IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 93-7540
Summary Calendar
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JOE LINDSEY and
BETTY LINDSEY,
Plaintiffs-Appellants,
versus
SEARS ROEBUCK AND COMPANY,
Defendant-Appellee.
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Appeal from the United States District Court for the
Southern District of Mississippi
(J92-CV-393)
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(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should not be published.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.
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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
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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
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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
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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.
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