     Case: 19-60725      Document: 00515444860         Page: 1    Date Filed: 06/08/2020




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

                                      No. 19-60725
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             June 8, 2020

CASSANDRA LOVE,                                                            Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

AARON'S, INCORPORATED,

              Defendant - Appellee




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 1:18-CV-181


Before WIENER, ENGELHARDT, and OLDHAM, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Cassandra Love filed suit against Defendant-
Appellee Aaron’s Inc., asserting claims for ordinary negligence and premises
liability. After discovery, Aaron’s moved for summary judgment, which the
district court granted. The instant appeal followed.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                No. 19-60725
                                      I.
      Plaintiff-Appellant Cassandra Love bought a nine-piece suite of bedroom
furniture from Defendant-Appellee Aaron’s, Inc. On September 22, 2017, two
Aaron’s employees, Dustin Stribling and Kevin Russell, delivered the furniture
to Love’s home for assembly and installation. Upon their arrival, Love showed
Stribling and Russell the bedroom where they were to set up the furniture.
Stribling began unloading boxes from the truck, and Russell carried the boxes
to the bedroom. Russell then began unboxing the furniture in the bedroom and
apparently laid an empty, flattened cardboard box near the entrance to the
room. Love returned to the bedroom to explain where she wanted the furniture
placed. She entered the bedroom and gave her instruction. When Love turned
to leave the room, she tripped and fell on the box near the doorway.
      Love filed suit against Aaron’s in state court, asserting claims for
ordinary negligence and premises liability. Aaron’s timely removed. After the
close of discovery, Aaron’s filed a motion for summary judgment. Love filed a
response in opposition to the motion, wherein she conceded that her premises
liability claim failed as a matter of law. The district court granted summary
judgment in favor of Aaron’s on Love’s remaining negligence claim, holding
that although Aaron’s had a duty to Love, there was no dispute of fact as to
breach because the cardboard box upon which Love tripped and fell was not a
hazardous condition. On appeal, Love contends that the district court erred by
applying the legal standard for a premises liability claim to her ordinary
negligence claim.    Love further asserts that, applying the correct legal
standard, there exist genuine issues of material fact as to breach, causation,
and damages, such that the court erred in granting summary judgment on her
ordinary negligence claim.




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                                 No. 19-60725
                                      II.
      We review de novo a district court’s grant of summary judgment.
Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005). Summary
judgment is proper when 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). The party moving for summary judgment bears the initial burden of
demonstrating an absence of a genuine material fact issue. Boudreaux, 402
F.3d at 540. The nonmoving party must then go beyond the pleadings and set
forth specific facts showing there is a genuine issue for trial. Id. (citations
omitted). We view all facts and inferences in the light most favorable to the
nonmoving party, but we will not weigh the evidence or evaluate the credibility
of witnesses. Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th
Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).


                                      III.
      Mississippi law governs in this diversity suit. See Boyle v. Allstate Ins.
Co., 615 F.3d 350, 355 (5th Cir. 2010). Accordingly, in order to succeed on her
ordinary negligence claim, Love must establish (1) the existence of a duty, (2)
a breach of that duty, (3) causation, and (4) damages. See Crosthwait v. S.
Health Corp. of Hous., 94 So. 3d 1126, 1129 (Miss. Ct. App. 2011), aff’d, 94 So.
3d 1070 (Miss. 2012).
       We first look to whether Love established the existence of a duty.
“Under Mississippi law, ‘[a] contract creates a reasonable duty of care in
fulfilling one’s contractual obligations.’” Poppelreiter v. GMAC Mortg., LLC,
No. 1:11CV008-A-S, 2011 WL 2690165, at *3 (N.D. Miss. July 11, 2011)
(quoting River Prod. Co. v. Baker Hughes Prod. Tools, Inc., 98 F.3d 857, 859
(5th Cir. 1996) (citing McKinnon v. Batte, 485 So. 2d 295, 298 (Miss. 1986))).


