Catherine Pickle v. Wal-Mart Stores, Inc.

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Catherine Pickle v. Wal-Mart Stores, Inc.

Doc. 0

Case: 09-60968

Document: 00511165827

Page: 1

Date Filed: 07/07/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-60968 S u m m a r y Calendar July 7, 2010 Lyle W. Cayce Clerk

C A T H E R I N E PICKLE, P la in t if f -A p p e lla n t , v. W A L -M A R T STORES, INC., D e fe n d a n t -A p p e lle e .

A p p e a l from the United States District Court fo r the Northern District of Mississippi E a s t e r n Division U S D C No. 1:08-CV-251

B e fo r e JOLLY, STEWART, and ELROD, Circuit Judges. P E R CURIAM:* P la in t iff Catherine Pickle appeals the district court's grant of summary ju d g m e n t in favor of Wal-Mart Stores, Inc. (Wal-Mart). The district court held t h a t Pickle presented no evidence raising a genuine issue of material fact r e g a r d in g whether her injury resulted from negligence on the part of Wal-Mart. F in d in g no error, we AFFIRM.

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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Case: 09-60968

Document: 00511165827 Page: 2 No. 09-60968

Date Filed: 07/07/2010

C a t h e r in e Pickle and her daughter, Teresa Cunningham, were shopping a t Wal-Mart in Amory, Mississippi, on or around October 16, 2006. Pickle p r e s e n t e d evidence that while she was in one of the handicap stalls in the w o m e n 's restroom, she pulled some tissue paper out of the dispenser, causing the d is p e n s e r cover and tissue roll to fall on her. Pickle alleges that the fall caused in ju r y to her neck and left shoulder. In her affidavit, Pickle states that she saw a cleaning cart containing a mop, broom, and other supplies outside of the men's r e s t r o o m . The affidavit further states that she saw a Wal-Mart associate going in and out of the men's restroom around the same time, and that she assumes t h e associate must also have been cleaning and re-supplying the women's r e s t r o o m . As a result of the incident, Pickle filed suit against Wal-Mart for bodily in ju r ie s , pain and suffering, mental anguish, partial loss of enjoyment of life, and m e d ic a l bills. Pickle also submitted evidence that Wal-Mart, in its response to the P la in t iff's Request for Admissions, admits that only its employees are permitted t o possess a key to open the top of the dispenser. In his affidavit, the store m a n a g e r states that Wal-Mart has not discovered any evidence of a problem, d e fe c t , forceful entry, or damage to the dispenser, and that the dispenser is c u r r e n t ly still in use. T h is appeal of a summary judgment is reviewed de novo with this court a p p ly in g the same standard as the district court, viewing the evidence in the lig h t most favorable to the non-movant. Lauderdale v. Tex. Dep't of Criminal J u s tic e , Institutional Div., 512 F.3d 157, 162 (5th Cir. 2007). Summary judgment is appropriate when a review of the evidence reveals no genuine issue of material fa c t , and the movant is entitled to a judgment as a matter of law. Fed. R. Civ. P. 5 6 (c )(2 ). "Conclusory allegations and denials, speculation, improbable inferences, u n s u b s t a n t ia t e d assertions, and legalistic argumentation do not adequately s u b s t it u t e for specific facts showing a genuine issue for trial." TIG Ins. Co. v.

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Case: 09-60968

Document: 00511165827 Page: 3 No. 09-60968

Date Filed: 07/07/2010

S e d g w ic k James of Washington, 276 F.3d 754, 759 (5th Cir. 2002) (citing SEC v . Recile, 10 F.3d 1093, 1097 (5th Cir. 1993)). Pickle argues that the dispenser was stocked with tissue and left unlocked b y a Wal-Mart associate. Pickle also argues that Wal-Mart had constructive k n ow led g e of the unlocked dispenser because the maintenance associate cleaning t h e restroom saw or should have seen it. Under Mississippi law, a business o w n e r has a duty to "exercise reasonable care to keep the premises in a r e a s o n a b ly safe condition." Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 618 (5 t h Cir. 1994) (citing Munford Inc. v. Fleming, 597 So.2d 1282, 1284 (Miss. 1 9 9 2 )). However, the owner of a business is not an insurer against all injuries. I d . Merely proving that an accident occurred on a business's premises is i n s u f fic ie n t to prove that the business was actually negligent; rather, the p la in t iff must prove that the operator of the business was negligent. Lindsey, 16 F .3 d at 618 (citing Sears, Roebuck & Co., v. Tisdale, 185 So.2d 916, 917 (Miss. 1 9 9 6 )). P ic k le 's speculative arguments regarding Wal-Mart's alleged negligence a n d constructive knowledge of an unlocked dispenser are insufficient to show t h a t Wal-Mart failed to "exercise reasonable care to keep the premises in a r e a s o n a b l y safe condition." Lindsey, 16 F.3d at 618 (citing Munford Inc. v. F le m in g , 597 So.2d 1282, 1284 (Miss. 1992)). Accordingly, the district court did n o t err in its determination that Wal-Mart is entitled to judgment as a matter o f law. A F F IR M E D .

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