UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KATHY B. CULP,
Plaintiff-Appellant,

v.                                                              No. 96-2260

WAL-MART STORES, INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CA-95-3487)

Submitted: December 23, 1997

Decided: January 20, 1998

Before HAMILTON and MOTZ, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

John K. Koon, Elizabeth L. Cook, KOON & COOK, P.A., Columbia,
South Carolina, for Appellant. Jay Bender, BAKER, BARWICK,
RAVENEL & BENDER, L.L.P., Columbia, South Carolina, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Kathy B. Culp appeals the entry of judgment as a matter of law in
favor of the Defendant in her personal injury action. This case came
to trial in the district court before a jury. The trial judge ordered that
the trial be bifurcated as to the issues of liability and damages. At the
conclusion of Culp's evidence on liability, the Defendant moved for
judgment as a matter of law as to liability. The district court granted
the motion and entered judgment for the Defendant. On appeal, Culp
alleges that sufficient evidence existed after she rested her case to
require submission of the issue of liability to the jury. Finding no
error, we affirm.

When sitting in diversity, district courts apply the federal law for
determining whether the evidence is sufficient for submission to the
jury. The standard in federal court is that the case should not be sub-
mitted to the jury "if the plaintiff has failed to adduce substantial evi-
dence in support of his claim." DeMaine v. Bank One, Akron, N.A.,
904 F.2d 219, 220 (4th Cir. 1990) (per curiam). The federal court will
not follow a state court rule that a scintilla of evidence is sufficient
to create a triable issue for the jury, as is the law in South Carolina.
See Beaty Shopping Ctr., Inc. v. Monarch Ins. Co. of Ohio, 315 F.2d
467, 469 (4th Cir. 1963).

Culp testified at trial that she was shopping with her daughter in
the girl's department at the Defendant's retail store in Newberry,
South Carolina. While looking through a rack of clothing on the back
wall of the store, a box fell from overhead and struck her on the head
and back of her left knee. The box contained a baby crib, and Culp
described it as large and heavy. Culp testified that she did not see the
box until after it fell on her and did not know how the box fell. Culp
did not put on any testimony as to the location of the box prior to the
fall or how the box may have been placed in that location. Nor was

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there any testimony as to how the box was situated immediately prior
to falling or as to what the mechanism was that caused the box to fall.

Culp presented the testimony of four Wal-Mart employees by pub-
lishing excerpts from their depositions. Their collective testimony
demonstrated that the box was of the type normally stored on a top
shelf on the back wall close to the area where Culp shopped.
Employee testimony showed that the crib boxes were stored standing
up, three boxes deep, on the shelf concerned. Sometimes, the boxes
would be tilted against the wall. One employee familiar with the stor-
age of crib boxes on the shelf testified that the boxes were stable
when employees used the described storage method and that she
never saw any boxes fall off the shelf. Culp did not present any testi-
mony demonstrating that the Defendant had any knowledge of prior
incidents of crib boxes falling off the shelf or that restraints were used
or needed to restrain the boxes. Finally, Culp did not present any testi-
mony to show that the storage method used was dangerous or unsafe.

Under South Carolina law, a merchant is not an insurer of the
safety of the customers, but owes the customers the duty of exercising
ordinary care to keep the aisles, passageways, and other parts of the
premises ordinarily used by the customers in a reasonably safe condi-
tion. The merchant also has the duty to warn customers of hidden
dangers or unsafe conditions of which the proprietor has knowledge
or in the exercise of reasonable supervision and inspection should
know. See Baker v. Clark, 103 S.E.2d 395, 396 (S.C. 1958).

The plaintiff has the burden of proving that there was a breach of
duty by the defendant that proximately caused the plaintiff's injuries.
However, the doctrine of res ipsa loquitur has been unequivocally
rejected in South Carolina, see Legette v. Smith , 220 S.E.2d 429 (S.C.
1975); Bain v. Self Memorial Hosp., 314 S.E.2d 603 (S.C.App. 1984),
and, based on the outcome determinative test, federal courts applying
South Carolina law must not apply the doctrine in diversity actions.
See McLain v. Carolina Power & Light Co., 286 F.2d 816 (4th Cir.
1961). Negligence may be proven by circumstantial evidence. When
relying upon circumstantial evidence, the plaintiff must prove circum-
stances that would justify relying upon the inference that the injuries
were due to the defendant's negligence. Mere conjecture and specula-

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tion do not satisfy proof by circumstantial evidence. Legette, 220
S.E.2d at 430.

A similar factual situation presented itself in Poliakoff v. Shelton,
8 S.E.2d 494 (S.C. 1940). In Poliakoff, the plaintiff and her brother
testified that a suitcase fell from an overhead rack and struck the
plaintiff on the shoulder as she rode the defendant's bus. The plaintiff
did not present any evidence as to what caused the suitcase to fall.
The court granted defendant's motion for a directed verdict. The
Supreme Court of South Carolina held that without further evidence
as to what caused the suitcase to fall, impermissible speculation
would be required to determine if negligence existed. The court noted
that there was no evidence of knowledge by the defendant's employ-
ees of a dangerous situation. See Poliakoff, 8 S.E.2d at 497. Similarly,
in this case there was no evidence that the Defendant stored the crib
boxes in a dangerous manner. Even if it could be assumed that the
box that struck Culp was situated in an unsafe or dangerous position
on the shelf immediately prior to the accident, there was no evidence
that the Defendant knew of the condition or that the box had been in
a dangerous position long enough that the Defendant knew or should
have known about it. We therefore find that the Plaintiff's evidence
was not sufficient to submit the liability issue to the jury.

We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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