UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-60039
Summary Calendar
GLYNDA M. MOODY,
Plaintiff-Appellant,
VERSUS
WAL-MART STORES, INC.,
d/b/a SAM’S WHOLESALE CLUB,
Defendant-Appellee.
Appeal from the United States District Court
For the Southern District of Mississippi
(1:93-CV-567-GR)
November 30, 1995
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:1
Glynda Moody appeals the grant of judgment as a matter of law
in favor of Wal-Mart Stores, Inc. (d/b/a Sam’s Wholesale Club) in
this “slip-and-fall” case. Finding no error in the district
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Rule, the Court has determined that this opinion should not be
published.
court’s judgment, we affirm.
BACKGROUND
Glynda Moody was shopping at Sam’s Wholesale Club on November
25, 1991 when she stepped on a piece of fruit and fell. Moody’s
daughter Johnna witnessed her fall. According to Mrs. Moody and
Johnna, an employee approached Mrs. Moody after her accident and
admitted that he had seen the fruit on the floor and had intended
to remove it. The alleged employee has never been identified, and
all other employees who responded to the incident denied making or
hearing that statement.
Johnna testified that she had seen the fruit on the floor ten
to fifteen minutes before the accident, but did not inform her
mother or any employee about the condition. Lennie Roberson, a
Wal-Mart employee, testified that he swept the entire store,
including the aisle where the incident occurred, within an hour and
fifteen minutes of the accident.
On appeal, Moody alleges that the district court erred in
granting judgment as a matter of law in favor of Wal-Mart.
Appellant contends that there is sufficient evidence for a jury to
decide: (1) whether Wal-Mart had actual knowledge of the dangerous
condition; and (2) whether Wal-Mart had constructive knowledge of
the condition. After reviewing the record, we are unable to find
sufficient evidence to support a jury determination that Wal-Mart
had actual or constructive knowledge.
DISCUSSION
Under Mississippi law, an operator of a business owes a duty
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to an invitee to exercise reasonable care to keep the premises in
reasonably safe condition. Lindsey v. Sears Roebuck & Co., 16 F.3d
616, 618 (5th Cir. 1994). The operator of a business, however, is
not an insurer against all injuries. Munford, Inc. v. Fleming, 597
So.2d 1282, 1284 (Miss. 1992). Thus, the plaintiff must
demonstrate that the operator of a business was negligent.
Lindsey, 16 F.3d at 618. To prove negligence, the plaintiff must
show either that (1) the business caused the hazardous condition;
or (2) that the operator had either actual or constructive notice
of a dangerous condition caused by a third person. Id.
Moody does not argue that Wal-Mart caused the dangerous
condition. Therefore, to avoid judgment as a matter of law, Moody
must show that a jury could reasonably find that Wal-Mart “had
actual knowledge of a dangerous condition, or the dangerous
condition existed for a sufficient amount of time to establish
constructive knowledge.” Munford, 597 So.2d at 1284. Absent
evidence creating a material fact dispute, judgment as a matter of
law must be affirmed.
Moody first argues that Wal-Mart had actual knowledge of the
dangerous condition. Appellant claims that the district court
erred by assessing the credibility of Mrs. Moody’s and Johnna’s
testimony about the unidentified employee. The district court,
however, did not usurp the jury’s duty to assess credibility.
Rather, as required by Rule 50, the court compared this statement
to the other evidence, and concluded that the evidence was
insufficient to create a question for the jury.
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We likewise hold that a reasonable jury could not conclude
that Wal-Mart had actual knowledge of the fruit on the floor.
Under Boeing Co. v. Shipman, 411 F.2d 365, 375 (5th Cir. 1969) (en
banc), to survive judgment as a matter of law, “[t]here must be a
conflict in substantial evidence to create a jury question.” Even
if the evidence is more than a scintilla, “Boeing assumes that some
evidence may exist to support a position which is yet so
overwhelmed by contrary proof as to yield to a directed verdict.”
Neely v. Delta Brick and Tile Co., Inc., 817 F.2d 1224, 1225 (5th
Cir. 1987).
Mrs. Moody and Johnna’s testimony is not sufficient to create
a jury question regarding Wal-Mart’s actual knowledge. Appellant
offered no evidence to establish that the unidentified man was
indeed a Wal-Mart employee. Moreover, the Wal-Mart employees who
responded to the accident denied making or hearing the alleged
statement. In addition, these employees testified that they did
not see the fruit on the floor prior to the accident, and confirmed
Wal-Mart’s safety training and procedures, which require employees
to clean immediately any materials found on the floor or remain
with potential hazards until other personnel arrive with cleaning
equipment. Thus, the alleged statement by the unknown person does
not create a jury question in view of the strong evidence to the
contrary.
Moody also argues that Wal-Mart had constructive knowledge of
the fruit causing her accident. In Mississippi, constructive
knowledge is established by proof that the condition existed for a
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period of time that would alert a reasonably diligent proprietor.
Waller v. Dixieland Food Stores, Inc., 492 So.2d 283, 285 (Miss.
1986). The Mississippi Supreme Court has repeatedly held that
proprietors are under no duty to discover hazards within a matter
of minutes. See Munford, Inc. v. Fleming, 597 So.2d 1282, 1285
(Miss. 1992); Jerry Lee’s Grocery, Inc. v. Thompson, 528 So.2d 293,
294 (Miss. 1988).
Johnna testified that she had seen the fruit on the floor ten
to fifteen minutes before the accident, but did not inform her
mother or any employee about the condition. The testimony of
Lennie Roberson, a Wal-Mart employee, established that he swept the
store approximately one hour prior to the incident. Wal-Mart was
not under a duty to discover the hazard during the short time
between the sweep and the accident. Therefore, the time frame
established by the evidence does not support Moody’s claim that
Wal-Mart had constructive knowledge of the danger.
Mrs. Moody argues that a sugar spill in the main aisle twenty
to twenty-five minutes prior to the accident undermines the
evidence that Roberson swept the store in a reasonable manner.
Roberson denied seeing the spill when he swept the main aisle five
minutes before Moody’s accident. However, Lynita Calvert, another
Wal-Mart employee, noticed the spill twenty to twenty-five minutes
before the accident, and called for its immediate clean-up. Thus,
the sugar spill would have been removed before Roberson swept the
main aisle.
Appellant also argues that Calvert possessed constructive
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knowledge of the condition because twenty minutes prior to the fall
she noticed a woman eating fruit from a jar. Calvert, however,
immediately notified another employee, who then attempted to locate
the patron. Calvert testified that she did not see any of the
fruit fall to the floor, and did not observe the patron eating in
the aisle where Moody’s accident occurred. Calvert’s testimony,
therefore, does not establish constructive knowledge of the fruit
causing the accident.
Appellant finally argues that Calvert’s awareness of both the
patron eating fruit from a jar and the sugar spill should have
prompted her to inspect the general area. However, Calvert
responded reasonably and quickly to both of these incidents. The
combination of events would not lead a reasonable employee to
suspect that a piece of fruit had fallen in another aisle.
For the foregoing reasons, the decision of the district court
is AFFIRMED.
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