                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 03-1041
                                     ___________

Patricia Smith,                       *
                                      *
            Plaintiff-Appellant,      *
                                      * Appeal from the United States
      v.                              * District Court for the Western District
                                      * of Arkansas
Basin Park Hotel, Inc., An Arkansas   *
Corporation                           *
                                      *
            Defendant-Appellee.       *
                                 ___________

                           Submitted: September 12, 2003
                               Filed: November 28, 2003
                                   ___________

Before MORRIS SHEPPARD ARNOLD, BOWMAN, and MELLOY, Circuit
      Judges.
___________

MELLOY, Circuit Judge.

       Patricia Smith appeals the district court’s adverse grant of summary judgment
in this diversity tort action arising out of a slip-and-fall case at the Basin Park Hotel
in Arkansas. We reverse.
                                   I. Background

       On May 29, 1999, Patricia Smith (“Smith”) and her husband checked into the
Basin Park Hotel in Eureka Springs, Arkansas, to attend a family wedding. On the
morning of May 31, 1999, Smith left her room and took the stairs down to the lobby.
As she descended the last flight of steps into the lobby, Smith slipped and fell onto
her back. Smith filed suit against Basin Park Hotel, Inc. (“Hotel”) for injuries she
sustained on the hotel staircase, alleging that the Hotel’s negligence regarding the
safety and maintenance of the staircase proximately caused her fall and resulting
injuries.

       During Smith’s deposition, she stated that she was not completely sure what
had caused her fall, but believed it might have been related to the slickness of the
carpet on the stairway, the narrowness of the stairs, and the low light in the area.
Smith also complained that there had been no handrail on the right side of the
stairway for her to grab as she fell. However, during her deposition, Smith indicated
that her fall had not been caused by a missed step.

       An expert witness for Smith, an architect by profession, examined the stairway
in question, submitted his findings in a report, and was later deposed. The expert
witness reported that the Hotel’s stairway failed to comply with several applicable
building and safety codes. He noted a variance in the height of the risers between the
top step and the second step, exceeding that which is permitted by the building code,
and opined that it created a safety hazard because a person’s mind anticipates the
difference in height between the risers to be uniform. The expert witness noted there
was only one handrail along the stairway in violation of the building code which
requires two, the lighting in the area was below standard, and the color and pattern
of the carpet was confusing and made it difficult to discern the depth of the risers on
the descent. He concluded that Smith’s fall could have been prevented if the Hotel
had followed the design standards of the industry.

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        Following the Hotel’s motion for summary judgment, Smith submitted an
affidavit indicating that, during her deposition, she had not been feeling well and had
found the repeated questions about what caused her fall to be confusing. Smith stated
that, after being deposed, she had an opportunity to review a statement made by a man
who had come to her aid on the stairs immediately after her fall. Smith found that this
statement helped her recall that, moments after her fall, she reported that she had mis-
stepped on the second step of the stairway. Re-affirming this prior belief, Smith
stated in her affidavit that, at the time of her deposition, she was unaware that her
expert had testified regarding “an excessive variance in the height between the first
and second steps of the stairway.” Despite Smith’s earlier testimony from her
deposition, as an affiant she concluded that her fall was caused when she missed the
second step down from the top of the staircase.

        The district court was suspicious of Smith’s contradictory testimony and the
changes in her recollection. The court cited an Eighth Circuit case that held an
affidavit which is inherently and blatantly inconsistent with prior deposition
testimony may not be used to establish a question of fact in order to ward off a
properly pled motion for summary judgment. Camfield Tires, Inc. v. Michelin Tire
Corp., 719 F.2d 1361, 1365-66 (8th Cir. 1983). Rather than dismiss Smith’s affidavit
entirely, the district court found that it was obliged to view the affidavit along with
Smith’s earlier testimony in the light most favorable to her. Nevertheless, the district
court subsequently found that Smith still had not presented a sufficient amount of
evidence to show that the Hotel stairway presented an unreasonable risk of harm, or
that it was the proximate cause of her fall. In particular, the district court found that
it would be improper to let this matter proceed to trial because it would require a jury
to speculate as to the proximate cause of Smith’s fall.

       On appeal, Smith argues that there is sufficient evidence of negligence to raise
genuine issues of material fact regarding the Hotel’s building code violations, the
safety of its stairway, and whether these hazards proximately caused her fall and

                                          -3-
resulting injuries. We find that Smith’s original statement as to why she fell, along
with her deposition, affidavit, and the testimony of her expert witness, creates a
genuine issue of material fact for a jury to decide whether the Hotel was negligent in
performing its duty to Smith as an invitee, and whether this alleged breach was the
proximate cause of her injuries.

