*

The Honorable Bernice Bouie Donald, United States District Judge for the Western

District of Tennessee, sitting by designation.

No. 03-5857

File Name: 05a0885n.06

Filed: November 7, 2005

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JANET ROSE MARTIN and

JAMES D. MARTIN,

 Plaintiffs-Appellants,

v.

WAL-MART STORES, INC.,

 Defendant-Appellee.

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ON APPEAL FROM THE

UNITED STATES DISTRICT

COURT FOR THE EASTERN

DISTRICT OF TENNESSEE

Before: NELSON and GILMAN, Circuit Judges, and DONALD, District Judge.*

DAVID A. NELSON, Circuit Judge. This is a slip-and-fall case that is governed by

the substantive law of Tennessee. Finding a lack of evidence that the defendant had notice

of a dangerous condition on its premises, the district court entered summary judgment against

the plaintiffs pursuant to Rule 56, Fed. R. Civ. P. The judgment will be affirmed.

I

Plaintiff Janet Rose Martin slipped and fell while shopping at a store operated by

defendant Wal-Mart in Newport, Tennessee. After falling, Mrs. Martin noticed a clear liquid
No. 03-5857

Page 2

on the floor in a puddle about six or seven inches wide. Mrs. Martin believes that the liquid

was water.

Another customer notified a Wal-Mart employee, Dorothy Lethco, that a customer had

fallen in the health and beauty aids department. Ms. Lethco (a cashier in a nearby

department) picked up a roll of paper towels and proceeded to the place where the mishap

had occurred. According to Mrs. Martin, Ms. Lethco used the paper towels to clean up the

water.

It had rained earlier that day and there was still moisture outside when Mrs. Martin

entered the store. There were caution signs warning customers of wet floors in some areas

of the store, although not in the vicinity of Mrs. Martin’s fall. The store’s roof had

sometimes leaked in the past, but never in the health and beauty aids department. Mrs.

Martin saw no evidence of a roof leak on the day of her fall, and she does not know how

water got on the floor or how long it had been there before she fell.

Mrs. Martin and her husband sued Wal-Mart in the circuit court of Cocke County,

Tennessee, alleging negligence. Wal-Mart removed the case to federal district court and

moved for summary judgment. The thrust of Wal-Mart’s argument was that there is no

evidence the company had actual or constructive notice of water on the floor where Mrs.

Martin fell.

The district court granted the motion for summary judgment, whereupon the Martins

moved for reconsideration. The court denied this motion, finding that
No. 03-5857

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1

Under Blair, a summary judgment movant’s evidence must “affirmatively negate” an

essential element of the non-movant’s claim in order to trigger the non-movant’s burden to present

evidence establishing the existence of a triable issue as to that element. Blair, 130 S.W.2d at 768.

There is no such requirement under Fed. R. Civ. P. 56, however, see Pennycuff v. Fentress County

Bd. of Edu., 404 F.3d 447, 450 (6th Cir. 2005), and it is the federal rule that governs summary

judgment practice in diversity cases. See Gafford v. General Electric Co., 997 F.2d 150, 165-66 (6th

Cir. 1993).

“there is absolutely no proof in this case that the area where the plaintiff fell

would be wet when it rained; no proof that there had been a past history of

foreign liquids being spilled onto the defendant’s floors in that area; no proof

that there had been a past history of slip and fall accidents in that area; no

proof that there was a history of roof leaks in that area; no proof that there

were other sources of liquids in that area; and no proof in regard to the length

of time that had lapsed before the fall between the cleaning of the store’s floors

and safety sweeps that were conducted by outside maintenance people.”

The Martins filed a timely appeal.

II

Under Tennessee law an owner or operator of premises cannot be held liable for

negligence in allowing a dangerous condition to exist on the premises unless (1) “the

condition was caused or created by the owner, operator, or his agent,” or (2) “the owner or

operator had actual or constructive notice that the condition existed prior to the accident.”

Blair v. West Town Mall, 130 S.W.3d 761, 764 (Tenn. 2004). Here there is no evidence that

Wal-Mart caused or created the accumulation of water on which Mrs. Martin slipped.

Summary judgment was proper, therefore, unless the Martins established the existence of

a triable issue as to actual or constructive notice.1
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2

The Martins also suggest that “constructive knowledge of a spill being on the floor” can be

inferred from Ms. Lethco’s having grabbed a roll of paper towels after being notified of the accident.

But an after-the-fact surmise that an accident might have been caused by a foreign substance on the

floor can hardly be equated with constructive knowledge of the presence of such a substance before

the accident.

A

The Martins suggest that actual notice can be inferred from the fact that Ms. Lethco

took paper towels with her when responding to the report of a customer’s fall. The

suggestion is not persuasive. When asked why she had picked up the paper towels, Ms.

