                                                                     FILED
                                                         United States Court of Appeals
                          UNITED STATES COURT OF APPEALS         Tenth Circuit

                                 FOR THE TENTH CIRCUIT                       March 31, 2020
                             _________________________________
                                                                          Christopher M. Wolpert
                                                                              Clerk of Court
    MARY NELL PRESCOTT,

           Plaintiff - Appellant,

    v.                                                          No. 19-6056
                                                       (D.C. No. 5:18-CV-00121-SLP)
    CRACKER BARREL OLD COUNTRY                                 (W.D. Okla.)
    STORE, INC.,

           Defendant - Appellee.
                          _________________________________

                                 ORDER AND JUDGMENT*
                             _________________________________

Before LUCERO, EBEL, and HARTZ, Circuit Judges.
                  _________________________________

         Mary Nell Prescott appeals a summary judgment awarded to Cracker Barrel Old

Country Store by the United States District Court for the Western District of Oklahoma.

Ms. Prescott originally brought suit in Oklahoma state court, but Cracker Barrel removed

the action to federal court, invoking that court’s diversity jurisdiction under 28 U.S.C.

§ 1332. Ms. Prescott had been injured in a fall at a Cracker Barrel retail shop in

Oklahoma City and alleged that Cracker Barrel was liable for her injury under Oklahoma

premises-liability law. The district court entered summary judgment for Cracker Barrel

on the ground that Ms. Prescott could not identify the object that caused her fall. Ms.


*
  This order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Prescott appeals. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm because

she has failed to present adequate evidence that Cracker Barrel breached a duty of care.

       I.     Background

       Cracker Barrel is a Tennessee corporation that operates over 600 freestanding

combination restaurant-retail shop locations. The restaurant is a dining room where

guests can order food from a full-service menu, and the attached gift shop is stocked with

merchandise for sale. Ms. Prescott and a friend went to the Cracker Barrel for a meal on

the evening of November 3, 2017. After dinner they went into the retail shop, which Ms.

Prescott recalls as being crowded with merchandise. While her friend browsed the shop,

she went to the register to pay for their meals. She then walked down an aisle of

merchandise heading toward the front door, where the two were to meet. As she turned

right at the front of the shop to approach the front doors, she apparently caught her foot

on something and fell.

       In her lawsuit against Cracker Barrel, Ms. Prescott alleged that she tripped over a

box of merchandise that was lying in the aisle. After discovery, Cracker Barrel moved

for summary judgment on three grounds: First, Ms. Prescott failed to establish a triable

issue of fact that any action or omission by Cracker Barrel was a proximate cause of her

injuries because she did not know what she caught her foot on when she fell. Second, she

had failed to identify any evidence that Cracker Barrel breached its duty by negligently

leaving or failing to remove an item in an aisle. Third, any defective condition on the

premises was open and obvious.



                                             2
       The evidence presented in support and opposition to the summary-judgment

motion was not voluminous. It included excerpts from Ms. Prescott’s deposition, in

which she stated that she did not know what caused her fall, but that she was sure it was

Cracker Barrel merchandise. See Aplt. App., Vol. II at 189 (“[W]e was in their store and

it was all merchandise, so I suppose it was—had to be theirs. . . . [W]ho else would have

left something under there? It was their store, that’s where I was at, and it was their

merchandise.”) It also included footage from a security camera that showed the end of

her fall, though it did not show what she tripped over. The only remaining evidence of

the tripping incident was an affidavit from Ms. Prescott’s dining companion, which stated

that she had found a “box that was out of place near the door against the wall” when she

went to help Ms. Prescott immediately after her fall. Aplt. App., Vol. I at 159. The

affidavit said the out-of-place box was Cracker Barrel merchandise but did not further

identify it. (There was also an incident report prepared by a Cracker Barrel employee

that stated, “tripped over box by front door inside of store” in the field labeled

“GUEST’S description of incident.” Aplt. App., Vol. II at 211. But the district court

ruled that it was inadmissible hearsay because it was based on “comments of unnamed

customers,” Aplt. App., Vol. I at 359, and Ms. Prescott’s opening brief in this court does

not cite any exception to the hearsay rule or other authority challenging the court’s

hearsay ruling.) There was no deposition testimony or affidavit from anyone who saw

Ms. Prescott’s fall.




