UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 97-20312
_______________________
ALICE CAROLYN BANDEAUX,
Appellant,
versus
HOME DEPOT USA, INC.,
Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-96-CV-1513)
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January 6, 1998
Before JOLLY, JONES, and SMITH, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
Alice Caroline Bandeaux brought a premises liability suit
against Home Depot USA, Inc. in Texas state court, asserting a
claim for personal injury after she slipped in a puddle of cleaning
solution on an aisle floor. The case was removed to federal court
under diversity jurisdiction. The district court granted summary
judgment in favor of defendant-appellee. We now affirm.
*
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this opinion should not be published and is not precedent except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.
I. STANDARD OF REVIEW
We review a district court’s grant of summary judgment de
novo. See Grimes v. Texas Dep’t. Of Mental Health and Mental
Retardation, 102 F.3d 137, 139 (5th Cir. 1996). “Federal Rule of
Civil Procedure 56(c) mandates summary judgment if a party fails to
establish the existence of an element essential to its case and on
which it has the burden of proof.” David v. Illinois Cent. R.R.
Co., 921 F.2d 616, 618 (5th Cir. 1991) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 323-24 (1986)). While it is true that in
summary judgment, the facts are to be reviewed with all inferences
drawn in favor of the nonmoving party, factual controversies can
only be inferred for the nonmovant when there is an actual
controversy. See McCullen Highlands Ltd. v. Washington Capital
Dus, Inc., 66 F.3d. 89, 92 (5th Cir. 1995), rev’d on other grounds,
70 F.3d 26, (1995). Both parties would have to submit evidence of
contradictory facts. See id. In the absence of proof, the court
cannot assume that the party opposing the motion could prove the
facts necessary to forego the grant of a motion for summary
judgment. See Little v. Liquid Air, 37 F.3d 1069, 1075 (5th Cir.
1994). Unsubstantiated assertions are not competent summary
judgment evidence. See Grimes, 102 F.3d at 139.
This court has held that in a premises liability case
under Texas law, the appellant must prove: (1) that the defendant
had actual or constructive knowledge of the condition; (2) that
the condition posed an unreasonable risk of harm; (3) that the
defendant did not exercise reasonable care to reduce or eliminate
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the risk; and (4) that the defendant’s failure to use such care
proximately caused appellant’s injuries. See Folks v. Kirby Forest
Indus., Inc., 10 F.3d 1173, 1176 (5th Cir. 1994).
II. ANALYSIS
In this case, we are convinced that appellant has failed
to establish the existence of at least one essential element of her
case, i.e. that the defendant had actual or constructive knowledge
of the dangerous condition.
Appellant offers several pieces of circumstantial
evidence to support her claim that a genuine fact issue exists on
this point.
First, appellant alleges that she observed a track
leading from the puddle of fluid to a ladder used by employees
nearby. From this, the appellant would infer that an employee was
nearby saw or caused the spill and moved the ladder in order to
clean up the spill. If there was a track, however, it is equally
likely that a customer could have moved the ladder. Second,
appellant stated in her deposition that the assistant manager of
Home Depot told her that the substance in which she had fallen was
a cleaning substance that was going through a drying process. From
this statement, the appellant concludes that the assistant manager
knew of the substance on the floor, thus giving Home Depot prior
knowledge of a dangerous condition yet that is only one possible
reason for the assistant manager’s alleged statement. As noted by
the district judge in the summary judgment hearing, the assistant
manager could have known that the substance was cleaning solution
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by looking at it and smelling it, and by the fact that it was in
the cleaning products aisle. The observation that the liquid was
drying is, without more, utterly inconclusive.
Additional circumstantial evidence provided by the
appellant includes admissions that Home Depot employees are given
safety knives that they use to open boxes. From this appellant
would draw the inference that a Home Depot employee could have cut
the plastic container causing the cleaning solution to spill out.
There is no evidence to substantiate this theory.1
Appellant also points to the existence of a General
Liability Loss Notice form that was filled out by the store’s
assistant manager after the accident. In that document he states
that no third party was involved in the accident. Appellant wants
to call this an admission of actual knowledge since if no third
party were involved, the only possibility is that the appellee
itself was responsible for the condition which caused appellant to
fall. However, read in context, this General Liability Loss Notice
form merely indicates that appellee was unaware of who caused the
dangerous condition.
Appellant has failed to offer any proof of the facts
relating to the store’s knowledge. Texas law allows circumstantial
evidence to be used to show knowledge. See Keetch v. Kroger Co.,
845 S.W.2d 262, 265 (Tex. 1992). However, this knowledge will not
1
There is also no admissible evidence that an absorbent
had been placed on the spill. Ms. Carmichael’s affidavit is
inadmissible, and the other “evidence” cited by appellant is
speculative.
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be inferred when the circumstances are consistent with more than
one scenario and no scenario is more probable than another. See
Litton Indus. Prod., Inc. v. Gammage, 668 S.W.2d 319, 324 (Tex.
1984).
Appellant has based her case on unsupported allegations,
which are insufficient to defeat a motion for summary judgment.
“Unsupported allegations or affidavit or deposition testimony
setting forth ultimate or conclusory facts and conclusions of law
are insufficient to defeat a motion for summary judgment.” Clark
v. America’s Favorite Chicken Co., 110 F.3d 295, 297 (5th Cir.
1997) (citing Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312
(5th Cir. 1995)). Appellant has failed to produce evidence tending
to show that Home Depot had actual or constructive knowledge of the
condition or that it caused the spill.
The court has considered appellant’s claim in light of
the briefs and pertinent portions of the record. We find no
reversible error of fact or law and affirm the lower court’s grant
of summary judgment.
AFFIRMED.
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