No Constructive Notice from Tracks Alone: Fifth Circuit Reaffirms Mississippi’s Temporal Proof Requirement in Slip‑and‑Fall Cases

Introduction

In Harrison v. Houchens Food Group, the United States Court of Appeals for the Fifth Circuit affirmed summary judgment against a slip‑and‑fall plaintiff proceeding under Mississippi premises-liability law. Although the opinion is unpublished and issued on the summary calendar, it delivers a crisp reaffirmation of Mississippi’s core rule: to establish constructive notice of a transient hazard, a plaintiff must offer evidence that the condition existed for a sufficient period of time such that a reasonably careful proprietor should have discovered it. The mere presence of shopping‑cart tracks or footprints through a puddle, without more, is not enough. The court also underscores a familiar federal summary‑judgment principle: the absence of store videos, inspection reports, or photographs is not affirmative evidence for the nonmovant; under Celotex, a failure of proof on an essential element warrants judgment as a matter of law.

Case Overview and Background

Plaintiff‑Appellant Sharon Harrison slipped on water near the exit of a Food Giant grocery store in Fulton, Mississippi, operated by Defendant‑Appellee Houchens Food Group, Inc. Harrison had been inside less than six minutes, retrieved a drink from a refrigerated case, purchased food at the deli, and fell while leaving. She did not know how the water got there or how long it had been on the floor, but after the fall she observed what she believed were shopping‑cart tracks moving through the water toward the exit.

In district court, HFG presented an affidavit from the assistant store manager stating she had traversed the area multiple times—including within twenty minutes of the incident—saw no water or dangerous condition, and received no reports of any spill. Surveillance video supplied by HFG did not show water or track marks. The district court granted summary judgment, holding Harrison failed to create a triable issue on HFG’s creation of the hazard, actual notice, or constructive notice. It later denied a Rule 59 motion to reconsider. On appeal, Harrison pursued only constructive notice; her creation and actual‑notice theories were forfeited for lack of briefing (see Rollins v. Home Depot USA, 8 F.4th 393, 397 n.1 (5th Cir. 2021)).

Summary of the Opinion

Applying Mississippi law under diversity jurisdiction, the Fifth Circuit reviewed de novo and affirmed. The panel held:

• Constructive notice requires proof that the dangerous condition existed long enough that a proprietor exercising reasonable care should have discovered it (Drennan v. Kroger Co., 672 So. 2d 1168, 1170 (Miss. 1996); Waller v. Dixieland Food Stores, Inc., 492 So. 2d 283, 286 (Miss. 1986)).
• Tracks or footprints through a spill, standing alone, are insufficient to establish constructive notice under Mississippi Supreme Court precedent (Jerry Lee’s Grocery, Inc. v. Thompson, 528 So. 2d 293, 295–96 (Miss. 1988)). Sitting in diversity, the court followed the Mississippi Supreme Court’s rule (Hux v. Southern Methodist University, 819 F.3d 776, 780 (5th Cir. 2016)).
• The absence of additional surveillance video, inspection reports, or photographs does not create a fact issue; rather, it reflects a lack of proof supporting the plaintiff’s essential element, warranting summary judgment under Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Mississippi also rejects res ipsa loquitur in slip‑and‑fall cases (Sears, Roebuck & Co. v. Tisdale, 185 So. 2d 916, 917 (Miss. 1966)).
• Thomas v. Boyd Biloxi LLC, 360 So. 3d 204 (Miss. 2023), does not help the plaintiff. Thomas involved substantial proof of a recurring, known hazard and prior similar incidents—evidence qualitatively and quantitatively stronger than Harrison’s post‑fall observation of cart tracks.

Result: Affirmed.

