United States Court of Appeals

for the Fifth Circuit

No. 22-60269

Sandra Nicole Keen, 

Plaintiff—Appellant,

versus

Wal-Mart Stores East, L.P., 

Defendant—Appellee.

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:20-CV-20 

Before Stewart, Dennis, and Southwick, Circuit Judges.

Per Curiam:* (1)

This case involves a premises liability lawsuit arising out of an incident 

that took place in a Walmart2 store. After the close of discovery, Walmart 

moved for summary judgment on grounds that the plaintiff failed to provide 

adequate evidence in support of her claims. The district court granted 

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

1 Judge Dennis concurs in the judgment only.

2 The named defendant-appellee in these proceedings Wal-Mart Stores East, L.P.,

is referred to herein as “Walmart.”

United States Court of Appeals

Fifth Circuit

FILED

July 20, 2023

Lyle W. Cayce

Clerk

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Walmart’s motion and dismissed the case with prejudice. Because the record 

supports the district court’s summary judgment in favor of Walmart, we 

AFFIRM.

I. FACTUAL & PROCEDURAL BACKGROUND

During the early evening of August 6, 2018,3 Sandra Nicole Keen was 

shopping for school supplies with her daughter in a Walmart store in 

Vicksburg, Mississippi. The school supply aisle was busy and crowded with 

other shoppers. At approximately 5:30 p.m., as Keen was waiting for the 

customer ahead of her to move, a box of notebooks fell on her. According to 

Keen, the box was five or six feet wide, weighed about 50 pounds, and 

contained roughly 60 notebooks. After the box fell, Keen told the other 

witnesses that she was fine and left the aisle. She later returned and saw that 

the notebooks had been cleaned up. Although she did not formally report the 

incident to a store employee or manager, she mentioned it to a cashier as she 

was checking out. Keen claims that when she returned home, her neck began 

to hurt. After discussing the matter with her husband, she returned to 

Walmart to file a complaint. She then went to the emergency room in 

Vicksburg where she received medical treatment. She later testified that as a 

result of her injury, she required surgery and rehabilitative therapy. 

In October 2019, Keen filed suit against Walmart in the Warren 

County court in Mississippi. In her complaint she alleged that Walmart was 

liable for her injuries from the incident because it failed to maintain its 

premises in a reasonably safe condition, created an unreasonably safe 

condition, or allowed an unreasonably safe condition to exist within its 

3 The district court’s order states that the incident occurred on August 8, 2018, 

while the plaintiff’s original complaint and both parties’ briefs state that the incident

occurred on August 6, 2018. Because our review of the record indicates that the August 6th 

date is likely correct, we use that date herein.

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premises. She also contended that Walmart was responsible for her injuries 

under the theory of res ipsa loquitur. Walmart moved for summary judgment, 

attaching to its pleadings the store surveillance videos from the date of the 

incident. The district court granted Walmart’s motion and dismissed the 

case with prejudice. In its order, the district court held that Keen had failed 

to provide sufficient evidence to establish a prima facie case of premises 

liability against Walmart or that it was liable under the doctrine of res ipsa 

loquitur. This appeal ensued. 

II. STANDARD OF REVIEW

We conduct a de novo review of a district court’s grant of summary 

judgment. Sanders v. Christwood, 970 F.3d 558, 561 (5th Cir. 2020).

“Summary judgment is proper ‘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.’” Id. (citing FED. R. CIV. P. 56(a)). A dispute regarding a 

material fact is “genuine” if the evidence is such that a reasonable jury could 

return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 248 (1986). “The party opposing summary judgment is 

required to identify specific evidence in the record and to articulate the 

precise manner in which that evidence supports his or her claim.” Ragas v. 

Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). “A panel may affirm 

summary judgment on any ground supported by the record, even if it is 

different from that relied on by the district court.” Reed v. Neopost USA, Inc., 

701 F.3d 434, 438 (5th Cir. 2012) (internal quotation marks and citation 

omitted).

III. DISCUSSION

On appeal, Keen advances two primary arguments. First, she argues 

that the district court erred in holding that she had failed to establish a prima 

facie case of premises liability. Second, she argues that the district court erred 

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in determining that the doctrine of res ipsa loquitur did not apply in her case. 

We address each argument in turn. 

