No. 21-2571 ___________________________

Gerry Allen Hodge, By and through his Legal Guardian Linda Farrow

lllllllllllllllllllllPlaintiff - Appellant

v.

Walgreen Co., doing business as Walgreens #07901

lllllllllllllllllllllDefendant - Appellee ____________

Appeal from United States District Court for the Western District of Missouri - Springfield ____________

Submitted: February 16, 2022 Filed: June 14, 2022 ____________ Before SMITH, Chief Judge, BENTON and KELLY, Circuit Judges. ____________ SMITH, Chief Judge.

Gerry Allen Hodge tripped and fell in the parking lot of a Walgreen Co. d/b/a Walgreens store in Republic, Missouri. The district court1 granted summary judgment for Walgreens. The court concluded that Hodge did not establish the existence of a

1 The Honorable Brian C. Wimes, United States District Judge for the Western District of Missouri. genuine dispute of material fact as to whether the “lip” formed at the junction of the parking lot’s pavement and the brick sidewalk was a dangerous condition. Consequently, Hodge failed to establish an element of premises liability under Missouri law. Hodge appeals, arguing that the district court erred by granting summary judgment because the record shows that there was a genuine fact dispute regarding the dangerousness of the sidewalk. We affirm.

I. Background Hodge, an adult with Down syndrome, and Linda Farrow, his sister and legal guardian, visited the Walgreens store in August 2018. Upon arrival, they parked their van in a handicapped spot that they regularly used in the store’s parking lot. After shopping, Hodge loaded packages into the driver’s side of the van. He then began walking towards the front of the van when he tripped and fell. Ms. Farrow was in the driver’s seat and could not see Hodge’s feet immediately before or at the time of his fall. She did not remember seeing anything unusual about the sidewalk and did not notice anything different about the store’s entryway from prior visits.

Another customer, Kami Means, who was also at the store when Hodge fell, testified that she saw a “gentleman trip and fall at the edge of the parking lot [and] the sidewalk” but that she was not able to see what he tripped on. R. Doc. 55-2, at 2. She testified that where the parking lot met the sidewalk was “pretty much the same level.” R. Doc. 58-3, at 3. After his fall, Hodge told Ms. Farrow that he had tripped on the lip, but subsequently during his deposition he could not recall what caused his fall.

After the accident, Michael Farrow, Hodge’s nephew, went to the store to see the area where Hodge had fallen. He returned to the store on another occasion to take photos of the area. He did not observe, and the photos do not depict, any holes or crumbling in the sidewalk or the parking lot or any trash or debris in the area.

-2- Hodge suffered a head injury in the fall. His injury required multiple surgeries for a subdermal hematoma. He now experiences memory difficulties. Hodge, through Ms. Farrow, filed the instant suit in the Circuit Court of Greene County, Missouri. Walgreens removed the case to the Western District of Missouri and filed the instant motion for summary judgment, arguing that there was no evidence that it had created a dangerous condition that caused Hodge’s injuries. Hodge presented testimony from Ms. Farrow and Ms. Means, an affidavit from Mr. Farrow, and Mr. Farrow’s photos.

The district court applied Missouri negligence law on premises liability f