          United States Court of Appeals
                     For the First Circuit

No. 11-1665

                         ARMANDO GOMEZ,

                     Plaintiff, Appellant,

                               v.

                THE STOP & SHOP SUPERMARKET CO.,

                      Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF MASSACHUSETTS

        [Hon. Robert B. Collings, U.S. Magistrate Judge]



                             Before

                    Howard, Selya and Lipez,
                         Circuit Judges.



     Thomas P. Smith and Caffrey & Smith, P.C. on brief for
appellant.
     Mark C. McCrystal and Cetrulo & Capone LLP on brief for
appellee.



                         March 2, 2012
            SELYA, Circuit Judge. Plaintiff-appellant Armando Gomez,

a   Colombian    national,   sued   defendant-appellee   Stop   &   Shop

Supermarket Co., after he slipped and fell while shopping.           The

district court entered summary judgment for the defendant.          After

careful consideration, we affirm.

            The facts are not complicated.     On June 19, 2007, the

plaintiff entered the defendant's supermarket in North Andover,

Massachusetts.     While walking through the greeting card aisle, he

felt a strange sensation — as though he was unable to lift his

right foot — which caused him to lose his balance and topple to the

floor. His wife, who was browsing nearby, noticed skid marks close

to the site of the fall; but neither she nor anyone else witnessed

the incident, observed anything wrong with the floor, or saw any

foreign substance there. The plaintiff was transported to a nearby

hospital.    He learned that he had fractured his hip and sustained

other injuries.

            In due season, the plaintiff repaired to the federal

district court, invoked diversity jurisdiction,1 and sued the

defendant.      He contended that a foreign substance on the floor

caused his right foot to stick and provoked his fall.     As a result,

he accused the defendant of negligently maintaining the premises.



     1
       Diversity in this case is based upon the provisions of 28
U.S.C. § 1332(a)(2), which provides that the district courts shall
have original jurisdiction over civil actions between "citizens of
a State and citizens or subjects of a foreign state."

                                    -2-
              The defendant denied the allegations of negligence.

Discovery ensued.         Upon its completion, the defendant moved for

summary judgment, and the plaintiff opposed the motion.

              The parties consented to proceed before a magistrate

judge.        See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.                 Upon

consideration of the defendant's motion, the judge concluded that

liability could not attach in the absence of facts indicating that

the defendant reasonably should have foreseen the existence of a

dangerous condition.          Because the plaintiff had not adduced such a

factual predicate, there was no trialworthy issue as to liability.

Consequently, the judge entered summary judgment in the defendant's

favor.    This timely appeal followed.

              A trial court's entry of summary judgment engenders de

novo review.         Houlton Citizens' Coal. v. Town of Houlton, 175 F.3d

178, 184 (1st Cir. 1999).            This process entails taking all the

facts    in    the    light   most   flattering   to   the   nonmoving   party,

resolving any evidentiary conflicts in that party's favor, and

drawing all reasonable inferences therefrom to his behoof.                  See

Kuperman v. Wrenn, 645 F.3d 69, 73 (1st Cir. 2011).             We will affirm

the lower court's decision only if the record reveals no genuine

dispute as to any material fact and demonstrates that the moving

party is entitled to judgment as a matter of law.             Fithian v. Reed,

204 F.3d 306, 308 (1st Cir. 2000); see Fed. R. Civ. P. 56(a).




                                        -3-
          "This standard is favorable to the nonmoving party, but

it does not give him a free pass to trial."                  Hannon v. Beard, 645

F.3d 45, 48 (1st Cir. 2011).          The factual conflicts upon which he

relies must be both genuine and material.               See Tropigas de P.R.,

Inc. v. Certain Underwriters at Lloyd's of London, 637 F.3d 53, 56

(1st Cir. 2011); Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19

(1st Cir. 2003).        "Conclusory allegations and rank speculation,

even if couched in pejorative language, will not suffice to defeat

a properly supported summary judgment motion." Hannon, 645 F.3d at

48 (citing Ahern v. Shinseki, 629 F.3d 49, 54 (1st Cir. 2010)).

          In this diversity case, Massachusetts law supplies the

substantive rules of decision.             See Erie R. Co. v. Tompkins, 304

U.S. 64, 78 (1938).            Within this architecture, the plaintiff

advances two assignments of error.              First, he maintains that he

adduced sufficient evidence of negligence to warrant a trial.

Second,   he    insists       that   the    defendant        failed   to    preserve

potentially relevant evidence, which failure gives rise to an

inference that should have precluded the entry of summary judgment.

Neither proposition withstands scrutiny.

