Lindsey v. Sears Roebuck and Co.

                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT

                        _____________________

                              No. 93-7540
                           Summary Calendar
                        _____________________



JOE LINDSEY and
BETTY LINDSEY,

                                                Plaintiffs-Appellants,

                               versus

SEARS ROEBUCK AND COMPANY,

                                                  Defendant-Appellee.

_________________________________________________________________

      Appeal from the United States District Court for the
                 Southern District of Mississippi
                           (J92-CV-393)
_________________________________________________________________
                        (January 28, 1994)

Before JOLLY, SMITH, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*


     Plaintiff-appellant Joe Lindsey and his wife, Betty Lindsey

("the Lindseys"), appeal the district court's grant of summary

judgment in favor of defendant-appellee Sears, Roebuck & Co.

("Sears").     Because we find that the Lindseys failed to provide




     *
     Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the court has determined that this opinion
should not be published.
evidence on a necessary element of their cause of action, we affirm

the district court's entry of summary judgment in favor of Sears.

                                        I

      On   June   20,   1990,   while     shopping    at   Sears   in   Jackson,

Mississippi, Mr. Lindsey allegedly tripped and fell over the blade

of a sickle mower that was protruding into the aisle.1                  Although

Mr.   Lindsey     initially     thought      that    he    was   uninjured,   he

subsequently developed back problems that his doctors attributed to

his fall at Sears.      Mr. Lindsey and his wife sued Sears, alleging

that Sears's negligence caused Mr. Lindsey's injury.                Sears moved

for summary judgment, arguing that the Lindseys failed to produce

evidence demonstrating that there was a genuine issue of material

fact as to whether the dangerous condition was caused by Sears, or

whether Sears had actual or constructive knowledge of the dangerous

condition.    After finding that the Lindseys failed to produce such

evidence, the district court granted Sears's motion, and the

Lindseys appeal.

                                        II

      On appeal, the Lindseys argue that the district court erred in

granting summary judgment in favor of Sears.                Specifically, they

contend that because this is a negligence action, summary judgment

is inappropriate because the question of the reasonableness of the

      1
     A question of fact exists as to whether Mr. Lindsey was ever
actually involved in an accident at Sears. However, for purposes
of this opinion, we will assume, as the district court did, that
the incident in question actually occurred.




                                     -2-
defendant's conduct is a question for the jury.               They further

contend   that    the    district   court    improperly     determined    the

credibility of witnesses.       We review de novo a district court's

grant of summary judgment, viewing the record in the light most

favorable to the non-movant.         Lodge Hall Music, Inc. v. Waco

Wrangler Club, Inc., 831 F.2d 77, 79 (5th Cir. 1987).

     When seeking summary judgment, the movant bears the initial

responsibility of demonstrating the absence of an issue of material

fact with respect to those issues on which the movant bears the

burden of proof at trial.      Celotex Corp. v. Catrett, 477 U.S. 317,

106 S.Ct. 2548, 2558, 91 L.Ed.2d 265 (1986).           However, where the

non-movant bears the burden of proof at trial, the movant may

merely point to an absence of evidence, thus shifting to the non-

movant the burden of demonstrating by competent summary judgment

proof that there is an issue of material fact warranting trial.

Id. at 2553-54; see also, Moody v. Jefferson Parish School Board,

2 F.3d 604, 606 (5th Cir. 1993); Duplantis v. Shell Offshore, Inc.,

948 F.2d 187, 190 (5th Cir. 1991).         Only when "there is sufficient

evidence favoring the nonmoving party for a jury to return a

verdict for that party" is a full trial on the merits warranted.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505,

2511, 91 L.Ed.2d 202 (1986).

     Initially,    the   Lindseys   make    the   blanket   assertion    that

summary judgment is inappropriate in negligence cases because such

cases require the trier to pass upon the reasonableness of the




                                    -3-
defendant's conduct in determining whether that conduct constitutes

negligence.    This is generally true, see Gauck v. Meleski, 346 F.2d

433, 437 (5th Cir. 1965), provided that the plaintiff has produced,

with respect to each element of his cause of action, competent

proof that will withstand summary judgment.                 Although the Lindseys

contend that they properly demonstrated that "there is a genuine

issue as to a material fact as to whether Sears was negligent in

placing a sickle mower on the corner of an aisle," they failed to

provide evidence on all necessary elements of their cause of

action.

     Under Mississippi law, an operator of a business premises owes

a duty to an invitee to exercise reasonable care to keep the

premises in a reasonably safe condition. Munford, Inc. v. Fleming,

597 So.2d 1282, 1284 (Miss. 1992); Jerry Lee's Grocery, Inc. v.

Thompson, 528 So.2d 293, 295 (Miss. 1988).                    The operator of a

business,    however,       is   not   an     insurer   against      all    injuries.

Munford, Inc. v. Fleming, 597 So.2d at 1284.                Thus, merely proving

the occurrence of an accident within the business premises is

insufficient    to       prove   liability;      rather,     the    plaintiff       must

demonstrate that the operator of the business was negligent.

Sears,    Roebuck    &    Co.    v.   Tisdale,   185    So.2d      916,    917   (Miss.

1966)(the doctrine of res ipsa loquitur is inapplicable in premises

liability cases).         To prove that the operator was negligent, the

plaintiff   must     show    either     [1]    that   the   operator       caused    the

dangerous condition, or, [2] if the dangerous condition was caused




                                         -4-
by a third person unconnected with the store operation, that the

operator    had   either   actual   or   constructive   knowledge   of   the

dangerous condition.       Munford, Inc. v. Fleming, 597 So.2d at 1284;

Waller v. Dixieland Food Stores, Inc., 492 So.2d 283, 285 (Miss.

1986).     Constructive knowledge is established by proof that the

dangerous condition existed for such a length of time that, in the

exercise of reasonable care, the proprietor should have known of

that condition.     Munford, Inc. v. Fleming, 597 So.2d at 1284.

     After carefully reviewing the record in this case, we are

unable to find any evidence demonstrating that Sears either caused

the dangerous condition, or that Sears had actual or constructive

knowledge of a dangerous condition caused by an unrelated third

party.   Instead of providing evidence on this necessary element of

their cause of action, the Lindseys merely assumed that Sears was

responsible for the location of the sickle mower, thus causing the

dangerous    condition.      Mississippi    law,   however,   requires   the

plaintiff to demonstrate that the dangerous condition was the

result of an affirmative act of the proprietor.         See Sears, Roebuck

& Co. v. Tisdale, 185 So.2d at 917.           Moreover, Sears presented

evidence demonstrating that it did not have actual or constructive

knowledge of the dangerous condition, yet the Lindseys presented no

contradicting evidence that could serve as a basis for a jury

verdict in their favor.        Because the Lindseys failed to provide




                                     -5-
evidence on a necessary element of their cause of action, summary

judgment in favor of Sears was appropriate.2

                                IV

     For the foregoing reasons, the judgment of the district court

is

                                                  A F F I R M E D.




     2
      In his brief, Mr. Lindsey contends that the district court
improperly made credibility determinations in favor of Sears.
Specifically, he refers to the conflicting testimony of the Sears
employees who stated that they had no recollection of any accident
and the testimony of other bystanders who saw the accident.
Although there is a question of fact concerning whether the
accident occurred at all, the district court assumed arguendo that
the accident occurred, thus viewing the conflicting evidence in the
light most favorable to the non-movant Mr. Lindsey.




                               -6-