UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ANN PRINDES,
Plaintiff-Appellant,

v.                                     No. 96-1636

WINN-DIXIE RALEIGH, INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CA-95-818)

Argued: March 6, 1997
Decided: April 23, 1997

Before MURNAGHAN, ERVIN, and WILKINS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.
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COUNSEL

ARGUED: Thomas Hunt Roberts, ROBERTS PROFESSIONAL
LAW CENTER, Richmond, Virginia, for Appellant. Robert Barnes
Delano, Jr., SANDS, ANDERSON, MARKS & MILLER, Richmond,
Virginia, for Appellee. ON BRIEF: John A. Conrad, Henry C. Spal-
ding, III, SANDS, ANDERSON, MARKS & MILLER, Richmond,
Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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:

The instant appeal stems from a slip and fall accident in a Winn-
Dixie grocery store. While shopping, Ann Prindes slipped on some
fluid in the aisle of a local Winn-Dixie store. As a result, she
sued
Winn-Dixie alleging negligence. Winn-Dixie filed a motion for sum-
mary judgment, and the district court granted the motion concluding
that no facts existed from which the jury could infer Winn-Dixie's
actual or constructive knowledge of the fluid on the floor that
caused
Prindes' injuries. We affirm.

I.

FACTS AND PROCEDURAL HISTORY

On January 20, 1993, Prindes entered the business premises of
Winn-Dixie in Chesterfield County, Virginia. As Prindes was shop-
ping, she stepped in a substance which had formed a small puddle,
slipped and fell to the ground thereby sustaining serious
injuries.1

Both Prindes and Lako Y. Cokes, a customer who was in the area
and who came down the aisle just after Prindes fell, testified in
their
respective depositions that Winn-Dixie stock boys were in the aisle
when Prindes fell. In addition, both Prindes and Cokes testified
that
several boxes were stacked and placed in the aisle. In her
deposition,
Cokes stated that she observed a liquid substance of a yellowish
color
that appeared to be fruit juice. Prindes testified that the liquid
appeared to be from a juice package and was brownish-orange.
Prindes further testified that the liquid was sticky or dried at
the edges
of the small puddle.
_________________________________________________________________

1 Prindes injured her back, hip, leg and heel in the fall.

                                 2
David Ledford, Prindes' son, testified that he observed a brownish-
orange substance in a puddle that appeared to be dried. He further
tes-
tified that the puddle was readily observable and"hard to miss."
Christina Fagan, David Ledford's then fiancee, in her sworn
affidavit,
testified that she observed the liquid on the bottom of one of
Prindes'
shoes. Fagan also noted that the spill was streaked.
After Prindes' fall, Ernest Spates, the store manager, arrived.
After
Spates checked with Prindes about the extent of her injuries, he
called
an ambulance, and Prindes departed by ambulance to the hospital.
According to Cokes, when Spates arrived to assist Prindes, Spates
appeared to be trying to conceal the liquid with his foot as he was
talking to Prindes. Prindes, Fagan, and Ledford, testified that at
no
time prior to when Prindes left by ambulance did the Winn Dixie
employees attempt to remove the liquid or to warn other customers
of the hazard by either posting signs or placing cones where
Prindes
fell. Spates testified in his deposition that the aisle where
Prindes fell
had been inspected fifteen minutes before her arrival, and no
liquid
substance was present in the aisle.

On October 3, 1995, Prindes sued Winn-Dixie alleging in her com-
plaint that she sustained personal injuries in a slip and fall
accident
while shopping at the Winn-Dixie store located in Chesterfield,
Vir-
ginia. On November 15, 1995, Winn-Dixie filed its answer denying
the allegations of negligence and asserting the defense of
contributory
negligence. After the conclusion of depositions, on March 8, 1996,
Winn-Dixie filed a motion for summary judgment. On April 9, 1996,
the district court granted Winn-Dixie's motion for summary judg-
ment. Prindes now appeals.

II.