                                              3
       In addition, Cracker Barrel provided a model floorplan for its stores and pictures

of model merchandise displays from Cracker Barrel headquarters, which were largely

followed in the Oklahoma City store. One of the pictures showed a display that had a

boxed racecar toy set on the floor under a table. Sara Wadley, an employee on duty when

Ms. Prescott fell, testified in a deposition that the boxed racecar set could have been a

tripping hazard to someone who was not paying attention. She said that she herself had

bumped it while restocking some shelves in October, the month before the fall, and had

started moving it to a different spot for her shift if the store was busy. She further

testified that shortly after she started work on the evening of the accident she had moved

the box out of the way after she saw a customer bump into it. Also included in the

summary-judgment record is a text message that Ms. Wadley sent several months after

the incident. The message stated, “I had moved that box bc it would get knocked over as

guests were standing there visiting and it got congested on certain days so I would always

move it for a bit.” Aplt. App., Vol. II at 348.

       Another exhibit is a Cracker Barrel spreadsheet of “incident reports” covering all

Cracker Barrel locations for the two years before Ms. Prescott’s fall. According to Ms.

Prescott, the reports document about 1,100 falls in Cracker Barrel retail locations, of

which at least 325 were customers tripping over merchandise or furniture. And finally,

the summary-judgment record includes a Form 10-K filed by Cracker Barrel with the

Securities and Exchange Commission in 2017, which stated that there were 645 Cracker

Barrel locations as of September 14, 2017, and that each shop “feature[d] approximately



                                              4
4,800 stock keeping units” and had about 7,000 restaurant guests per week. Aplt. App.,

Vol. I at 172.

       In her memorandum in opposition to Cracker Barrel’s motion for summary

judgment, Ms. Prescott argued that Cracker Barrel created a dangerous condition on its

premises by instructing employees to stock each location with too many items of

merchandise and displaying the merchandise in a manner that would distract customers

from the danger, that Cracker Barrel had notice of the dangerous condition of its shops

because of the falls reported during the two years preceding Ms. Prescott’s fall, and that

Cracker Barrel knew that the boxed racecar set was a tripping hazard because Ms.

Wadley and a guest had bumped into it before Ms. Prescott’s fall.

        The district court granted Cracker Barrel’s summary-judgment motion because of

Ms. Prescott’s failure to establish causation since she could not “identify what

merchandise item allegedly caused her fall[.]” Prescott v. Cracker Barrel, No.

CIV-18-121-SLP, at 5–6 (W.D. Okla. March 11, 2019). The court did not address

Cracker Barrel’s other grounds for its motion.

       II.       Discussion

       “We review de novo a grant of summary judgment, applying the same standard

that governs the district court.” Lauck v. Campbell Cty., 627 F.3d 805, 809 (10th Cir.

2010). Summary judgment is appropriate when “there is no genuine issue as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). If the nonmoving party “has failed to make a sufficient showing on an essential



                                             5
element of her case with respect to which she has the burden of proof,” the moving party

is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

       On appeal Ms. Prescott challenges the district court’s proximate-cause ruling.

Cracker Barrel’s appellate brief argues in support of the ruling but also argues as

alternative grounds for affirmance the two other grounds it urged in requesting summary

judgment: First, it argues that Ms. Prescott failed to produce adequate evidence that it

was negligent. See, e.g., Aplee. Br. at 28 (“Ms. Prescott [could] not demonstrate that

Cracker Barrel negligently created a dangerous condition” or that it “had actual or

constructive notice of a dangerous condition.”). And second, it argues that any defective

condition on the premises was open and obvious. We may affirm on any alternative

ground supported by the record, particularly when it was presented by the appellee in

district court and resolving the case on that ground would not otherwise be unfair to the

appellant. See Elkins v. Comfort, 392 F.3d 1159, 1162 (10th Cir. 2004). In this case we

can properly affirm on Cracker Barrel’s first alternative ground.

