Kmart Corp. is asking a federal appeals court to order a trial in its lawsuit against a shopping center owner for flood damage to one of its stores in Corinth, Miss.
Kmart contends it has evidence to support its arguments that property owner Fulton Improvements LLC knew a neighboring Kroger was built in a floodway, and caused water to flood the Kmart store in 2010.
In May of 2010, heavy rain pelted the Corinth area. The Kmart store sustained extensive flood damage and was closed for repairs from the time of the flood until February 2011, when the store reopened for business. Kmart argues it incurred additional costs to prevent subsequent damage from another anticipated flood event.
Kmart sued the Kroger Company and the city of Corinth in May 2011. The city was dismissed as a defendant in 2013. The case was dismissed against Kroger and Fulton Improvements in 2014. Kmart appealed the dismissal of the lawsuit against Fulton Improvements to the 5th U.S. Circuit Court of Appeals.
A 5th Circuit panel will hear arguments in the case on April 7 in New Orleans.
Kmart alleges a neighboring Kroger grocery was built in a floodway, and caused water to flood the Kmart store in 2010.
The two stores are the retail anchors of the Fulton Crossing Shopping Center in Corinth.
Kmart claimed Kroger’s position in a floodway caused a rise in floodwaters during a May 2010 heavy rain. The water flooded the Kmart store and caused it to close for 10 months for repairs. Court records show that Fulton Improvements owned the building housing Kmart and an adjacent Kroger food store.
Kmart argues Fulton Improvements failed to install flood gates or protective measures at Kmart. Kmart argued the lack of flood protection measures and the very presence of the Kroger caused Kmart to flood.
Jamie F. Jacks of Cleveland, attorney for Fulton Improvements, said in court briefs that Kmart erroneously argues that Fulton Improvements knew it needed to take flood protection measures at Kmart after a 2009 county study showed the propensity for the City of Corinth to flood.
“Kmart cites no case which holds a county wide flood study is sufficient to put an individual landlord on notice to take any particular flood protection measures,” Jacks wrote in briefs.
Jacks said the study “does not give rise to notice to the landlord under Mississippi law that the type of flood protection measures now request by Kmart should have been installed.”
Jacks said Kmart had no proof, expert or otherwise, that “any flood protection measure” would have prevented its store from flooding.
Kmart attorney John T. Balhoff II of New Orleans said in briefs that the facts of the case show that the retailer doesn’t need an expert “to explain that a six-foot flood gate could have kept two feet of water out of Kmart’s store.”
He said Fulton Improvements was trying to confuse the issue by arguing that there would not have been enough time to install the flood gates.
Balhoff said the issue that should be settled at a trial was whether Fulton Improvements had a contractual duty to keep the store dry.
Topics Flood Mississippi
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