     Case: 16-60849      Document: 00514009261         Page: 1    Date Filed: 05/26/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fif h Circuit

                                    No.16-60849                                  FILED
                                  Summary Calendar                           May 26, 2017
                                                                            Lyle W. Cayce
                                                                                 Clerk
SHARON M. SPANGLER,

                                                 Plaintiff - Appellant
v.

BEAU RIVAGE RESORTS, INCORPORATED,

                                                 Defendant - Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:15-CV-334


Before BENAVIDES, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       This appeal is from the grant of summary judgment in a personal injury
action brought pursuant to diversity jurisdiction. The principal issues on
appeal are whether the district court properly held that there was no genuine
issue of material fact with respect to whether the business (1) negligently
caused an unreasonably dangerous condition on its premises or (2) had
constructive knowledge of that condition. Finding no error, we AFFIRM.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                No. 16-60849


      I.     BACKGROUND AND PROCEDURAL HISTORY
      This suit stems from a slip-and-fall incident that occurred in the
bathroom of a casino. Plaintiff-Appellant Sharon Spangler (“Spangler”) was a
regular customer of the Defendant-Appellee Beau Rivage Resorts (“Beau
Rivage). She had frequented this particular single-person restroom at the
casino for 20 years. Surveillance video indicated that on October 14, 2014, at
11:23am, Lynis McBride, a manager-employee at Beau Rivage, entered the
restroom at issue, and, a little less than two minutes later, she exited the
restroom. During McBride’s deposition, she testified that she did not recall
walking into the restroom or the condition of the restroom during this
particular visit. McBride testified that if she had noticed liquid on the floor,
she would have called the Public Area Department to have the liquid cleaned
up. When questioned whether she “would have walked in there for another
purpose other than [to] use the restroom,” McBride responded affirmatively,
testifying that she would sometimes just check her hair and lipstick or blow
her nose.
      The surveillance video further demonstrated that Spangler entered the
restroom approximately four and a half minutes after McBride exited the
restroom. The video showed that no one entered or exited the restroom in
between McBride’s and Spangler’s visits.
      During her deposition testimony, Spangler stated that she had used this
restroom for 20 years and that it had always been clean. She had never seen
water on the floor prior to that date. She also testified that the “lighting is
good” in that restroom and that the floor “looks like marble” and is “very
slippery.”
      With respect to the day in question, Spangler testified that she walked
in the restroom and put her purse and drink on the sink and walked to the
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                                 No. 16-60849


toilet. She then “went to turn around and sit down [and] went down.” After
falling down, she saw a puddle of water in front of the toilet. She had “no idea”
how long the water had been on the floor prior to her arrival. When Spangler
was shown photographs of the restroom, she testified that the water was not
visible in the photographs “because of the way the floor is made.” Spangler
admitted that she had no information to show that “Beau Rivage or any of its
employees knew that there was liquid on the floor in the restroom.”
      On October 2, 2015, Spangler filed the instant complaint against Beau
Rivage, alleging that the water in the restroom was an unreasonably
dangerous condition and that Beau Rivage’s negligence caused her personal
injuries with respect to her slip-and-fall accident. The complaint also alleged
that the fall caused her “to suffer contusions to her arm and a blunt trauma to
her head.”
      Subsequently, Beau Rivage filed a motion for summary judgment,
arguing that Spangler failed to show that “Beau Rivage or any of its employees
‘created’ this alleged liquid to be on the floor, had actual knowledge of any
alleged dangerous condition on the floor but failed to warn the Plaintiff, or that
Defendant knew or should have known that this dangerous condition existed
for a sufficient time to impute constructive knowledge to the Defendant.”
      In support of its motion for summary judgment, Beau Rivage submitted
the affidavit of Fred Vanderbrook, a professional engineer it had retained to
provide expert testimony. In the affidavit, Vanderbrook stated that he had
tested the restroom floor for slippage under both dry and wet conditions and
the results were compiled in a written report with the affidavit. The affidavit
also provided that the “restroom has had the same configuration for ten years
with no prior reported slip and fall incidents.” Vanderbrook’s opinion was that
the “floors of this restroom did not create an unreasonable risk or harm to
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                                     No. 16-60849


