     Case: 12-10902      Document: 00512524805         Page: 1    Date Filed: 02/06/2014




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


                                      No. 12-10902
                                                                                    FILED
                                                                             February 6, 2014
                                                                               Lyle W. Cayce
AUBREY KILCHRIST,                                                                   Clerk

                                Plaintiff–Appellant Cross–Appellee

                                            v.

SIKA CORPORATION,

                               Defendant–Appellee Cross–Appellant


                  Appeals from the United States District Court
                       for the Northern District of Texas
                             USDC No. 3:10-CV-2567


Before REAVLEY, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       This is a slip-and-fall case where the jury returned a verdict for the
plaintiff, and the district court granted judgment as a matter of law for the
defendant–premises on the grounds that it owed the plaintiff no duty as a
matter of law. We affirm.
                                       I. FACTS
       Plaintiff Aubrey Kilchrist (“Kilchrist”) was employed by Distribution
Technologies (“DisTech”) as a truck driver.              Defendant Sika Corporation



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 12-10902

(“Sika”) engaged DisTech as an independent contractor to provide trucking
services to the Sika plant in question. Sika produces a chemical known as
admix that comes in a variety of colors and is especially slippery.          Sika
implemented policies for frequent water rinses to remove any slippery admix
from the floor. Thus, the floor was often wet.
      The Sika plant is equipped with several large bays for loading and
unloading trucks. The loading and unloading area is surrounded by a dike to
prevent water and other materials from washing into the street. Sika insists
that it notified DisTech of these conditions and that DisTech in turn briefed its
employees, including Kilchrist, regarding the risk. Kilchrist apparently had
rubber soles added to his work shoes to prevent him from slipping.
      On September 15, 2009, Kilchrist arrived at the plant to fill his truck
with a load of admix. However, the bays were occupied, and he was forced to
wait. Before going to lunch, Kilchrist arranged to have another driver pull his
truck into a bay when one became available. Upon returning, Kilchrist entered
the Sika plant through the front office and stepped over the dike and into the
loading bay area. Kilchrist testified that he saw that the floor of the plant was
wet. He proceeded to approach his truck, which was in the loading bay as
arranged. At this point, Kilchrist slipped on a liquid that he believed to be
water, but that allegedly contained admix. The contents of the liquid are
disputed.   Kilchrist claims that the liquid on the floor was clear and
indistinguishable from water. As a result of his fall, Kilchrist has undergone
several surgeries and has not been able to return to work as a truck driver.
                        II. PROCEDURAL HISTORY
      On August 16, 2010, Kilchrist filed a premises liability case in state court
against Sika for damages he sustained as a result of his fall. On December 16,
2010, the case was removed to the United States District Court for the

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                                 No. 12-10902

Northern District of Texas. The district court bifurcated the trial: the jury
would first make a determination on liability and then, if necessary, a second
phase would take place to determine damages. During trial, Sika moved for
judgment as a matter of law under Federal Rule of Civil Procedure Rule 50 on
the grounds that Sika owed no duty to an independent contractor’s employee
to warn of, or make safe, an open and obvious hazard of which the plaintiff was
already aware. The court reserved its ruling on the issue, noting that it was a
close call as to whether the presence of admix in the puddle was known and
obvious or was instead a concealed hazard. The court explained that it was
only the statement by Kilchrist that he “had no way of knowing that what
appeared to be ordinary water was actually something much more hazardous”
that allowed his case to survive the motion and proceed to trial for the time
being.
      The jury returned a verdict on liability of 60% for Sika, 40% for DisTech,
and 0% for Kilchrist. Sika re-urged its Rule 50 motion for judgment as a matter
of law, and after hearing the arguments of counsel and reviewing the trial
transcript, the district court granted the motion and entered a take nothing
judgment for Sika. In granting the judgment as a matter of law in favor of
Sika, the district court found that Sika had no duty because Kilchrist was
aware of the danger. The court was particularly influenced by Kilchrist’s
testimony at trial that he had known for several months both that the area
was always wet and that it could contain admix. Thus, “the alleged hazard
was not concealed’’ because Kilchrist knew that “admix could be [present]” in
the area where he slipped.




