     Case: 14-11349      Document: 00513192368         Page: 1    Date Filed: 09/14/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-11349                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                        September 14, 2015
JACKIE SUE LADAPO,                                                         Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff - Appellant
v.

TARGET STORES, INCORPORATED,

                                                 Defendant - Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:14-CV-2602


Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       Jackie Sue Ladapo, alleging that she was a business invitee injured at a
Target store, sued Target Stores, Incorporated (“Target”) in state court. Target
removed the case to federal court and moved to dismiss the case under Federal
Rule of Civil Procedure 12(c). The district court granted Target’s motion and
dismissed the case. Ladapo timely appealed.
       This case concerns the question of whether Ladapo, as an employee of an
independent contractor who was working at Target, is barred from recovering



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-11349    Document: 00513192368     Page: 2   Date Filed: 09/14/2015



                                 No. 14-11349
under a premises liability theory because she had knowledge of the dangerous
condition. See generally Gen. Elec. Co. v. Moritz, 257 S.W.3d 211 (Tex. 2008).
It is undisputed that Ladapo previously complained of the defective drawer
that later injured her.     On this basis, the district court dismissed her
complaint.
      After the district court ruled, however, the Texas Supreme Court issued
its opinion on certified question from our court in Austin v. Kroger Texas, L.P.,
58 Tex. Sup. Ct. J. 1154, 2015 Tex. LEXIS 559 (June 12, 2015). Although that
case involved a non-subscribing employer, the Texas Supreme Court addressed
premises liability generally, including by recognizing a “necessary–use
exception” to the general rules of premises liability. Id. at *18–19, 24–29.
Target argues that Austin reaffirms Moritz for independent contractors while
Lapado argues that the “necessary-use exception” announced in that case
applies to her situation.
      We conclude that the case should be remanded to the district court to
address the pleadings, including any requests to amend the pleadings, anew
in light of the decision in Austin. See, e.g., Luke v. CPlace Forest Park SNF,
L.L.C., 608 F. App’x 246 (5th Cir. 2015) (unpublished) (remanding in light of
an “intervening change in the law” so that the parties could “be afforded an
opportunity to present their claims and defenses in light of [the new
precedent],”and so that the district court could “decide the matter under
current law in the first instance”); Easterling v. Sch. Bd. of Concordia Parish,
196 F. App’x 251, 253 (5th Cir. 2006) (unpublished) (similar).
      Accordingly, we VACATE the district court’s judgment and REMAND to
the district court for proceedings consistent with this opinion.




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