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No. 96-1837

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Neil Ganoe; Juane Good, *

husband and wife, *

*

Appellants, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota. 

Koch Refining Company, a *

foreign corporation, * [UNPUBLISHED]

*

Appellee. *

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 Submitted: January 15, 1997

 Filed: January 30, 1997

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Before MAGILL, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

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PER CURIAM.

Neil Ganoe and Juane Good, husband and wife, appeal the

district court's grant of summary judgment in favor of Koch

Refining Company (Koch) in this diversity slip-and-fall action. We

reverse.

Ganoe and his wife sought damages for injuries Ganoe suffered

when he slipped and fell while he was a business invitee on Koch's

premises. Following a hearing, the district court granted Koch's

motion for summary judgment, concluding that Ganoe had failed to

produce sufficient evidence to create a triable issue as to the

existence and nature of any defect causing Ganoe's fall.

We review a grant of summary judgment de novo, using the same

standards as the district court and finding summary judgment
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appropriate only if, when viewing all the facts and reasonable

inferences therefrom in the light most favorable to the nonmoving

party, there remains no genuine issue of material fact. See

Scheerer v. Hardee's Food Sys., Inc., 16 F.3d 272, 273 (8th Cir.

1994). At the summary judgment stage, we may not weigh evidence or

make credibility determinations. See Grossman v. Dillard Dep't

Stores, Inc., 47 F.3d 969, 971 (8th Cir. 1995). 

Under Minnesota law, a business owner owes a business invitee

the duty to keep and maintain premises in a reasonably safe

condition. See Wolvert v. Gustafson, 146 N.W.2d 172, 173 (Minn.

1966). To recover in a slip-and-fall case, the plaintiff must

establish that the business operator knew of the defect causing the

injury or that the defect had existed for a sufficient period of

time to charge the operator with constructive notice of its

presence. Id.; see also Gearin v. Wal-Mart Stores, Inc., 53 F.3d

216, 217-18 (8th Cir. 1995) (per curiam). The issue of causation

is traditionally an area reserved for the jury. See Black v.

Stumvoll, 374 N.W.2d 782, 784 (Minn. Ct. App. 1985).

To counter Koch's motion for summary judgment, Ganoe offered

evidence that oil residue may have formed on the ground from toploading fuel racks; that--in the past--the design of the roof

canopy had caused water to drain, creating a mound of ice in the

area where drivers exited their vehicles; that he and other drivers

complained to Koch about the mounds of ice; that it was drizzling

and raining intermittently on the night of the accident, the

temperature was around freezing, and the ground was wet; that when

he pulled his truck around for loading, the area was slippery and

he could see the reflection of ice; that his stepson saw patches of

ice underneath the loading rack; and that Ganoe told his stepson at

the time of the accident he had slipped on ice. 
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Viewing the evidence in the light most favorable to Ganoe, we

conclude there exist genuine issues of material fact as to what
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caused Ganoe to slip and fall as well as whether Koch had knowledge

of any defect and opportunity to correct it. See Grossman, 47 F.3d

at 971 (reversing grant of summary judgment to defendant; evidence

plaintiff felt heel connect with rolling clothes rack as she fell

and other witnesses saw rack in area sufficient to create factual

dispute as to causation); Scheerer, 16 F.3d at 274-75 (reversing

grant of summary judgment to defendant; plaintiff's deposition

testimony provided submissible case as to causation where plaintiff

did not know cause of fall, but testified she saw grease and oil in

the area, and she recalled the pavement being "tacky" and having

damp spots, and the lot was on a downward slope).

Accordingly, the judgment of the district court is reversed,

and the case is remanded to the district court for further

proceedings.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.