A. Premises Liability

“Premises liability is a theory of negligence that establishes the duty 

owed to someone injured on a landowner’s premises as a result of conditions 

or activities on the land[.]” See Venture, Inc. v. Harris, 307 So. 3d 427, 432 

(Miss. 2020) (internal quotation marks and citations omitted). In a premisesliability case, “the plaintiff must prove each element of negligence: duty, 

breach of that duty, proximate causation, and damages or injury.” Id. 

(citations omitted). In Mississippi, a three-step process is applied to 

determine premises liability. Id. at 433 (quoting Leffler v. Sharp, 891 So. 2d 

152, 156 (Miss. 2004)). First, the injured person’s status must be classified in 

terms of whether that person is an invitee, licensee, or a trespasser. Id. 

Second, the duty owed to the injured party is determined based on that 

classification. Id. Third, it must be determined whether the duty owed to the 

injured party was breached by the landowner or business operator. Id. 

Although the determination of which status a particular plaintiff holds can be 

a jury question, a trial judge may make the determination where the facts are 

not in dispute. Id.

“[A]n invitee is a person who goes upon the premises of another in 

answer to the express or implied invitation of the owner or occupant for their 

mutual advantage.” Id. A business owner’s duties to an invitee include

keeping “the premises in a reasonably safe condition” and warning “the 

invitee of dangerous conditions that are not readily apparent.” Id.

Nevertheless, an invitee is “still required to use in the interest of his own 

safety that degree of care and prudence which a person of ordinary 

intelligence would exercise under the same or similar circumstance.” Id. 

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Proof that her injury was caused by a “dangerous condition” is an 

essential element of an invitee’s premises liability claim. See Robinson v. Miss. 

Valley Gas Co., 760 So. 2d 41, 43 (Miss. Ct. App. 2000). In other words, a

property owner cannot be found liable for the plaintiff’s injury where no 

dangerous condition exists or where there is no evidence that the property 

owner should have been aware of such a condition. Id. (“[The plaintiff]

admitted that he did not know if there was any substance on the floor that 

caused him to fall. No other evidence was offered on the issue . . . [The 

plaintiff] would have the court infer that because it was raining and he slipped 

and fell that [the owner] was negligent. Neither we, nor more importantly a 

jury, may engage in speculative fact-finding. A preponderance of evidence 

necessary for judgment cannot arise from the absence of evidence.”). It is

also worth noting that a business “is not required to keep the premises 

absolutely safe, or in such a condition that no accident could possibly happen 

to a customer.” Hill v. Cent. Sunbelt Fed. Credit Union, 349 So. 3d 1181, 1185 

(Miss. Ct. App. 2022) (citations omitted). “[B]usiness owners are not 

insurers against all injuries[.]” Daniels v. Family Dollar Stores of Miss., Inc., 

351 So. 3d 964, 969 (Miss. Ct. App. 2022). 

Here, neither party disputes the district court’s determination that 

Keen was an “invitee” on Walmart’s premises when the incident occurred

because she entered the store to purchase school supplies. That said, the

record supports the district court’s conclusion that Keen failed to show that 

a “dangerous condition” existed. See Robinson, 760 So. 2d at 43. As a 

preliminary matter, she has provided no evidence as to what caused the box 

to fall or what position the box was in on the shelf before it fell. According to 

Keen’s deposition testimony, she did not ask the other witnesses if they saw 

anything and did not know what the other customers in the aisle were doing 

when the incident occurred. She did not know if another customer caused the 

box to fall or whether another customer left the box in the state it was in 

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before it fell. She did not know how many other customers were in the aisle 

or how long she had been in the aisle when the box fell. She did not know 

what the woman in front of her was doing before or when the box fell. Indeed, 

Keen admitted that she was simply not paying attention to the condition of 

the aisle or the patrons therein when the incident occurred. For these

reasons, we agree with the district court that she failed to show the existence 

of a dangerous condition. Id. 

Assuming arguendo that a dangerous condition did exist,we also agree 

that Keen failed to present evidence supporting her negligence claim against 

Walmart on grounds that it breached its duty by causing the condition or that 

it had actual or constructive knowledge that the condition existed. See 

Hartford v. Beau Rivage Resorts, Inc., 179 So. 3d 89, 91–92 (Miss. Ct. App. 

