Johnson v. Kroger ( 2021 )

Case: 20-10580 Document: 00515704945 Page: 1 Date Filed: 01/13/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 13, 2021
No. 20-10580
Lyle W. Cayce
Clerk
Wayne Johnson,
Plaintiff—Appellant,
versus
The Kroger Company,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CV-00371-E
Before Barksdale, Southwick, and Graves, Circuit Judges.
Per Curiam:*
Wayne Johnson appeals the district court’s grant of summary
judgment to The Kroger Company in this diversity action for damages
resulting from a slip and fall at a Texas grocery store. Finding no error, we
affirm.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 20-10580
Facts and Procedural History
On October 7, 2018, Wayne Johnson was shopping in the Kroger store
in Duncanville, Texas, when he slipped and fell. At the time of the accident,
Johnson was walking near a refrigerated cooler that had been leaking. Kroger
knew about the leaking cooler the night before the incident and had placed
two yellow warning cones on the floor next to the leaking cooler. The cones
included graphics of a stick figure slipping and warned “CAUTION” and
“WET FLOOR” in English and Spanish. Johnson, who slipped and fell right
next to the cones, does not dispute that he saw the cones. However, Johnson
said a store employee directed him where to walk.
Johnson later filed suit against Kroger, alleging negligence predicated
on a theory of premises liability, in Dallas County district court. Kroger
removed to federal district court on the basis of diversity and moved for
summary judgment asserting that it adequately warned Johnson of the wet
floor. The district court granted summary judgment for Kroger, and Johnson
subsequently filed this appeal.
Standard of Review
We review a district court's grant of summary judgment de novo,
applying the same standard as the district court. McCarty v. Hillstone Rest.
Grp., Inc., 864 F.3d 354, 357 (5th Cir. 2017). Summary judgment is proper
“if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A genuine dispute of material fact exists only if “a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). We must view all facts and inferences in the
light most favorable to the nonmoving party. McCarty, 864 F.3d at 358.
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Discussion
Johnson asserts that the district court erred by: finding that the cones
presented an adequate warning while ignoring the fact that the water on the
floor continued to expand in size; failing to allow Johnson the benefit of
proportionate responsibility; and failing to consider Kroger’s admission that
it failed to use a “snake,” which would have been feasible and was standard
practice. 1
Kroger asserts that its duty is to warn against or make safe a dangerous
condition, but not both. Kroger also asserts that it provided adequate
warning to Johnson and had no duty to provide further warning.
In his deposition, Johnson testified that he medically retired from
Firestone Polymers in June 2012 because of a back injury from a slip and fall
at work on August 30, 2010. Johnson said he suffered from a herniated disc
and had surgery prior to the Kroger fall. At the time of the Kroger fall,
Johnson was under the care of Dr. Berliner for his previous back injury, which
was continuing to cause pain that radiated down his right leg when he walked
and required him to take pain medication.
Johnson testified that he went to the store early in the morning to get
butter for breakfast and an employee pointed him in the direction of the dairy
section. Johnson slipped and fell on his way to get the butter, and hit his right
knee, back and right shoulder. There is no indication that any employee told
him specifically where to walk. The record establishes that Johnson
determined where to walk based on where the cones were positioned,
indicating he clearly saw the cones. Johnson testified that he was “walking
straight. I was trying to get to the butter aisle” and “I was looking straight.
1
“Snakes” or “socks” are water-absorbing devices placed up against the cooler.
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Not looking down at the floor.” Thus, Johnson did not see the water on the
floor where he fell.
Andrea Landry, the store manager, testified in her deposition that
there were spill pads up against the cooler at the time of Johnson’s fall,
indicating that employees had previously attempted to wipe up any water.
Landry also testified that she believed there was a sock or snake in front of
the cooler at the time of the fall because “typically it’s a standard practice”
along with putting up “wet floor” signs. However, later Landry testified that
she was not certain whether a sock or snake or spill pads were used. Photos
and video do not show the presence of any absorbent materials at the time of
the fall.
