                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 14a0777n.06

                                              No. 14-5313
                                                                                               FILED
                            UNITED STATES COURT OF APPEALS                               Oct 14, 2014
                                 FOR THE SIXTH CIRCUIT                              DEBORAH S. HUNT, Clerk



SUZANNE E. BRADLEY,                                  )
                                                     )
       Plaintiff-Appellant,                          )
                                                     )
v.                                                   )    ON APPEAL FROM THE UNITED
                                                     )    STATES DISTRICT COURT FOR THE
WAL-MART STORES EAST, LP,                            )    MIDDLE DISTRICT OF TENNESSEE
                                                     )
       Defendant-Appellee.                                   )
                                                     )


BEFORE: MOORE and COOK, Circuit Judges; STEEH, District Judge.*

       STEEH, District Judge. Plaintiff Suzanne E. Bradley appeals from the United States

District Court for the Middle District of Tennessee’s grant of summary judgment in favor of

defendant Wal-Mart Stores East, LP. Bradley brought this negligence action arising from a slip and

fall at a Wal-Mart store. The district court found that Bradley failed to advance evidence to support

her theory that Wal-Mart had constructive knowledge of the dangerous condition that caused her to

fall. On appeal, Bradley argues the district court erred in finding no genuine issue of material fact,

improperly weighing evidence, and failing to draw inferences in her favor as the nonmoving party.

Because Bradley did not support her theory of liability with evidence creating any genuine issue of




             *
             The Honorable George Caram Steeh, United States District Judge for the Eastern District of
     Michigan, sitting by designation.

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material fact to be resolved by a jury, we AFFIRM the district court’s grant of summary judgment

for Wal-Mart.

                                         I. BACKGROUND

A. Factual Background

        On May 4, 2011, while shopping at Wal-Mart’s store in Lawrenceburg, Tennessee, plaintiff

Suzanne Bradley slipped and fell in a puddle of what is speculated to be “chicken juice.” The

incident took place at 1:45 p.m. in an area of the store referred to as “Action Alley,” the busy open

area near the front of the store just behind the checkout lines. Four photographs were taken of the

floor after Bradley fell and show the presence of a liquid on the floor.

        Bradley described the liquid as “sticky” and said that it did not look like “a drink or water.”

Wal-Mart’s employees who observed the liquid immediately after Bradley fell believed it to be

“chicken juice,” referring to the liquid that is present in a package of raw chicken. Neither the type

of liquid nor its source was ever positively identified through testing or otherwise.

        Bradley’s statement was taken after the incident and she identified the location of her slip

and fall as the checkout line for register # 5. Melissa Weathers was the Zone Manager who

responded to the scene after the fall. She identified the location of Ms. Bradley’s fall as near register

# 5 in Action Alley, “close to the four-way.” A “four-way” is a kiosk displaying merchandise for

sale, and the four-way at issue was located in the middle of Action Alley between register #5 and

the “candy wall.” Ms. Weathers testified that the liquid on the floor was on the far side of the four-

way in relation to register #5, between the four-way and the candy wall. Jeremy Rhodes, the Asset

Protection Manager at the time of the incident, testified that, based on what was reported to him by

those at the scene, Ms. Bradley’s fall was approximately 15 feet away from register #5.


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       There are no witnesses to how the liquid came to be on the floor. Both parties suggest that

the liquid most likely dripped out of a package of raw chicken being purchased by another customer

who checked out at register #5 at some point before Bradley fell. The record of cash register

receipts for register #5 shows that ten customers purchased raw chicken at that register in the two

hours before the incident. The last chicken purchase made at register #5 prior to Bradley’s fall was

at 1:25 p.m. Ms. Weathers testified that there are twenty cash registers in Action Alley, but there

is no evidence in the record about chicken purchases made at the other nineteen registers in the time

leading up to the incident.

       The area of the fall was cleaned by Wal-Mart’s maintenance employees at approximately

12:00 pm. on the day in question. The employees are trained to conduct safety sweeps on an

ongoing basis, and to promptly address potentially dangerous conditions. Typically, three customer

service managers monitor Action Alley area at all times, with one of the managers having

responsibility for the area just behind the cash registers. Action Alley is videotaped in the regular

course of business, but the exact spot where Bradley fell was not within the field of view of any of

Wal-Mart’s surveillance cameras. Mr. Rhodes attested in his affidavit that his review of the video

surveillance footage did not show any Wal-Mart employees in the area near Bradley’s fall in the

twenty minutes preceding her fall.

