The Honorable Lawrence O. Davis, United States Magistrate Judge for the 1 Eastern District of Missouri, trying the case by consent of the parties pursuant to 28 U.S.C. § 636(c) (1994).



## United States Court of Appeals

FOR THE EIGHTH CIRCUIT

________________ No. 97-4335

________________ Mary Ann Landers, *

Appellant, *

v. * District Court for the Aldi, Inc., a foreign corporation; * Malan Realty Investors, Inc., *

Appellees. * *

* Appeal from the United States

* Eastern District of Missouri.

*

*

________________ Submitted: May 15, 1998 Filed: August 19, 1998

________________ Before BOWMAN, Chief Judge, HEANEY and HANSEN, Circuit Judges.

________________ HANSEN, Circuit Judge. Mary Ann Landers appeals the district court's grant of summary judgment i n 1 favor of Aldi, Inc. ("Aldi") and Malan Realty In vestors, Inc. ("Malan") in this diversity negligence action. We affirm.2 BACKGROUND Ms. Landers alleges that she sust ained extensive personal injuries from slipping andfalling in the parking lot of a strip mall owned by Malan, in which Aldi operated a grocery. Malan used small decorative stones to fill certain "curb islands" in th e parking lot, and Landers alleges that the cumulative effect of wind, weather, and fellow tr avelers spread the stones around the lot. After exiting Aldi's store at 1:00 pm o n November 21, 1994, Ms. Landers proceeded across the parking lot towards her car, but fell short of reaching it. She alleges her fall resulted fro m treading upon one of Malan's migratory stones.
Ms. Landers brought suit in state court, attempting to attach liability to Malan, the strip mall owner; and Aldi, whose grocery she had visited, under two distinc t theories. In the lease with Aldi, M alan retained responsibility for, inter alia , cleaning, mainten ance, and landscaping within the parking lot. Therefore, Landers claimed , Malan had a duty as owner and landlord of the mall and parking lot to keep th e premises reasonably safe. Ms. Landers also claimed Aldi had a duty to provide her, abusiness invitee, a safe means of access to and egress from its store, under Demko v. H & H Inv. Co. , 527 S.W.2d 382, 384 (Mo. Ct. App. 1975). The defendant s properly removed the case to federal court. The district court and both defendant s agreed that Aldi and Malan owe their invitees the duties allege d by Landers. However, the di strict court concluded that neither defendant breached those duties, and granted summary judgment in favor of both defendants. Ms. Landers appeals. DISCUSSION We review a di strict court's grant of summary judgment de novo
. See Davis v. Francis Howell Sch. Dist. , 138 F.3d 754, 756 (8th Cir. 1998). A federal court sitting in diversity applies the law of the forum state, Erie R. Co. v. Tompkins , 304 U.S. 64 (1938), in this case, Missouri; and courts of appeals review de novo district court3

determina tions of state law. See Salve Regina College v. Russell , 499 U.S. 225, 231 (1991). Our review of Missouri law convinces us that the district court accurately stated the applicable law regarding the duty Aldi and Malan owed Landers when it said:

In Mis souri, a possessor of land is subject to liability for injurie s caused by a condition on the land to an invitee only if the possessor (a) know s or by the exercise of reasonable care would discover th e condition, and should realize that it involves a n unreasonable risk of harm to such invitees, and (b) should expec t that they will not discover or realize the danger or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. (Dist. Ct. Order at 6; J.A. at 49, quoting Harris v. Niehaus , 857 S.W.2d 222, 225-26 (Mo. 1993)(en banc), quoting Restatement (Second) of Torts, § 343 (1965).) Ms. Landers argues that the district court erred by granting summary judgment when there

remains a genuine issue of material fact regarding whether the defendants could ex pect that she or other invitees would apprehend the danger posed by loos e ston es and take appropriate precautions to avoid that danger. Because Lander s acknowledges that she had seen th e stones around the parking lot on previous visits to the strip mall, both when visiting Aldi and other stores which shared the lot, she admits that the stones posed an open and obvious danger, and that she herself k new of the risk. We consider th at loose stones in a parking lot pose only a minimal danger to th e general pu blic, but assume arguendo that Malan and Aldi had either actual o r constru ctive knowledge of any danger as open and obvious. Under Missouri law , liabi lity will only attach if they should have expected that invitees, despit e apprehending the obvious danger, nonethel ess would not take necessary minimal steps to avoid it. Harris , 857 S.W.2d at 226. Landers asserts that, since her necessary and minimal steps across the parking lot resulted in stepping on a stone, Aldi and Malan4

could reasonab ly expect such an occurrence. She puts the cart before the horse. The fact that an accident has occurred does not color the legal question of whether or not the de fendants could have reasonably expected customers to take appropriat e precautions against an open and obvious danger. In this case, both the law of Missouri and the defendants reasonably expect that Landers, having apprehended the existence of the stones and any danger they posed, would herself take the approp riate precautions against injury. See Seymour v. Lakewood Hills Ass'n , 927 S.W.2d 405, 410 (Mo. Ct. App. 1996). Landers even acknowledges in her deposition that the stones tended not to fall far from the curb islands; that she had regul arly traversed the parking lot without incident in the past; and that on the occasion of her accident she "wasn't payin g attentio n to anything like" the presence or absence of stones. Appellant's App. at 59. The district court correctly concluded that she failed to create a genuine question o f material fact on this issue. Next, L anders asserts that the district court erred in holding that she failed t o pre sent sufficient evidence that one of the decorative stones actually caused her fall
. Our review alsoconvinces us that she presents insufficient evidence of causation as a matter of law. La

nders does not know what caused her fall, but assumes that it might have been a stone since she had seen stones in the lot in the past. As she fell, she felt a small round object under her foot, about the size of a penny or dime, but she did not actually see it before falling, nor see any stones near her feet after she fell. Sh e supports her conclusion that she fell on a stone by the acknowledged pres ence of stones in the lot, but this does not suffice to submit the case to a jury. "[A]t best, he r statement is only a guess as to the cause of her f all. How and why plaintiff fell, on this record, is nothing more than speculation and conjecture, and speculat ion and conjecture do not constitute a prima facie showing of cause." Heacox v. Robbins Educ. Tours , Inc. , 829 S.W.2d 600, 603 (Mo. Ct. App. 1992). The district court co rrectly concluded that Landers presented insufficient evidence of causation to submit to a jury.5 CONCLUSION Accordingly, we affirm the judgment of the district court. HEANEY, Circuit Judge, dissenting. I respectfully dissent. In my view, a genuin e issue of material fact remains as to causatio n and whether the defendants could have reasonably expected customers t o take appropriate precautions against an open and obvious danger. Returning to her car with her purchases, Landers tripped over one of many rocks strewn about the parking lo t. Because a reasonable jury could conclude that the defendants were liable unde r these facts, I would reverse. A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.