Detailed Analysis

Precedents Cited and How They Shaped the Decision

• Downs v. Choo, 656 So. 2d 84, 86 (Miss. 1995); J.C. Penney Co. v. Sumrall, 318 So. 2d 829, 832 (Miss. 1975):
  These cases ground Mississippi premises liability in negligence. A business invitee must prove the proprietor either (a) negligently created the hazardous condition, or (b) had actual or constructive knowledge of the condition and a reasonable opportunity to remedy or warn. They frame the categories of proof available to a plaintiff.
• Drennan v. Kroger Co., 672 So. 2d 1168, 1170 (Miss. 1996); Waller v. Dixieland Food Stores, Inc., 492 So. 2d 283, 286 (Miss. 1986):
  These cases crystallize the temporal element of constructive notice: the hazard must exist for a sufficient duration that a reasonably careful operator should have discovered it. Duration—and evidence from which duration can be inferred—is the fulcrum of constructive notice under Mississippi law.
• Jerry Lee’s Grocery, Inc. v. Thompson, 528 So. 2d 293, 295–96 (Miss. 1988):
  Mississippi’s high court held that a “dirty” puddle with shopping‑cart tracks and footprints in it did not, without more, establish constructive notice. The Fifth Circuit treats this as controlling authority, foreclosing any attempt to use the mere existence of tracks to satisfy the temporal requirement.
• Hearn v. Square Property Investments, 297 So. 3d 292, 296 (Miss. Ct. App. 2020):
  Echoes Jerry Lee’s: footprints and cart tracks prove a puddle existed but do not prove how long it existed—whether minutes or hours—absent additional evidence.
• Ducksworth v. Wal‑Mart Stores, Inc., 832 So. 2d 1260, 1262 (Miss. Ct. App. 2002):
  The Mississippi Court of Appeals found that a photograph of a soiled spill with shoe prints and cart tracks could create a jury question. The Fifth Circuit notes Ducksworth but emphasizes that Harrison had no comparable documentary evidence and, in any event, it must follow Mississippi Supreme Court precedent (Hux).
• Thomas v. Boyd Biloxi LLC, 360 So. 3d 204 (Miss. 2023):
  A recent Mississippi Supreme Court decision reversing summary judgment where the record included employee testimony about a “known slippery area,” prior related falls, management awareness (a “puddle zone”), and expert testimony linking the plaintiff’s fall to wet conditions. The Fifth Circuit distinguishes Thomas as factually robust, unlike Harrison’s case.
• Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986):
  The canonical summary‑judgment burden framework: when the nonmoving party bears the burden of proof, a movant can prevail by showing an absence of evidence; speculation or a mere lack of documents is not a substitute for affirmative proof.
• Sears, Roebuck & Co. v. Tisdale, 185 So. 2d 916, 917 (Miss. 1966):
  Mississippi rejects res ipsa loquitur in slip‑and‑fall cases; a fall on a business floor does not itself prove negligence.
• Greenwich Ins. Co. v. Capsco Industries, Inc., 934 F.3d 419, 422 (5th Cir. 2019) and Hux v. Southern Methodist University, 819 F.3d 776, 780 (5th Cir. 2016):
  Diversity and Erie principles: the Fifth Circuit applies Mississippi substantive law and looks first to Mississippi Supreme Court decisions.
• Rollins v. Home Depot USA, 8 F.4th 393, 397 n.1 (5th Cir. 2021):
  Appellate forfeiture by failing to brief an issue. This narrowed the appeal to constructive notice.

The Court’s Legal Reasoning

The panel’s reasoning tracks the architecture of Mississippi premises-liability doctrine and federal summary‑judgment standards:

• Scope of appeal: The court treats only constructive notice because Harrison forfeited arguments on negligent creation and actual notice. This matters; those alternative routes can sometimes rescue a case where temporal proof is thin.
• Temporal proof requirement: Mississippi law requires evidence that the hazard existed long enough that a reasonably careful proprietor should have known about it. The plaintiff’s only substantive fact to support duration was her post‑fall observation of cart tracks running through the water. Under Jerry Lee’s Grocery and Hearn, such tracks alone do not reasonably permit the inference that the puddle existed for a “long enough” period. They show existence, not duration.
• Store’s inspection evidence: The assistant manager’s affidavit that she crossed the area multiple times and saw no hazard—most recently within twenty minutes—further erodes any inference of prolonged existence. While not dispositive per se, this kind of evidence is consistently regarded as weighing against constructive notice in Mississippi.
• Video and missing materials: The surveillance video did not depict water or tracks. More importantly, Harrison’s attempt to rely on the absence of more video, inspection logs, or photographs misapprehends the nonmovant’s burden. Under Celotex, a plaintiff who bears the burden at trial cannot survive summary judgment by pointing to gaps; she must produce affirmative evidence establishing a genuine dispute on duration or notice. Mississippi’s rejection of res ipsa loquitur in this context forecloses any inference of negligence from the fact of the fall alone (Tisdale).
• Distinguishing Thomas: The panel carefully explains that Thomas involved a “known slippery area,” prior similar falls, internal awareness, and expert testimony—evidence that, in combination, supports actual or constructive notice without the need for specific temporal proof of a single puddle. Harrison had nothing comparable.
• State‑law fidelity: Because Jerry Lee’s is a Mississippi Supreme Court decision, the Fifth Circuit must follow it when applying Mississippi law. To the extent Ducksworth suggests that certain photographs might create a jury question, it is a Court of Appeals decision and, in any event, there were no comparable photos here.

Why Thomas v. Boyd Biloxi LLC Does Not Save the Claim

Thomas is a high‑water mark for plaintiffs under Mississippi premises‑liability law, but it does not dilute the temporal requirement in ordinary transient‑spill cases. Its critical elements were:

• Employee testimony acknowledging a “known slippery area.”
• Evidence of prior falls in the same area and supervisory awareness, indicating a recurring condition.
• Expert testimony linking the fall to wetness rather than a plaintiff‑specific condition.

Those facts collectively supply notice—both actual and constructive—without needing to pinpoint how long the specific puddle existed on the day in question. By contrast, Harrison’s record has none of these qualitative anchors. The Fifth Circuit’s distinction signals that Thomas does not create a general shortcut around the temporal proof requirement; it illustrates how a recurring, known hazard can independently satisfy the notice element.

