UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 09-1555


EDITH GARNER,

                Plaintiff - Appellant,

          v.

SUPERVALU, INCORPORATED, d/b/a Shoppers Food and Pharmacy,

                Defendant – Appellee.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.    Deborah K. Chasanow, District Judge.
(8:08-cv-00895-DKC)


Submitted:   August 31, 2010            Decided:   September 17, 2010


Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Kez U. Gabriel, LAW OFFICE OF OTI W. NWOSU, Arlington, Virginia,
for Appellant.   Christopher R. Dunn, DECARO, DORAN, SICILIANO,
GALLAGHER & DEBLASIS, LLP, Bowie, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Dr. Edith Garner appeals the district court’s grant of

summary     judgment         to   Supervalu,        Inc.,     d/b/a   Shoppers    Food   &

Pharmacy (Supervalu) on her common law negligence claim.                              For

the following reasons, we affirm.



                                               I.

               On December 11, 2005, at 1:15 p.m., Dr. Edith Garner

and   her   cousin,      Theresa        Iloba,      entered     the   Shoppers    Food   &

Pharmacy in Bowie, Maryland.                   As Dr. Garner entered the store

through the automatic doors, her left foot became caught on the

carpeted floor mat.                Dr. Garner lost her balance and plunged

forward to the floor.                  Iloba, the store manager, and a good

Samaritan came to Dr. Garner’s aid and an ambulance was called.

Dr. Garner was transported to the hospital and returned to the

store    the    next    day       to   file    a    written    incident    report.       On

December 13, Dr. Garner provided a recorded statement to Linda

Reard of Risk Enterprise Management.                        Dr. Garner had extensive

medical bills as a result of her fall.

               On March 27, 2008, Dr. Garner filed a complaint in the

Circuit     Court      for    Prince     George’s       County    against      Supervalu,

alleging common law negligence.                     Supervalu removed the case to

the     federal     district           court       on   the     basis     of   diversity



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jurisdiction *      and,        following     discovery,      moved    for     summary

judgment.         The    district    court        granted   Supervalu’s    motion     by

written opinion on April 17, 2009.



                                             II.

               On appeal, Dr. Garner contends that the district court

erred    in     granting    summary      judgment      on   her   negligence      claim.

Summary judgment is appropriate “if the pleadings, the discovery

and disclosure materials on file, and any affidavits show that

there is no genuine issue as to any material fact and that the

movant is entitled to judgment as a matter of law.”                            Fed. R.

Civ. P. 56(c).           We review the district court’s order granting

summary       judgment     de   novo.        Jennings   v.   University      of    North

Carolina, 

, 694 (4th Cir. 2007) (en banc).                       In doing

so, we generally must view all facts and draw all reasonable

inferences in the light most favorable to the nonmoving party.

Scott v. Harris, 

, 378 (2007).                          Moreover, as a

federal court sitting in diversity, we have an obligation to

apply     the     jurisprudence         of    Maryland’s     highest      court,    the

Maryland Court of Appeals.              Wells v. Liddy, 

, 527-28

(4th Cir. 1999).


     *
       Supervalu is a Delaware corporation and Dr. Garner is a
Maryland resident.    The amount in controversy is more than
$75,000.


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              Under   Maryland   law,    to   prove   negligence    Dr.    Garner

must show that Supervalu was under a duty to protect her from

injury, that Supervalu breached that duty, that she suffered an

actual injury or loss, and that the injury was the proximate

result   of    Supervalu’s   breach     of    its   duty.    Valentine     v.   On

Target, 

, 949 (Md. 1999).                 In order to sustain a

negligence     action,   “[i]t   is     not   sufficient    to   merely    assert

conclusory allegations suggesting that the elements are in fact

present in the controversy.”          

and fall” cases, the duty of care owed by an

owner or occupier of a premises is a function of his legal

relationship to the person entering on the premises.                      In this

case, the parties agree that Dr. Garner was a business invitee.

She was thus owed a duty of “reasonable and ordinary care to

keep [the] premises safe for the invitee and to protect the

invitee from injury caused by an unreasonable risk which the

invitee, by exercising ordinary care for his own safety, will

not discover.”         Bramble v. Thompson, 

, 267 (Md.

