                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-1332



EDWARD KIJEWSKI,

                                              Plaintiff - Appellant,

          versus


BIG LOTS STORES,

                                              Defendant - Appellee.


Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (CA-04-774-3)


Submitted:   September 29, 2005           Decided:   October 5, 2005


Before WILKINSON, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David E. Noll, CRAVENS & NOLL, P.C., Richmond, Virginia, for
Appellant. William B. Tiller, J. Matthew Haynes, Jr., BEATYTILLER,
Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

               Edward Kijewski appeals from the district court's order

granting summary judgment in favor of Big Lots Stores, Inc. (“Big

Lots”)    in    Kijewski’s     trip   and    fall   premises     liability    case.

Following discovery and the arguments of counsel for the parties on

Big Lots’ summary judgment motion, the district court granted

summary judgment in favor of Big Lots, finding that the case was a

classic case covered by Southern Floors and Acoustics, Inc. v.

Anthony Max-Yeboah, 594 S.E.2d 908 (Va. 2004).                  Our review of the

record and the district court's opinion discloses that this appeal

is without merit.

               Factually, there is no genuine issue of material fact in

dispute.       Kijewski sustained injury when he tripped on a piece of

steel or “metal rubber tread” that was sticking up “between three-

quarters to an inch” off the ground at the door threshold as he

exited the store for the second time in a twenty-five minute

period.       Specifically, Kijewski had entered the store by the left

exit door because it was open and the right side entrance door was

under construction at the time and had brown plastic tape across

it.      He    then   exited   through      the   same   door   he   had   entered,

discovered that he had forgotten an item, re-entered the store to

purchase the item, and exited the store for the second time through

the same exit door through which he had entered.                It was during his




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second exit of the store that he tripped and fell, sustaining

injury.

           On appeal, Kijewski asserts that the Southern Floors case

is distinguishable because the exit door through which he was

passing when he tripped and fell was not being worked on by the

door company.1    He contends that the ingress and egress in which he

tripped   was    being   used   by   all     Big   Lots   patrons   while   the

construction workers worked on the set of doors immediately next to

the open ingress/egress.        He testified that he did not know how

long the alleged defective condition existed before he fell, nor

did he know who or what caused the condition.               Nor did Kijewski

present any evidence of actual or constructive notice of the

alleged defect by Big Lots.            This court reviews de novo the

district court’s grant of summary judgment.               Shaw v. Stroud, 13

F.3d 791, 798 (4th Cir. 1994).

           While Kijewski distinguishes the facts of his case from

those in Southern Floors, making much of his argument that the

doorway in which he tripped was not under actual construction at

the time of his fall,2 he does not offer any evidence that Big Lots

had any actual or constructive notice of the defect, which was the

legal theory supporting the reversal of liability against Food Lion


     1
      The company conducting the construction was an entity
separate from Big Lots and was not made a party to the litigation.
     2
      In Southern Floors, the plaintiff fell in the same aisle and
area that was under construction. 594 S.E.2d at 910.

                                     - 3 -
in Southern Floors, and which is the point of law on which the

district court in this case based its decision.               See also Winn-

Dixie Stores v. Parker, 396 S.E.2d 649 (Va. 1990) (under Virginia

law, a plaintiff in a trip and fall case must show evidence of

actual or constructive notice by the premises owner of a dangerous

condition    to   establish    a   prima    facie   case    of    negligence).

Kijewski’s    failure   to     demonstrate     evidence      of      actual   or

constructive notice of the condition that caused his fall is fatal

to his prima facie case and supports the district court’s adverse

grant of summary judgment.

            Accordingly,     because   there   is   no     genuine    issue   of

material fact in dispute, we affirm the district court’s order

granting Big Lots’ summary judgment motion.          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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