                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-1273



ROGER TURLEY,

                                              Plaintiff - Appellant,

          versus


COSTCO WHOLESALE CORPORATION,

                                              Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:05-cv-00518-JCC)


Submitted:   February 13, 2007             Decided:   March 6, 2007


Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Gilbert K. Davis, DAVIS & ASSOCIATES, L.L.C., Fairfax, Virginia,
for Appellant.    William B. Tiller, J. Matthew Haynes, Jr.,
BEATYTILLER, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Roger Turley appeals an order granting summary judgment to

Costco Wholesale Corporation (“Costco”) on Turley’s slip-and-fall

negligence claim. Because there is no evidence that Costco knew or

should have known of the alleged dangerously wet condition in the

vestibule of its warehouse, we affirm.



                                  I.

     Costco operates a warehouse shopping facility in Manassas,

Virginia.     The warehouse is a stand-alone facility with its own

parking lot.    Members1 enter the warehouse via a covered vestibule,

at the sides of which are stored rows of nested shopping carts.

Past the vestibule, members enter the shopping area via a second

set of entrance doors.     A sidewalk stretches across the front of

the warehouse, outside the vestibule.

     On December 7, 2002, Turley’s wife drove him to the warehouse,

stopping in the fire lane parallel to the sidewalk, with the

driver’s side nearest the warehouse.       Turley exited and walked

around the front of his truck, trudging through four to six inches

of snow that had accumulated during the course of the few days




     1
      Generally, access to the warehouse is restricted to members,
who pay an annual fee for shopping privileges.

                                   2
prior.2    After entering the vestibule, Turley slipped and fell when

attempting to retrieve a shopping cart.

       Turley later testified that he “d[id]n’t know what it was”

that caused his fall, J.A. 140, but “[i]t had to be show, ice or

water,” J.A. 141.     Neither Turley’s wife nor Patricia Glenn, the

Costco manager who responded to the accident, was able to identify

the cause of the fall.      Glenn had performed an inspection about

thirty minutes prior to the fall; she had found that though the

porous concrete floor in the vestibule was damp at the entrance,

the area near the carts was not damp, nor was there any standing

water in the vestibule.    Later, upon responding to the fall, Glenn

touched the concrete with her bare hands, confirming that it was

“wet from wet carts,” J.A. 345, but noticing no visible puddles or

ice.

       Costco moved for summary judgment, arguing that Turley could

not prove negligence because firstly, he “cannot prove why and how

he fell and secondly, [he] has no evidence that Costco knew or

should have known of the alleged defect.”          Turley v. Costco

Wholesale Corp., No. 1:05CV518, 2006 WL 306646, at *2 (E.D. Va.

Feb. 6, 2006).      The district court found that Turley presented

sufficient evidence that he slipped on some phase of water, even if

he was “[u]nab[le] to distinguish what form the water took at the


       2
      Turley passed, in his vehicle or on foot, at least three
signs warning Costco members of the possible presence of snow and
ice during the winter.

                                   3
point that [he] slipped.”         Id.    Nevertheless, the district court

granted the motion for summary judgment because there was neither

evidence   that   Costco   knew    of    the    dangerous    condition   in   the

vestibule, nor evidence “that the wet conditions in the vestibule

existed    long   enough   that   [Costco]      should    have   known   of   its

existence in time to remedy it.”             Id. at *4.

     Turley timely appealed.



                                        II.

                                        A.

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

novo, applying the same legal standards as the district court and

viewing the facts and inferences drawn from the facts in the light

most favorable to . . . the nonmoving party.”                  Evans v. Techs.

Applications & Svc. Co., 80 F.3d 954, 958 (4th Cir. 1996).               Summary

judgment is appropriate only when “there is no genuine issue as to

any material fact and the moving party is entitled to a judgment as

a matter of law.”      Fed. R. Civ. P. 56(c).               A genuine issue of

material fact exists “if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.”              Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

     The moving party bears the initial burden of showing the

absence of a genuine issue of material fact.                  Celotex Corp. v.

Catrett, 477 U.S. 317, 325 (1986).              Once the motion is properly


                                         4
supported, however, the burden shifts to the non-moving party to

show that a genuine dispute exists.          See Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).             The non-

moving party must present more than a “mere . . . scintilla of

evidence” to forestall summary judgment.             Anderson, 477 U.S. at

252.    Thus, “unsupported speculation . . . . is not sufficient to

defeat a summary judgment motion.”           Ash v. United Parcel Svc.,

Inc., 800 F.2d 409, 411-12 (4th Cir. 1986).



                                      B.

