                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                            NOVEMBER 6, 2007
                               No. 07-11456                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                    D. C. Docket No. 05-00887-CV-TCB-1



JACQUELINE GOOTEE,


                                                   Plaintiff-Appellant,

                                    versus

THE TARGET CORPORATION,

                                                   Defendant-Appellee.

                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                       _________________________

                              (November 6, 2007)

Before ANDERSON, BARKETT and HILL, Circuit Judges.

PER CURIAM:

     Jacqueline Gootee sued Target Corporation, asserting a personal injury
claim against it for damages she allegedly sustained in connection with her

removal of a breadmaker from the retailer’s shelf and the subsequent falling from

another shelf of several crock pots. The district court granted summary judgment

to the defendant, holding that Georgia law does not permit recovery for such an

injury absent proof that the defendant had actual or constructive knowledge of the

allegedly defective shelf. We review this judgment de novo,viewing the evidence

in the light most favorable to the non-moving party. Brooks v. County

Commission, 446 F.3d 1160 (11 th Cir. 2006).

      Gootee’s claim is predicated upon a theory of premises liability, alleging

that Target’s negligence was the proximate cause of her injuries. Under Georgia

law, which applies in this diversity action, an owner of real property owes a duty to

all of its invitees to exercise ordinary care in keeping its premises safe. O.C.G.A. §

51-3-1. Nevertheless, not all injuries subject the owner of the property to liability.

To recover under Georgia law, Gootee must be able to prove that the defendant had

superior knowledge of the allegedly perilous display of cookware and that the

dangerous condition must have been known to Target and unknown to her. See

Sams v. Wal-Mart Stores, Inc., 491 S.E.2d 517, 518 (Ga. App. 1997). Like the

plaintiff in Sams, Gootee has made no showing that Target was actually aware of

the allegedly defective manner in which the cookware had been stacked. Id.



                                           2
Therefore, Target could be liable only if it had constructive knowledge of the

alleged danger. Id.

       There is no evidence in the record from which to conclude that Target had

such constructive knowledge. Constructive knowledge requires proof that an

employee of the owner was in the immediate vicinity of the dangerous condition

and could easily have noticed and removed the hazard. Thompson v. Regency Mall

Assocs., 432 S.E.2d 230, 232 (Ga. App. 1993). Alternatively, constructive

knowledge may be inferred from evidence showing that the owner failed to

exercise reasonable care in inspecting the premises, but recovery under this

approach requires proof of the length of time the dangerous condition was allowed

to exist. Id.

       There is no evidence in this record from which to conclude that Gootee can

make either of these showings. She presented no evidence that a Target employee

was in the immediate vicinity at the time of the incident, in a position to see and

remove the danger. Nor did she offer evidence that the alleged hazard had existed

for any significant amount of time prior to the incident. Nor is there any evidence

of prior incidents that might have put Target on notice of the hazard. Finally,

Target submitted evidence that all of its employees are trained to patrol the aisles

and check for unsafe conditions and that one of its employees had walked through



                                           3
the aisle where the incident occurred shortly before and did not observe anything

out of the ordinary.1 Since Gootee bears the burden of coming forward with

specific evidence that Target’s knowledge of the alleged hazard was superior to

hers and she has failed to do so, Target is entitled to summary judgment. See

Sams, 491 S.E.2d at 519; Green v. Home Depot U.S.A., Inc., 627 S.E.2d 836, 838-

39 (2006).

       Accordingly, the judgment of the district court is

       AFFIRMED.




       1
        The doctrine of res ipsa loquitor is inapplicable in this case because there was an
intermediate cause that produced the injury, namely, Gootee’s pulling the bread maker off the
shelf. Consequently, negligence cannot be presumed and is a matter of affirmative proof. See
Sams, 491 S.E.2d at 519.

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