     Case: 18-60289      Document: 00514821367         Page: 1    Date Filed: 02/04/2019




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

                                                                              FILED
                                      No. 18-60289                      February 4, 2019
                                                                         Lyle W. Cayce
SHARON PETERS,                                                                Clerk


              Plaintiff – Appellant,

v.

FRED’S STORES OF TENNESSEE, INCORPORATED, doing business as
Fred’s Super Dollar,

              Defendant – Appellee.




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 1:16-CV-167


Before REAVLEY, ELROD, and WILLETT, Circuit Judges.
PER CURIAM:*
       Sharon Peters appeals the district court’s grant of summary judgment in
favor of Fred’s Stores of Tennessee on her premises liability cause of action.
We AFFIRM.
       On the evening of November 5, 2014, Peters stopped into Fred’s to make
a purchase. She walked to the back of the store, picked up two 2-liters of cola,



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 18-60289     Document: 00514821367     Page: 2   Date Filed: 02/04/2019



                                  No. 18-60289
and headed back towards the store’s front. While walking through the apparel
section, Peters slipped and fell on something. Although Peters cannot identify
the item that caused her to slip, she alleges it was “something plastic.” Lane
Hunkapillar, the assistant manager on duty, immediately came to her
assistance. Peters alleges that Hunkapillar picked up a plastic item, snapped
it in two, and placed it in his shirt pocket. After gathering her bearings, Peters
completed her shopping and left the store. Peters went to the emergency room
that night, and later had knee surgery.
      Peters sued Fred’s for injury-related damages on a theory of negligence.
Her complaint noted that Fred’s appeared to be in a state of general disarray
due to remodeling and ongoing Christmas preparations, and alleged that
Fred’s was negligent in failing to properly maintain its store and in failing to
discover or remove the item on which she slipped. Fred’s later removed to
federal court and filed for summary judgment, arguing that Peters could not
(1) demonstrate that Fred’s was negligent in causing her injury; (2) show that
Fred’s had actual knowledge of a dangerous condition; or (3) show that a
dangerous condition existed for a sufficient amount of time to impute
constructive knowledge to Fred’s. The district court granted summary
judgment for Fred’s, and Peters timely appealed.
      We review a summary-judgment ruling de novo. Wood v. RIH
Acquisitions MS II, LLC, 556 F.3d 274, 275 (5th Cir. 2009). “Summary
judgment is proper when there is no genuine issue as to any material fact, and
the moving party is entitled to judgment as a matter of law.” Id. (citing FED.
R. CIV. P. 56(c)).
      We apply Mississippi law in this premises-liability case. See Erie R. Co.
v. Tompkins, 304 U.S. 64, 78 (1938). “Premises liability analysis under
Mississippi law requires three determinations: (1) legal status of the injured
person, (2) relevant duty of care, and (3) defendant’s compliance with that
                                        2
    Case: 18-60289       Document: 00514821367      Page: 3    Date Filed: 02/04/2019



                                    No. 18-60289
duty.” Wood, 556 F.3d at 275 (citing Massey v. Tingle, 867 So.2d 235, 239 (Miss.
2004)).
        Peters was a business invitee. Consequently, Fred’s owed “a duty to
exercise ordinary care to keep the premises in a reasonably safe condition or to
warn the invitee of dangerous conditions, not readily apparent, which the
owner or occupier knows of or should know of in the exercise of reasonable
care.” Anderson v. B.H. Acquisition, Inc., 771 So. 2d 914, 918 (Miss. 2000)
(quoting Waller v. Dixieland Food Stores, Inc., 492, So. 2d 283, 285 (Miss.
1986)). “When the dangerous condition is traceable to the proprietor’s own
negligence, no knowledge of its existence need [be] shown.” Id. Thus,
Mississippi law affords plaintiffs three routes to recover in a slip-and-fall case:
        Simply put, in order for a plaintiff to recover in a slip-and-fall case,
        he must (1) show that some negligent act of the defendant caused
        his injury; or (2) show that the defendant had actual knowledge of
        a dangerous condition and failed to warn the plaintiff; or (3) show
        that the dangerous condition existed for a sufficient amount of
        time to impute constructive knowledge to the defendant, in that
        the defendant should have known of the dangerous condition.
Id. (citing Downs v. Choo, 656 So. 2d 85, 86 (Miss. 1995)); see also Lindsey v.
Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994). We address each in
turn.
        Under the first theory, Peters must demonstrate that some negligent act
of Fred’s caused her injury. See Anderson, 771 So.2d at 918. To do so, she must
show “that the dangerous condition was the result of an affirmative act of the
proprietor.” Lindsey, 16 F.3d at 618. Peters asserts the store was in disarray
due to Christmas preparations and that, distracted by those preparations,
Fred’s employees failed to ensure the floor was clear of debris. Peters also
directs us to evidence showing that the area in which she slipped was prone to
debris and falling items. Indeed, Sheri Glenn, the store manager at this


