UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

No. 97-20312 _______________________

ALICE CAROLYN BANDEAUX,

Appellant,

versus

HOME DEPOT USA, INC.,

Appellee.

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (H-96-CV-1513) _________________________________________________________________ January 6, 1998

Before JOLLY, JONES, and SMITH, Circuit Judges.

EDITH H. JONES, Circuit Judge:*

Alice Caroline Bandeaux brought a premises liability suit

against Home Depot USA, Inc. in Texas state court, asserting a

claim for personal injury after she slipped in a puddle of cleaning

solution on an aisle floor. The case was removed to federal court

under diversity jurisdiction. The district court granted summary

judgment in favor of defendant-appellee. We now 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. I. STANDARD OF REVIEW

We review a district court’s grant of summary judgment de

novo. See Grimes v. Texas Dep’t. Of Mental Health and Mental

Retardation,

(5th Cir. 1996). “Federal Rule of

Civil Procedure 56(c) mandates summary judgment if a party fails to

establish the existence of an element essential to its case and on

which it has the burden of proof.” David v. Illinois Cent. R.R.

Co.,

(5th Cir. 1991) (citing Celotex Corp. v.

Catrett,

(1986)). While it is true that in

summary judgment, the facts are to be reviewed with all inferences

drawn in favor of the nonmoving party, factual controversies can

only be inferred for the nonmovant when there is an actual

controversy. See McCullen Highlands Ltd. v. Washington Capital

Dus, Inc.,

(5th Cir. 1995), rev’d on other grounds,

, (1995). Both parties would have to submit evidence of

contradictory facts. See id. In the absence of proof, the court

cannot assume that the party opposing the motion could prove the

facts necessary to forego the grant of a motion for summary

judgment. See Little v. Liquid Air,

, 1075 (5th Cir.

1994). Unsubstantiated assertions are not competent summary

judgment evidence. See Grimes,

.

This court has held that in a premises liability case

under Texas law, the appellant must prove: (1) that the defendant

had actual or constructive knowledge of the condition; (2) that

the condition posed an unreasonable risk of harm; (3) that the

defendant did not exercise reasonable care to reduce or eliminate

2 the risk; and (4) that the defendant’s failure to use such care

proximately caused appellant’s injuries. See Folks v. Kirby Forest

Indus., Inc.,

(5th Cir. 1994).

II. ANALYSIS

In this case, we are convinced that appellant has failed

to establish the existence of at least one essential element of her

case, i.e. that the defendant had actual or constructive knowledge

of the dangerous condition.

Appellant offers several pieces of circumstantial

evidence to support her claim that a genuine fact issue exists on

this point.

First, appellant alleges that she observed a track

leading from the puddle of fluid to a ladder used by employees

nearby. From this, the appellant would infer that an employee was

nearby saw or caused the spill and moved the ladder in order to

clean up the spill. If there was a track, however, it is equally

likely that a customer could have moved the ladder. Second,

appellant stated in her deposition that the assistant manager of

Home Depot told her that the substance in which she had fallen was

a cleaning substance that was going through a drying process. From

this statement, the appellant concludes that the assistant manager

knew of the substance on the floor, thus giving Home Depot prior

knowledge of a dangerous condition yet that is only one possible

reason for the assistant manager’s alleged statement. As noted by

the district judge in the summary judgment hearing, the assistant

manager could have known that the substance was cleaning solution

3 by looking at it and smelling it, and by the fact that it was in

the cleaning products aisle. The observation that the liquid was

drying is, without more, utterly inconclusive.

Additional circumstantial evidence provided by the

appellant includes admissions that Home Depot employees are given

safety knives that they use to open boxes. From this appellant

would draw the inference that a Home Depot employee could have cut

the plastic container causing the cleaning solution to spill out.

There is no evidence to substantiate this theory.1

Appellant also points to the existence of a General

Liability Loss Notice form that was filled out by the store’s

assistant manager after the accident. In that document he states

that no third party was involved in the accident. Appellant wants

to call this an admission of actual knowledge since if no third

party were involved, the only possibility is that the appellee

itself was responsible for the condition which caused appellant to

fall. However, read in context, this General Liability Loss Notice

form merely indicates that appellee was unaware of who caused the

dangerous condition.

Appellant has failed to offer any proof of the facts

relating to the store’s knowledge. Texas law allows circumstantial

evidence to be used to show knowledge. See Keetch v. Kroger Co.,

(Tex. 1992). However, this knowledge will not

1 There is also no admissible evidence that an absorbent had been placed on the spill. Ms. Carmichael’s affidavit is inadmissible, and the other “evidence” cited by appellant is speculative.

4 be inferred when the circumstances are consistent with more than

one scenario and no scenario is more probable than another. See

Litton Indus. Prod., Inc. v. Gammage,

(Tex.

1984).

Appellant has based her case on unsupported allegations,

which are insufficient to defeat a motion for summary judgment.

“Unsupported allegations or affidavit or deposition testimony

setting forth ultimate or conclusory facts and conclusions of law

are insufficient to defeat a motion for summary judgment.” Clark

v. America’s Favorite Chicken Co.,

, 297 (5th Cir.

1997) (citing Duffy v. Leading Edge Prods., Inc.,

(5th Cir. 1995)). Appellant has failed to produce evidence tending

to show that Home Depot had actual or constructive knowledge of the

condition or that it caused the spill.

The court has considered appellant’s claim in light of

the briefs and pertinent portions of the record. We find no

reversible error of fact or law and affirm the lower court’s grant

of summary judgment.

AFFIRMED.

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