       It is undisputed that there is no evidence that any Wal-Mart employee caused the liquid to

be on the floor or that any employee actually knew that the liquid was on the floor prior to Ms.

Bradley’s fall.




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B. Procedural Background

       The parties consented to have a magistrate judge preside over the case pursuant to 28 U.S.C.

§ 636(c) and Rule 73(b) of the Federal Rules of Civil Procedure. Wal-Mart filed a motion for

summary judgment, supporting memorandum, and concise statement of material facts, alleging that

Ms. Bradley could not meet her burden of proof because there was insufficient evidence to prove

creation, actual notice, or constructive notice. Bradley filed a response in opposition to the motion

for summary judgment, a memorandum in support, a response to Wal-Mart’s concise statement of

material facts, and her own concise statement of additional material facts. In these responsive

documents, Bradley does not allege that Wal-Mart caused or created the dangerous condition, or that

it had actual notice of the condition. Rather, Bradley takes the position that Wal-Mart had

constructive notice of the chicken juice on the floor for at least twenty minutes prior to her fall.

       On February 18, 2014, the district court granted Wal-Mart’s motion for summary judgment.

The court acknowledged that the evidence was sufficient for a jury to reasonably conclude that the

substance Bradley slipped on was chicken juice, therefore a jury could reasonably infer that the only

plausible explanation as to how the chicken juice came to be on the floor is that it leaked from a

package of raw chicken. However, the court held there was no conclusive evidence about where the

liquid came from or how long it was present on the floor prior to Bradley’s fall. The court found

that it was “unsupported speculation” to conclude that the liquid Bradley slipped on came from a

customer who went through checkout line #5, as opposed to a customer who passed by that spot in

Action Alley on his or her way to another checkout line or to another area of the store altogether.




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       The court considered the speculative nature of the evidence of how long the chicken juice

had been on the floor, and the affirmative evidence of Wal-Mart’s practice of regularly checking the

floors of its store. Relying on case law finding no constructive notice due to a dearth of evidence

of when and how a dangerous condition came about, the court concluded the evidence in this case

could not support a finding of constructive notice and granted Wal-Mart’s motion for summary

judgment.

       Ms. Bradley filed this appeal on March 17, 2014.

                                 II. STANDARD OF REVIEW

       We review de novo an order granting summary judgment. DiCarlo v. Potter, 358 F.3d 408,

414 (6th Cir. 2004). Summary judgment is warranted “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). The movant bears the initial burden of demonstrating the absence of any genuine

issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “Once the moving party

satisfies its initial burden, the burden shifts to the nonmoving party to set forth specific facts

showing a triable issue of material fact.” Mosholder v. Barnhardt, 679 F.3d 443, 448-49 (6th Cir.

2012) (citation omitted). “The mere existence of a scintilla of evidence in support of the plaintiff’s

position will be insufficient [to defeat a properly supported motion for summary judgment]; there

must be evidence on which the jury could reasonably find for the plaintiff.” Id. at 449 (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). “In reviewing the district court’s

decision to grant summary judgment, we must view all evidence in the light most favorable to the

nonmoving party.” Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 868 (6th Cir. 2007).




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                                          III. ANALYSIS

A. No Genuine Issue of Material Fact

       A properly supported motion for summary judgment will not be defeated by conclusory

allegations, speculation and unsubstantiated assertions. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S.

871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). The nonmoving party must come forth with

evidence from which a jury can reasonably find in his or her favor in order to survive a motion for

summary judgment.

       Under Tennessee law, merchants owe customers a duty “to exercise reasonable care to keep

the premises in a reasonably safe and suitable condition, including the duty of removing or warning

against a dangerous condition traceable to persons for whom the proprietor is not responsible . . . if

the circumstances of time and place are such that by the exercise of reasonable care the proprietor

should have become aware of such conditions.” Self v. Wal-Mart Stores, Inc., 885 F.2d 336, 338

(6th Cir. 1989) (citations omitted). Bradley acknowledges that Wal-Mart did not create the

dangerous condition, nor did it have actual knowledge of the condition. Bradley’s theory of liability

is predicated on constructive knowledge by Wal-Mart: the liquid on the floor was a dangerous

condition that existed for such length of time that Wal-Mart, in the exercise of ordinary care, should

have known of its existence. See Hardesty v. Serv. Merch. Co., Inc., 953 S.W.2d 678, 682-83 (Tenn.

