(caption unavailable)

1 Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 94-60201
Summary Calendar
_____________________________________
KENNETH HALL, ET AL,
Plaintiff,
KENNETH HALL,
Plaintiff-Appellant,
VERSUS
E.I. DUPONT DENEMOURS AND COMPANY,
Defendant-Appellee.
______________________________________________________
Appeals from the United States District Court
for the Southern District of Mississippi
(CA-1:93-3)
______________________________________________________
(September 30, 1994)
Before DUHÉ, WIENER, and STEWART, Circuit Judges.
PER CURIAM:1
Appellant Kenneth Hall (Hall) appeals from summary judgment
entered in favor of Appellee E.I. du Pont de Nemours and Company
(DuPont). We affirm.
I. FACTS
DuPont owns and operates a plant in Delisle, Mississippi,
dedicated to the production of titanium dioxide. DuPont

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contracted with BE & K Construction Company (BE & K) and 20
other contractors to build a second titanium dioxide production
facility on the site. BE & K worked at the site pursuant to a
work permit program.
Under the terms of this program, construction areas were
designated as "green zones," and BE & K personnel could access
these areas without a daily work permit. According to DuPont,
"green zones" were under the custody and control of BE & K, and
DuPont's role in these areas was limited to inspection of work in
progress and completed work.
Hall was injured in an area known as the Chemical Wet
Treatment area (CWT). Hall and DuPont agree that the relevant
portions of the CWT were designated as "green zones" at the time
of the injury. The undisputed facts of the injury were reported
by the district court as follows:
At approximately 1:00 in the afternoon, shortly after
the lunch break, Plaintiff descended the stairs marked
as such by him in the upper right-hand corner of Ex. G.
He followed a path approximated by the highlighted
broken line to the vise, designated as such, in the
lower left-hand corner of Ex. G. He picked up a saw
and other equipment. He was in the process of carrying
this equipment to a scaffold, marked as such at the top
of Ex. G, to get the equipment out of an afternoon
shower. The accident occurred as he crossed over the
trench in the approximate area of the spot marked
"Accident Site," in the lower left-hand corner of Ex.
G. Mr. Hall's recollection is that he stepped with his
left foot on the grating, which fell into the trench,
resulting in the injuries, for which he claims.
R. vol 2, at 266-67.
Hall filed a state law negligence action in district court
asserting that DuPont's negligence was the sole cause of his

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accident. Hall contends that DuPont failed to exercise
reasonable care by allowing the trench to remain uncovered and/or
unmarked, and by failing to warn him of the hidden danger
presented by the trench. DuPont moved for summary judgment on
the ground that it owed no duty to keep the area in which the
plaintiff worked free from dangerous conditions created by his
fellow employees. DuPont also alleges that even if it had such a
duty, the duty arose only if DuPont had actual or constructive
knowledge of the dangerous condition.
II. DISCUSSION
A. Standard of Review
Summary judgment is appropriate if the record discloses "that
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law." Fed.
R. Civ. P. 56(c). In reviewing the summary judgment, we apply the
same standard of review as did the district court. Waltman v.
International Paper Co., 875 F.2d 468, 474 (5th Cir. 1989); Moore
v. Mississippi Valley State Univ., 871 F.2d 545, 548 (5th Cir.
1989). The pleadings, depositions, admissions, and answers to
interrogatories, together with affidavits, must demonstrate that no
genuine issue of material fact remains. Celotex Corp. v. Catrett,
477 U.S. 317 (1986). To that end we must "review the facts drawing
all inferences most favorable to the party opposing the motion."
Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir.
1986). If the record taken as a whole could not lead a rational
trier of fact to find for the nonmoving party, there is no genuine

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issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).
B. DuPont's Duty to Hall
Hall filed this negligence action in federal court based on
diversity of citizenship, pursuant to 28 U.S.C. § 1332. We apply
Mississippi substantive law to determine whether DuPont owed a duty
to Hall. See Erie R.R. v. Tompkins, 304 U.S. 64 (1938).
The parties agree that DuPont owed Hall, the employee of an
independent contractor, the same duty it would owe to a business
invitee. See Diamond Int'l Corp. v. May, 445 So. 2d 832, 835
(Miss. 1984). A property owner,
(1) is not an insurer of the invitee's safety,
(2) has only a duty to keep the premises reasonably
safe, and
(3) when not reasonably safe to warn only where there is
hidden danger or peril that is not in plain and open
view.
McGovern v. Scarborough, 566 So.2d 1225, 1228 (Miss. 1990).
DuPont's duty to Hall depends on whether the dangerous
condition was created by DuPont or by a third party. Where a
property owner creates a hazard, knowledge of the condition need
not be shown. Waller v. Dixieland Food Stores, Inc., 492 So.2d
283, 285 (Miss. 1986). In contrast, where a third party creates a
dangerous condition, plaintiff must show that the property owner
had actual or constructive knowledge of the hazard. Id.
C. Creation of the Hazard
Appellant's injury was caused by the misalignment of a grate
covering a trench within the CWT. Hall alleges that the defect was

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not open and obvious, and would not have been evident to a passer-
by. The only testimony presented to the district court regarding
fault indicated that a BE & K laborer improperly reinstalled the
grating after cleaning the trench. Appellant contends that this
testimony is not credible because titanium dioxide was present in
the trench at the time of the injury. Hall argues that the
presence of the chemical showed that the trench had not been
cleaned, and therefore that any number of individuals could be
responsible for the misalignment of the grate.
Appellant's argument disregards the burden of proof. Hall has
the burden of showing that DuPont is at fault. Speculation that
DuPont or others may have been at fault does not satisfy this
burden. The uncontradicted evidence indicates that BE & K, not
DuPont, was in primary control of the portion of the trench in
question. Hall presented no evidence to show that DuPont employees
were working in the area or had occasion to remove the grating. In
addition, Hall failed to shown that DuPont was under any duty to
inspect the condition of the trench. Regardless whether BE & K
cleaned the trench, Hall failed to raise an issue of material fact
as to DuPont's culpability. The district court correctly concluded
that Hall must show that DuPont had actual or constructive
knowledge of the dangerous condition.
D. DuPont's Knowledge
Hall does not allege that DuPont had actual knowledge of the
defect. Therefore, the sole question remaining is whether DuPont
had constructive knowledge of the dangerous condition. The

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Mississippi Supreme Court generally requires a showing that the
hazardous condition existed for a sufficient duration that the
owner of the property should have known of it through the exercise
of reasonable care. See e.g. Waller v. Dixieland Food Stores,
Inc., 492 So.2d at 286; Aultman, Inc. v. Delchamps, 202 So.2d 922,
924 (Miss. 1967).
Hall admits he has no evidence to indicate when the grating
was improperly placed. Instead, he asks the Court to find that
DuPont owed a duty to its employees to inspect the workplace. As
indicated previously, Appellant provides no evidence to indicate
that DuPont employees were actually working in the area where the
accident occurred, nor does he provide any evidence showing that
DuPont was under duty to inspect the grate. Appellant cannot show
whether the dangerous condition existed for a matter of minutes or
a matter of days, therefore cannot establish constructive knowledge
under Mississippi law.
III. CONCLUSION
After a thorough review, we conclude that the record taken as
a whole could not lead a rational trier of fact to find for the
nonmoving party. Consequently, there is no genuine issue for
trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986); see Boeing Co. v. Shipman, 411 F.2d 365, 374-75
(5th Cir. 1969) (en banc). The judgment of the district court is
AFFIRMED.

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