       Because    this   federal   action   is   based   upon   diversity    of

citizenship, the forum state’s law controls.             Limbach Co. LLC v.

Zurich Am. Ins. Co., 396 F.3d 358, 361 (4th Cir. 2005).                     The

parties agree that Virginia state law governs the underlying

negligence claim here.

       In slip-and-fall negligence cases, Virginia law differentiates

between dangerous conditions caused by “affirmative conduct” of the

defendant, and those resulting from “passive conduct.”             See Ashby

v.   Faison   &   Assocs.,   Inc.,   440    S.E.2d   603,   605   (Va.   1994)

(comparing the affirmative moving of a plant, which action jostled

loose a “slimy” leaf upon which the plaintiff slipped, with the

passive conduct of allowing water to accumulate in a lobby). When,

as here, the dangerous condition resulted from passive conduct, the

plaintiff may prevail only if he shows that “the defendants had


                                      5
actual or constructive notice” of the dangerous condition.                 Id.

Therefore, as in Ashby, Turley must show that Costco “knew or

should have known[] of the presence of the water that caused [his]

fall and failed to remove it within a reasonable time or to warn of

its presence.”3          Id.

       Turley has pointed to no evidence that Costco actually knew

that       water   (in   some   phase)   had   accumulated   near   the   carts.

Nevertheless, Turley insists that the accumulation of snow in the

parking lot during the several days prior to the accident put

Costco on notice that a dangerously wet condition might arise in

the vestibule.           In particular, Turley argues that Costco should

have known that the cycle of shopping carts from store to parking

lot to vestibule would lead to an accumulation of water near the

rows of carts.

       The Virginia Supreme Court case Cannon v. Clarke, 167 S.E.2d

352 (Va. 1969), is instructive here. In Cannon, a neighbor trudged

through the snow en route to the defendants’ front door.                    The

neighbor did not see any snow or ice on the front porch, but

slipped and fell on something slippery, causing injury.                      The

Virginia Supreme Court held “[i]t is just as probable that . . .

the snow or ice adhered to [the neighbor’s] shoe or shoes and was


       3
      Costco does not concede that accumulated water, ice or snow
was the cause of Turley’s fall. Because we find that Turley cannot
show that Costco had actual or constructive knowledge of such a
hazard, we need not decide whether such a hazard actually existed
and caused Turley’s fall.

                                          6
deposited therefrom on the surface of the porch as it is that it

was left there by the inattention of the defendants.”    Id. at 355.

     Here, Turley has offered no evidence that the water causing

his fall was present in the vestibule before he arrived.    Instead,

he admitted walking through the snow several feet before arriving

in the vestibule.

     Similarly, Turley argues that the hazard must have been

present in the vestibule “more than long enough for Costco to

appreciate the danger.”     Appellant’s Br. at 20.       Because wet

weather conditions had persisted for several days, he infers that

the hazard must likewise have existed for a sufficient time such

that Costco should have discovered it, and that Glenn’s inspection

of the vestibule just prior to the accident should have revealed

the hazard.

     Turley’s argument fails under Virginia precedent.    The Cannon

court found the plaintiff’s case doomed by the fact that “there is

an entire lack of evidence as to how long the snow or ice, if any,

had been there.”    167 S.E.2d at 355.   Similarly, a plaintiff who

slipped and fell in an office building lobby could not prevail

without “showing that the . . . hazardous condition . . . had

existed long enough that the defendants should have known of its

existence in time to remove it or to warn [the plaintiff] of the

danger.”   Ashby, 440 S.E.2d at 605.




                                 7
      Turley has offered no evidence to suggest that the water had

been pooling in front of the carts so long that Costco should have

discovered it.    Instead, he asks the court to speculate as to how

long the water hazard had existed prior to his fall.           However, such

“unsupported speculation . . . . is not sufficient to defeat a

summary judgment motion.”       Ash, 800 F.2d at 411-12.       Furthermore,

it is “not ‘obvious’ from any evidence in the case that [Glenn]

missed the [water]” when she inspected the vestibule thirty minutes

prior to the accident.     See Winn-Dixie Stores, Inc. v. Parker, 396

S.E.2d 649, 651 (Va. 1990) (noting that “such an inference would

ignore the likelihood” that the hazard arose after the defendant’s

employee inspected the area of the fall).

      Because Turley has not met his evidentiary burden with respect

to   an   essential   element   of   his    claim,   summary   judgment   was

appropriately awarded to Costco.



                                     III.

      We affirm the district court’s granting of Costco’s motion for

summary judgment. We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional process.



                                                                   AFFIRMED




                                      8
