Seth Navratil v. Menard, Inc. ( 2020 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-1659
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Seth Navratil
lllllllllllllllllllllPlaintiff - Appellant
v.
Menard, Inc.
lllllllllllllllllllllDefendant - Appellee
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: November 30, 2020
Filed: December 3, 2020
[Unpublished]
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Before COLLOTON, SHEPHERD, and KOBES, Circuit Judges.
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PER CURIAM.
Seth Navratil appeals following the district court’s1 adverse grant of summary
judgment in his diversity action based on premises liability. Upon careful de novo
1
The Honorable John M. Gerrard, Chief Judge, United States District Court for
the District of Nebraska.
review, see Auer v. City of Minot, 896 F.3d 854, 858 (8th Cir. 2018) (standard of
review), we affirm. We agree that Navratil failed to create a genuine issue of material
fact as to whether the floor’s condition was visible and apparent, and whether the
condition was present long enough for Menard to discover and remedy it. See
Ackerman v. U-Park, Inc., 951 F.3d 929, 934-35 (8th Cir. 2020) (plaintiff has burden
to prove that landowner had constructive notice of condition that caused his injury;
if condition was not visible and apparent, landowner is entitled to summary judgment
because it was not required to see what could not be seen); Edwards v. Hy-Vee, Inc.,
883 N.W.2d 40, 45 (Neb. 2016) (for defendant to have constructive notice of
condition, it must exist for sufficient length of time prior to accident to permit
defendant to discover and remedy it). We also agree that Menard did not engage in
spoliation of the store’s surveillance video warranting an adverse inference regarding
its constructive knowledge of the floor’s condition. See Stevenson v. Union Pac.
R.R. Co., 354 F.3d 739, 747 (8th Cir. 2004) (where routine document retention policy
has been followed, there must be indication of intent to destroy evidence for purpose
of suppressing truth in order to impose sanction of adverse inference instruction).
The judgment is affirmed. See 8th Cir. R. 47B.
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