Standards for Constructive Knowledge and Spoliation Sanctions in Premises Liability

1. Introduction

This commentary examines the Fifth Circuit’s decision in Keister v. Dolgencorp, No. 24-60356 (5th Cir. June 2, 2025). The case arises from a trip-and-fall at a Dollar General store in Ackerman, Mississippi, in which the decedent, Karen Orr, allegedly tripped over a plastic “stackbase” used to display soft drink cases. After Orr’s death, her estate, represented by Sandie Keister, sued Dolgencorp, L.L.C., alleging (1) premises-liability negligence; (2) negligent infliction of emotional distress; and (3) breach of contract. The District Court granted summary judgment for Dolgencorp and denied Keister’s motion for spoliation sanctions under Federal Rule of Civil Procedure 37(e). On appeal, the Fifth Circuit affirmed both rulings.

2. Summary of the Judgment

The Fifth Circuit’s per curiam opinion, authored by Judge Engelhardt, addresses two principal issues:

1. Whether Keister produced sufficient evidence under Mississippi premises-liability law to defeat a summary judgment motion; and
2. Whether the District Court abused its discretion by denying Rule 37(e) sanctions for alleged spoliation of security-camera footage, daily planner data, and safety-check records.

The court held that:

• Keister failed to establish any of the three recognized bases for breach of premises-liability duties under Mississippi law (creation of the hazard, actual knowledge, or constructive knowledge). The so-called “mode-of-operation” theory is not adopted in Mississippi, and Keister offered no evidence to show how long the display sat at a dangerous, below-waist height.
• Keister’s Rule 37(e) motion lacked any evidence of an intent to deprive her of relevant electronically stored information and, in any event, became moot once summary judgment was entered.

Accordingly, the court affirmed the grant of summary judgment and the denial of sanctions.

3. Analysis

3.1. Precedents Cited

• McCarty v. Hillstone Restaurant Group, Inc. (864 F.3d 354): Defines de novo review of summary judgment under Rule 56.
• Hathaway v. Bazany (507 F.3d 312): Explains that mere conjecture or “scintilla” of evidence cannot defeat summary judgment.
• Munford, Inc. v. Fleming (597 So. 2d 1282): Articulates Mississippi’s default rule that a business is not insurer of invitee safety, but must warn of non-obvious hazards.
• Jerry Lee’s Grocery, Inc. v. Thompson (528 So. 2d 293): Establishes duty to warn when owner has actual knowledge of hidden dangers.
• Lasseter v. AWH-BP Jackson Hotel, LLC (380 So. 3d 232): Describes the three avenues to prove breach—creation, actual knowledge, constructive knowledge.
• Daniels v. Family Dollar Stores of Miss., Inc. (351 So. 3d 964): Applies “mode-of-operation” theory in Mississippi Court of Appeals, which the Fifth Circuit notes Mississippi’s highest courts have declined to adopt.
• Merritt v. Wal-Mart Stores, Inc. (911 F. Supp. 242): Federal district court applying mode-of-operation outside Mississippi Supreme Court authority.
• Cox v. Wal-Mart Stores E., L.P. (755 F.3d 231): Confirms application of state substantive law in diversity cases.
• Guzman v. Jones (804 F.3d 707): Sets standard of abuse-of-discretion review for spoliation sanctions under Rule 37(e).

3.2. Legal Reasoning

Summary Judgment Standard: Under Rule 56(a), the movant bears the burden to show no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. All inferences favor the nonmovant, but conjecture and unsubstantiated assertions are insufficient.

Mississippi Premises-Liability Law: The court applied Mississippi law, which recognizes three paths to breach of duty by an owner or operator:

1. Creation of the dangerous condition;
2. Actual knowledge of the hazard and failure to warn; or
3. Constructive knowledge—i.e., the condition existed long enough that the owner should have known.

Keister’s first theory, the “mode-of-operation” approach, would have allowed recovery without proof of specific notice. The court reaffirmed that Mississippi courts have repeatedly declined to adopt it.

Keister’s second theory depended on an inference about how long the stackbase sat at a dangerous height. She offered no evidence on customer purchasing patterns—to bridge the gap between eighteen cases and elapsed time—which the court deemed a fatal failure of proof.

Spoliation and Rule 37(e): Rule 37(e) applies only to lost electronically stored information when a party fails to take reasonable preservation steps. Sanctions require a finding of intent to deprive the opposing side of information. Keister offered no direct evidence of intent, and her request for a jury instruction was moot after summary judgment.

3.3. Impact

This decision reinforces several practical points for litigants in premises-liability and spoliation disputes:

• In Mississippi, plaintiffs must adhere to well-defined routes to breach: creation, actual knowledge, or constructive knowledge. “Mode-of-operation” remains unavailable.
• Constructive knowledge demands actual evidence—timing estimates, store records, witness testimony—rather than speculation about customer behavior.
• Rule 37(e) sanctions hinge on proof of intent to deprive; absent that, courts will likely deny relief, especially post-judgment.

Future litigants should gather and preserve concrete evidence of hazard duration and maintain clear audit trails for electronically stored information.

4. Complex Concepts Simplified

• Summary Judgment: A pre-trial decision disposing of claims when no factual disputes warrant a jury.
• Constructive Knowledge: Legal doctrine imputing to a defendant the knowledge it should have had if it had exercised reasonable care over time.
• Mode-of-Operation Theory: A litigated concept that would impose liability based on a business’s routine practice rather than notice of a specific hazard—rejected in Mississippi.
• Spoliation: Destruction or loss of evidence; Rule 37(e) governs when electronic information is not preserved.

5. Conclusion

The Fifth Circuit’s decision in Keister v. Dolgencorp underscores the rigorous standards for proving breach under Mississippi premises-liability law and the exacting requirements for Rule 37(e) spoliation sanctions. Plaintiffs must produce concrete evidence—rather than assumptions—about hazard timing to establish constructive knowledge, and must prove intent before courts will impose adverse inference or other sanctions for lost electronic data. This ruling provides clarity and predictability for businesses and counsel navigating trip-and-fall litigation and evidence-preservation obligations.