Under Texas law, a premises owner has “a duty to protect invitees
from, or warn them of, conditions posing unreasonable risks of harm if the
owners knew of the conditions or, in the exercise of reasonable care, should
have known of them.” Henkel v. Norman, 441 S.W.3d 249, 251 (Tex. 2014).
Further, to prevail on a premises-liability claim, Johnson must establish:
(1) the property owner had actual or constructive knowledge of
the condition causing the injury; (2) the condition posed an
unreasonable risk of harm; (3) the property owner failed to take
reasonable care to reduce or eliminate the risk; and (4) the
property owner’s failure to use reasonable care to reduce or
eliminate the risk was the proximate cause of injuries to the
invitee.
Henkel, 441 S.W.3d at 251-52; see also Austin v. Kroger Texas, L.P., 465
S.W.3d 193, 202-03 (Tex. 2015). “The third element is negated if the
property owner either adequately warned the invitee about the condition or
took reasonable actions designed to make it reasonably safe.” Henkel at 252.
The issue here is whether the cones provided adequate warning of the
condition. If so, then Kroger was not negligent as a matter of law. See id.4
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“To be adequate, a warning must be more than a general instruction such as
‘be careful’; the warning must notify of the particular condition.” Id. The
adequacy of the warning turns on whether the action was “reasonably
prudent under the circumstances.” TXI Operations, L.P. v. Perry, 278
S.W.3d 763, 764 (Tex. 2009). In TXI, a speed limit sign was an inadequate
warning of a pothole. Id.; see also State v. McBride, 601 S.W.2d 552, 556-57
(Tex.Civ.App.-Waco 1980) (cones, barrier and signs warning “35 MPH”
and “SLOW” were inadequate to warn of muddy and slick construction
area).
However, in Henkel, a homeowner telling a mail carrier “don’t slip”
was adequate to warn him of an icy sidewalk. 441 S.W.2d at 250; see also
Golden Corral Corp. v. Trigg, 443 S.W.3d 515, 520 (Tex.App.-Beaumont
2014) (wet floor sign was adequate to warn of wet floor); Brooks v. PRH Invs.,
Inc., 303 S.W.3d 920, 925 (Tex.App.-Texarkana 2010) (wet floor sign and
verbal warning to “be careful” by employee mopping adequate to warn of
wet floor); and Bill’s Dollar Store, Inc. v. Bean, 77 S.W.3d 367, 370 (Tex.App.-
Houston [14th Dist.] 2002) (warning by cashier to “watch the wet spot”
adequate warning of spill).
Here, the two warning cones included graphics of a stick figure
slipping and warned “CAUTION” and “WET FLOOR” in English and
Spanish. The district court found that to be an adequate warning. Based on
the Texas cases cited above, we agree that the warning cones adequately
warned Johnson of the wet floor. See Henkel, 441 S.W.3d at 250; see also
Trigg, 443 S.W.3d at 520. Further, Johnson acknowledges that he saw the
warning cones. Indeed, Johnson fell right next to the cones. But, despite
seeing the warning cones, Johnson also acknowledged that he did not look
down to see where the floor was wet. There is no authority for Johnson’s
assertions that Kroger had to also provide a verbal warning of the wet floor
or that a third cone or different configuration was necessary. Moreover, the
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record indicates an employee merely pointed Johnson toward the aisle
containing the butter and did not instruct him where to walk to get there.
While an additional verbal warning may have been beneficial, there is no
requirement of such. Likewise, although a snake or sock likely would have
absorbed some or all of the water, Kroger has no duty to simultaneously warn
and take reasonable actions to make the hazard safe. Henkel at 252. Thus,
Johnson’s alternative arguments regarding “necessary use” and
“contributory negligence” are without merit and we need not discuss
Kroger’s waiver arguments.
Because the district court did not err in granting Kroger’s motion for
summary judgment to Kroger, we AFFIRM.
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