DISCUSSION

Summary judgment is proper if no genuine issue of material fact
exists and the moving party is entitled to judgment as a matter of
law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The court
reviews the district court's grant of summary judgment de novo. See
Cooke v. Manufactured Homes, Inc. , 998 F.2d 1256, 1260 (4th Cir.
3
1993). The parties agree that Virginia law applies in the instant
diver-
sity of citizenship action. Erie R.R. v. Tompkins, 304 U.S. 64
(1938).

In Winn-Dixie Stores v. Parker , 396 S.E.2d 649 (Va. 1990), the
court restated the following well-settled Virginia rule applicable
to
slip and fall cases such as the instant litigation:

     The [store owner] owed the [customer] the duty to exercise
     ordinary care toward her as its invitee upon its premises. In
     carrying out this duty it was required to have the premises
     in a reasonably safe condition for her visit; to remove,
     within a reasonable time, foreign objects from its floors
     which it may have placed there or which it knew, or should
     have known, that other persons placed there; to warn the
     [customer] of the unsafe condition if it was unknown to her,
     but was, or should have been, known to the [store owner].
Id. at 650 (quoting Colonial Stores v. Pulley, 125 S.E.2d 188 (Va.
1962)); Safeway Stores, Inc. v. Tolson , 121 S.E.2d 751, (Va.
1961)(store owner is not the insurer of safety of invitees upon its
premises). Moreover, in Memco Stores, Inc. v. Yeatman , 348 S.E.2d
228 (Va. 1986), the Virginia Supreme Court stated:

     [The plaintiff] was not required to prove that the defendant
     had actual notice of a hazardous object on its floor in time
     to remove it. It was sufficient to prove constructive notice.
     If an ordinarily prudent person, given the facts and circum-
     stances, [the store] knew or should have known, could have
     foreseen the risk of danger resulting from such circum-
     stances, [the store] had a duty to exercise reasonable care to
     avoid the genesis of danger.
Id. at 231. (Italics in original).

On appeal, Prindes contends that the district court failed properly
to apply Virginia law to the facts in the instant case. On the
other
hand, Winn-Dixie argues that the district court correctly applied
the
law to determine that no genuine issues of material fact existed,
and
thus, the district court should be affirmed. Alternatively,
Winn-Dixie

                                 4
argues that the district court should be affirmed because Prindes
was
guilty of contributory negligence for failing to observe an open
and
obvious danger.

The controversy in the instant case centers on whether Winn-Dixie
had constructive knowledge of the existence of the liquid substance
upon which Prindes slipped.2 The burden rests on Prindes to
establish
that Winn-Dixie was negligent and that such negligence was the
prox-
imate cause of her injury. The Great Atlantic & Pacific Tea Co.,
Inc.
v. Berry, 128 S.E.2d 311, 313 (Va. 1962).

Prindes argues that Winn-Dixie's constructive knowledge is dem-
onstrated by: (1) the fact that the liquid substance, apparently
fruit
juice, had begun to dry on the edges suggesting that the liquid had
been on the floor for some time, and (2) the fact that several
Winn-
Dixie employees were engaged in stocking activity at the location
where Prindes fell on the liquid substance.

On appeal, Prindes primarily attacks the district court's reliance
on
Berry arguing that the district court misinterpreted Berry to
preclude
any inferences as to the time a substance is on the floor based on
the
condition of the substance.
In Berry, the plaintiff accompanied by her husband, went to the
store to buy groceries. Berry, 128 S.E.2d at 312. As the plaintiff
reached for an item, she slipped on a piece of celery, which appar-
ently was located on the floor under the shelf. Id. The plaintiff
sued
the store for negligence.

Neither party alleged that the store had actual knowledge of the
piece of celery on the floor, but rather, the case turned on the
store's
constructive knowledge. Plaintiff attempted to support her
construc-
tive knowledge theory by arguing that the darkened condition of the
piece of celery indicated that the celery had been on the floor for
a
period of time. Id. at 313.3 In denying plaintiff relief, the
Virginia
_________________________________________________________________
2 Although Prindes' counsel at oral argument argued that Winn-Dixie
had both actual and constructive knowledge, no evidence exists in
the
record to support an actual knowledge finding.
3 Plaintiff also claimed that the existence of pieces of paper and
one or
two cigarette butts in the same general area of the celery
indicated that
an employee of the store had carelessly swept the aisle. Id. at
313.

