Case: 24-60356 Document: 62-1 Page: 1 Date Filed: 06/02/2025
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
June 2, 2025
No. 24-60356 Lyle W. Cayce
____________ Clerk
Sandie Keister, on behalf of Estate of Karen Orr, Deceased,
Plaintiff—Appellant,
versus
Dolgencorp, L.L.C.,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:23-CV-27
______________________________
Before Elrod, Chief Judge, Engelhardt, Circuit Judge, and Guidry,
District Judge. *
Kurt D. Engelhardt, Circuit Judge:
Karen Orr tripped on a soft drink display and fell at Dolgencorp’s
Dollar General store in Ackerman, Mississippi. This premises liability action
followed. The district court granted summary judgment for Dolgencorp and
denied the plaintiff’s motion for sanctions, which accused Dolgencorp of
spoliation. We AFFIRM.
_____________________
*
United States District Judge for the Eastern District of Louisiana, sitting by
designation.
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No. 24-60356
I.
In the middle of an aisle at its Ackerman, Mississippi store, Appellee
Dolgencorp displays cases of soft drinks on plastic pallets called “stackbases.” As customers remove cases, the height of this display decreases.
Appellant Sandie Keister alleges that the stackbase was bare when her nowdeceased mother, Karen Orr, tripped on it while shopping and fell.
After Orr passed away, Keister sued Dolgencorp, on behalf of Orr’s
estate, for Orr’s alleged injuries from this fall. 1 She asserted premises-liability
negligence, negligent infliction of emotional distress, and breach of contract
claims. During discovery, Dolgencorp did not produce three items of
evidence that Keister sought: security camera footage, data from the store’s
daily planner, and safety-check data. After holding a hearing, the district
court concluded that Dolgencorp lost, did not preserve, or could not access
this evidence, and therefore could not produce it. 2
Both parties eventually filed motions for summary judgment, and
Keister filed a motion for sanctions for spoliation of evidence. The district
court granted summary judgment for Dolgencorp on all claims and denied
Keister’s motions for summary judgment and sanctions. Keister timely
appealed. On appeal, Keister contends that the district court erred by: (1)
granting summary judgment for Dolgencorp on her premises liability claim;
and (2) denying her motion for sanctions.
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1
In her deposition, Keister testified that the fall and Orr’s death were “related,”
but she does not allege that the fall caused Orr’s death.
2
As to the video footage, the district court noted that Dolgencorp “contacted a
third party to retrieve the videos from that day, but for some reason, this party was unable
to upload or copy the video from the store system.” Regardless, the value of the video
footage to Keister’s claims is limited: A Dollar General manager testified, and Keister does
not dispute, that the security cameras did not cover the area of the store where Orr fell.
2
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No. 24-60356
II.
A.
We review a district court’s grant of summary judgment de novo,
applying the same standard as the district court. McCarty v. Hillstone Rest.
Grp., Inc., 864 F.3d 354, 357 (5th Cir. 2017). A court “shall grant summary
judgment 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.”
Fed. R. Civ. P. 56(a). “All reasonable inferences are drawn in favor of the
nonmoving party, but the nonmoving party cannot defeat summary judgment
with conclusory allegations, unsubstantiated assertions, or only a scintilla of
evidence.” Hathaway v. Bazany,
507 F.3d 312, 319 (5th Cir. 2007) (quotation
marks and citations omitted).
B.
Mississippi substantive law applies in this diversity case. See Cox v.
Wal-Mart Stores E., L.P., 755 F.3d 231, 233 (5th Cir. 2014). Under Mississippi law, a business owner or operator “is not an insurer against all injuries”
that occur on the business’s premises. Munford, Inc. v. Fleming,
597 So. 2d
1282, 1284 (Miss. 1992) (citation omitted). But if he is “aware of a dangerous
condition which is not readily apparent to [an] invitee, he is under a duty to
warn the invitee of such condition.”
Id. (quoting Jerry Lee’s Grocery, Inc. v.
Thompson,
528 So. 2d 293, 295 (Miss. 1988)). There are three ways that an
injured plaintiff who asserts a premises liability claim can establish that the
defendant owner or operator breached this duty: (1) show that “some
negligent act of the defendant” created the dangerous condition that caused
the plaintiff’s injury; (2) show that the defendant had actual knowledge of
the dangerous condition and failed to warn the plaintiff; or (3) “show that the
dangerous condition existed for a sufficient amount of time to impute
constructive knowledge to the defendant, in that the defendant should have
3
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No. 24-60356
known of the dangerous condition.” Lasseter v. AWH-BP Jackson Hotel,
LLC, 380 So. 3d 232, 237 (Miss. 2024) (citations omitted).
