## Facts

- On April 8, 1998, Shirley Byrne slipped and fell while shopping at a Wal-Mart store in Mississippi, injuring her back and knee.
- Byrne said she slipped on an unidentified object she believed was a cookie while walking through the ladies’ apparel department toward the front of the store.
- Shirley Byrne and her husband, Jimmy Byrne, sued Wal-Mart Stores, Inc., store manager Andrew Lightsey, and an unnamed employee (“Jane Doe”), alleging negligence based on premises liability.
- Wal-Mart moved for summary judgment.
- Byrne offered no evidence that Wal-Mart or its employees placed the object on the floor or otherwise caused the dangerous condition.
- Byrne offered no evidence that Wal-Mart had been told about the object or otherwise actually knew it was on the floor before the fall.
- Byrne did not know how long the object had been on the floor, and the record did not supply facts from which a jury could reasonably infer it was there long enough for Wal-Mart to discover and remove it.
- The record included evidence that Wal-Mart employees performed safety sweeps and clean-ups.
- The trial court granted summary judgment for Wal-Mart and the employees, finding no proof Wal-Mart caused the condition or had actual or constructive knowledge of it.
- On appeal, Byrne argued that the trial court should have applied a “mode of operation” theory and also relied on a “no alternative route” argument.

## Issues

1. Did Byrne produce enough evidence to create a genuine issue of material fact that Wal-Mart caused the hazardous condition or had actual or constructive notice of it, making summary judgment improper?
2. Should the court apply a “mode of operation” theory that would allow Byrne to proceed without proof of actual or constructive notice in a self-service retail setting?
3. Did Byrne’s “no alternative route” argument change Wal-Mart’s duty or excuse Byrne from proving that Wal-Mart created the hazard or had notice of it?

## Decision

- The Mississippi Court of Appeals affirmed the grant of summary judgment for Wal-Mart and the employee defendants.
- The court held Byrne failed to produce evidence that Wal-Mart affirmatively created the hazardous condition.
- The court held Byrne failed to produce evidence that Wal-Mart had actual knowledge of the object on the floor.
- The court held Byrne failed to produce evidence supporting constructive notice because there was no proof of how long the object was on the floor.
- The court declined to apply a “mode of operation” theory to relieve Byrne of the notice requirement on these facts.
- The court rejected the “no alternative route” argument as a basis to avoid the ordinary requirements of Mississippi premises-liability law.

## Legal Principles

- A business owner is not an insurer of an invitee’s safety; liability for a slip-and-fall caused by a foreign substance generally requires proof that the owner (1) created the condition, or (2) had actual knowledge of it and failed to correct it, or (3) had constructive knowledge because it existed long enough that reasonable care would have led to discovery and removal.
- Constructive notice cannot rest on speculation; the plaintiff must present facts supporting a reasonable inference that the condition was present for a sufficient time.
- At summary judgment, once the moving party shows the absence of evidence on an element, the nonmoving party must come forward with specific facts showing a genuine dispute for trial.
- A retailer’s general self-service practices, without evidence connecting those practices to the specific hazard or to notice of it, do not excuse the plaintiff from proving creation of the hazard or actual/constructive notice.
- Claims that a customer had no practical way to avoid an area do not, by themselves, establish breach or remove the plaintiff’s burden to prove creation of the hazard or notice.

## Conclusion

The court affirmed summary judgment because Byrne could not show that Wal-Mart created the cookie-like object on the floor, knew it was there, or should have discovered it through reasonable care, and the court declined to use “mode of operation” or “no alternative route” theories to bypass Mississippi’s notice and causation requirements for invitee slip-and-fall claims.


Byrne v. Wal-Mart Stores, Inc., 877 So. 2d 462 (2003)