Lethco testified as follows:

“It’s just — I don’t know, sir. It’s just a common thing, if you think anybody

might be hurt or anything might be in the floor you always — I just

automatically done it. I didn’t think about it. I just did it.”

This testimony, which stands unrebutted, is inconsistent with the proposition that Ms. Lethco

knew about the accumulation of water prior to Mrs. Martin’s fall. If the employee took the

paper towels “automatically” on the assumption that something “might” be on the floor, then

she did not take the towels purposefully with knowledge that something was in fact on the

floor.2

There is no evidence that Ms. Lethco, who worked “around the corner” from the

health and beauty aids department, had been in a position to notice the accumulation of water

prior to the accident. The only relevant evidence suggests to the contrary: Ms. Lethco said

it was her duty to clean up anything she saw on the floor of the store — and the record
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contains nothing that would cause one to suspect that she neglected her duties. For this

reason as well, we agree with the district court that actual notice cannot reasonably be

inferred from Ms. Lethco’s testimony.

B

There are two ways to prove constructive notice in Tennessee. The first is to show

“that the dangerous or defective condition existed for such a length of time that the

defendant, in the exercise of reasonable care, should have become aware of the condition.”

Blair, 130 S.W.3d at 764. In the case at bar Mrs. Martin acknowledged that she did not

know how long the floor had been wet before she slipped and fell. She presented no

evidence that water had been on the floor for such a length of time that store employees

should have been aware of it.

The second way to prove constructive notice is to show “a pattern of conduct, a

recurring incident, or a general or continuing condition indicating the dangerous condition’s

existence.” Id. at 765-66. As we read the record, there is no evidence that water or other

fluids had repeatedly dripped or spilled in the part of the store where Mrs. Martin fell.

The record indicates that the store’s roof had never leaked in the health and beauty

aids department. There is evidence that customers had slipped and fallen in other parts of

the store, but there is no evidence that this had ever occurred in the vicinity of Mrs. Martin’s

fall. A history of leaks and spills in other departments could not have put Wal-Mart on

notice of water accumulating in the health and beauty aids department.
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Citing testimony of Ms. Lethco, the Martins contend that shopping carts were known

to drip water throughout the store on rainy days. The testimony on which they rely is as

follows:

“Q: I want to know what you’ve actually cleaned up.

 A: Picked up things out of the floor like where people drop things or either

like bags or something that would fall off in the floor and it’s . . . Wal-Mart

merchandise I picked up and I put it back on the peg. Or if there would be a

water spot sometimes maybe when it rains and a buggy comes through my

area, if there’s water on that buggy I wipe it off.

 Q: Now, you wipe it off the floor?

 A: I wipe it off the buggy.

 Q: Off the buggy?

 A: I have carpet where . . . I first come into my area.

***

 Q: Are there carts at your entrance?

 A: Very seldom do we ever have carts back there. I use a cart like when

 I’m putting up merchandise. But a customer may want to borrow my cart and

 I will give it to them.

 Q: Okay. But you wouldn’t be using a wet cart because — 

 A: Right.

 Q: But if a customer came back there with a wet cart you would wipe it off

 and dry it?

 A: Well, by that time it’s going to be dripped all the way through the store.
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 Q: Okay. But if these carts are dried at the cart station where they’re 

brought back they shouldn’t be dripping throughout the store, should they?

 A: No, they shouldn’t.”

Ms. Lethco’s reference to water dripping “all the way through the store” came in

response to a hypothetical question about a customer bringing a wet cart into her area (i.e.,

the lawn and garden department). Her testimony supports the Martins’ contention, therefore,

only to the extent that wet carts were in fact brought through the store and into her area.

As we read the record, there is no evidence that customers brought wet carts into the

lawn and garden department with any regularity. To the contrary, the evidence indicates that

carts ordinarily were dried before entering the store. (There is also evidence that carpets and

mats were placed at the store entrances, presumably to absorb water.) Although Ms.

Lethco’s testimony establishes that a wet cart has sometimes entered her area, it does not

support a finding that carts regularly dripped water throughout the store — including the

health and beauty aids department.

The relevant question, under the Tennessee Supreme Court’s decision in Blair, is

“whether the condition occurs so often that the premises owner is put on constructive notice.”

Blair, 130 S.W.2d at 766. In the case at bar there is no evidence of a “recurring incident” or

“general or continuing condition” involving water on the floor in the part of the store where

Mrs. Martin fell. Id. at 765. There is thus no basis on which a reasonable jury could make

a finding of constructive notice.
No. 03-5857

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Wal-Mart is entitled to judgment as a matter of law, and the judgment entered by the

district court is therefore AFFIRMED.