          We begin with the sufficiency of the evidence.                         The

defendant operates a chain of self-service supermarkets.                       Under

Massachusetts    law,     a   plaintiff      seeking    to    recover      against   a

shopkeeper for a fall on the premises must prove both that a

dangerous condition existed and that the shopkeeper had notice,


                                       -4-
actual or constructive, of the dangerous condition but took no

corrective action.      See Sheehan v. Roche Bros. Supermkts., Inc.,

863 N.E.2d 1276, 1280-81 (Mass. 2007); Oliveri v. MBTA, 292 N.E.2d

863, 864-65 (Mass. 1973).          This is a conventional approach to

premises liability, see, e.g., Guertin v. Antonelli, 171 A.2d 449,

450-51 (R.I. 1961), and Massachusetts courts have added a gloss in

the form of the so-called "mode of operation" approach applicable

to self-service stores.     See, e.g., Sheehan, 863 N.E.2d at 1284.

The rationale for this refinement is the increased spillage and

breakage   that   may   occur    when    customers   handle   items   without

employee assistance.     Id. at 1282.

           The mode of operation approach dictates that "where an

owner's chosen mode of operation makes it reasonably foreseeable

that a dangerous condition will occur, a store owner [can] be held

liable for injuries to an invitee if the plaintiff proves that the

store owner failed to take all reasonable precautions necessary to

protect invitees from these foreseeable dangerous conditions." Id.

at 1283.   Nevertheless, the mode of operation approach does not

displace the notice requirement that accompanies traditional claims

of premises liability.     Id.    Rather, the standard for meeting that

requirement is relaxed.     See id.       In a mode of operation case, the

notice requirement is satisfied if the plaintiff establishes that

the "injury was attributable to a reasonably foreseeable dangerous

condition on the owner's premises that is related to the owner's


                                        -5-
self-service mode of operation" and that the owner "failed to take

reasonable measures commensurate with the risks involved with [the]

self-service mode of operation."   Id.

          The plaintiff has failed to satisfy these requirements.

To prevail, he would have to show both a dangerous condition and

the reasonable foreseeability of that condition. Here, however, no

factfinder could rationally determine that a dangerous condition

existed in the greeting card aisle of the defendant's market at the

time of the plaintiff's fall.

          In support of his claim that there is a genuine issue of

material fact as to the existence of a dangerous condition, the

plaintiff points to his testimony that he felt something strange on

the floor, that he could not lift his right foot, and that he then

"fell down in the most spectacular way."      He asserts that there

must have been a sticky substance on the floor and that this

substance must have caused his fall.     This assertion, however, is

woven entirely out of gossamer strands of speculation and surmise.

          Assumptions are not a substitute for evidence.    In this

instance, the plaintiff's assertion piles inference upon inference

until the entire pyramid topples of its own weight.     People fall

for a wide variety of reasons, and assuming the cause of a fall,

without any competent evidence, impermissibly elevates assumption

over proof.




                                -6-
          To be sure, the plaintiff's suggested inference — that

there must have been something sticky on the floor — is a possible

explanation.     But a possible explanation is not a probable one.

Liability in a premises case requires proof that a dangerous

condition existed at the relevant time and place.          No such proof

can be gleaned from the plaintiff's account. Cf. Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 557 (2007) (discussing, in the motion to

dismiss context, "the line between possibility and plausibility").

Therefore,     that   account   is   without   probative   force   and   is

insufficient to create a genuine dispute about a material fact.

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)

("If the evidence is merely colorable, or is not significantly

probative, summary judgment may be granted." (citations omitted)).

          The plaintiff's position is not bolstered by the other

evidence in the record.     His sticky substance theory is undermined

by his own statement that he did not see anything unusual in the

greeting card aisle.     His wife noticed only skid marks — no foreign

substances — at the site of the fall.             The plaintiff himself

noticed nothing on the floor either before or after his fall.            In

a similar vein, the defendant's employees testified that they had

observed no foreign substance in the greeting card aisle.          By the

same token, no one observed any residue of any foreign substance on

the sole of the plaintiff's shoe.




                                     -7-
            In a nutshell, there is simply no evidentiary support for

the plaintiff's naked hypothesis that a foreign substance probably

caused his inability to lift his right foot.          This sort of purely

conjectural assumption, drawn from an empty record, is insufficient

to propel a cause of action beyond the summary judgment stage.

See, e.g., Tropigas, 637 F.3d at 58; see also Zhizhen Fu v. Swansea

Lounge, Inc., No. 09-388, slip op. at 1 (Mass. App. Ct. Feb. 1,

2010) (affirming summary judgment when plaintiff assumed that she

slipped on grease, but nobody saw a foreign substance before or

after the fall).

            To say more on this subject would be supererogatory.

Because a rational jury could not find that a dangerous condition

existed at the time and place of the plaintiff's fall, the lower

court appropriately jettisoned the claim.2        See McCarthy v. Nw.

Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995) (explaining that

a party opposing summary judgment cannot rely on the absence of

evidence, but must point to specific facts that demonstrate the

existence of an authentic dispute).