                                      II. Analysis

       As an initial matter, we share the district court’s concern about the questionable
timing and contrary information in Smith’s testimony. We also acknowledge that the
information presented before the district court relating to the individual whose
statement allegedly helped Smith remember that she had missed a step was vague at
best.1 However, it is clear to us that Smith’s contemporaneous statement exists, along
with the testimony in her deposition, and should not be discounted as irrelevant. In
a similar slip-and-fall case on a stairway, the Supreme Court of Arkansas held that a
discrepancy in the plaintiff’s testimony as to the cause of her fall should be a factor
for a jury to consider in deciding her credibility, and not for the court to decide as a
matter of law. Fidelity-Phenix Ins. Co. v. Lynch, 455 S.W.2d 79, 82 (Ark. 1970). In
this case, we believe that a jury should have the opportunity to take all of Smith’s
testimony into consideration in determining her credibility.

      Turning to the district court’s grant of summary judgment, we review de novo
and apply the same standard as the district court, viewing the evidence in the light
most favorable to the non-moving party. Calder v. TCI Cablevision of Missouri, Inc.,
298 F.3d 723, 728 (8th Cir. 2002); See Fed. R. Civ. P. 56(c). If there is sufficient
evidence to demonstrate that a genuine issue of material fact exists, then the moving


      1
        This individual was later identified in Smith’s Opening Brief as Lester
McCright, a Hotel employee who responded to Smith on the stairs immediately after
her fall.

                                          -4-
party is entitled to judgment as a matter of law. Calder, 298 F.3d at 728. Summary
judgment is to be granted only where the evidence is such that no reasonable jury
could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). Additionally, the non-moving party “must make a
sufficient showing on ‘every essential element of [its] case for which [it has] the
burden of proof at trial.’” Wilson v. Southwestern Bell Tel. Co., 55 F.3d 399, 405
(8th Cir. 1995) (quoting Reich v. ConAgra, Inc., 987 F.2d 1357, 1359 (8th Cir.
1993)).

       To establish a prima facie case for negligence, Smith must show that she
sustained injuries, that the Hotel breached a duty owed to Smith, and that this breach
was the proximate cause of her injuries. See Morehart v. Dillard Dep’t Stores, 908
S.W.2d 331, 333-34 (Ark. 1995). The mere fact that a person slips and falls does not
give rise to an inference of negligence. CongAra , Inc. v. Strother,13 S.W.3d 150,
153 (Ark. 2000).

      It is undisputed that throughout her stay at the Hotel, Smith was an invitee on
the Hotel’s premises. Under Arkansas tort law, a property owner has a duty to
exercise ordinary care to maintain the premises in a reasonably safe condition for the
benefit of its invitees. Id. at 153; Kelley v. Nat’l Union Fire Ins. Co., 937 S.W.2d
660, 663 (Ark. 1997); Morehart, 908 S.W.2d at 333. The duty of care that the Hotel
owes to its invitees is found in Restatement (Second) of Torts § 343 (1965):

      A possessor of land is subject to liability for physical harm caused to his
      invitees by a condition on the land if, but only if, he (a) knows or by the
      exercise of reasonable care would discover the condition, and should
      realize that it involves an unreasonable risk of harm to such invitees, and
      (b) should expect that they will not discover or realize the danger, or will
      fail to protect themselves against it, and (c) fails to exercise reasonable
      care to protect them against the danger.



                                          -5-
See Van DeVeer v. RTJ, Inc., 101 S.W.3d 881, 883-84 (Ark. Ct. App. 2003) (adopting
the Restatement’s articulation of the duty a landowner owes to an invitee). The basis
for the owner’s liability under this rule is the “superior knowledge of an unreasonable
risk of harm of which the invitee, in the exercise of ordinary care, does not or should
not know.” Jenkins v. Hestand’s Grocery, Inc., 898 S.W.2d 30, 31 (Ark. 1995).

       An exception to this general rule of duty of care is found in Restatement
(Second) of Torts § 343A(1) (1965) which states that a “possessor of land is not liable
to his invitees for physical harm caused to them by any activity or condition on the
land whose danger is known or obvious to them, unless the possessor should anticipate
the harm despite such knowledge or obviousness.”

       Based on section 343A(1), a landowner has no liability to his invitees when the
allegedly dangerous condition is open and obvious. See Jenkins, 898 S.W.2d at
31(recognizing the Restatement’s exception to the duty a landowner owes an invitee
as articulated in section 343). In this case, Smith testified that she had voluntarily
used the stairs in the Hotel on a least one occasion, and Smith’s own expert witness
conceded that the dim lighting, the presence of a handrail on only one side of the
stairway, and the confusing pattern and coloring of the carpet was noticeable to any
person using the stairs. However, he also testified that the difference in riser height
between the first and second steps might not be readily noticed by someone using the
stairs, and explained “the mind anticipates that they are all going to be the
same....[a]nd if there is any change, it’s a surprise.”

