     Case: 17-10810      Document: 00514723421         Page: 1    Date Filed: 11/14/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit


                                      No. 17-10810
                                                                             FILED
                                                                     November 14, 2018
                                                                        Lyle W. Cayce
JACKIE SUE LADAPO,                                                           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 JONES, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Jackie Ladapo was employed by Boots Retail USA, Inc. to sell its brand
of beauty products in Target stores. Ladapo sued Target, alleging that the
drawer in which she stored her beauty supplies was defective and she was
injured when it fell out and landed on her foot. She appeals from the district
court’s grant of summary judgment to Target, claiming that use of the drawer
was necessary for her job and that Target had failed to make its premises safe.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-10810    Document: 00514723421     Page: 2   Date Filed: 11/14/2018



                                 No. 17-10810
      Generally, an “owner or occupier owes no duty to his invitees either to
eliminate or warn of dangerous conditions on the premises which are as well
known to them as they are to him.” Delhi-Taylor Oil Corp v. Henry, 416 S.W.2d
390, 392 (Tex. 1967). Ladapo has repeatedly conceded that she was aware of
the potential hazard posed by the defective drawer. Accordingly, Target had
no duty to warn Ladapo about the drawer.
      Ladapo attempts to sidestep this principle by invoking the “necessary
use” exception. That exception applies “when the invitee necessarily must use
the unreasonably dangerous premises, and despite the invitee’s awareness and
appreciation of the dangers, the invitee is incapable of taking precautions that
will adequately reduce the risk.” Austin v. Kroger Tex., L.P., 465 S.W.3d 193,
204 (Tex. 2015).     Ladapo’s employer, Boots Retail, was an independent
contractor of Target’s. Assuming without deciding that the necessary use
exception applies to independent contractors and their employees, Ladapo has
failed to demonstrate that the use of the particular drawer in question was
actually necessary to her work. To the contrary, Texas law generally treats an
employee’s encounter with a hazardous condition “as voluntary in nature, even
though it was part of [her] work duties.” Id. at 213.
      Ladapo additionally alleges she was a third-party beneficiary of the
contract between Boots and Target, such that Target owed her a contractual
duty to repair the defective drawer. The district court remarked in its opinion
that a third-party beneficiary may be able to recover for breach of contract but
Ladapo had not made that argument. On appeal, she merely states the claim
without supporting it with any analysis or caselaw. Such is insufficient.
      The district court correctly granted summary judgment to Target.
      AFFIRMED.




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