1972).    See also Pahanish v. Western Trails, Inc., 

, 1128 (Md. 1986) (“landowner’s duty to business invitees is

to use reasonable and ordinary care to keep his premises in a

safe condition and to protect invitees against the dangers of

which the landowner is aware or which, with reasonable care, he

could have discovered”).

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             To satisfy this duty, Dr. Garner must establish that a

dangerous condition existed and that Supervalu had “actual or

constructive knowledge of the dangerous condition and that the

knowledge      was    gained   in    sufficient          time     to        have     given

[Supervalu]     the    opportunity    to        remove      it   or    to     warn     the

invitee.”     Joseph v. Bozzuto Management Co., 

, 1235

(Md. Ct. Spec. App. 2007) (internal quotation marks omitted).

In the alternative, Dr. Garner may show that Supervalu created

the    dangerous      condition.          Moulden      v.    Greenbelt         Consumer

Services, Inc., 

, 726 (Md. 1965).                         Under Maryland

law, “no presumption of negligence on the part of the proprietor

arises merely from a showing that an injury was sustained in his

store.”      Rawls v. Hotchschild, Kohn & Co., 

, 408

(Md. 1955).     Thus, the “burden is upon the customer to show that

the proprietor created the dangerous condition or had actual or

constructive     knowledge     of   its       existence.”        Lexington         Market

Authority v. Zappala, 

, 148 (Md. 1964).

             In this case, we agree with the district court that

Dr. Garner cannot show that Supervalu should have known that the

mat was curled up in a dangerous fashion at the time of her fall

or    that   Supervalu   created    the       danger   by    using     an    improperly

fastened and old carpeted mat.                  First, Dr. Garner failed to

produce any evidence that Supervalu was aware or should have

been aware that the mat was in a dangerous position.                         Dr. Garner

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testified during her deposition that, prior to her fall, she did

not see the mat.         After she fell, she looked and saw that the

mat was curled up in the air.                No other testimony established

that the mat was curled prior to her fall and neither her cousin

nor the good Samaritan saw the mat prior to Dr. Garner’s fall.

As Supervalu notes, given this dearth of testimony, it is just

as likely that the mat became curled after Dr. Garner fell as

opposed to causing her fall.            And, because it is Dr. Garner’s

burden to show that the mat was curled up and that Supervalu

knew of the danger, summary judgment is appropriate.                         As the

Court   of   Special     Appeals   explained     in    a   factually       analogous

case,   “[t]he    only    evidence    appellant       presented     that    was   not

conjecture was that she fell on the carpet.                 Whether the carpet

was turned up prior to her fall and if so, the length of time it

was turned up, were matters of mere speculation.”                          Carter v.

Shoppers Food Warehouse Corp., 

, 967 (Md. Ct. Spec.

App. 1999).

             Second,     Dr.   Garner   failed        to   provide    any     expert

testimony    or   other    evidence     of    trade    usage   or    custom       that

Supervalu created a dangerous condition by using loose carpeted

floor mats.       In Carter, the Court of Special Appeals affirmed

the trial court’s rejection of expert testimony that the carpet

was turned up prior to the plaintiff’s fall because the floor

mat’s thickness was substandard and caused a tripping hazard.

                                        6


.                  The court noted that the expert was

unable    to    point     to     any    industry        standard   and     performed     no

testing    on     the   carpet     in    question.          

   the

district court summarized, Dr. Garner “has not presented any

expert testimony or other evidence that Defendant’s use of this

particular mat created a dangerous condition.                        [Dr. Garner] has

also     failed    to     direct       the     court’s     attention      to     any    law,

regulation,       or    safety    standard         which   [Supervalu]      violated      by

using    the    mat.”      Dr.     Garner’s        position   is   essentially         that,

because    she     fell    on    the    mat,       it   follows    that    the    mat   was

dangerous.         Without       any    supporting         evidence,      however,      that

conclusion is merely speculation.

               Accordingly, we affirm the district court’s grant of

summary judgment to Supervalu.                     We dispense with oral argument

because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the

decisional process.

                                                                                  AFFIRMED




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