                                5
Supreme Court stated that "[t]o hold for the plaintiff on either
basis
would require pure speculation and conjecture." Id. at 313. The
court
reasoned that the plaintiff could have caused the discoloration of
the
piece of celery when she stepped on it; or the celery could have
been
dropped by a customer, rather than a store employee. The court also
noted that it was just as likely that a customer could have kicked
the
celery under the shelf as by a sweeping store employee. Id. Thus,
the
court addressing the probity of the condition of a foreign
substance
to demonstrate how long the substance had been present stated:

     In some jurisdictions the courts permit juries to speculate
     upon how long a foreign substance had been on the floor or
     how it got there. Such decisions are in the minority. In these
     minority decisions a description of the substance as"with-
     ered", "old looking," or "grimy," has been held sufficient to
     allow the jury to infer that the substance had been on the
     floor a sufficient length of time to require the defendant in
     the exercise of reasonable care to have known of its pres-
     ence. These decisions represent a liberal expansion of the
     doctrine of "constructive notice" in the law of negligence
     . . . . [M]ost jurisdictions do not follow this view. We
     reject
     it.

Id. at 313-314 (internal citation omitted).
Relying on Furr's Inc. v. Bolton, 333 S.W.2d 688 (Tx. Civ. App.
1960), Prindes urges the court to restrict the Berry rule to
non-liquid
substances. In Bolton the plaintiff slipped on grape juice while
shop-
ping for groceries, plaintiff testified that the grape juice puddle
was
dried around the edges, and based on her past experience working in
a grocery store, generally, grape juice took 30 minutes to an hour
to
dry. While agreeing with the general rule that the withering,
blacken-
ing or deterioration of an article is insufficient to determine how
long
the article has been on the floor, the court established an
exception
when rather than an article, i.e. banana or celery, the situation
involved a liquid.

The court stated:
We think that, here, there can be a proper inference, based
upon the testimony referenced above -- that the juice had

                           6
     been there long enough so that the store keeper should have
     known about it. The very nature of liquids such as these is
     such that it would not have dried around the edges and then
     fallen to the floor and presented the same appearance as an
     object such as a banana or grape could do. The grape or
     banana, or other such, may well have withered and black-
     ened before it got on the floor, but we do not believe that
     juice could dry around its edges and be transmitted to the
     floor in the same condition.
Id. at 689.

Prindes argues that the district court read the Berry rule too
broadly
because the Berry case did not involve a liquid. Thus, Prindes
argues
that Berry does not prohibit using the condition of a liquid, i.e.
dried,
to demonstrate how long the substance had been present.

We need not address whether the Berry rule applies to both non-
liquid and liquid substances because the difficulty with the
instant
case is that no one testified about the condition of the liquid at
the
time that Prindes fell. Prindes herself admitted that she did not
see the
puddle before she slipped. Other testimony offered by her son,
David
and his fiancee, Fagan was based on their observations of the
liquid
some 30 minutes after Prindes fell. Thirty minutes after Prindes'
fall,
both Prindes and her son testified that the liquid had begun to dry
around the edges.

As the district court recognized, Prindes had been writhing in pain
for some thirty minutes before anyone thought to examine the liquid
substance. During the preceding 30 minutes, the liquid could have
begun to dry. Thus, unlike in Bolton, where the plaintiff observed
the
liquid immediately or shortly after her fall, no such testimony
exists
in the present record. Hence, even if the condition of the liquid
could
be used to demonstrate the period of time the liquid had been on
the
floor, Prindes's failure to offer any evidence showing the
condition
of the liquid at the time of fall, vitiates against a finding of
construc-
tive knowledge on Winn-Dixie's part.
As for Prindes' second point, the district court relying on Gauldin
v. Winn-Dixie, 370 F.2d 167 (4th Cir. 1996) (applying Virginia
law),

                                 7
stated that "the fact that there were employees in the area of the
dan-
gerous substance cannot impute knowledge of the substance to the
defendant." Thus, the court held that "[b]ecause Prindes is unable
to
produce any evidence that would imply the defendant had actual or
constructive knowledge of the dangerous substance that caused her
fall," summary judgment in favor of Winn-Dixie was appropriate.

