                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                             NOVEMBER 27, 2007
                                No. 07-13152                  THOMAS K. KAHN
                            Non-Argument Calendar                 CLERK
                          ________________________

                     D. C. Docket No. 06-01383-CV-MHS-1

MCCOIE JONES,
as next Best Friend of DJ, a Minor,

                                                        Plaintiff-Appellant,

ANDREA JONES,
as next Best Friend of DJ, a Minor,

                                                         Plaintiff,

                                      versus

WAL-MART STORES INC.,

                                                       Defendant-Appellee.


                          ________________________

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


                              (November 27, 2007)
Before ANDERSON, HULL and PRYOR, Circuit Judges.

PER CURIAM:

       In this premises liability case, Plaintiff McCoie Jones, individually and on

behalf of his minor son, DJ, appeals the district court’s June 14, 2007 order

granting summary judgment in favor of Defendant Wal-Mart Real Estate Business

Trust d/b/a Wal-Mart Stores East, LP (“Wal-Mart”)1 on all claims in Jones’s

complaint. After review, we affirm.

       The facts, described in more detail in the district court’s order, are as

follows. On December 7, 2005, DJ and his grandmother, Elizabeth Warner, visited

the Wal-Mart store in Cedartown, Georgia, for Warner to have a prescription filled.

While Warner was at the pharmacy counter, DJ, who was four years old at the

time, was standing a few feet away, at or near a metal pamphlet rack. The

pamphlet rack was connected to a counter next to the pharmacy wall and hung a

few inches off the floor. The pamphlet rack fell straight down to the floor, landing

on the top of DJ’s foot. The impact fractured DJ’s big toe. Jones sued Wal-Mart

to recover medical, pain and suffering, and other damages.

       Under Georgia law, an owner or occupier of land is liable for any injuries



       1
         Originally, Jones had brought suit against Wal-Mart Stores, Inc., but after learning that
the true party defendant was Wal-Mart Real Estate Business Trust, he amended his complaint to
reflect this fact.

                                                 2
suffered by invitees onto his land that are caused by his failure to exercise ordinary

care in keeping the premises safe. O.C.G.A. § 51-3-1. To recover, the invitee

“must show (1) that the defendant had actual or constructive knowledge of the

hazard and (2) that the plaintiff lacked knowledge of the hazard despite the

exercise of ordinary care due to actions or conditions within the control of the

owner.” Roberts v. Wal-Mart Stores, Inc., ___ S.E.2d ___, No. A07A0862, 2007

WL 2386461, at *1 (Ga. Ct. App. Aug. 22, 2007). The proprietor’s liability is

grounded in his “superior knowledge” of the hazard. See Ballard v. S. Reg’l Med.

Ctr., 453 S.E.2d 123, 124 (Ga. Ct. App. 1995).

       The district court concluded that there was no evidence that Wal-Mart had

actual knowledge of the hazard. Furthermore, it held that no constructive

knowledge could be imputed to Wal-Mart because, assuming that the pamphlet

rack was defectively constructed or installed, Wal-Mart could not have easily seen

(and thus eliminated) the hazardous condition. Finally, Jones had not offered any

evidence that the defect existed a sufficient length of time that Wal-Mart should

have discovered it during a reasonable inspection. Accordingly, the district court

granted summary judgment to Wal-Mart.

       After a de novo review,2 we agree with the conclusions reached by the


       2
         We review a grant of summary judgment de novo, applying the same legal standard as
did the district court. Optimum Techs., Inc. v. Henkel Consumer Adhesives, Inc., 496 F.3d

                                              3
district court in its thorough and well reasoned order. All of Jones’s arguments on

appeal lack merit, and only two of them warrant further discussion.

       First, Jones claims that the district court, in determining that there was no

evidence that Wal-Mart had actual knowledge of the hazard, ignored or misstated

the deposition testimony of the store manager, Hope Radford. According to Jones,

“Radford . . . testified that the [pamphlet] rack . . . was not mounted as it normally

should have been” and “was not attached to the counter where it was supposed to

be.” This testimony, Jones contends, creates a jury question.

       Radford’s testimony does not support Jones’s contention. In the relevant

portion of his deposition, Radford stated, in reference to photographs taken of the

pamphlet rack after the incident, that the pamphlet rack as depicted in those

photographs was not mounted as such racks normally were supposed to be

mounted, and was not attached to the counter. This is unsurprising, as the

photographs show the pamphlet rack standing on the floor after it fell, and the

parties agree that at the time of the incident the rack was hanging a few inches off

the ground. Because Radford’s testimony concerns the status of the pamphlet rack



1231, 1241 (11th Cir. 2007). Under that standard, we determine whether, viewing all facts and
inferences in the light most favorable to the non-movant, there is no genuine issue as to any
material fact. Id. Moreover, summary judgment is required against “[any] party who fails to
make a showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.” Id. (quotation marks and citation
omitted).

                                                 4
after DJ’s injury, instead of before it, this testimony is not material to the issue of

whether Wal-Mart had superior knowledge, actual or constructive, of any defect

before the rack fell. See Wiley v. Winn Dixie Stores, Inc., 420 S.E.2d 20, 21-22

(Ga. Ct. App. 1992) (holding, in a slip-and-fall premises liability case, that whether

the hazardous condition existed after the plaintiff’s fall was irrelevant; the relevant

inquiry was whether the proprietor had actual or constructive knowledge of the

hazard before the injury occurred).3

       Second, Jones claims that “[a]s the constructor of the display and stand

[Wal-Mart] is conclusively presumed to have knowledge of the defects in [its]

construction . . . .” 4 However, Jones does not identify, and we have not found, any

record evidence indicating that Wal-Mart constructed the pamphlet rack. Indeed,

Radford testified that “a lot of our displays are . . . already preassembled, and . . .

most of our department managers or associates just place the displays.” Therefore,

even assuming that the pamphlet rack itself suffered from a construction defect,

because the evidence does not indicate that Wal-Mart actually constructed the


       3
        Jones’s contention that the district court ignored Radford’s testimony in concluding that
Jones had not offered any evidence of how long the alleged defect had existed is similarly
erroneous. Radford testified merely that “[t]he fixture [i.e., the pamphlet rack] was up for
several weeks,” not that the defect had existed for that long. As mentioned above, Radford gave
no testimony as to the defectiveness vel non of the pamphlet rack before DJ’s injury.
       4
         Jones also argues that Wal-Mart’s status as constructor of the pamphlet rack raises a
conclusive presumption of knowledge as to defects in the placement of the rack; however, he
cites no authority that supports this proposition.

                                                5
pamphlet rack, no presumption exists that Wal-Mart knew of the defect.

      In sum, the district court correctly determined that Jones failed, as a matter

of law, to establish that Wal-Mart had superior knowledge of any danger

associated with the pamphlet rack. Therefore, Wal-Mart was entitled to summary

judgment.

      AFFIRMED.




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