Ct. App. 1997).

       The genuine issues of material fact asserted by Bradley in support of her constructive notice

theory are the source of the liquid - chicken juice from a package of raw chicken purchased at

register #5 - and the length of time the spill had been on the ground before she fell - at least twenty

minutes. As evidence of both issues, Bradley relies on the cash register receipts produced by Wal-


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Mart for register #5 for the two hours preceding her fall. Asset Protection Manager Rhodes pulled

the receipts for register #5 to assist in trying to identify the source of the spill. The mere fact that

Wal-Mart retrieved and reviewed transaction receipts for the register closest to Bradley’s fall is not

an admission by Wal-Mart that the spill came from raw chicken purchased by a specific customer

at register #5. Rather, the court must look at the evidence to determine whether it supports the

theory of the nonmoving party.

        Where the spill and the fall occurred fifteen feet away from cash register #5, in the busy

Action Alley, on the far side of a four-way kiosk, more evidence is needed for a reasonable finder

of fact to conclude that the source of the spill was from an item necessarily purchased at cash

register #5. The location of the spill alone does not support such a finding. If ten people bought

chicken from register #5, and there are twenty registers in Action Alley, then by extrapolation there

were arguably two hundred customers carrying raw chicken through Action Alley in the two hours

before the incident. For that matter, it is equally as likely that the source of the spill came from the

cart of a shopper who was traversing the store through Action Alley, and had not even purchased

the chicken prior to Bradley’s fall. The evidence in this case does not support a reasonable inference

as to the source of the liquid.

        Where liability is based on constructive knowledge by defendant, the proof must also show

that the dangerous or defective condition existed for such a length of time that the defendant knew,

or in the exercise of ordinary care should have known, of its existence. Hardesty, 953 S.W.2d at

682. “As a general rule, constructive knowledge cannot be established without some showing of

the length of time the dangerous condition had existed.” Id. (citing Self, 885 F.2d at 338). However,




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the evidence presented by Bradley does not support her theory that the chicken juice had been on

the floor for at least twenty minutes before she fell.

       The burden of proof was on Bradley to rebut Wal-Mart’s well-supported motion for

summary judgment demonstrating no genuine issue of material fact for trial. As such, the district

court did not err in determining that there was no genuine issue of material fact such that Bradley

should survive Wal-Mart’s motion for summary judgment.

B. Court did not Improperly Weigh Evidence or Fail to Draw All Inferences in Favor of
   Bradley

       Bradley argues that the district court failed to view the evidence in the light most favorable

to her. In this argument, Bradley focuses on Wal-Mart’s surveillance videos which were destroyed

after thirty days pursuant to its normal business practice. Bradley maintains that Wal-Mart should

not be able to present Mr. Rhodes’ recollections of his review of the videos, and that she is further

entitled to an adverse inference in her favor regarding what the videos show.

       The testimony that Bradley objects to comes from Rhodes’ deposition where he explains that

before they were destroyed, he viewed the videos, which did not capture the exact area where

Bradley fell. Rhodes testified that he did not see any Wal-Mart employees in the surrounding area

that was captured on the surveillance videos. Importantly, Rhodes’ testimony about not seeing any

sales associates in the area of the incident does not support a material fact as it is not relevant to

Bradley’s constructive notice theory of liability. Bradley acknowledged that there is no evidence

that Wal-Mart had actual notice of the spill before she fell. Therefore, we do not need to address

Bradley’s spoliation arguments regarding the videotapes.

       Bradley’s final argument is that the district court improperly weighed the evidence, not

giving proper weight to Wal-Mart’s “admission” that the chicken juice spilled from a package of

                                                  8
chicken while a customer checked out at register #5 twenty minutes prior to Bradley’s fall. As

previously discussed, the court deals with evidence, not conclusory allegations, speculation and

unsubstantiated assertions. See Lujan, 497 U.S. at 888. We agree with the district court that “[i]t

would be pure conjecture for the jury to conclude that the spilled chicken juice can be linked to any

one of these specific customers and, thus, that the chicken juice had been present on the floor for any

specific period of time.”

                                        IV. CONCLUSION

       Bradley failed to support her negligence claim with substantial evidence from which a jury

could reasonably find that Wal-Mart had constructive knowledge of a dangerous condition on its

premises. Therefore, the district court’s order granting Wal-Mart’s motion for summary judgment

is AFFIRMED.




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