UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

YOLANDA CASAS,
Plaintiff-Appellant,

v.                                                                       No. 97-1479

WAL-MART STORES, INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CA-95-1079-5-H)

Argued: March 4, 1998

Decided: November 4, 1999

Before WIDENER and MOTZ,* Circuit Judges,
and MOON, United States District Judge for the Western District
of Virginia, sitting by designation.

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Vacated and remanded by unpublished opinion. Judge Widener wrote
the opinion, in which Judge Moon concurred.
_________________________________________________________________
*Judge Motz was a member of the panel which heard oral argument
in this case. Following oral argument, she became disqualified and did
not participate in this decision. It is filed by a quorum of the panel under
28 U.S.C. § 46(d).
COUNSEL

ARGUED: Philip Raiford Miller, III, BLANCHARD, JENKINS &
MILLER, P.A., Raleigh, North Carolina, for Appellant. Scott Conrad
Gayle, FISHER, FISHER, GAYLE, CLINARD & CRAIG, P.A.,
High Point, North Carolina, for Appellee. ON BRIEF: Amie Flowers
Carmack, FISHER, FISHER, GAYLE, CLINARD & CRAIG, P.A.,
High Point, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

WIDENER, Circuit Judge:

Plaintiff, Yolanda Casas, appeals from the district court's grant of
summary judgment for defendant Wal-Mart Stores, Inc. Following a
slip and fall incident at a Wal-Mart store, Mrs. Casas filed a state
court negligence suit against Wal-Mart. Defendant removed the
action to federal district court on the basis of diversity. Based on our
review of the record, we are of opinion that the case presents genuine
disputes of material fact that should be decided by a jury. Therefore,
we vacate the district court's grant of summary judgment for Wal-
Mart and remand the case for further proceedings.

Some time after 9:00 on the morning of October 20, 1995, Mrs.
Casas was shopping in a Wal-Mart store in Raleigh, North Carolina.
As she stepped from the carpeted area of the ladies wear department
onto a tiled walkway, Mrs. Casas slipped and fell. The fall caused
injury to her left knee.

On the evening of October 19, an independent contractor had
cleaned the carpets in Wal-Mart's ladies wear department. The inde-
pendent contractor completed the work and left the store prior to the
time Mrs. Casas entered Wal-Mart. However, it is undisputed that the

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carpets were still wet at the time of Mrs. Casas' fall. Mrs. Casas
alleges that Wal-Mart was negligent in its failure to maintain the
walkways in a reasonably safe condition and in its failure to reason-
ably and adequately warn of unsafe conditions of which it was or rea-
sonably should have been aware.

Summary judgment is appropriate if the pleadings, depositions,
answers to interrogatories, admissions on file, and affidavits, if any,
show that there are no genuine issues of material fact and that the
moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). We
review a district court's grant of summary judgment de novo. Shaw
v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). We must view the evi-
dence and all inferences to be drawn from the underlying facts in the
light most favorable to the nonmoving party. Pittman v. Nelms, 87
F.3d 116, 118 (4th Cir. 1996); Miltier v. Beorn , 896 F.2d 848, 852
(4th Cir. 1990) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986)).

The parties agree that North Carolina substantive law governs this
suit. In North Carolina, a store owner is not an insurer of its premises.
Hull v. Winn-Dixie Greenville, Inc., 175 S.E.2d 607 (N.C. Ct. App.
1970). However, store owners must exercise ordinary care to keep
their premises in a reasonably safe condition for business invitees.
Raper v. McCrory-McLellan Corp., 130 S.E.2d 281, 283 (N.C. 1963).
If a third party or unknown source creates an unsafe condition, the
store owner can be held liable only if the condition existed for an
amount of time such that the defendant knew, or with the exercise of
reasonable care should have known, of the danger in time to remove
the unsafe condition or to warn customers of its existence. Raper, 130
S.E.2d at 283-284. The evidence in the record shows that employees
of defendant were aware that the carpets had been cleaned the night
before Mrs. Casas' fall. In fact, one Wal-Mart employee stated that
she knew from past experience that carpet cleaning could create a
slippery condition for persons walking from the carpet onto a tiled
area and that she noticed this slippery condition on the morning of
October 20. The record evidence suggests that Wal-Mart knew of the
potential hazard created by the carpet cleaning. That is, Wal-Mart
knew about the slippery condition created by walking from the wet
carpet onto a tiled walkway. Viewed in the light most favorable to the