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                                          No. 12-10902

       Kilchrist timely appealed the district court’s grant of Sika’s motion for
judgment as a matter of law. 1
                                   III.    DISCUSSION
       “We review de novo the district court’s ruling on a motion for judgment
as a matter of law.” Flowers v. S. Reg’l Physician Servs., 247 F.3d 229, 235
(5th Cir. 2001). Again, the trial court held that, as a matter of law, because
Kilchrist knew both that the area was actually wet and that it could contain
admix, the risk was “commonly known or already appreciated by the employee”
such that Sika had no duty to warn. See Brookshire Grocery Co. v. Goss, 262
S.W.3d 793, 795 (Tex. 2008) (per curiam) (citation omitted).
       Kilchrist contends he had no actual knowledge admix was present near
his truck on the day he fell. He argues that the fact that he knew admix could
be on the floor does not mean that he actually knew that admix was on the
floor, and thus that he did not appreciate the risk. This is a distinction without
a difference. Kilchrist appreciated the risk admix posed and the substantial
likelihood it was present in the facility. Kilchrist testified that the area near
where his truck was parked “was always wet.”                        He agreed, on cross-
examination that he had known for months preceding the accident that the
ground “was always wet with water, admix, and potentially other chemicals.”
He testified that on the day of his fall, the entire area inside the dike was wet
and he agreed that there was not a single dry spot. Although he stated he had



       1  Assuming this Court were to remand, Kilchrist raised additional issues: the trial on
remand should be limited to damages only; and in the event that liability is retried, the
district court should be directed to conduct a unitary, rather than bifurcated trial. Sika cross-
appealed, arguing that the district court erred in refusing to submit Sika’s special jury
instruction. Specifically, Sika had sought to have a statement regarding an independent
contractor’s duty to warn its employees of potential hazards included in the jury instructions.
Because we affirm, we do not reach either parties’ issues concerning remand.

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                                       No. 12-10902

not seen admix on the side of the truck where he slipped, he conceded that he
had seen admix inside the dike system. He knew that the floor where he
stepped was wet and that it could contain admix and that admix was a
particularly slippery substance. We hold that Sika owed no duty to warn
Kilchrist of a danger he already appreciated. See Goss, 262 S.W.3d at 795; see
also Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006) (per curiam)
(citation omitted).
       Finally, we note that this case is distinguishable factually and legally
from Austin v. Kroger Tex. L.P., 731 F.3d 418 (5th Cir. 2013). In Austin, the
plaintiff’s duties as the floor maintenance person included cleaning spills on
the floor. Austin, 731 F.3d at 429. Thus, the plaintiff had “no choice but to
confront” the hazard; here, Kilchrist was not specifically required to step in the
puddle. Thus, Kilchrist was not faced with the same “quit, or clean” dilemma
confronted by the plaintiff in Austin. Id. Moreover, this case does not invoke
the issues raised by Austin. Specifically, Austin “does not center on an alleged
failure to warn,” id., while this case on appeal is only about an alleged failure
to warn. 2
                                 IV.     CONCLUSION
       For the foregoing reasons, we AFFIRM the trial court’s grant of
judgment as a matter of law.




       2 Although Kilchrist initially raised negligence on several different grounds, including
failure to maintain premises in a safe condition and failure to correct a dangerous condition,
he abandoned those arguments before the district court. By not arguing Sika’s alleged failure
to maintain a safe premises and failure to correct a dangerous condition before the district
court, Kilchrist has waived those arguments. See Celanese Corp. v. Martin K. Eby Constr.
Co. Inc., 620 F.3d 529, 531 (5th Cir. 2010).
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