Gas Plus, the business served by Waste Management and either the tenant or owner of the property on which the offending dumpster was placed, was not a defendant to the action, and the opinion in Rhaly does not discuss the principles of liability of a tenant or owner of property to a tenant or owner of adjacent property. Moreover, unlike the evidence showing that Waste Management placed a dumpster on property adjoining the property owned by the plaintiffs in Rhaly, Kmart cannot prove any affirmative act or omission that can serve as the basis for liability against Kroger. 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. [Exhibit E at 237-38] 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].” [Exhibit B at 192-93]

Kmart’s corporate deponent explained further that Kmart’s claim that Kroger’s


270 memoinsupportmotionforsummaryjudgement kroger kmart  
270 memoinsupportmotionforsummaryjudgement kroger kmart