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                                  No. 19-60725
As the district court correctly noted, Aaron’s had a contract with Love to deliver
and assemble her furniture; therefore, Aaron’s owed a duty to Love.
      Nevertheless, the district court concluded that Love failed to show that
Aaron’s breached its duty because there is no evidence that the cardboard box
upon which Love tripped and fell was a dangerous or hazardous condition. The
court acknowledged that Love had conceded her premises liability claim. Yet,
in its analysis, the court cited to premises liability cases to support its
conclusion that no material fact issue existed as to breach on Love’s ordinary
negligence claim. Indeed, the court concludes its analysis by stating as follows:
      Accordingly, there is no evidence of a hazardous condition.
      Because there is no evidence that Aaron’s, through its employees,
      breached its duty of care by creating a hazardous condition, or
      failing to warn Love of it, or to make it safe, Love cannot establish
      an essential element of her negligence claim.

There, the standard articulated by the district court is that of a premises
liability claim. Accordingly, we find the court erred by applying a premises
liability, rather than an ordinary negligence, standard.


                                       IV.
      Because our review is de novo, we now look to whether Love presented a
genuine issue of material fact applying the proper legal standard.            “The
standard of care applicable in cases of alleged negligent conduct is whether the
party charged with negligence acted as a reasonable and prudent person would
have under the same or similar circumstances.” Johnson v. Goodson, 267 So.
3d 774, 778–79 (Miss. 2019) (quoting Donald v. Amoco Prod. Co., 735 So. 2d
161, 175 (Miss. 1999)). Accordingly, in order for Love to succeed on her claim
for ordinary negligence, she must demonstrate that Aaron’s, through its
employees, failed to perform the work in a reasonable and prudent manner
under the circumstances. See id.
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                                      No. 19-60725
       In its motion for summary judgment, Aaron’s presents facts sufficient to
establish it is entitled to judgment as a matter of law. In response, Love
counters that Aaron’s breached its duty because its employee deviated from its
installation policies and procedures. 1
       First, Love contends that Aaron’s failed to accurately determine product
placement before installation. Yet, even her own deposition testimony reveals
that the employees determined product placement as soon as they arrived at
Love’s residence; consequently, Love’s argument here fails. Love next contends
that Aaron’s breached its duty by allowing her to enter her bedroom where the
furniture was being assembled and by failing to ensure adequate lighting in
the bedroom. We find these arguments particularly unavailing. Aaron’s has
no duty to prevent Love from entering any room in her home, which by her own
admission, she did of her own volition. As to the lighting in the bedroom, Love
stated in her deposition that the box was visible and that she “probably would
have seen it” had she been paying attention. Love’s admission here belies her
later contention that the adequacy of the lighting in the room had any bearing
on her tripping on the box.
       Finally, Love contends that Aaron’s breached its duty by failing to
remove the cardboard box from the work area after unpacking the product.
Although deposition testimony indicates that it is good practice to remove the
boxes from the room in which the furniture is being assembled and installed,
there is no evidence to suggest it is an actual policy of Aaron’s, or the standard
of any other furniture deliverer. Furthermore, testimony reveals that removal
of boxes is a good practice because doing so would give the employees more



       1 It does not appear that any kind of employee handbook, training materials, or
written policy was produced during discovery or is part of the record. Instead, the “policies
and procedures” Love cites are derived solely from the deposition testimony of Dustin
Stribling, one of the Aaron’s employees who delivered the furniture to Love’s home.
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                                        No. 19-60725
room to work, not because of customer safety concerns. There is nothing in the
record to suggest that Aaron’s placement of the flattened cardboard box was
unreasonable under the circumstances. In fact, Love admits that she entered
the bedroom of her own accord, knowing that Aaron’s was unboxing and
assembling the furniture in that room; the cardboard box was visible, not
hidden; and, if she had been paying attention, she probably would have seen
the box. 2
       Under these circumstances, Love has failed to demonstrate that Aaron’s
failed to perform the work in a reasonable and prudent manner. Accordingly,
the judgment of the district court is AFFIRMED.




       2  Love asserts that her admission of fault is not conclusive as to the issue of negligence
because Mississippi is a pure comparative negligence state. Although it is true that
Mississippi operates under a comparative fault system, Love still bears the initial burden of
demonstrating some negligence on the part of Aaron’s. See Tharp v. Bunge Corp., 641 So. 2d
20, 24 (Miss. 1994) (“[T]he plaintiff must prove some negligence on part of the defendant
before recovery may be had.”). Yet, we find on the record before us that Love has failed to
produce evidence of a genuine issue of material fact demonstrating that Aaron’s is even 1%
at fault for her injuries; therefore, summary judgment in favor of Aaron’s is appropriate. See
id.
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