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Case: 1:11-cv-00103-GHD-DAS Doc #: 270 Filed: 10/10/13 18 of 27 PageID #: 3690

The building which houses the Kroger store was removed from the floodway by FEMA through a LOMR issued on November 18, 2005, because of FEMA’s determination that the structure was inadvertently included in the floodway.6 [Exhibit D at 1] Kmart admits that it is aware of no evidence whatsoever that tends to show that Kroger was involved in any way in the acquisition of the LOMR made this subject of this action. [Exhibit B at 191, 193-94] In fact, Kroger had no involvement in FEMA’s issuance of the LOMR at issue in this matter and did not participate in the process pursuant to which said LOMR was issued. [Exhibit C at 5-6] Simply put, Kroger was not aware that the building which houses its Corinth store was ever located in a floodway until it received a copy of the Plaintiff’s Complaint, and it had no knowledge of or participation in the process that led to the issuance of the LOMR, and Kmart can offer no proof to the contrary. Further, Kmart has designated no expert witness to opine that Kroger negligently performed any “due diligence” in connection with its decision to lease the building at issue in this case or that it should have known that the store had ever been in a floodway. Indeed, it is hard to conceive that Kmart could have done so, in light of the fact that the best documents available for Kroger to have reviewed in connection with deciding whether to lease the building at issue, i.e. the original construction plans for the development, show that said building is not in a floodway. [Exhibit E at 241-42] E.

Kmart Cannot Show “But-For” Causation as to Kroger.

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). Proximate cause is a concept which is more accurately defined by reference to the 6

The removal of the Kroger store from the floodway was re-validated by FEMA for the new flood maps which became effective in September 2010. [Exhibit E, exhibit 2 thereto]

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270 memoinsupportmotionforsummaryjudgement kroger kmart  
270 memoinsupportmotionforsummaryjudgement kroger kmart  
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