                   UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT


                                   No. 98-30785


GREGORY P. SPANO,
                                                           Plaintiff-Appellant,

                                       versus

SAV-A-CENTER, INC., ET AL.,
                                                           Defendants.
GREAT ATLANTIC & PACIFIC TEA
COMPANY, erroneously sued as Sav-A-Center,
Inc., d/b/a Sav-A-Center, Inc.,
                                                           Defendant-Appellee.


                   Appeal from the United States District Court
                for the Eastern District of Louisiana, New Orleans
                        (USDC Docket No. 97-CV-2143-F)

                                February 23, 2000
Before POLITZ, GIBSON*, and HIGGINBOTHAM, Circuit Judges.

POLITZ, Circuit Judge:**

        Gregory P. Spano appeals an adverse summary judgment in his personal
injury diversity action against Great Atlantic and Pacific Tea Company (“A&P”).

For the reasons assigned, we vacate and remand.


   *
   Circuit Judge of the Eighth Circuit, sitting by designation.
   **
     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not be published and is not precedent except under the limited circumstances set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.
                                 BACKGROUND
      On May 15, 1996 at approximately 7:30 p.m., Gregory Spano allegedly

sustained personal injuries when he slipped and fell in a puddle of Formula 409

cleaning fluid while walking down an aisle at the A&P Sav-A-Center store on
General DeGaulle Avenue in New Orleans.

      In order to make out a claim against a merchant for injury due to a condition

existing on the merchant’s premises, La. R.S. 9:2800.6 requires a demonstration

that the condition presented an unreasonable and foreseeable risk of harm, that the
merchant either created the risk or had actual or constructive knowledge of the risk,
and that the merchant failed to exercise reasonable care. The essential issue at bar
is whether Spano presented evidence of constructive notice. La. R.S. 9:2800.6

defines “constructive notice” to mean that “the claimant has proven that the
condition existed for such a period of time that it would have been discovered if the

merchant had exercised reasonable care.” Further, “the presence of an employee
of the merchant in the vicinity in which the condition exists does not, alone,
constitute constructive notice, unless it is shown that the employee knew, or in the

exercise of reasonable care should have known, of the condition.”

      Spano’s evidence regarding constructive notice consisted of the following.
Evidence indicated that the spill was quite large. Spano testified that the diameter

of the puddle was greater than 24 inches. Malea Hall, the assistant manager at the

store who inspected the area after the accident, testified that the Formula 409 bottle

was almost empty and that the majority of the fluid from the bottle (approximately


                                          2
20-30 oz. by Spano’s estimate) was on the floor. Randy Raziano, the other
assistant manager at the store, described the spill as a medium size spill of about

6 inches in diameter. All three testified that after the accident the bottle was

positioned upright next to Spano’s head. Hall and Raziano testified that the bottle
was not shattered or cracked and that the puddle likely resulted from a slow leak

due to a loose cap on top of the bottle. Spano contends that this evidence is

sufficient to permit a jury to draw the inference that the puddle was created over

a sustained period of time during which A&P should have become aware of its
existence. In addition, Raziano testified that he and Hall conducted shift change
procedures from 7:00 to approximately 7:25, contradicting Hall’s testimony that
she had inspected the aisle 15 minutes prior to the accident. Spano argues that

Hall’s inspection must have occurred at least 30 minutes prior to the accident.
         The district court granted A&P’s motion for summary judgment, concluding

that Spano failed to “make a positive showing of the existence of the condition
prior to the fall.”3 The court added, “Plaintiff’s argument that the Court can
reasonably infer that the cleaning fluid had been on the floor for some time before

the spill does not constitute an adequate affirmative showing of fact.”

                                    ANALYSIS
         As a threshold matter, we must consider what the White court meant by

“positive evidence” when it wrote, “the claimant must come forward with positive

evidence showing that the damage-causing condition existed for some period of


   3
       White v. Wal-Mart Stores, Inc., 699 So.2d 1081 (La. 1997).
                                         3
time, and that such time was sufficient to place the merchant defendant on notice
of its existence.” In the traditional sense, “positive evidence” refers to direct

evidence or eyewitness testimony, as distinguished from circumstantial evidence.4

There is no question that Spano did not present any direct evidence as to the
amount of time the puddle existed on the floor. White, however, left open the

question whether summary judgment is appropriate in cases where there exists

circumstantial evidence that the dangerous condition has existed for some time.

Throughout the White opinion, the phrase “positive evidence” is used in a manner
that strongly indicates that the court intended it to be synonymous with the phrase
“some evidence.”5 The court made clear that the plaintiff in White presented
“absolutely no [direct or circumstantial] evidence that the liquid was on the floor

for any length of time.” Given an open question of state law such as this one, it is
our task to predict how that state’s highest court would decide the issue.6 We

conclude from our reading of White that, if faced with the question, the Louisiana
Supreme Court would allow circumstantial evidence of constructive notice.
         In order to survive summary judgment, White only requires that the plaintiff

   4
       Black’s Law Dictionary 1162 (6th ed. 1990).
   5
       For example, the court wrote:

         As previously discussed, defendant need not come forward with positive
         evidence of the absence of the spill. Such would require the defendant to
         prove a negative and is not within the clear an unambiguous language of the
         statute. Furthermore, the lack of evidence showing the non-existence of the
         spill is not evidence of the existence of the spill, but merely of the absence of
         evidence. White 699 So.2d at 1086.
   6
       Rogers v. Corrosion Products, Inc., 42 F.3d 292 (5th Cir. 1995).
                                             4
come forward with evidence that the dangerous condition existed for some amount
of time prior to the accident. Whether the period of time is sufficiently lengthy that

a merchant should have discovered the condition is necessarily a fact question.7

Because Spano presented circumstantial evidence tending to show that the puddle
existed at least some time prior to his fall, we conclude that summary judgment was

improper. The facts of this case bear a substantial similarity to the facts in Smart

v. Winn Dixie of Louisiana, Inc..8 In Smart, the plaintiff in a slip and fall case

presented as evidence of constructive notice a slow leaking bottle and testimony
about the size of the puddle which caused his fall. The court concluded that
“plaintiff presented evidence that there was a slow leak of liquid from the two liter
soft drink bottle, which, if proven at trial, supports his contention that the puddle

of liquid existed for such a period of time that it would have been discovered if the
merchant had exercised reasonable care. The length of time the puddle existed is

clearly in dispute and can only be determined by the factfinder at trial.” We agree
with the Smart court that such evidence satisfies White, and therefore VACATE
and REMAND for further proceedings consistent herewith.




   7
       White at 1084.
   8
       742 So.2d 1062 (La. Ct. App. 1999).
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