Kristen Lewis v. Kroger Limited Partnership I, et

Case: 18-60092 Document: 00514553891 Page: 1 Date Filed: 07/13/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-60092 July 13, 2018
Lyle W. Cayce
KRISTEN LEWIS, Clerk
Plaintiff - Appellant
v.
KROGER LIMITED PARTNERSHIP I; THE KROGER COMPANY,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:16-CV-724
Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Kristen Lewis brought this premises liability suit
against Kroger Co. and its related entity, alleging that Kroger was liable for
her injuries after a slip-and-fall at one of their grocery stores. On Kroger’s
motions, the district court struck an affidavit submitted by Lewis, finding that
it directly contradicted her prior deposition testimony, and granted summary
judgment for Kroger. Lewis timely appeals.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 18-60092 Document: 00514553891 Page: 2 Date Filed: 07/13/2018
No. 18-60092
Our careful review of the record, the parties’ briefs, and the district
court’s ruling demonstrates no error in the district court’s decision. Though an
affidavit that supplements or explains prior testimony can be admitted as
evidence, the district court did not abuse its discretion in determining that
Lewis’ affidavit contradicted, rather than clarified, her prior deposition
testimony. See, e.g., S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495–46
(5th Cir. 1996). On consideration of the remaining evidence, we affirm the
district court’s determination that no reasonable jury could find that Kroger
either created a hazardous condition causing Lewis injury or had actual or
constructive knowledge of such a condition. Vu v. Clayton, 765 So. 2d 1253,
1255 (Miss. 2000) (stating the requirements for a premises liability claim
under Mississippi law); see FED. R. CIV. P. 56(a). Accordingly, we affirm the
district court’s judgment for essentially the same reasons stated by that court.
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