patrons exercising normal care for their own safety when using this restroom.”
Beau Rivage also submitted photographs of the shoes that Spangler wore at
the time of the slip and fall. In the photographs, it appears that the tread on
the soles of the shoes is somewhat worn down.
       In addition, Beau Rivage submitted the affidavit of its employee, Gene
Deaton, a Supervisor in the Engineering Department. On the date of the
incident, Deaton inspected both the sink and the toilet and did not detect any
leaks. Deaton concluded that both plumbing fixtures were operating properly
and that no repairs were necessary. Additionally, Beau Rivage submitted a
chart that indicated that the restroom had been checked approximately once
an hour prior to the incident on the day in question.
       Spangler did not file a response to the motion for summary judgment. In
a memorandum opinion and order, the district court granted the motion for
summary judgment, holding that Spangler “provided no evidence from which
a jury could find that the water was on the restroom floor because Beau Rivage
personnel committed some negligent act, or that Beau Rivage personnel had
actual knowledge of water on the restroom floor, or that the water had been on
the restroom floor long enough that Beau Rivage personnel should have known
it was there.” 1 The court dismissed Spangler’s claims with prejudice and
entered judgment in favor of Beau Rivage. Spangler filed a timely notice of
appeal.
       II.    ANALYSIS
       This Court reviews a “grant of summary judgment de novo, applying the
same standard as the district court.” QBE Ins. Corp. v. Brown & Mitchell, Inc.,


1The district court’s opinion further provided that: “Although disputed, for purposes of this
Motion the Court accepts as fact that Spangler slipped and fell due to standing water on the
restroom floor.”
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                                  No. 16-60849


591 F.3d 439, 442 (5th Cir. 2009). The moving party is entitled to summary
judgment if it “shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(a).
         The Mississippi Supreme Court has held that to recover in a slip-and-
fall case, the plaintiff must demonstrate that the “proprietor had actual
knowledge of a dangerous condition, or the dangerous condition existed for a
sufficient amount of time to establish constructive knowledge, in that the
proprietor should have known of the condition, or the dangerous condition was
created through a negligent act of a store’s proprietor or his employees.”
Munford, Inc., v. Fleming, 597 So.2d 1282, 1284 (Miss. 1992) (emphasis in
opinion). Here, there is no assertion that Beau Rivage or its employees had
actual knowledge of a dangerous condition. Instead, Spangler contends that
the district court erred in granting summary judgment because there is a
genuine issue of material fact with respect to whether: (1) Beau Rivage had
constructive knowledge of the water on the floor; and (2) McBride negligently
caused the water to puddle.
         With respect to the latter, there is no direct evidence indicating that
McBride caused the water to puddle around the toilet. The evidence shows
that McBride entered the restroom and then exited the restroom after almost
two minutes. McBride did not recall whether she had used running water in
the facilities. Indeed, at the time of her deposition, McBride did not even recall
entering the restroom on that particular occasion.           During Spangler’s
deposition, Spangler admitted that she had no information to indicate that any
employee had knowledge of the water on the floor prior to her fall.
         Spangler argues that because the evidence shows that there was no leak
from the sink or toilet and that McBride was the last person to visit the
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                                 No. 16-60849


