Catherine Pickle v. Wal-Mart Stores, Inc.

Case: 09-60968 Document: 00511165827 Page: 1 Date Filed: 07/07/2010

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
July 7, 2010
No. 09-60968
Summary Calendar Lyle W. Cayce
Clerk

CATHERINE PICKLE,

Plaintiff-Appellant,

v.

WAL-MART STORES, INC.,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Mississippi
Eastern Division
USDC No. 1:08-CV-251

Before JOLLY, STEWART, and ELROD, Circuit Judges.
PER CURIAM:*
Plaintiff Catherine Pickle appeals the district court’s grant of summary
judgment in favor of Wal-Mart Stores, Inc. (Wal-Mart). The district court held
that Pickle presented no evidence raising a genuine issue of material fact
regarding whether her injury resulted from negligence on the part of Wal-Mart.
Finding no error, we 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Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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No. 09-60968

Catherine Pickle and her daughter, Teresa Cunningham, were shopping
at Wal-Mart in Amory, Mississippi, on or around October 16, 2006. Pickle
presented evidence that while she was in one of the handicap stalls in the
women’s restroom, she pulled some tissue paper out of the dispenser, causing the
dispenser cover and tissue roll to fall on her. Pickle alleges that the fall caused
injury to her neck and left shoulder. In her affidavit, Pickle states that she saw
a cleaning cart containing a mop, broom, and other supplies outside of the men’s
restroom. The affidavit further states that she saw a Wal-Mart associate going
in and out of the men’s restroom around the same time, and that she assumes
the associate must also have been cleaning and re-supplying the women’s
restroom. As a result of the incident, Pickle filed suit against Wal-Mart for bodily
injuries, pain and suffering, mental anguish, partial loss of enjoyment of life, and
medical bills.
Pickle also submitted evidence that Wal-Mart, in its response to the
Plaintiff’s Request for Admissions, admits that only its employees are permitted
to possess a key to open the top of the dispenser. In his affidavit, the store
manager states that Wal-Mart has not discovered any evidence of a problem,
defect, forceful entry, or damage to the dispenser, and that the dispenser is
currently still in use.
This appeal of a summary judgment is reviewed de novo with this court
applying the same standard as the district court, viewing the evidence in the
light most favorable to the non-movant. Lauderdale v. Tex. Dep’t of Criminal
Justice, Institutional Div., 512 F.3d 157, 162 (5th Cir. 2007). Summary judgment
is appropriate when a review of the evidence reveals no genuine issue of material
fact, and the movant is entitled to a judgment as a matter of law. Fed. R. Civ. P.
56(c)(2). “Conclusory allegations and denials, speculation, improbable inferences,
unsubstantiated assertions, and legalistic argumentation do not adequately
substitute for specific facts showing a genuine issue for trial.” TIG Ins. Co. v.

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No. 09-60968

Sedgwick James of Washington, 276 F.3d 754, 759 (5th Cir. 2002) (citing SEC
v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993)).
Pickle argues that the dispenser was stocked with tissue and left unlocked
by a Wal-Mart associate. Pickle also argues that Wal-Mart had constructive
knowledge of the unlocked dispenser because the maintenance associate cleaning
the restroom saw or should have seen it. Under Mississippi law, a business
owner has a duty to “exercise reasonable care to keep the premises in a
reasonably safe condition.” Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 618
(5th Cir. 1994) (citing Munford Inc. v. Fleming, 597 So.2d 1282, 1284 (Miss.
1992)). However, the owner of a business is not an insurer against all injuries.
Id. Merely proving that an accident occurred on a business’s premises is
insufficient to prove that the business was actually negligent; rather, the
plaintiff must prove that the operator of the business was negligent. Lindsey, 16
F.3d at 618 (citing Sears, Roebuck & Co., v. Tisdale, 185 So.2d 916, 917 (Miss.
1996)).
Pickle’s speculative arguments regarding Wal-Mart’s alleged negligence
and constructive knowledge of an unlocked dispenser are insufficient to show
that Wal-Mart failed to “exercise reasonable care to keep the premises in a
reasonably safe condition.” Lindsey, 16 F.3d at 618 (citing Munford Inc. v.
Fleming, 597 So.2d 1282, 1284 (Miss. 1992)). Accordingly, the district court did
not err in its determination that Wal-Mart is entitled to judgment as a matter
of law.
AFFIRMED.

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