- Associated Press - Thursday, April 2, 2015

JACKSON, Miss. (AP) - A federal appeals court has upheld the dismissal of Kmart Corp.’s lawsuit against a shopping center owner for flood damage to one of its stores in Corinth, Mississippi.

Kmart contended it had evidence to support its arguments that property owner Fulton Improvements LLC knew that a neighboring Kroger was built in a floodway and caused water to flood the Kmart store in 2010.

In May 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. Kmart argued it incurred additional costs to prevent subsequent damage from another anticipated flood event.

Kmart sued the Kroger Co. 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.

The three-judge panel of the 5th U.S. Circuit Court of Appeals this week said Kmart failed to present evidence that Fulton’s failure to install flood protection measures caused the flood.

Kmart argued Fulton Improvements failed to install flood gates or other protective measures at Kmart. Kmart argued the lack of flood protection measures and the very presence of the Kroger caused Kmart to flood.

The three-judge panel said in Tuesday’s decision that Kmart did not present a genuine fact issue that Fulton’s failure to install floodgates caused Kmart’s monetary damages.

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