        In this case, when the expert’s testimony and Smith’s own testimony are viewed
in the light most favorable to Smith, we cannot say that the variance in height between
the risers was “known or obvious” and that Smith had notice of this condition. Section
343A of the Restatement, which addresses known or obvious dangers, defines
“known” as “not only knowledge of the existence of the condition...but also
appreciation of the danger it involves.” Restatement (Second) of Torts §343A cmt.

                                         -6-
1(b). In Van DeVeer, the court found that although the plaintiff was aware that the
stairs had no handrail, there was no evidence that he had knowledge of the immediate
drop-off at the top of the greenhouse which caused him to fall. Van DeVeer, 101
S.W.3d at 884. The court reasoned that because the plaintiff did not have knowledge
of the immediate drop-off, he could not have appreciated the risk he was taking by
using the stairs, and therefore as a matter of law did not have “knowledge” of the
dangerous condition associated with the stairs. Id. at 884-85. Section 343A also
defines a dangerous condition as “obvious” where “both the condition and the risk are
apparent to and would be recognized by a reasonable man, in the position of the
visitor, exercising ordinary perception, intelligence, and judgment.” Restatement
(Second) of Torts §343A cmt. 1(b). Therefore, in light of the evidence before us, there
is a genuine issue of material fact as to whether variance in height between the risers
was open and obvious to Smith.

       The Hotel argues that Smith’s evidence fails to demonstrate that her fall was
proximately caused by the Hotel’s building code and safety violations regarding the
stairway. Under Arkansas law, “proximate cause is ‘a cause which, in a natural and
continued sequence, produces damage, and without which the damage would not have
occurred.’” Newberg v. Next Level Events, Inc., 110 S.W.3d 332, 334 (Ark. Ct. App.
2003) (quoting Capel v. Allstate Insurance Co., 77 S.W.3d 533, 543 (Ark. Ct. App.
2002)). The Arkansas courts, in addition to the district court in this case, have found
that “possible causes of a fall, as opposed to probable causes, do not constitute
substantial evidence of negligence.” Kopriva v. Burnett-Croom-Lincoln-Paden, LLC.,
15 S.W.3d 361, 363 (Ark. Ct. App. 2000). Additionally, while a plaintiff may
establish negligence by direct or circumstantial evidence, a plaintiff may not rely upon
inferences based on conjecture or speculation. Morehart, 908 S.W.2d at 334. Thus,
due to Smith’s uncertainty during her deposition as to what caused her to fall, and the
varying testimony in her affidavit, the Hotel argues that it would be improper to let
this matter proceed to trial because it would require a jury to speculate as to the
proximate cause of Smith’s fall.

                                          -7-
       We agree with Smith that there is sufficient evidence to raise an issue of
material fact as to whether her fall was caused either by the unexpected height
difference between the first and second steps on the staircase, or alternatively caused
by a this height variation compounded by the other building code and safety violations
on the stairway. Furthermore, we agree that Smith’s evidence does not require
impermissible speculation. In Fidelity-Phenix, the Supreme Court of Arkansas
reversed a directed verdict motion on proximate cause, and held that the plaintiff could
show causation of her fall down a flight of stairs if her evidence afforded a reasonable
basis for the conclusion that it was more likely than not that the landowner’s failure
to install a platform next to the stairs was a substantial factor in causing the fall.
Fidelity-Phenix, 455 S.W.2d at 82. Similarly, Smith’s testimony and the testimony of
her expert witness afford a reasonable basis for a jury to conclude that it was more
likely than not that some combination of the building code and safety violations on the
stairs was a substantial factor in causing her fall.

       This case can also be distinguished from Morehart, cited by the district court
and the Hotel, in which the Supreme Court of Arkansas granted a motion for directed
verdict because the plaintiff’s evidence did not indicate that he slipped at all, and even
if he did, there was no evidence that his fall was caused by the design or steepness of
the ramp on which he fell. Morehart, 908 S.W.2d at 334. Unlike Morehart, the
evidence before us indicates that Smith did slip on the stairs, and that the Hotel was
in violation of several building and safety codes relating to the stairs. The statement
allegedly made by Smith immediately following her fall references a missed-step as
the cause of her fall. Although the testimony in her deposition speaks to the contrary,
in viewing the evidence in its totality and in the light most favorable to Smith, there
is enough evidence to create a genuine issue of material fact that the proximate cause
of Smith’s fall was related to the Hotel’s failure to meet the duty it owed her as an
invitee.

       Accordingly, we reverse the district court’s grant of summary judgment in favor
of the Hotel.
                       ______________________________

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