            This brings us to the plaintiff's contention that the

defendant   either   destroyed   or   intentionally    failed   to   gather

evidence of its negligence.      He strives to convince us that this


     2
       We need not reach the question of foreseeability. It is an
a fortiori proposition that a plaintiff who cannot make a
sufficient showing that a foreign substance existed on the
defendant's premises cannot satisfy the foreseeability requirement
for premises liability under the mode of operation approach.

                                  -8-
conduct should have led the lower court to send his case to a jury.

We are not persuaded.

             The plaintiff's support for this suggestion is thin.   To

begin, he argues that a videotape of his accident must have

existed, that the defendant must have destroyed it, and that,

therefore, the defendant is chargeable with spoliation of evidence.

             The theoretical underpinnings for the spoliation doctrine

are solid.    "We have held with some regularity that a trier of fact

may (but need not) infer from a party's obliteration of [evidence]

relevant to a litigated issue that the contents of the [evidence]

were unfavorable to that party."     Testa v. Wal-Mart Stores, Inc.,

144 F.3d 173, 177 (1st Cir. 1998).      But cases are not decided on

theory alone.    Before an inference of spoliation may be drawn, its

proponent must show at a bare minimum that the opposing party had

notice of a potential claim and of the relevance to that claim of

the destroyed evidence.     See Blinzler v. Marriott Int'l, Inc., 81

F.3d 1148, 1158-59 (1st Cir. 1996).       And there is an even more

rudimentary requirement: the party urging that spoliation has

occurred must show that there is evidence that has been spoiled

(i.e., destroyed or not preserved). Tri-County Motors, Inc. v. Am.

Suzuki Motor Corp., 494 F. Supp. 2d 161, 177 (E.D.N.Y. 2007).

             The plaintiff falls woefully short of meeting these

requirements.     He relies on three facts to support his contention

that the defendant destroyed a videotape of the accident: the


                                  -9-
defendant had a store security system that employed a series of

cameras; the defendant had exclusive control over that system; and

no videotape was produced during discovery.      These facts are true

but, without more, they are inadequate to show spoliation.

          We canvass the pertinent evidence. A cashier employed by

the defendant testified that there are cameras in the store that

cover "a good majority" of the selling floor.           Although this

testimony supports a conclusion that the store had cameras focused

on some areas of the market, it does not support a conclusion (or

even a reasonable inference) that a security camera filmed the

incident that transpired in the greeting card aisle.        The absence

of any such evidence is fatal to the plaintiff's hypothesis.          See

Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st Cir.

1989) ("The evidence illustrating the factual controversy cannot be

conjectural or problematic; it must have substance in the sense

that it limns differing versions of the truth which a factfinder

must resolve.").

          The   conclusion   that   no   videotape   ever   existed   is

buttressed by the record as a whole.       The cashier testified that

she had never seen or heard of a videotape of the accident.           An

assistant store manager testified that the security cameras did not

surveil the greeting card aisle.       Finally, a security supervisor

confirmed that the greeting card aisle is usually not protected by

camera surveillance.   He added that while it would be possible for


                                -10-
surveillance to occur there, an employee would have needed to

specially position a camera aimed at that specific location.                The

record contains no evidence that any such positioning occurred on

or near the date of the plaintiff's fall.

              It is a proposition too elementary to require citation of

authority that when there is no evidence to begin with, a claim of

spoliation will not lie.         This is such a case.

              The plaintiff's alternate theory of spoliation is that

the   defendant's      own    policy   required   its     employees   to    take

photographs of accidents, and that the failure to do so here

evidences spoliation.          This is a theory not premised on the

destruction of evidence but, rather, on the failure to collect

evidence.       As such, the theory is novel — and the plaintiff

presents it without the benefit of any on-point authority.

              We need not reach the novel question of whether a failure

to collect evidence may, in certain circumstances, be tantamount to

spoliation.      The plaintiff grounds this claim on the testimony of

the assistant store manager, who stated that, as part of his

training, the defendant taught him to compile a full report after

an accident, talk to witnesses, take pictures, and secure any

relevant videotape.          This training, the plaintiff posits, shows

that the defendant has a policy of evidence collection. Failure to

adhere   to     that   policy,    he   says,   warrants    an   inference    of

wrongdoing.


                                       -11-
            The short answer to the plaintiff's claim is that there

is no proof of a particular policy or custom.             The manager's

testimony only provides evidence that he was trained on best

practices.    The testimony cannot reasonably be understood to show

the   existence   of   an   established   store-wide   policy   or   custom

requiring employees to take a series of specific steps when an

accident occurs.       In these circumstances, the plaintiff has no

plausible claim of spoliation.

            We need go no further. For the reasons elucidated above,

we uphold the judgment of the district court.



Affirmed.




                                   -12-