       There is no dispute that Oklahoma law governs the substantive law on this appeal.

See Martinez v. Angel Expl., LLC, 798 F.3d 968, 973 (10th Cir. 2015) (applying

Oklahoma premises-liability law in diversity case). Under Oklahoma law a shopkeeper

“owes an invitee a duty to keep the premises reasonably safe from hidden dangers, traps,

snares, and the like.” Zagal v. Truckstops Corp. of Am., 948 P.2d 273, 274 (Okla. 1997).

The parties agree that Ms. Prescott was an invitee on Cracker Barrel’s premises.




                                             6
       In a “trip-and-fall” case the plaintiff can prevail by “show[ing] the item causing

the fall was negligently left there by the storekeeper or some employee or had been there

for sufficient time after the latter had actual or constructive knowledge thereof to have

removed it in the exercise of ordinary care.” Glover v. Montgomery Ward & Co., 536

P.2d 401, 408 (Okla. App. 1974); see Rogers v. Hennessee, 602 P.2d 1033, 1035 (Okla.

1979) (plaintiff can prove liability with evidence that the owner failed to exercise “due

care to discover the [peril] on the premises in time to prevent the [invitee’s] exposure to

danger or give warning of its presence”). Or the plaintiff can prevail with evidence that

the hazardous condition was the foreseeable result of the shopkeeper’s decision to

“display . . . goods in an unsafe or negligent manner.” Lingerfelt v. Winn-Dixie Tex.,

Inc., 645 P.2d 485, 488 (Okla. 1982). The requirement that the plaintiff provide “proof

of an act of negligence on [the shopkeeper’s] part,” is essential because Oklahoma courts

have “steadfastly refused to make the store an insurer of its customers.” Id. at 489; see

Dover v. W.H. Braum, Inc., 111 P.3d 243, 245 (Okla. 2005) (“[T]he invitor is not a

guarantor of the safety of its invitees.”). “It is axiomatic that the mere fact that an injury

occurs carries with it no presumption of negligence.” Gillham v. Lake Country Raceway,

24 P.3d 858, 860 (Okla. 2001).

       On appeal Ms. Prescott does not adequately challenge Cracker Barrel’s claim that

it was not negligent. Her opening brief quite properly focuses on the ground that the

district court relied on for granting summary judgment—an alleged failure to prove

causation. See United States v. Brown, 348 F.3d 1200, 1212–1213 (10th Cir. 2003)



                                               7
(appellant did not waive its right to respond to alternative ground for affirmance by

failing to anticipate and respond to it in the opening brief). But once Cracker Barrel

argued in its brief in this court that Ms. Prescott had failed to put on evidence of its

negligence, see Aplee. Br. at 28 (“Ms. Prescott [could] not demonstrate that Cracker

Barrel negligently created a dangerous condition” or that it “had actual or constructive

notice of a dangerous condition.”), she needed to respond. See Hasan v. AIG Prop. Cas.

Co., 935 F.3d 1092, 1099 (10th Cir. 2019) (“When an appellee advances an alternative

ground for upholding a ruling by the district judge, and the appellant does not respond in

his reply brief, he does not concede the correctness of the ruling. But he waives, as a

practical matter anyway, any objections not obvious to the court to specific points urged

by the appellee.” (brackets, ellipses, and internal quotation marks omitted)). Yet Ms.

Prescott provides us with no argument in her reply brief in support of a claim of

negligence by Cracker Barrel. The six-page brief includes no form of the words

negligent, care, or unreasonable; and it uses the word reasonable only in the context of

“reasonable inferences,” Reply Br. at 2 n.1, and “reasonable jury,” id. at 5 n.4.