According to Keister, the stackbase display constituted a dangerous
condition once the stack of soft drinks dwindled to a height below waist level. 3
She submits two theories to establish that Dolgencorp breached its duty to
warn Orr—an invitee at Dollar General—of this dangerous condition. She
first argues that “displaying stackbases in the center of the aisle is the most
dangerous way [to display drinks]” and that Dolgencorp “made the
conscious decision to display the stackbases this way and expose shoppers to
excess danger to maximize profit.” This argument relies on the “mode-ofoperation” theory. Under this theory, “when an owner of an establishment
has actual notice that his mode of operation creates certain risks of harm to
customers, and those risks are foreseeable, it is not necessary for the plaintiff
to prove notice of the hazard that caused the injury.” Daniels v. Fam. Dollar
Stores of Miss., Inc., 351 So. 3d 964, 970–71 (Miss. Ct. App. 2022) (cleaned
up); see Merritt v. Wal-Mart Stores, Inc.,
911 F. Supp. 242, 244–45 (S.D. Miss.
1995) (applying mode-of-operation theory to Wal-Mart’s decision to not use
non-skid mats under its self-service drink station). Fatal to Keister’s
argument, “Mississippi appellate courts have consistently declined to adopt
this theory.” Daniels, 351 So. 3d at 971.
Her second theory is that the display was below waist level for a sufficient duration for Dolgencorp to have constructive knowledge of the dangerous condition. Because a waist-high display contains approximately eighteen
cases of soft drinks, and the stackbase was empty when Orr tripped on it,
_____________________
3
For an injured plaintiff to prevail on a premises liability claim, he must also
establish that the condition was dangerous. Lasseter, 380 So. 3d at 237. We assume arguendo
that the stackbase constituted a dangerous condition when the height of the display was
below waist level.
4
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No. 24-60356
Keister posits that the dangerous condition existed for at least the duration
that it took customers to remove eighteen cases. That may be true, but
Keister still proffers no evidence of how long it took for customers to remove
the eighteen cases. Instead, she urges us to assume that eighteen customers
removed and purchased one case each. “Absent an event or holiday . . . where
customers would buy an abnormally large amount of cases of the same type
of drinks,” Keister speculates, “the only and most reasonable conclusion is
that it had to have taken a significant amount of time for the display to
dwindle below waist level until it was completely empty.”
This unsubstantiated assertion cannot defeat Dolgencorp’s motion
for summary judgment. See Hathaway, 507 F.3d at 319. Keister has proffered
no evidence that would permit a jury to conclude that each customer, more
likely than not, only purchased one case. A jury could not determine, with
the requisite certainty, whether one customer purchased all eighteen cases,
eighteen customers purchased one case each, or any combination in between.
Because Keister has proffered no evidence that Dolgencorp breached
its duty to Orr, Dolgencorp is entitled summary judgment on Keister’s
premises liability claim.
III.
A.
We now turn to Keister’s Rule 37(e) motion for sanctions for
spoliation. We review the district court’s denial of this motion for abuse of
discretion. Guzman v. Jones, 804 F.3d 707, 713 (5th Cir. 2015).
B.
Rule 37(e) of the Federal Rules of Civil Procedure applies when
“electronically stored information that should have been preserved in the
anticipation or conduct of litigation is lost because a party failed to take
5
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No. 24-60356
reasonable steps to preserve it.” Fed. R. Civ. P. 37(e). Upon a “finding
that the party acted with the intent to deprive another party of the information’s use in the litigation,” Rule 37(e) authorizes a district court to: (1)
presume that the lost information was unfavorable to the party; (2) instruct
the jury that it may or must presume that the information was unfavorable to
the party; or (3) dismiss the action or enter a default judgment. Id. (emphasis
added).
Keister alleged that “Dolgencorp failed to preserve and properly
maintain” three items of evidence from the day of Orr’s fall: (1) the store’s
“Daily Planner”; (2) handheld terminal data or the “notebook” recording
safety checks; and (3) the store’s security camera footage. As a sanction for
this alleged misconduct, Keister requested a jury instruction that “Dolgencorp failed to preserve and/or destroyed evidence in violation of the Federal
Rules of Evidence.” After granting Dolgencorp’s motion for summary
judgment, the district court denied Keister’s motion for sanctions without
providing its reasoning.
The district court did not abuse its discretion by denying Keister’s
motion for sanctions. First, Keister has proffered no evidence to support a
finding that that Dolgencorp intended to deprive her of this evidence. 4 See
Fed. R. Civ. P. 37(e)(2). She simply surmises that intentional destruction
is the only explanation for the absence of three pieces of evidence. Second, of
the three sanctions available under Rule 37(e), Keister only sought a jury
instruction. When the district court granted Dolgencorp’s motion for summary judgment, Keister’s request for this jury instruction became moot.
The judgment of the district court is AFFIRMED.
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4
We do not opine on whether the evidence at issue constitutes “electronically
stored information” under Rule 37(e).
6
