           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         November 5, 2007

                                     No. 07-60147                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


SAMANTHA FARMER; KARL FARMER

                                                  Plaintiffs - Appellants
v.

SAM’S EAST INC.

                                                  Defendant - Appellee



                  Appeals from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:05-CV-496


Before KING, DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:*
       Samantha Farmer (“Farmer”) was injured by an errant basketball while
shopping at a store owned by Sam’s East, Inc. (“Sam’s”). The district court
granted summary judgment in favor of Sam’s and Farmer appeals.
                          I. FACTS AND PROCEEDINGS
       Farmer and her husband Karl Farmer were shopping at a Sam’s store on
December 4, 2004. A portable basketball hoop was on display in the middle of


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 07-60147

the aisle where the Farmers were shopping. While she was bent over to examine
some merchandise, Farmer was struck on the head by a basketball. The ball was
apparently thrown by a young boy, because he came by to retrieve the basketball
and apologized to Farmer. Farmer’s husband went to get a store manager, who
informed him that he had removed most of the basketballs from the hoop display
earlier in the day due to problems with the display.
      Farmer alleges that the incident caused chipped teeth and serious back
and neck injuries, and claims medical damages in excess of $90,000. Farmer’s
husband Karl seeks damages for loss of consortium. The Farmers brought suit
in Mississippi state court, and Sam’s removed to the Southern District of
Mississippi. The district court granted summary judgment in favor of Sam’s on
January 31, 2007 and the Farmers timely appealed.
                        II. STANDARD OF REVIEW
      This court reviews a grant of summary judgment de novo and applies the
same criteria as the district court. Fed. Deposit Ins. Corp. v. Laguarta, 939 F.2d
1231, 1236 (5th Cir. 1991). Summary judgment is appropriate if the record
discloses “that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c).
This Court looks to the pleadings, depositions, answers to interrogatories and
affidavits to determine whether any genuine issue of material fact remains. Fed.
Deposit Ins. Corp., 939 F.2d at 1236. This Court “review[s] the evidence and
inferences to be drawn therefrom in the light most favorable to the non-moving
part[ies],” the Farmers. Id. (internal quotation omitted).
                              III. DISCUSSION
      The Farmers bring a premises liability claim against Sam’s. Under
Mississippi law, this Court applies a three-step analysis to premises liability
claims.



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      This procedure involves first determining the status of the injured
      person as either invitee, licensee, or trespasser. After this is done,
      the next step is to assess, based on the injured party’s status, what
      duty the landowner/business operator owes to them. The last step
      is to determine whether the landowner/business operator breached
      the duty owed to the injured party.
Titus v. Williams, 844 So. 2d 459, 467 (Miss. 2003). It is undisputed that the
Farmers were business invitees. Corley v. Evans, 835 So. 2d 30, 37 (Miss. 2003)
(“[A]n invitee is a person who goes upon the premises of another in answer to the
express or implied invitation of the owner or occupant for their mutual
advantage.”).
      As business invitees, Sam’s owed the Farmers “the duty to keep the
premises reasonably safe, and when not reasonably safe, to warn only where
there is hidden danger or peril that is not in plain and open view.” Id.
Nevertheless, “[t]he landowner is not an insurer of the invitee's safety.” Id. “‘The
owner of a business . . . is not liable for injuries caused by conditions which are
not dangerous or which are or should be known or obvious to the customer.’” Ball
v. Dominion Ins. Corp., 794 So. 2d 271, 273 (Miss. Ct. App. 2001) (quoting
Stanley v. Morgan & Lindsey, Inc., 203 So. 2d 473, 476 (Miss. 1967).
      To show that a store owner negligently breached his duty to his customers,
a plaintiff may rely on one of three theories.
      [Plaintiff] must (1) show that some negligent act of the defendant
      caused his injury; or (2) show that the defendant had actual
      knowledge of a dangerous condition and failed to warn the plaintiff;
      or (3) show that the dangerous condition existed for a sufficient
      amount of time to impute constructive knowledge to the defendant,
      in that the defendant should have known of the dangerous
      condition.
Anderson v. B. H. Acquisition, Inc., 771 So. 2d 914, 918 (Miss. 2000). Under
Mississippi law, “[t]he basis of liability is negligence and not injury. Proof merely
of the occurrence of a fall on a floor within business premises is insufficient to