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plaintiff, this knowledge is sufficient to create a reasonable inference
of negligence by Wal-Mart.

However, Wal-Mart could have satisfied its duty of care by ade-
quately warning customers of the unsafe conditions caused by the car-
pet cleaning. There is no dispute that Wal-Mart provided some
warning about this unsafe condition. The primary issue is whether the
warning given was adequate under the circumstances. According to
Mrs. Casas, she did not see any warning signs in Wal-Mart until after
she fell. In her deposition, Mrs. Casas testified that she saw one yel-
low warning sign stating "Caution, wet floor" on the floor approxi-
mately twelve feet from where she fell, but that she did not see this
sign prior to her fall. Wal-Mart employees offered different recollec-
tions as to the number, location, and type of warnings. Several
employees stated that what is called a warning tent was placed at the
front of the store.* Some of these employees also testified that
attached to this tent was a piece of paper stating that the carpets were
cleaned the night before. Employees testified that other warning tents
were placed in various locations on the floor. In addition, employees
stated that white paper signs indicating that the carpets had been
cleaned were taped to clothing racks. However, employees differed
on their recollections as to the number and placement of these signs,
and some testified that they saw the signs only after Mrs. Casas' fall.

In Rone v. Byrd Food Stores, Inc., 428 S.E.2d 284 (N.C. Ct. App.
1993), the North Carolina Court of Appeals reversed a defendant's
summary judgment in a slip and fall case because the defendant's wit-
nesses "could not agree on where the floor was wet, how many warn-
ing signs had been placed on the floor, where the warning signs had
been placed, nor where plaintiff fell in the store." Rone, 428 S.E.2d
at 286. According to the court, "[c]ontradictions or discrepancies in
the evidence . . . must be resolved by the jury rather than the trial
judge." Rone, 428 S.E.2d at 287 (quoting Norwood v. Sherwin-
Williams Co., 279 S.E.2d 559, 563 (N.C. 1981)). Because material
facts were in dispute, the Rone court reversed the trial court's grant
of summary judgment for the defendant. Rone, 428 S.E.2d at 287.
_________________________________________________________________
*According to deposition testimony, such a tent is a triangular shaped
frame with a canvas covering indicating wet floors.

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The federal rule is not different. "`[S]ummary judgment will not lie
if the dispute about a material fact is "genuine," that is, if the evidence
is such that a reasonable jury could return a verdict for the non-
moving party.'" M&M Med. Supplies v. Pleasant Valley Hosp., 981
F.2d 160, 163 (4th Cir. 1992) (en banc) (quoting Anderson, 477 U.S.
at 248). We conclude that the facts presented in this case are not fac-
tually distinguishable from the facts of Rone . Plaintiff and various
employees of defendant each offered conflicting evidence as to the
number, location, and type of warnings provided by Wal-Mart. These
factual conflicts raise a genuine dispute as to the adequacy of the
warnings. Thus, this issue was more properly decided by a jury.

Based on the record before us, we are of opinion that there is a rea-
sonable inference that defendant was negligent in creating a slippery
condition and in failing to adequately warn of this unsafe condition.
Because genuine issues of material fact arise as to the number, loca-
tion, and adequacy of the warnings given by defendant, the reason-
ableness of Wal-Mart's actions should be determined by a jury.
Accordingly, summary judgment was not appropriate.

The judgment of the district court must be vacated and the case
remanded for further proceedings not inconsistent with this opinion.

VACATED AND REMANDED

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