UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PHYLLIS JEAN BROWN,

Plaintiff-Appellant,

v. No. 97-2689

ROSE'S STORES, INCORPORATED,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Virginia, at Abingdon.

Glen M. Williams, Senior District Judge.

(CA-97-24-A)

Submitted: April 14, 1998

Decided: May 7, 1998

Before WILKINS, NIEMEYER, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Roger W. Mullins, Tazewell, Virginia, for Appellant. Laura E. Wilson, PENN, STUART & ESKRIDGE, Abingdon, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Phyllis Jean Brown appeals a district court order granting summary

judgment to the Rose's Stores, Incorporated (Roses)* and dismissing

Brown's personal injury action. Finding no error, we affirm.

In December 1996, Brown commenced an action in state court

against Rose's based upon injuries Brown suffered when she slipped

and fell while shopping. In February 1997, Rose's removed the action

to federal court based on diversity of citizenship between the parties.

On Sunday, April 23, 1995, Brown entered Rose's between 5:45

p.m. and 6:00 p.m. to shop for a baby gift. Rose's closed at 6:00 p.m.

In order to get to the infants' department, Brown walked through the

carpeted ladies' wear department and entered a main tiled aisle that

runs the length of the store. As Brown entered the aisle at around 5:55

p.m., she slipped and fell and injured her arm. She got up from the

floor and sought help from Yosmenda Thornsberry, a Rose's

employee. Brown and Thornsberry returned to the scene of the fall,

and Brown noticed a clear empty plastic tape dispenser and several

pieces of plastic on the floor near where Brown fell. Store sales clerks

keep a tape dispenser on their person during store hours. Brown did

not notice any other customers in the area.

On Sundays, between the hours of 4:30 p.m. and 6:00 p.m., stock

associates sweep, mop, clean, and clear the tiled areas. Sometime

before Brown fell, Thornsberry observed stock associates sweeping

part of the tiled aisle. Phillip Jones, a Rose's store manager, estimated

that at the time Brown fell, almost 95% of the sweeping of the tiled

areas was completed.

The district court granted Rose's motion for summary judgment

upon finding that Brown did not establish a prima facie case of negligence under Virginia law. Specifically, the court found that Brown

did not show that Rose's had actual or constructive knowledge of the

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*Rose's is a retail store selling sundry consumer items.

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tape dispenser. On appeal, Brown contends that the district court erred

in discrediting inferences supporting Brown's claim. Brown further

contends that there was sufficient evidence from which to infer that

either a Rose's employee dropped the tape dispenser or that the area

in which Brown fell was negligently cleaned.

Because the matter is in federal court on diversity grounds, the substantive law of the forum state, Virginia, applies. See Erie R.R. Co.

v. Tompkins, 304 U.S. 64, 78 (1938). Federal law governs the court's

determination of whether the evidence is sufficient to withstand a

summary judgment motion. See Fed. R. Civ. P. 56(c); General Accident Fire & Life Assurance Corp. v. Akzona, Inc., 622 F.2d 90, 93-94

n.5 (4th Cir. 1980).

We review a district court grant of a motion for summary judgment

de novo. See Nguyen v. CNA Corp., 44 F.3d 234, 236 (4th Cir. 1995).

A summary judgment motion should only be granted if there is no

genuine dispute as to an issue of material fact and the moving party

is entitled to judgment as a matter of law. See id. at 236-37 (citing

Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986)). The district court must evaluate the evidence in the light

most favorable to the non-moving party and draw all reasonable inferences from the facts in that party's favor. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

When determining a motion for summary judgment, the court need

not credit the non-movant with every possible inference that can be

drawn from the evidence. Only reasonable inferences warrant consideration. A reasonable inference is one that is within the range of reasonable probability. An inference that is "so tenuous that it rests

merely upon speculation and conjecture" should not be considered.

Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 817-18 (4th

Cir. 1995); see also Local Union 7107 v. Clinchfield Coal Co., 124

F.3d 639, 640 (4th Cir. 1997) (stating that "[f]anciful inferences and

bald speculations" should not be considered), cert. denied, ___ U.S.

___, 66 U.S.L.W. 3509 (U.S. Mar. 9, 1998) (No. 97-1237). To support the inferences, the non-movant must present evidence of a sufficient "quality and quantity." Anderson, 477 U.S. at 254.

Virginia recognizes that store owners owe a duty of ordinary care

toward its customers while on the premises. In order for the store

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owner to be liable for injuries suffered as a result of a fall caused by

a foreign object, the owner must have placed the foreign object on the

floor or have actual or constructive knowledge of the foreign object's

presence. See Colonial Stores, Inc. v. Pulley , 125 S.E.2d 188, 190

(Va. 1962). A plaintiff must either demonstrate as part of the prima

facie case that the store owner or his agents engaged in some form of

affirmative misconduct or that the owner had constructive knowledge

of the dangerous condition. See Austin v. Shoney's, Inc., 486 S.E.2d

285, 288 (Va. 1997). Constructive knowledge exists if an ordinarily

prudent person, given the facts and circumstances the owner knew or

should have known, could have foreseen the risk of danger resulting

from the circumstances. See Winn-Dixie Stores, Inc. v. Parker, 396

S.E.2d 649, 650 (Va. 1990).

We agree with the district court's detailed examination of the evidence. Brown offered no evidence to show that a Rose's employee

was responsible for the tape dispenser being on the floor. Brown contends that because store employees carried tape dispensers, the inference must be made that the tape dispenser found near where Brown

fell was dropped by an employee. We find this inference to be

extremely tenuous, especially in light of evidence that the tape dispenser was empty when it was found and not marked according to

store policy as one used by a store employee. Furthermore, in spite

of Brown's recollection that she did not see any other customers in

the store up until the time of her fall, evidence supporting an inference that only an employee could have dropped the tape dispenser is

speculative.

Likewise, Brown's contention that the area where she fell had been

swept by a store employee minutes prior to her fall is not supported

by the evidence. Although there was evidence that employees were

seen sweeping the tiled aisle, there was no evidence that the area

where Brown fell had been swept. According to the store manager,

the sweeping of the floor was not complete at the time Brown fell.

Moreover, the sweeping was not due to be completed for another few

minutes. In addition, there was no evidence demonstrating how long

the tape dispenser had been on the floor.

Accordingly, we affirm the order of the district court. We grant

Brown's unopposed motion to submit this appeal on the briefs and

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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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