UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EULA MAE JOHNSON,

Plaintiff-Appellant,

v. No. 96-1271

FOOD LION, INCORPORATED,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Robert R. Merhige, Jr., Senior District Judge.

(CA-95-848)

Submitted: October 17, 1996

Decided: October 29, 1996

Before MURNAGHAN and WILLIAMS,* Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

I. Scott Pickus, JACKSON, PICKUS & ASSOCIATES, P.C., Richmond, Virginia, for Appellant. Karen Iezzi Michael, MCGUIRE,

WOODS, BATTLE & BOOTHE, L.L.P., Richmond, Virginia, for

Appellee.

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*Judge Williams did not participate in consideration of this case. The

opinion is filed by a quorum of the panel pursuant to 28 U.S.C. § 46(d).
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Eula Mae Johnson appeals from the order of the district court

granting summary judgment in favor of Food Lion, Inc., in Johnson's

personal injury case. We affirm.

On the afternoon of October 27, 1992, Eula Johnson, a citizen of

Virginia, entered the Food Lion grocery store located in Colonial

Heights, Virginia, for the purpose of obtaining cardboard boxes.

While walking to the back of the store, Johnson slipped and fell on

a grape in the produce section. She filed suit in state court, alleging

that Food Lion's negligence resulted in her slip and fall on the grape.

Food Lion removed the action to federal court based on diversity

jurisdiction.1 See 28 U.S.C. § 1446 (1994).

Food Lion moved for summary judgment, asserting that Johnson

could not prove that any action or inaction by Food Lion caused her

injuries. Food Lion relied on Johnson's deposition testimony and

answers to interrogatories, in which she stated that she did not know

how long the grape was on the floor prior to her fall or how it came

to be on the floor. She could not say whether the grape was on the

floor for only two seconds or for thirty minutes before she fell.

In opposition to summary judgment, Johnson submitted Food

Lion's internal memoranda that recommended the placement of a non

skid floor mat near the area in which Johnson fell. 2 Johnson also submitted evidence of Food Lion's store policy to sweep the floors at

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1 Food Lion, Inc., is a North Carolina corporation with its principal

place of business in Salisbury, North Carolina.

2 For purposes of summary judgment, Food Lion admitted that no floor

mat was present when Johnson fell.

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scheduled intervals and to regularly inspect the floor for the presence

of foreign matter.

The district court granted summary judgment in favor of Food

Lion, observing that Johnson's allegations--that Food Lion's knowledge of the potential hazard of grapes falling from the storage bin or

as customers pick up the grapes--failed to provide a basis for liability

under Virginia law. Johnson appeals, arguing that the district court

incorrectly construed her complaint as asserting negligence in the

manner in which the grapes were displayed. Johnson contends Food

Lion's internal memoranda show that Food Lion had"actual knowledge of the reasonably foreseeable existence" of the potential hazard

of grapes on the floor, yet failed to act to eliminate the hazard or warn

customers of the potential hazard.

In Virginia, a business owner is not an insurer of his invitee's

safety. Franconia Assocs. v. Clark, 463 S.E.2d 670, 673 (Va. 1995).

Rather, the owner must exercise reasonable care to make its premises

safe for his invitees. Colonial Stores, Inc. v. Pulley, 125 S.E.2d 188,

190 (Va. 1962). To recover under Virginia law, Johnson had to show

that Food Lion knew or, with the exercise of reasonable care, should

have known that the grape that caused her to fall was on the floor. She

must show that the particular grape which caused her fall was on the

floor for a sufficient period of time for Food Lion to have found it and

removed it from the floor. See Winn-Dixie Stores, Inc. v. Parker, 396

S.E.2d 649, 651 (Va. 1990) (citing Colonial Stores, 125 S.E.2d at

190).

During her deposition, however, Johnson testified that she did not

know how long the grape was on the floor before she fell on it; she

could not say whether the grape fell to the floor only seconds before

she slipped on it or whether it had been on the floor for thirty minutes.

Johnson also admitted that she did not know how the grape got onto

the floor, nor did she know of anyone who saw the grape fall or be

placed on the floor. In light of this testimony, Johnson could not

prove that Food Lion had actual or constructive notice that the grape

was on the floor. See Winn-Dixie, 396 S.E.2d at 650-51.

Because Johnson failed to establish that her fall was caused by the

negligence of Food Lion, see Winn-Dixie, 396 S.E.2d at 651, we find

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no issue of material fact and conclude that summary judgment was

properly granted in favor of Food Lion. See Fed. R. Civ. P. 56(e);

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986) (party opposing

summary judgment must present evidence from which reasonable jury

could return verdict in her favor). We therefore affirm the order of the

district court granting summary judgment in favor of Food Lion. We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED

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