restroom prior to Spangler, there is a genuine issue of material fact with
respect to whether McBride caused the water to puddle next to the toilet. We
disagree. As the Mississippi Supreme Court has explained, if a plaintiff relies
on circumstantial evidence to prove causation, the evidence “must be sufficient
to make plaintiff’s asserted theory reasonably probable, not merely possible,
and more probable than any other theory based on such evidence, and it is
generally for the trier of fact to say whether circumstantial evidence meets this
test.” Miss. Valley Gas v. Estate of Walker, 725 So.2d 139, 145 (Miss. 1998)
(internal quotation marks and citation omitted), implied overruling on other
grounds recognized by Adams v. U.S. Homecrafters, Inc., 744 So.2d 736 (Miss.
1999); accord Dorsey v. Simon Property Group, L.P., 378 F. App’x 476, 478-79
(5th Cir. 2010).
      Although McBride did not remember this particular visit to the
restroom, she testified during her deposition that she would sometimes visit
the restroom only to check her hair and makeup or blow her nose. While it is
possible that McBride caused the water to puddle when she visited the
restroom, there is no evidence circumstantial or otherwise that makes it more
probable than the theory that she visited the restroom and did not cause the
water to puddle. The circumstantial evidence does not “remove the case from
the realm of conjecture and place it within the field of legitimate inference.”
Id. Indeed, we are persuaded that evidence of McBride’s mere presence in the
restroom does not constitute “circumstantial evidence of relevant causation” in
the instant case. See Dorsey, 378 F. App’x at 479. We therefore conclude that
the district court correctly held that there is no genuine issue of material fact
with respect to whether McBride caused the water to puddle.
      We now turn to address whether there is a genuine issue of material fact
with respect to whether Beau Rivage had constructive knowledge of the water
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                                   No. 16-60849


on the restroom floor. A plaintiff must demonstrate constructive knowledge
with “proof that the condition existed for such a length of time that, in the
exercise of reasonable care, the proprietor should have known of it.” Fleming,
597 So.2d at 1284 (internal quotation marks and citation omitted). Further,
Mississippi courts “will not indulge presumptions for the deficiencies in
plaintiff's evidence as to the length of time the hazard existed, therefore, the
plaintiff must produce admissible evidence as to the time period in order to
establish the operator’s constructive knowledge.” Almond v. Flying J Gas Co.,
957 So.2d 437, 439 (Miss. Ct. App. 2007) (citing Waller v. Dixieland Food
Stores, Inc., 492 So.2d 283, 286 (Miss. 1986)).
         Spangler testified that she had “no idea” how long that the water had
been on the floor prior to her arrival and did not notice it prior to her fall.
Spangler also testified that the puddle of water did not look like it had been
disturbed because it appeared fresh, clean and clear.
         McBride testified that she did not recall visiting the restroom but if she
had seen water on the floor she would have reported it to have it cleaned. In
addition, Beau Rivage’s business records demonstrate that the restroom had
been checked every hour that morning, including an hour prior to Spangler’s
visit.
         Spangler contends that if the water was present when McBride entered
the restroom at 11:23am, “even the briefest amount of time is sufficient [to]
give rise to constructive knowledge, because in the exercise of reasonable care,
McBride should have observed the puddle under her feet.”              Brief at 11.
Spangler, however, cites no Mississippi precedent for the proposition that just
a few minutes can constitute a sufficient length of time for a condition to exist
such that, in the exercise of reasonable care, the proprietor should have known
of it.
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                                 No. 16-60849


      The opinion in Haggard v. Wal-Mart Stores, Inc., 75 So.3d 1120 (Miss.
Ct. App. 2011) is instructive. Like the instant case, in Haggard, the plaintiff
testified that she had “no idea how long the substance had been on the floor
before she fell.” Id. at 1126. The Haggard plaintiff “testified that there were
no foot prints, smear marks, or tracks from shopping-cart wheels to imply the
substance had remained on the floor long enough to impute constructive
knowledge to Wal-Mart.” Id. Similarly, in the instant case, Spangler testified
that the puddle did not appear to be disturbed because it appeared fresh, clear
and clean. Moreover, in Haggard, there was “nothing in the record to indicate
the length of time the substance had remained on the floor.” Id. Thus, the
Court of Appeals of Mississippi held that the plaintiff had failed to establish a
time frame to impute constructive knowledge to Wal-Mart.           Id. at 1127.
Likewise, here, Spangler has simply failed to produce evidence that
demonstrates a time period sufficient to impute constructive knowledge of the
puddle of water to Beau Rivage. Thus, the district court correctly concluded
that there is no genuine issue of material fact with respect to whether Beau
Rivage had constructive knowledge of the water on the restroom floor.
      III.   CONCLUSION
      For the above reasons, the district court’s judgment is AFFIRMED.




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