Filed: Jul. 09, 1996
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 96-60054 Summary Calendar _ MYRA LEIGH, Plaintiff -Appellant, versus WAL-MART STORES, INC.; LONNIE LUKER, Defendants - Appellees. _ Appeal from the United States District Court for the Southern District of Mississippi (3:95-CV-3) _ June 27, 1996 Before SMITH, BENAVIDES and DENNIS, Circuit Judges. BENAVIDES, Circuit Judge:* In this "slip and fall" case, Myra Leigh appeals from a summary judgment granted in favor of defendants Wal-Mart Sto
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 96-60054 Summary Calendar _ MYRA LEIGH, Plaintiff -Appellant, versus WAL-MART STORES, INC.; LONNIE LUKER, Defendants - Appellees. _ Appeal from the United States District Court for the Southern District of Mississippi (3:95-CV-3) _ June 27, 1996 Before SMITH, BENAVIDES and DENNIS, Circuit Judges. BENAVIDES, Circuit Judge:* In this "slip and fall" case, Myra Leigh appeals from a summary judgment granted in favor of defendants Wal-Mart Stor..
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 96-60054
Summary Calendar
__________________
MYRA LEIGH,
Plaintiff -Appellant,
versus
WAL-MART STORES, INC.; LONNIE LUKER,
Defendants - Appellees.
______________________________________________
Appeal from the United States District Court for the
Southern District of Mississippi
(3:95-CV-3)
______________________________________________
June 27, 1996
Before SMITH, BENAVIDES and DENNIS, Circuit Judges.
BENAVIDES, Circuit Judge:*
In this "slip and fall" case, Myra Leigh appeals from a
summary judgment granted in favor of defendants Wal-Mart Stores,
Inc. and store manager Lonnie Luker. We affirm.
On June 27, 1993, while shopping with her husband at a Wal-
Mart, Leigh stepped into a puddle of a cleaning product and slipped
and fell to the floor. Leigh alleges that the spill was caused by
*
Pursuant to Local Rule 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opinion should not be published and is not precedent except under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 Local Rule 47.5.4.
a leak from the bottom of a bottle of Pine Fresh that had fallen to
the floor, cracked, and was later replaced on the merchandise
display. Leigh sued Wal-Mart and the store manager in Mississippi
state court alleging: 1) negligence in allowing the puddle to exist
on the premises; and 2) negligent display of merchandise. Wal-Mart
removed to federal court on the basis of diversity.
The district court granted summary judgment for the defendants
on both claims. The court found that Leigh could not prevail on
the premises liability claim because the summary judgment evidence
reflected that the puddle was not created by a Wal-Mart employee
and Wal-Mart had neither actual nor constructive notice of the
spill. The court rejected the negligent display claim on the basis
that there was no evidence that the display was unreasonably safe
and, even if the there was negligent display, the display was not
the proximate cause of Leigh's injuries. Leigh now appeals.
We review a summary judgment under well-established standards.
Blakeney v. Lomas Info. Sys., Inc., 65 F.3d 482, 484 (5th Cir.
1995), cert. denied,
116 S. Ct. 1042 (1996); see Sterling Property
Management, Inc. v. Texas Commerce Bank, Nat'l Ass'n,
32 F.3d 964,
966 (5th Cir. 1994).
To recover for negligence, Leigh has the burden of
establishing that Wal-Mart had a legal duty to Leigh, Wal-Mart
breach the duty, and that she sustained injuries proximately
resulting from the breach. See Hardy v. K Mart Corp., 669 So. 2d
34, 37-38 (Miss. 1996). In the context of a "slip and fall" claim,
2
Leigh must produce evidence that: 1) a negligent act of Wal-Mart
caused her injury; or 2) Wal-Mart had actual knowledge of the
dangerous condition; or 3) the dangerous condition existed long
enough to impute constructive knowledge. Id. at 38.
Summary judgment was appropriate in this case. As to the
"puddle claim," there was no evidence that an employee of Wal-Mart
caused the spill. Similarly, there is no summary judgment evidence
that Wal-Mart had actual knowledge of the spill. In fact,
assistant manager Brian Magee testified that he walked through the
area two to three minutes before the fall and saw no spill. Leigh
speculates that the spill must have been on the floor long enough
to constitute constructive knowledge because of the spill's size1
and the small crack in the bottom of the leaky bottle. As the
district court properly noted, Leigh's conjecture on this issue
does not amount to evidence sufficient to withstand summary
judgment. We do not indulge in presumptions on the length of time
an unsafe condition may have existed; a plaintiff must present
specific evidence on this point. Dickens v. Wal-Mart Stores, Inc.,
841 F. Supp. 768, 771 (S.D. Miss. 1994). Leigh presented no
evidence as to the length of time the spill was present. In
contrast, Wal-Mart presented sworn testimony that the spill was not
there just minutes before the accident. Consequently, there is no
summary judgment evidence sufficient to establish constructive
1
Leigh's husband testified that the spill was three to four
feet in diameter after Leigh had fallen in it. Mrs. Leigh offered
no testimony as to the size of the spill.
3
notice.
Similarly, the negligent display claim cannot survive summary
judgment. The owner of a business is not an insurer against all
injuries. Waller v. Dixieland Food Stores, Inc., 492 So. 2d 283,
285 (Miss. 1986). Wal-Mart's duty as a business owner is to keep
the premises reasonably safe and, when not, to warn of dangers not
in plain view. McGovern v. Scarborough,
566 So. 2d 1225, 1228
(Miss. 1990). While Leigh presented evidence of alternative
display techniques, there is no summary judgment evidence that Wal-
Mart's display was unreasonable. Instead, Wal-Mart presented
testimony that reasonable care was properly exercised.
Additionally, there is no question that the display at issue was
clearly in plain view.
Moreover, even assuming arguendo that the merchandise was
displayed in a negligent fashion, Leigh cannot demonstrate that the
display was the proximate cause of her injuries. The proximate
cause of an injury is that cause which in natural and continuous
sequence unbroken by any intervening cause produces the injury.
Grisham v. John Q. Long V.F.W. Post, 519 So. 2d 413, 417 (Miss.
1988). As the district court properly noted, this is not a case
where Leigh knocked over the display and became injured. Rather,
Leigh asserts that somehow a bottle dropped, became cracked, and
was replaced on the display. Given this intervening cause, the
manner of display cannot be characterized as the proximate cause of
her alleged injuries.
4
Finally, Leigh's reliance on Hardy is misplaced. In Hardy,
the Mississippi Supreme Court reversed a summary judgment granted
in favor of a business owner involving a slip and fall. Unlike the
instant case, in Hardy there was conflicting summary judgment
evidence as to whether employees of the store had actual knowledge
of the spill. 669 So. 2d at 39. Additionally, the assistant
manager testified that stacking paint cans higher than three layers
was unsafe; there was evidence that displays in the store were
stacked five levels high.
Id. at 38. Consequently, there was some
evidence of admission of breach of care. The Mississippi Supreme
Court, applying the Mississippi state summary judgment standard,
concluded that the trial court had insufficiently complete facts
before it thereby precluding summary judgment.
Id. In contrast,
Leigh has presented no summary judgment evidence to contradict Wal-
Mart's evidence that negates the negligence claims. Hardy is
therefore easily distinguishable from the instant case.
The judgment of the district court is AFFIRMED.
5
