White v. Wal-Mart Stores East

*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not be published and is not precedent except under the limited circumstances set forth in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.
United States Court of Appeals
Fifth Circuit
F I L E D
March 3, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-60847
Summary Calendar
HENRY WHITE, JR
Plaintiff-Appellant,
versus
WAL-MART STORES EAST, LP
Defendant-Appellee.
Appeal from the United States District Court for
the Southern District of Mississippi
(USDC No. 5:04-cv-114)
_________________________________________________________
Before REAVLEY, HIGGINBOTHAM, and CLEMENT, Circuit Judges.
PER CURIAM:*1
Reviewing the record de novo, we affirm for the following reasons:
1. “[F]ederal courts... apply federal evidentiary rules rather than state spoliation laws
in diversity suits.” Condrey v. Suntrust Bank of Ga., 431 F.3d 191, 203 (5th Cir.

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2005). “‘[T]he circumstances of the act must manifest bad faith. Mere
negligence is not enough, for it does not sustain an inference of consciousness of
a weak case.’” Vick v. Tex. Employment Comm’n, 514 F.2d 734, 737 (5th Cir.
1975). Neither the loss of Casey’s photographs nor Metcalf’s written statements
rise to the level of bad faith.
2. In Waller v. Dixieland Food Stores, Inc., 492 So. 2d 283, 285 (Miss. 1986), the
Mississippi Supreme Court explained that a 2.5 hour interval between inspection
and the time of accident was not sufficient to establish constructive notice.
Metcalf’s deposition testimony was emphatic that she did not see any fluid when
she conducted her inspection twenty minutes before White’s slip. Appellant does
not contradict the time of inspection. There is no evidence that the fluid was on
the floor earlier.
Affirmed.

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