Prindes maintains that the district court's reliance on Gauldin was
misplaced. In Gauldin, the court refused to impute constructive
notice
to the defendant based on the fact that some of the defendant's
employees were within eight to ten feet of the spot where the
plaintiff
fell. Gauldin, 370 F.2d at 170.4 The court stated:

     In the instant case there are no such facts to support such a
     [constructive notice] finding. To permit the jury to conclude
     that [defendant's employee], who was engaged in his duties
     eight to ten feet from the point of the accident, should have
     been on constant alert for a radish on the floor of the aisle
     which he had so recently swept and to the point of neglect-
     ing his duty to tend the display counters, would . .. make
     the defendant an insurer of the safety of its customers.

Id. at 170.

Prindes contends that Gauldin is inapposite because in Gauldin the
employees on the scene were more numerous and nearer to the dan-
gerous condition, and more importantly, the employees were directly
involved in causing the hazard.

Rather, Prindes contends that the instant case is similar to Memco
Stores, Inc. v. Yeatman, 348 S.E.2d 228, (Va. 1986). In Memco
Stores, the plaintiff sustained injuries when she slipped on a leaf
from
a peperomia plant, and fell sustaining injuries. The plaintiff sued
Memco Stores, and the jury returned a verdict in her favor finding
the
store had constructive knowledge of the leaf's presence. On appeal,
the Virginia Supreme Court stated that constructive notice may be
established "[i]f an ordinarily prudent person, given the facts and
cir-
_________________________________________________________________
4 In Gauldin, the plaintiff slipped on a radish located in an aisle
at a
Winn-Dixie store.

                                 8
cumstances Memco knew or should have known, could have foreseen
the risk of danger resulting from such circumstances, Memco had a
duty to exercise reasonable care to avoid the genesis of the
danger."
In affirming the district court's decision to not set aside the
verdict,
the court held:

     the jury could have found that Memco, a merchandiser of
     peperomia plants, should have known that a change in loca-
     tion, temperature, and light would cause such a succulent
     plant to shed moist leaves; that Memco positions the plant
     on the furniture display in such a manner that the leaves
     could and did fall in the aisle; that Memco should have fore-
     seen that this could create a risk of harm to customers using
     the aisle; that Memco violated its duty to have its premises
     in reasonably safe condition; and, consequently, that Memco
     was guilty of negligence which was the proximate cause of
     the injuries Mrs. Yeatman suffered.

Id. at 231.

Prindes argues that like Memco Stores, a fact finder in the instant
case could conclude that "Winn-Dixie and its employees should have
foreseen the risks of restocking the canned fruit section and
undertaken to police the area to ensure that the premises remained
in
reasonably safe condition, either by posting warning signs or
policing
the restocking process more vigorously." Appellant's Brief, at 13.

We disagree. All Prindes can arguably demonstrate is that the stock
boys were in the aisle at the time that Prindes fell. The stock
boys'
presence does not demonstrate in any fashion, except for pure
specu-
lation, that the stock boys had knowledge of the liquid substance,
and
hence, that knowledge could be imputed to Winn-Dixie. Moreover, in
Memco Stores, the employees engaged in an affirmative act of mov-
ing the plant; Prindes has pointed to no such evidence in the
present
case, thus Memco Stores is readily distinguishable from the case at
hand.

                                 9
III.

CONCLUSION

For the reasons expressed above, the judgment of the district court
is

AFFIRMED.5
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5 Winn-Dixie also argues, alternatively, that Prindes was
contributorily
negligent. In light of our conclusion that no negligence has been
proven,
no negligence exists to which Prindes could be shown to have been
con-
tributorily negligent.
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