       Of course, although not required, an appellant can anticipate in her opening brief

an alternative ground for affirmance. In this case Ms. Prescott does make an effort in this

direction, but it is inadequate and incomplete. She raises two potential grounds for

liability. First, she argues that Cracker Barrel was on notice that the “cluttered” nature of

its merchandise displays created a falling hazard because it knew about the frequency of

customer falls at its stores. She relies on spreadsheets provided by Cracker Barrel that



                                               8
report for a two-year period that there had been 1,100 reports of falls in its stores, of

which “at least 325 were incidents where customers fell over objects, displays, furniture,

and/or merchandise.” Aplt. Br. at 40. (Cracker Barrel’s brief on appeal contends that

Ms. Prescott has double counted some falls, but we need not investigate that matter to

resolve the issue.) The numbers may sound impressive, but the record shows that there

were 645 Cracker Barrel stores on September 14, 2017. Thus, there was approximately

one customer fall from tripping over merchandise, displays, or furniture per store every

four years. That is not a high-enough frequency to support an inference that Cracker

Barrel stores were unsafe or that Cracker Barrel was on notice of a hazard, particularly in

the absence of any evidence of the specific circumstances of the falls.

       The second potential ground raised by Ms. Prescott is that Cracker Barrel is liable

because an employee knew that a particular box was displayed in a hazardous location.

She points to the testimony by Ms. Wadley that she believed that the location of a boxed

racecar toy set created a tripping hazard when the store was busy. But there are two gaps

in this theory of liability. To begin with, even if Ms. Prescott did not need to identify the

specific object on which she tripped to establish that she tripped over Cracker Barrel

merchandise, she would need to establish that the racecar box was what she tripped over

if Cracker Barrel’s negligence was based solely on its knowledge that that particular box

was placed in a hazardous position. If it was another item of merchandise that she

tripped over, Ms. Prescott would need to provide evidence that Cracker Barrel knew or

should have known that the merchandise was in a dangerous position but failed to move



                                              9
it. Yet she does not assert on appeal that the box she tripped on was the racecar box; and

the evidence presented to the district court was insufficient to support a reasonable

inference (as opposed to speculation) that it was the racecar box she tripped on.

       The second gap in this theory of liability is that Ms. Wadley not only testified

about the potential danger of the box’s location, but she also testified that she had moved

it from that position before Ms. Prescott’s fall—so there was no known hazard at the time

of the fall. Ms. Prescott did not challenge that testimony in district court. On the

contrary, her district-court response to Cracker Barrel’s statement of undisputed facts

included the following recitation that Ms. Wadley had moved the box:

       During her testimony, Sara Wadley identified a tripping hazard within the
       display nearest to Ms. Prescott at the time of her fall stating, “[t]his box right
       here. The race car set.” Ms. Wadley also read into the record a text message
       containing the following statement, “I had moved that box because it would
       get knocked over as guests were standing there visiting. . .” Sara Wadley also
       testified that the same day of Ms. Prescott’s fall, another guest had hit that
       same box with his foot, “[t]here was a gentleman . . . He stepped back. His
       heel barely touched the box, didn’t knock it over or anything, and that’s when
       I looked at it, I was, like, okay, we need to move that box[.]”

Aplt. App., Vol. I at 136 (citations omitted). And also in that response, Ms. Prescott’s

statement of “Additional Material Facts at Issue” included Ms. Wadley’s testimony that

at the time of Ms. Prescott’s fall the racecar set was not in the usual position. Id. at 139.

The argument section of Ms. Prescott’s district-court brief discusses the potential danger

posed by the normal position of the box but does not dispute that Ms. Wadley had moved

the box from that position before Ms. Prescott’s fall. Similarly, Ms. Prescott’s opening

brief on appeal notes that Ms. Wadley identified the position of the racecar box as a


                                               10
potential hazard, but it never raises a question about whether Ms. Wadley had moved the

box before Ms. Prescott’s fall.

       Because Ms. Prescott has identified no evidence of a negligent act or omission by

Cracker Barrel, she has “failed to make a sufficient showing on an essential element of

her case with respect to which she has the burden of proof.” Celotex Corp., 477 U.S.

at 323. Cracker Barrel is entitled to judgment as a matter of law.

       We AFFIRM the judgment below.


                                             Entered for the Court


                                             Harris L Hartz
                                             Circuit Judge




                                            11