2015) (explaining that even if the existence of a dangerous condition is 

proven, the plaintiff still must show: “(1) a negligent act by the defendant 

caused the dangerous condition; or (2) the defendant had actual knowledge 

of the dangerous condition but failed to warn the plaintiff; or (3) the 

dangerous condition remained long enough to provide the defendant with 

constructive knowledge”). While Keen contends that Walmart should have 

stationed more employees on the school supply aisle, she does not explain 

how the purported lack of staff caused the box to fall. The surveillance videos 

that Walmart submitted to the district court show both managers and 

employees walking near and down the school supply aisle several times just 

minutes before the incident. If anything, the video footage undermines 

Keen’s argument that stationing more employees on the school supply aisle 

could have somehow prevented the box from falling. 

Nor does Keen suggest that Walmart had actual or constructive 

knowledge that the box of notebooks on the shelf constituted an unsafe 

condition. Id. As her deposition testimony reveals, Keen had no idea when 

the dangerous condition first came to exist or how long it remained before the 

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incident. For these reasons, we agree with the district court that she failed to 

provide summary judgment evidence beyond “speculation, improbable 

inferences, or unsubstantiated assertions.” See Carnaby v. City of Houston, 

636 F.3d 183, 187 (5th Cir. 2011) (“Conclusional allegations and 

unsubstantiated assertions may not be relied on as evidence by the 

nonmoving party.”). Accordingly, we hold that the district court did not err 

in concluding that Keen failed to establish her prima facie case of premises 

liability. See Venture, Inc., 307 So. 3d at 432.

B. Res Ipsa Loquitor 

The doctrine of res ipsa loquitur is essentially “a rule of evidence that 

allows negligence to be inferred in certain fact situations.” Trepagnier v. 

Alimak Hek, Inc., 784 F. App’x 195, 200 (5th Cir. 2019) (per curiam) 

(unpublished) (quoting Winters v. Wright, 869 So. 2d 357, 363 (Miss. 2003) 

(en banc)). “Mississippi courts have instructed that res ipsa loquitur should 

be applied ‘cautiously.’” Id. (quoting Perry Inv. Grp., LLC v. CCBCC 

Operations, LLC, 169 So. 3d 888, 897 (Miss. Ct. App. 2014) (citation 

omitted)). The Mississippi Supreme Court has explained that the doctrine 

“has no operation to excuse or dispense with definite proof, by the plaintiff, 

of material facts which are tangible and are capable of direct and specific 

evidence, as much within the power of plaintiff to produce as of the 

defendant.” Id. (quoting Winters, 869 So. 2d at 364). Likewise, the doctrine 

will not apply unless the plaintiff proves “three elements: 1) the 

instrumentality causing the damage must be under the exclusive control of 

the defendant; 2) the occurrence must be [of such a nature that it would not 

happen] in the ordinary course of things . . . if those in control of the 

instrumentality used proper care; and 3) the occurrence must not be due to 

any voluntary act on the part of the plaintiff.” Id. (citing Coleman v. Rice, 706 

So. 2d 696, 698 (Miss. 1997) (en banc)). 

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While it appears from the record that Keen did not commit a voluntary 

act that caused the box to fall, she nevertheless has failed to show that 

Walmart exclusively controlled the box that fell or that it failed to use proper 

care to prevent the box from falling. Id. As the district court observed, Keen 

had no idea if other patrons caused the box to fall or were involved in the 

incident so she cannot show that Walmart maintained exclusive control over 

the box. Id. Nor can she show that Walmart failed to exercise proper care over 

the box. Id. As stated supra, she fails to show how more Walmart employees 

being stationed at the aisle could have prevented the box from falling and the 

store video surveillance footage shows numerous employees in the area just 

minutes before the incident occurred. In short, she has not provided evidence 

to support the applicability of the doctrine of res ipsa loquitor in her case. For 

these reasons, we agree with the district court that the doctrine does not 

apply here. 

In sum, because Keen has failed to provide sufficient evidence in 

support of her claims against Walmart, we affirm the district court’s 

summary judgment in its favor. See Sanders, 970 F.3d at 561.

IV. CONCLUSION

The district court’s judgment is AFFIRMED.

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