     Case: 09-60850 Document: 00511460284 Page: 1 Date Filed: 04/28/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           April 28, 2011
                                       No. 09-60850
                                                                           Lyle W. Cayce
                                                                                Clerk
ESTATE OF WILLIE MAE MOORE,

                                           Plaintiff,

v.

WAL-MART STORES, INC.,

                                           Defendant-Third Party Plaintiff –
                                           Appellee Cross-Appellant,

v.

ROBERT SCHMIDT; PUBLIC PAY PHONE COMPANY,

                                           Third Party Defendants –
                                           Appellants Cross-Appellees.


                   Appeals from the United States District Court
            for the Northern District of Mississippi, Greenville Division
                                  4:07-cv-5-mpm


Before DAVIS, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
       Public Pay Phone appeals the district court’s summary judgment on Wal-
Mart’s indemnification claim for attorneys’ fees. Wal-Mart sought to recover the


       *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 09-60850 Document: 00511460284 Page: 2 Date Filed: 04/28/2011



                                  No. 09-60850

costs of defending the personal injury suit brought by Plaintiff Willie Mae Moore,
who alleged that a piece of the wooden casing around a pay phone in the store’s
customer service department fell and injured her foot.        Public Pay Phone
installed and maintained the phone, pursuant to an agreement with Wal-Mart.
Under that agreement, Public Pay Phone promised to indemnify Wal-Mart for
lawsuits related to the phone in certain circumstances. The indemnification
provision does not apply, however, “in the event the injury or damage arises out
of or is caused by the negligence or willful conduct of Wal-Mart.” Following the
jury verdict for Wal-Mart on the underlying personal-injury action, the district
court granted summary judgment on the indemnification claim, requiring Public
Pay Phone to pay Wal-Mart’s attorneys’ fees relating to the action.
      We review a district court’s summary judgment de novo. Rivers v. Cent.
& S.W. Corp., 186 F.3d 681, 683 (5th Cir. 1999).         Summary judgment is
appropriate when “there is ‘no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.’” Kovacic v. Villarreal, 628
F.3d 209, 211 (5th Cir. 2010) (quoting Fed. R. Civ. P. 56(a)). We take all the
facts and evidence in the light most favorable to Public Pay Phone, the
nonmoving party. Id.
      Summary judgment is inappropriate in this case because genuine issues
of material fact remain as to whether Wal-Mart was negligent, which would
preclude indemnification under the terms of the agreement. Public Pay Phone
presented evidence that a Wal-Mart employee had reported the damaged
condition of the phone casing to her supervisor at least a week before the
accident, yet Wal-Mart never informed Public Pay Phone of the need for repairs
until after the accident. On the other hand, Wal-Mart presented evidence that
none of the store’s managers knew about the damage prior to the accident, but
that a representative of Public Pay Phone had visited the store and observed the
damage before the accident.

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                                         No. 09-60850

       In the face of this factual dispute, Wal-Mart emphasizes the jury’s verdict,
apparently believing that it establishes that Wal-Mart was not negligent. The
jury made no such finding, however. The jury rendered only a general verdict:
“We, the jury, find for the Defendant.” Such a verdict indicates merely that the
plaintiff failed to prove an essential element of her claim.1                     As a result,
“[w]ithout specific jury findings, no one can logically or realistically draw any
factual finding inferences.” United States v. Watts, 519 U.S. 148, 155 (1997)
(internal quotation marks and citation omitted). Thus, the jury’s verdict does
not resolve the material factual dispute in this case. Because such a dispute
precludes summary judgment, we reverse the judgment of the district court and
remand for further proceedings consistent with this opinion.
       REVERSED AND REMANDED.




       1
         Indeed, a jury note suggests that the jury was considering whether plaintiff had been
injured at all: “Did the plaintiff’s lawyer have to prove that Mrs. Moore was actually hurt by
the falling shelf on April 22, 2006?” The jury’s question nicely illustrates the flaw in Wal-
Mart’s argument. If the jury found that the plaintiff’s proof failed on the issue of actual injury,
it would not even need to consider whether Wal-Mart acted negligently to find for Wal-Mart.

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