               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT




                            No. 01-31001
                          Summary Calendar



ROBERT DESANTIS,
                                              Plaintiff-Appellant,

versus

WAL-MART STORES, INC., ET AL.,
                                                       Defendants,

WAL-MART STORES, INC., AMERICAN HOME ASSURANCE CO.,

                                             Defendants-Appellees.

         __________________________________________________


            Appeal from the United States District Court
                for the Western District of Louisiana
                           (No. 00-CV-1917)
          ________________________________________________
                          February 26, 2002


Before JOLLY, BENAVIDES and CLEMENT, Circuit Judges.

PER CURIAM:*

     This diversity case arises out of severe injuries sustained by

plaintiff Robert DeSantis when he was riding his bicycle in a Wal-

Mart parking lot and struck a concrete island.   DeSantis sued Wal-

Mart and its liability insurer, claiming that the island was


     *
        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that this opinion should not be published and is not precedent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.
unreasonably   dangerous.     The   district   court   granted    summary

judgment to the defendants.    This appeal followed.

     We review the district court’s grant of summary judgment de

novo, applying the same standard as the district court.          Morris v.

Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).

Summary judgment is proper if there is no genuine issue as to any

material fact.   Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986).    A genuine issue of fact exists only “if

the evidence is such that a reasonable jury could return a verdict

for the non-moving party.”     Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986).

     Because our jurisdiction is based on diversity of citizenship,

Louisiana law governs the plaintiff’s claims.          To succeed under

either a negligence theory or a strict liability theory, Louisiana

law requires that DeSantis prove that (1) Wal-Mart had custody of

the thing causing his injury; (2) that a condition on the property,

here the island, created an unreasonable risk of harm; (3) that

Wal-Mart knew or should have known that the island was unreasonably

dangerous; and (4) that the unreasonably dangerous island caused

DeSantis’ injury.   Kibodeaux v. Clifton, 771 So. 2d 112, 115 (La.

App. 3d Cir.), writ denied, 773 So. 2d 729 (La. 2000); Collins v.

Whitaker, 691 So. 2d 820, 822 (La. App. 3d Cir. 1997).           The mere

fact that a person was injured does not mean that a condition is

unreasonably dangerous.     Deumite v. State, 692 So. 2d 1127, 1141

(La. App. 1st Cir. 1997).

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       As proof that the island was unreasonably dangerous, DeSantis

offered the expert opinion of Dr. Ellie Francis, who opined that

“the average attentive person riding a bicycle into the Wal-Mart

parking lot . . . may not have seen the low contrast that defined

the island . . . until it was too late to avoid collision with it.”

The district court implicitly excluded Dr. Francis’ testimony,

questioning its relevance and reliability.                We review evidentiary

rulings for abuse of discretion, United States v. Cantu, 167 F.3d

198, 203 (5th Cir.), cert. denied, 528 U.S. 818 (1999), and we find

no    such   abuse    here.        Dr.    Francis’   opinion     was    premised    on

hypothetical circumstances.              Her report speaks in terms of what an

average, attentive person riding through the parking lot may or may

not have seen.       But the record indicates that DeSantis was neither

average nor attentive:            He admitted that he was familiar with the

parking lot, having gone through it several hundred times, and that

he does not recall any part of the incident because he was

intoxicated.      Dr. Francis’ opinion thus offers little more than

speculation about whether the island posed an unreasonable danger

and, as such, lacks the indicia of evidence helpful to the trier of

fact — relevance and reliability.                 See Gulliory v. Domtar Indus.

Inc., 95 F.3d 1320, 1331 (5th Cir. 1996) (“Expert evidence based on

a fictitious set of facts is just as unreliable as evidence based

upon    no   research        at   all.      Both     analyses    result    in    pure

speculation.”).           Accordingly, we find that the district court, in

its    capacity      as    gatekeeper     under    Daubert,     acted   within     its

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discretion to reject this testimony.

     DeSantis also offered the affidavit of Carol Ann Donovan, who

stated that once she almost ran into the island.       The fact that one

person almost hit the island but ultimately averted an accident

(presumably   because   she   saw   it   before   hitting   it)   does   not

demonstrate a genuine issue of material fact on the question

whether the island was unreasonably dangerous.          Summary judgment

was appropriate in these circumstances.

     The judgment of the district court is AFFIRMED.




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