UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PHYLLIS JEAN BROWN,
Plaintiff-Appellant,

v.                                                                    No. 97-2689

ROSE'S STORES, INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
Glen M. Williams, Senior District Judge.
(CA-97-24-A)

Submitted: April 14, 1998

Decided: May 7, 1998

Before WILKINS, NIEMEYER, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Roger W. Mullins, Tazewell, Virginia, for Appellant. Laura E. Wil-
son, PENN, STUART & ESKRIDGE, Abingdon, Virginia, for Appel-
lee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Phyllis Jean Brown appeals a district court order granting summary
judgment to the Rose's Stores, Incorporated (Roses)* and dismissing
Brown's personal injury action. Finding no error, we affirm.

In December 1996, Brown commenced an action in state court
against Rose's based upon injuries Brown suffered when she slipped
and fell while shopping. In February 1997, Rose's removed the action
to federal court based on diversity of citizenship between the parties.

On Sunday, April 23, 1995, Brown entered Rose's between 5:45
p.m. and 6:00 p.m. to shop for a baby gift. Rose's closed at 6:00 p.m.
In order to get to the infants' department, Brown walked through the
carpeted ladies' wear department and entered a main tiled aisle that
runs the length of the store. As Brown entered the aisle at around 5:55
p.m., she slipped and fell and injured her arm. She got up from the
floor and sought help from Yosmenda Thornsberry, a Rose's
employee. Brown and Thornsberry returned to the scene of the fall,
and Brown noticed a clear empty plastic tape dispenser and several
pieces of plastic on the floor near where Brown fell. Store sales clerks
keep a tape dispenser on their person during store hours. Brown did
not notice any other customers in the area.

On Sundays, between the hours of 4:30 p.m. and 6:00 p.m., stock
associates sweep, mop, clean, and clear the tiled areas. Sometime
before Brown fell, Thornsberry observed stock associates sweeping
part of the tiled aisle. Phillip Jones, a Rose's store manager, estimated
that at the time Brown fell, almost 95% of the sweeping of the tiled
areas was completed.

The district court granted Rose's motion for summary judgment
upon finding that Brown did not establish a prima facie case of negli-
gence under Virginia law. Specifically, the court found that Brown
did not show that Rose's had actual or constructive knowledge of the
_________________________________________________________________

*Rose's is a retail store selling sundry consumer items.

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tape dispenser. On appeal, Brown contends that the district court erred
in discrediting inferences supporting Brown's claim. Brown further
contends that there was sufficient evidence from which to infer that
either a Rose's employee dropped the tape dispenser or that the area
in which Brown fell was negligently cleaned.

Because the matter is in federal court on diversity grounds, the sub-
stantive law of the forum state, Virginia, applies. See Erie R.R. Co.
v. Tompkins, 304 U.S. 64, 78 (1938). Federal law governs the court's
determination of whether the evidence is sufficient to withstand a
summary judgment motion. See Fed. R. Civ. P. 56(c); General Acci-
dent Fire & Life Assurance Corp. v. Akzona, Inc., 622 F.2d 90, 93-94
n.5 (4th Cir. 1980).

We review a district court grant of a motion for summary judgment
de novo. See Nguyen v. CNA Corp., 44 F.3d 234, 236 (4th Cir. 1995).
A summary judgment motion should only be granted if there is no
genuine dispute as to an issue of material fact and the moving party
is entitled to judgment as a matter of law. See id. at 236-37 (citing
Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986)). The district court must evaluate the evidence in the light
most favorable to the non-moving party and draw all reasonable infer-
ences from the facts in that party's favor. See United States v. Die-
bold, Inc., 369 U.S. 654, 655 (1962).

When determining a motion for summary judgment, the court need
not credit the non-movant with every possible inference that can be
drawn from the evidence. Only reasonable inferences warrant consid-
eration. A reasonable inference is one that is within the range of rea-
sonable probability. An inference that is "so tenuous that it rests
merely upon speculation and conjecture" should not be considered.
Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 817-18 (4th
Cir. 1995); see also Local Union 7107 v. Clinchfield Coal Co., 124
F.3d 639, 640 (4th Cir. 1997) (stating that "[f]anciful inferences and
bald speculations" should not be considered), cert. denied, ___ U.S.
___, 66 U.S.L.W. 3509 (U.S. Mar. 9, 1998) (No. 97-1237). To sup-
port the inferences, the non-movant must present evidence of a suffi-
cient "quality and quantity." Anderson, 477 U.S. at 254.

Virginia recognizes that store owners owe a duty of ordinary care
toward its customers while on the premises. In order for the store

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owner to be liable for injuries suffered as a result of a fall caused by
a foreign object, the owner must have placed the foreign object on the
floor or have actual or constructive knowledge of the foreign object's
presence. See Colonial Stores, Inc. v. Pulley , 125 S.E.2d 188, 190
(Va. 1962). A plaintiff must either demonstrate as part of the prima
facie case that the store owner or his agents engaged in some form of
affirmative misconduct or that the owner had constructive knowledge
of the dangerous condition. See Austin v. Shoney's, Inc., 486 S.E.2d
285, 288 (Va. 1997). Constructive knowledge exists if an ordinarily
prudent person, given the facts and circumstances the owner knew or
should have known, could have foreseen the risk of danger resulting
from the circumstances. See Winn-Dixie Stores, Inc. v. Parker, 396
S.E.2d 649, 650 (Va. 1990).

We agree with the district court's detailed examination of the evi-
dence. Brown offered no evidence to show that a Rose's employee
was responsible for the tape dispenser being on the floor. Brown con-
tends that because store employees carried tape dispensers, the infer-
ence must be made that the tape dispenser found near where Brown
fell was dropped by an employee. We find this inference to be
extremely tenuous, especially in light of evidence that the tape dis-
penser was empty when it was found and not marked according to
store policy as one used by a store employee. Furthermore, in spite
of Brown's recollection that she did not see any other customers in
the store up until the time of her fall, evidence supporting an infer-
ence that only an employee could have dropped the tape dispenser is
speculative.

Likewise, Brown's contention that the area where she fell had been
swept by a store employee minutes prior to her fall is not supported
by the evidence. Although there was evidence that employees were
seen sweeping the tiled aisle, there was no evidence that the area
where Brown fell had been swept. According to the store manager,
the sweeping of the floor was not complete at the time Brown fell.
Moreover, the sweeping was not due to be completed for another few
minutes. In addition, there was no evidence demonstrating how long
the tape dispenser had been on the floor.

Accordingly, we affirm the order of the district court. We grant
Brown's unopposed motion to submit this appeal on the briefs and

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dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

AFFIRMED

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