Evidentiary Takeaways and the Celotex Burden

The opinion emphasizes practical evidentiary lessons:

• Absence of evidence is not evidence of duration or notice. The lack of additional video angles, inspection logs, or photographs cannot substitute for affirmative proof that the hazard existed long enough to be discovered with reasonable care.
• Qualifying evidence of duration can include: witness testimony establishing the hazard’s presence for a defined period; time‑stamped video showing the spill’s origin and persistence; store records or admissions revealing inspection lapses; proof of a recurring condition at the precise location; or proof that store employees created the hazard.
• Manager’s recent traversal of the area: Evidence that an employee inspected or passed through the spot within minutes tends to negate inferences of prolonged existence, especially in the absence of countervailing proof.
• Photographs: While Ducksworth suggests photographs can sometimes create a jury issue, Mississippi’s Supreme Court in Jerry Lee’s remains the controlling voice: tracks and footprints alone, without additional context tying them to duration, are insufficient.

Impact and Future Litigation

Although unpublished, the decision accurately applies settled Mississippi law and will be persuasive in federal diversity cases across the Fifth Circuit. Its practical effects include:

For plaintiffs

• Prioritize gathering temporal evidence. Obtain time‑stamped photos or video, identify witnesses who saw the hazard earlier, and develop testimony on inspection practices and lapses.
• Explore creation and actual‑notice theories early and preserve them on appeal. Employee‑creation or internal awareness can obviate the need to quantify duration.
• Document recurring conditions. If an area is regularly wet or slippery, evidence of recurrence, prior incidents, and management awareness (as in Thomas) can satisfy notice.
• Avoid relying on tracks/footprints alone. Without additional corroboration (timing, dirt accumulation with context, source evidence, or logs), such observations will not carry the day.

For defendants

• Maintain and present inspection evidence. Affidavits and logs demonstrating recent traversal or inspection of the area are powerful summary‑judgment tools.
• Secure and preserve video promptly. Even if inconclusive, it can corroborate the absence of visible hazards or rebut alleged duration.
• Use Celotex effectively. Emphasize the plaintiff’s lack of temporal proof and Mississippi’s rejection of res ipsa to frame a clean summary‑judgment record.

For district courts

• Anchor decisions in Mississippi Supreme Court precedents on constructive notice and temporal proof.
• Recognize Thomas as a distinct, fact‑rich paradigm regarding recurring hazards, not a relaxation of the temporal rule for ordinary transient spills.

Complex Concepts Simplified

• Constructive notice: The law treats a proprietor as if it knew of a danger when the hazard existed long enough that reasonable care would have discovered it. It is not enough to show a hazard existed; the plaintiff must offer a basis to infer how long it existed.
• Actual knowledge vs. creation: Actual knowledge means the proprietor actually knew of the hazard before the accident. Creation means the proprietor (or its employees) caused the hazard. Either route can satisfy the notice element without temporal proof of a third‑party spill.
• Temporal proof: Evidence that places the hazard on the floor for a specific or reasonably inferable period—minutes, hours, or long enough given the setting—for a reasonably careful operator to detect it.
• Summary judgment (Celotex framework): When the nonmovant bears the burden of proof, they must present specific evidence creating a genuine dispute on each essential element. Mere gaps in the record, speculation, or the fact of injury cannot forestall judgment.
• Res ipsa loquitur in slip‑and‑falls: Mississippi does not infer negligence merely because a fall occurred on business premises; plaintiffs must prove negligence through one of the accepted theories.
• Diversity and Erie: Federal courts sitting in diversity apply the forum state’s substantive law. When state appellate courts diverge, federal courts prioritize state supreme court precedents.
• Forfeiture on appeal: Arguments not raised and developed with authorities in the appellant’s brief are ordinarily forfeited, narrowing appellate review to preserved issues.

Conclusion

Harrison v. Houchens Food Group confirms two bedrock propositions. First, under Mississippi law, constructive notice in slip‑and‑fall cases requires temporal proof; observations of cart tracks or footprints through a puddle, without more, do not satisfy that requirement. Second, at summary judgment, the absence of records, video, or photographs is not affirmative evidence for the nonmovant; a failure of proof on an essential element compels judgment under Celotex. The decision also clarifies that Thomas v. Boyd Biloxi LLC is not a shortcut around the temporal requirement; it illustrates how robust evidence of a recurring, known hazard can establish notice. For practitioners, the message is clear: develop and preserve concrete, time‑linked evidence—or compelling proof of creation or actual knowledge—early, or risk dismissal long before trial.

Key Takeaways

• Tracks/footprints alone do not establish constructive notice under Mississippi Supreme Court precedent.
• Temporal proof of the hazard’s duration is essential unless creation or actual knowledge is shown.
• Celotex controls: lack of evidence cannot defeat summary judgment; the nonmovant must produce affirmative proof.
• Thomas supports liability when there is evidence of a recurring, known danger—not in ordinary transient spill cases without corroboration.
• Timely inspections and credible employee affidavits remain potent defense evidence in premises‑liability litigation.