     Case: 09-60622     Document: 00511030094          Page: 1    Date Filed: 02/18/2010




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

                                                  FILED
                                                                          February 18, 2010

                                     No. 09-60622                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



CHARLES ROGERS,

                                                   Plaintiff - Appellant
v.

WAL-MART STORES, INC.,

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:07-CV-1145


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        Charles Rogers appeals the summary judgment granted to Wal-Mart
Stores, Inc. in his slip and fall case. Because there is no genuine issue of
material fact, we affirm.
                                              I.
        Rogers and his wife were grocery shopping at the Ocean Springs,
Mississippi Wal-Mart store on Sunday, August 21, 2005. Rogers slipped and fell


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-60622

in a puddle of water on the floor of the frozen food aisle and injured his knee. He
filed suit against Wal-Mart, alleging that its negligence caused his injuries.
      The district court granted Wal-Mart’s motion for summary judgment.
Rogers filed a timely notice of appeal.
                                          II.
      Summary judgment “should be rendered if the pleadings, the discovery
and disclosure materials on file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” F ED. R. C IV. P. 56(c)(2). We review the district court’s grant of
summary judgment de novo. Gray Law LLP v. Transcontinental Ins. Co., 560
F.3dc 361, 365 (5th Cir. 2009). “In determining whether a genuine issue as to
any material fact exists, we must view the evidence in the light most favorable
to the nonmoving party.” Id.
      Under Mississippi law, Wal-Mart owed a duty to Rogers to “exercise
ordinary care to keep the premises in a reasonably safe condition.” Waller v.
Dixieland Food Stores, Inc., 492 So.2d 283, 285 (Miss. 1986). “When a dangerous
condition on the premises is caused by the operator’s own negligence, no
knowledge of its existence need be shown.” Munford, Inc. v. Fleming, 597 So.2d
1282, 1284 (Miss. 1992) (quoting Jerry Lee’s Grocery, Inc. v. Thompson, 528
So.2d 293, 295 (Miss. 1988)). However, “[w]hen a dangerous condition on the
premises or floor is caused by a third person unconnected with the store
operation, the burden is upon the plaintiff to show that the operator had actual
or constructive knowledge of its presence.” Id. Rogers concedes that he is
limited to recovery under the doctrine of constructive knowledge. Reply Brief,
at p. 7. “Constructive knowledge is established by 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.” Waller, 492 So.2d at 285.



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                                  No. 09-60622

      In his opposition to the motion for summary judgment, and in his
appellate brief, Rogers argues that there is a genuine issue of material fact as
to how long the water was on the floor. He contends that because he was in the
store for at least forty-five minutes prior to slipping and falling, it follows that
the water must have been on the floor long enough to create a fact issue as to
constructive notice. Rogers has not explained how the length of time he had
been shopping in the store has any bearing on how long the water was on the
floor. It is just as likely that the water had been there for one or two minutes
before Rogers’s fall as it is that the water had been there for more than forty-five
minutes.
      Rogers’s reliance on Elston v. Circus Circus Miss., Inc., 908 So.2d 771
(Miss. Ct. App. 2005), is misplaced. In that case, there was evidence that the
premises owner usually watered plants in the lobby between 10:00 and 11:00
a.m. on Thursdays. Id. at 775. The plaintiff slipped in water near the plants on
a Thursday between 1:45 and 2:45 p.m. Id. The court concluded that that
evidence “can allow a jury to reasonably infer that the water had been in the
floor for a sufficient period of time to establish that [the premises owner] should
have known the water was on the floor.” Id. Rogers, unlike the plaintiff in
Elston, produced no evidence to satisfy his burden of showing that the water was
on the floor for such a length of time that Wal-Mart should have known of it.
      Rogers contends further that there is a genuine issue of material fact as
to whether Wal-Mart followed its policy of conducting “safety sweeps” on the
date of his injury. Rogers asserts that because Wal-Mart failed to produce
evidence to establish that it conducted a safety sweep of the frozen food aisle in
the hour preceding his slip and fall, it is possible that the employee responsible
for conducting that sweep failed to do so. Wal-Mart produced evidence that it
had in place a policy to conduct hourly safety sweeps and that sweeps were
conducted on the evening in question. Rogers’s speculation that it is possible

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                                 No. 09-60622

that an employee failed to perform in accordance with that policy is insufficient
to defeat summary judgment.
                                      III.
      The district court correctly granted summary judgment for Wal-Mart
based on the absence of any evidence from which a jury might reasonably infer
constructive notice. Accordingly, the summary judgment is
                                                                   AFFIRMED.




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