NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 14a0441n.06

No. 13-6448

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

LIBBY SILAS,

Plaintiff-Appellant,

v.

TARGET CORPORATION,

Defendant-Appellee.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE WESTERN DISTRICT OF 

TENNESSEE

BEFORE: BOGGS, COLE, and STRANCH, Circuit Judges.

PER CURIAM. Libby Silas appeals the district court’s decision to grant summary 

judgment in favor of Target Corporation in this premises-liability action.

Silas slipped and fell while shopping at Target. After Silas filed a complaint in state 

court, Target removed the case to the district court based on diversity of citizenship. Target filed 

a motion for summary judgment, which the district court granted. This timely appeal followed. 

Because we disagree with the district court’s conclusion that Silas had presented no admissible 

evidence that Target was aware of the condition that led to Silas’s injury, we reverse the grant of 

summary judgment and remand to the district court. 

Summary judgment is appropriate “if the movant shows that there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 

P. 56(a). We review the district court’s decision to grant summary judgment de novo. Pagliara 

v. Johnston Barton Proctor & Rose, LLP, 708 F.3d 813, 817 (6th Cir. 2013). We review the 
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district court’s evidentiary rulings for abuse of discretion. Harris v. J.B. Robinson Jewelers, 

627 F.3d 235, 240 (6th Cir. 2010).

To establish negligence under Tennessee law, a plaintiff must prove the following 

elements: “(1) a duty of care owed by defendant to plaintiff; (2) conduct falling below the 

applicable standard of care that amounts to a breach of that duty; (3) an injury or loss; (4) cause 

in fact; and (5) proximate, or legal, cause.” McClung v. Delta Square Ltd. P’ship, 937 S.W.2d 

891, 894 (Tenn. 1996). In addition, to hold an owner or operator of premises liable in negligence 

for a dangerous or defective condition on its premises, the plaintiff must prove either (1) that the 

owner or operator caused or created the condition or (2) that the owner or operator had actual or 

constructive notice that the condition existed prior to the accident. Blair v. W. Town Mall, 

130 S.W.3d 761, 764 (Tenn. 2004). 

Target moved for summary judgment on the basis that Silas could not offer any evidence 

showing that it had notice of the water on the floor that she claimed caused her fall. In response, 

Silas submitted the affidavit of Timothy Jackson, who witnessed Silas’s fall, stating that a 

woman arrived at the scene and “exclaimed with irritation: ‘Hey, I told them about that water on 

the floor.’” In addition, Silas testified in her deposition that, while she was on the floor, she 

“heard a [female] customer say, I told somebody about that spill 15 minutes ago. . . . God, I told 

them about that water 15 minutes ago — that spill 15 minutes ago.” The district court and the 

parties appear to have assumed that one woman made the statement or statements heard by 

Jackson and Silas, though this fact is unclear.

Target objected to the unidentified woman’s statement as inadmissible hearsay. The 

district court determined that the unidentified woman’s statement satisfied the requirements for 

the “excited utterance” exception to the hearsay rule under Federal Rule of Evidence 803(2) but 
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found that Silas failed to establish the unidentified woman’s personal knowledge as required 

under Federal Rule of Evidence 602. Concluding that Silas failed to produce admissible 

evidence of Target’s actual or constructive notice of the water on the floor, an essential element 

of the prima facie case, the district court granted summary judgment in favor of Target.

Federal Rule of Evidence 602 provides: “A witness may testify to a matter only if 

evidence is introduced sufficient to support a finding that the witness has personal knowledge of 

the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony.” 

Fed. R. Evid. 602. In addition, the advisory committee note to Federal Rule of Evidence 803

states: “In a hearsay situation, the declarant is, of course, a witness, and neither this rule nor 

Rule 804 dispenses with the requirement of firsthand knowledge. It may appear from his 

statement or be inferable from circumstances.” Fed. R. Evid. 803 advisory committee’s note. 

This court has cautioned that “[t]estimony should not be excluded for lack of personal 

knowledge unless no reasonable juror could believe that the witness had the ability and 

opportunity to perceive the event that he testifies about.” United States v. Hickey, 917 F.2d 901, 

904 (6th Cir. 1990).

Here, the unidentified woman’s personal knowledge appears from her statement: “I told 

them about that water on the floor,” or “I told somebody about that spill 15 minutes ago. . . . 

God, I told them about that water 15 minutes ago — that spill 15 minutes ago.” (emphasis 

added). The unidentified woman had firsthand knowledge of her own report of the water spill.

In granting summary judgment, the district court relied heavily on Gainer v. Wal-Mart 

Stores E., L.P., 933 F. Supp. 2d 920 (E.D. Mich. 2013). That case, however, is distinguishable. 

In Gainer, the plaintiff offered the statements of unidentified customers “exclaiming that 

someone ‘had been out there mopping’ and was ‘just mopping the [mother f--king] floor.’” Id. at 
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926 (brackets in original). The court concluded that these statements were inadmissible: 

“Absent any additional evidence indicating that the unidentified declarants actually saw 

Defendant’s employee mop the floor, Plaintiff has failed to carry [her] burden of demonstrating 

the declarants’ personal knowledge.” Id. at 932. In this case, the unidentified woman did not 

state that “someone” reported the water spill. The unidentified woman’s personal knowledge is 

apparent from her statement: she herself reported the spill.

Target further argues that Silas has presented no admissible evidence regarding how long

the water was on the floor and whether Target had time to clean it up, if it was aware of the 

water. But the statement overheard by Silas indicates that the water was present for about fifteen 

minutes, and the statement overheard by Jackson suggests, at the least, that some period of time 

had elapsed between the spill and Silas’s fall—at least long enough for a report to be made. 

There is not “a complete absence of proof as to when and how” the spill occurred, Chambliss v. 

Shoney’s Inc., 742 S.W.2d 271, 273 (Tenn. Ct. App. 1987), and the evidence that exists should 

be evaluated by a trier of fact.

The district court abused its discretion in determining that the unidentified woman’s 

statement was inadmissible for lack of personal knowledge. Because the unidentified woman’s 

statement creates a factual issue as to Target’s notice of the water on the floor, we REVERSE the 

district court’s order granting summary judgment in favor of Target and REMAND for further 

proceedings consistent with this opinion.