                                           3
    Case: 18-60289     Document: 00514821367       Page: 4   Date Filed: 02/04/2019



                                  No. 18-60289
particular location, testified that she had encountered problems with items on
the floor in the very area in which Peters fell.
      But Peters does not know what caused her fall. Although she surmises
that she might have slipped on a piece of plastic, she testified explicitly that
she had “no idea” what she slipped on, how long it was on the floor, or how
whatever she slipped on came to be there. This is problematic for Peters, as
Mississippi courts require slip-and-fall plaintiffs to identify the item that
caused their fall. See, e.g., Rod v. Home Depot USA, Inc., 931 So. 2d 692, 695
(Miss. Ct. App. 2006) (affirming summary judgment where plaintiff alleged
that she slipped on a pallet but later testified that she did not know what
caused her fall); Byrne v. Wal-Mart Stores, Inc., 877 So. 2d 462, 465–66 (Miss.
Ct. App. 2003) (affirming summary judgment where plaintiff thought she
slipped on a cookie but later testified that she did not get a good look at the
item, did not know how long it was on the floor, and did not know how it came
to be there); Haggard v. Wal-Mart Stores, Inc., 75 So. 3d 1120, 1125 (Miss. Ct.
App. 2011); see also Smithy v. Kroger Co., Inc., No. 1:17-CV-00205-GHD-DAS,
2018 WL 3384305, at *2 (N.D. Miss. July 11, 2018) (“Mississippi law requires
that a plaintiff identify the specific dangerous condition which caused his or
her fall. Mississippi appellate courts have consistently affirmed grants of
summary judgment where a plaintiff could not affirmatively and decisively
state the cause of her fall.”). Given Peters’ explicit concession that she does not
know what she slipped on or how it came to be on the floor, Peters cannot
demonstrate that the object which caused her fall was the result of an
affirmative act by Fred’s. And, even assuming that Fred’s was undergoing
Christmas preparations at the time of Peters’ fall—a disputed fact—
speculation as to whether Fred’s employees were distracted as a result cannot
supply the factual support necessary to create a genuine issue of material fact.
See Frazier v. McDonald’s Restaurants of Miss., Inc., 102 So. 3d 341, 346 (Miss.
                                        4
     Case: 18-60289       Document: 00514821367          Page: 5     Date Filed: 02/04/2019



                                       No. 18-60289
Ct. App. 2012) (noting that “speculation as to what caused the accident could
not supply the factual support necessary to show a genuine issue of material
fact”). Indeed, Peters recognizes that her arguments “might be considered
slightly speculative in nature.”
       In addition, Glenn testified that Fred’s assistant managers were
required to check the floors every evening for debris or fallen items. Consistent
with that policy, Hunkapillar, the assistant manager on duty, testified that he
knew he would have been zoning around the time of Peters’ fall, that he would
have completed zoning the apparel area, and that he noticed nothing
dangerous in the apparel section in the time before Peters’ fall. 1 Thus, the
record shows that Fred’s took reasonable precautions to prevent patrons from
falling in the apparel section. See Bonner v. Imperial Palace of Miss., LLC, 117
So. 3d 678, 686 (Miss. Ct. App. 2013) (affirming summary judgment under this
theory where premises owner “took reasonable precautions to prevent patrons
from slipping on food” and there was no evidence that the plaintiff or employees
“knew how the grape and/or liquid came to be on the floor”). We thus conclude
that Peters cannot prevail under the first theory.
       The other two theories—whether Fred’s had actual or constructive
knowledge of a dangerous condition—are of no help to Peters. Anderson, 771
So.2d at 918. First, Peters has produced no evidence that Fred’s had actual
knowledge of the unidentified item that she slipped on; to the contrary, she
alleges that Fred’s failed to discover a dangerous condition. Second, Peters




       1  Peters argues that whether Hunkapillar zoned the floor is unclear, pointing to his
testimony that, “it’s been so long I don’t remember.” The testimony cited by Peters, however,
goes to whether Hunkapillar had completed zoning the entire store: “As far as how far I got
I don’t - - I’m fairly certain I would have been done with the store by that point but it’s been
so long I don’t remember.” Instead, Hunkapillar testified that he “knew [he] would’ve been
zoning at that time,” and that, by the time of Peters fall, he would have cleared the area in
which she fell.
                                               5
     Case: 18-60289      Document: 00514821367        Page: 6     Date Filed: 02/04/2019



                                     No. 18-60289
cannot show constructive knowledge, which “is present where, based on the
length of time that the condition existed, the operator exercising reasonable
care should have known of its presence.” Drennan v. Kroger Co., 672 So. 2d
1168, 1170 (Miss. 1996). Given Peters’ testimony that she does not know how
long the item had been on the floor, she cannot possibly show that it was on
the floor long enough such that Fred’s should have known of its existence. We
thus agree with the district court that summary judgment was proper. 2
      AFFIRMED.




      2 Peters additionally argues that Fred’s engaged in spoliation by destroying the item
on which she slipped and in failing to preserve video evidence. Because she did not develop
this argument in the district court, we do not address it. See Rosedale Missionary Baptist
Church v. New Orleans City, 641 F.3d 86, 89 (5th Cir. 2011).

                                            6