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show negligence on the part of the proprietor.” Sullivan v. Skate Zone, Inc., 946
So. 2d 828, 830 (Miss. Ct. App. 2007) (internal quotation omitted). The Farmers
allege that the basketball hoop display, which included basketballs for customers
to use, was dangerous and that Sam’s had a duty to warn them of the danger or
remove the basketballs from the display to ensure the safety of its customers.1
       The district court found that summary judgment was proper because the
Farmers failed to establish that the basketball hoop display was dangerous. See
Ball, 794 So. 2d at 273.         This is consistent with the approach taken by
Mississippi courts in other cases. In Buck ex rel. Buck v. Camp Wilkes, Inc., the
Mississippi Court of Appeals sustained the district court’s grant of summary
judgment in favor of a camp owner who was sued by the parents of a thirteen
year-old child who fell out of the top bunk of a bunk bed. 906 So. 2d 778, 782
(Miss. Ct. App. 2004). The court held that the camp owner did not breach its
duty of care to the child and her parents because the bunk bed was not
dangerous. In light of Buck and Ball, it was proper for the district court to focus
on the dangerousness of the basketball hoop display when analyzing whether
Sam’s breached its duty of care.
       The district court was correct to find that Sam’s basketball hoop display
was not dangerous, even though another patron apparently threw a ball from
the display and injured Farmer. In Sullivan, the Mississippi Court of Appeals
sustained the district court’s grant of summary judgment in favor of a skating
rink sued by a patron who broke her arm after skating over a small arcade toy
that had fallen onto the rink. 946 So. 2d at 829–30. The Sullivan plaintiff argued
that the rink owner was liable for failing to warn her that arcade toys sometimes


       1
        The Farmers also allege that the store manager knew of “problems” with the
basketball hoop display prior to Farmer’s injury, an assertion which the manager disputes but
which we must accept for the purposes of summary judgment. Sullivan, 946 So. 2d at 830.
Because we hold that the Farmers failed to establish that the basketball hoop display was
dangerous, we do not reach the issue of Sam’s knowledge.

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fell onto the rink through the negligence of other patrons. Id. at 830. This is
similar to Farmer’s claim that Sam’s breached its duty by failing to warn her
that other patrons might accidently hit her with a basketball.
      The Sullivan plaintiff argued that the rink owners had a duty to warn her
of unsafe conditions because the skating area was right next to an open arcade
where small toys were dispensed, and the rink owners were aware that
sometimes toys fell onto the skating area. Id. at 829–30. The Mississippi Court
of Appeals rejected this argument and refused to “subject[] store owners who
allow customers to walk around the store with food, toys or other potentially
‘dangerous objects' to a strict liability standard.” Id. at 832 (internal quotation
omitted). The court stated that “[t]his theory is simply inconsistent with the
well-established principle that property owners owe invitees a duty of reasonable
care to keep the premises in a reasonably safe condition, not to ensure that the
premises are completely risk-free.” Id.
      The district court’s determination that the basketball hoop display was not
dangerous is also consistent with the findings of other courts which have
evaluated in-store displays for dangerousness. In Davis v. United States, a
federal district court sitting in diversity found that plaintiffs failed to establish
that a slingshot rigged for use at a Wacky Glo-Ball Golf Tournament was
dangerous and granted summary judgment in favor of the premises owner. No.
1:04-CV-329-BD, 2006 WL 533413, at *3–4 (N.D. Miss. Mar. 3, 2006). Likewise,
in Young v. Wal-Mart Stores, Inc., the Georgia Court of Appeals, applying
negligence rules very similar to Mississippi’s, held that a treadmill set up for in-
store demonstration and display was not a “perilous instrumentality” and that
the store owner did not breach its duty to the customer who was injured while
playing on it. 433 S.E.2d 121, 123 (Ga. Ct. App. 1993). The Farmers have not
pointed to any cases involving in-store displays in which a display similar to the
basketball hoop at Sam’s was considered dangerous.

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      The expert reports submitted by the Farmers and Sam’s support the
district court’s finding that the basketball hoop display was not dangerous. The
Farmer’s expert stated that in a self-service store like Sam’s, “a customer’s
interaction with displays is more readily foreseeable, therefore the store should
exercise even greater care.” On cross-examination, however, the Farmer’s expert
admitted that toys “such as the one at issue in this case are commonly displayed
in retail stores, and there is nothing improper about their presence on the sales
floor at any time . . . [as] there is no retail industry standard or practice to
provide any type of warning in conjunction with these displays.” The expert for
Sam’s agreed that there was no industry standard requiring a warning for such
displays and stated that “[t]here is no testimony that any of the Sam’s employees
encountered [the child who apparently threw the ball] or saw what he was doing.
As such, there is nothing Sam’s could have reasonably done to prevent this
accident.” The Farmers failed to establish that the basketball hoop display was
dangerous and that Sam’s breached its duty to the Farmers by failing to warn
them or remove the basketballs from the display. The Farmers have failed to
show that there is evidence from which a jury could reasonably conclude that
Sam’s breached its duty to keep its stores reasonably safe, and summary
judgment is appropriate in this case.
                              IV. CONCLUSION
      The judgment of the district court is AFFIRMED.




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