     Case: 18-30818      Document: 00514904191         Page: 1    Date Filed: 04/05/2019




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


                                      No. 18-30818
                                                                                 FILED
                                                                              April 5, 2019
                                                                            Lyle W. Cayce
HEIDI FOREMAN,                                                                   Clerk

              Plaintiff - Appellant

v.

CIRCLE K STORES, INCORPORATED, improperly referred to as Circle K
Convenience Stores, Incorporated,

              Defendant - Appellee



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:17-CV-296


Before JONES, HO, and OLDHAM, Circuit Judges.
PER CURIAM:*
       The Plaintiff Heidi Foreman slipped and fell on a wet floor while
shopping at a store owned by the Defendant Circle K Stores, Inc. She alleges
that Circle K negligently failed to mark the floor. The district court concluded
that the store was not negligent because it provided adequate warning signs.
We agree and AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-30818
                                BACKGROUND
      In August 2016, Foreman drove to a Circle K store in Lafayette,
Louisiana to purchase some beer. Her visit was captured on video. Upon
entering the store, she walked past the counter and across the sales floor
toward a large walk-in cooler aptly named the Beer Cave. A yellow “wet floor”
sign stood near the counter, and a yellow mop bucket with another wet floor
sign stood on the far side of the sales floor.
      Foreman entered the Beer Cave.             One wet floor sign stood at the
entrance, and another stood inside. Foreman walked directly past both signs.
She then picked up a case of beer and left the Beer Cave.
      Foreman carried her beer back across the sales floor to the store counter.
In doing so, she walked immediately past a store employee mopping the floor
using the yellow bucket. She also passed, and stood directly in front of, the wet
floor sign by the counter.
      Foreman then waited in line at the counter behind another customer.
When it was her turn, she placed her beer on the counter and began to check
out. Although Circle K’s video recording does not include audio, it appears that
Foreman and the store clerk spoke about the beer.             Eventually, Foreman
picked up her beer, and she and the clerk left the counter together to return to
the Beer Cave.
      Foreman and the clerk walked back across the sales floor to the Beer
Cave. In doing so, Foreman passed immediately by the wet floor sign near the
counter and the mop bucket and its accompanying sign.
      While Foreman had been chatting with the clerk, a store employee had
been mopping the floor by the entrance to the Beer Cave.              Although the
employee moved the wet floor sign positioned by the Beer Cave entrance before
Foreman returned, Foreman nonetheless walked directly by the mopping


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                                  No. 18-30818
employee as she and the clerk re-entered the Beer Cave. In fact, the employee
stepped out of Foreman’s way as she passed.
      Upon entering the Beer Cave, Foreman again stood directly next to the
wet floor sign inside. She returned her original case of beer and picked up a
new one. She and the clerk then turned to leave the Beer Cave. At that point,
she slipped and fell on the wet floor, injuring herself.
      Foreman sued Circle K in Louisiana state court, alleging negligence.
Circle K removed the case to the United States District Court for the Western
District of Louisiana.    The case was referred to a magistrate judge, and
Circle K moved for summary judgment. The magistrate judge recommended
that the motion be granted and the case dismissed upon concluding that
Circle K had used appropriate signage to warn patrons of the wet floor. The
district court adopted the magistrate judge’s recommendation. Foreman now
appeals.
                          STANDARD OF REVIEW
      “We review a summary judgment de novo, using the same standard as
that employed by the district court under Rule 56.” Carnaby v. City of Houston,
636 F.3d 183, 187 (5th Cir. 2011) (internal quotation marks omitted).
“Summary judgment is warranted ‘if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.’” Id. (quoting FED. R. CIV. P. 56(a)).
      “Although we review evidence in the light most favorable to the
nonmoving party, we assign greater weight, even at the summary judgment
stage, to the facts evident from video recordings taken at the scene.” Carnaby,
636 F.3d at 187. “A court of appeals need not rely on the plaintiff’s description
of the facts where the record discredits that description but should instead
consider the facts in the light depicted by the videotape.”           Id. (internal
quotation marks omitted).
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                                 No. 18-30818
                                DISCUSSION
      We conclude that Circle K did not act negligently. Under Louisiana law:
      In a negligence claim brought against a merchant by a person
      lawfully on the merchant’s premises for damages as a result of an
      injury, death, or loss sustained because of a fall due to a condition
      existing in or on a merchant’s premises, the claimant shall have
      the burden of proving, in addition to all other elements of his cause
      of action, all of the following:

            (1)   The condition presented an unreasonable risk of
                  harm to the claimant and that risk of harm was
                  reasonably foreseeable.

            (2)   The merchant either created or had actual or
                  constructive notice of the condition which caused
                  the damage, prior to the occurrence.

            (3)   The merchant failed to exercise reasonable care.
                  In determining reasonable care, the absence of a
                  written or verbal uniform cleanup or safety
                  procedure is insufficient, alone, to prove failure
                  to exercise reasonable care.


La. R.S. § 9:2800.6(B)(1)-(3). Failure to prove any one of these elements “is
fatal to the claimant’s cause of action.”      White v. Wal-Mart Stores, Inc.,
699 So. 2d 1081, 1086 (La. 1997).
      Here, no one disputes the second element, that a Circle K employee
“created” the wet floor by mopping. Accordingly, the central issues in this case
are whether the wet floor presented an unreasonable risk of harm and whether
Circle K failed to exercise reasonable care.
      We conclude that the wet floor presented no unreasonable risk of harm
and that Circle K exercised reasonable care. In Melancon v. Popeye’s Famous
Fried Chicken, the plaintiff slipped and fell on a wet floor at a Popeye’s
restaurant as she was leaving the establishment. 59 So. 3d 513, 515 (La. Ct.

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                                  No. 18-30818
App. 2011). Popeye’s had placed two bright yellow “wet floor” signs in the
restaurant, “one near the counter and the other at the entrance, both of which
are readily visible to anyone entering the store.” Id. at 515-16. When the
plaintiff initially entered the Popeye’s, she had walked directly past one of the
signs. Id. at 516. As she left the counter to exit, she looked directly at a bright
yellow mop bucket, walked past the other sign, and past an employee mopping
the floor. Id. The Louisiana court held that “[j]urisprudence has specifically
found that mopped floors do not create an unreasonable risk of harm when the
appropriate signage is used to warn patrons of the conditions of the floor.” Id.
Further, “Popeye’s exercised reasonable care by placing two different ‘wet floor’
signs to alert customers that the floor had been mopped.” Id.
      Here, just like the Popeye’s restaurant, Circle K placed appropriate
signage throughout its store to warn customers of the wet floor. On her second
trip to the Beer Cave, Foreman walked past a sign near the counter, a sign on
the sales floor, and a sign inside the Beer Cave. Although the sign at the Beer
Cave entrance had been moved the second time she entered, Foreman still
passed at least three warning signs and an employee actively mopping before
her fall. Accordingly, Circle K did not create an unreasonable risk of harm and
exercised reasonable care by placing warning signs throughout the store.
      Foreman argues that “[w]hat is important and what is not easily or
readily determinative from the video is if the plaintiff actually saw the wet
floor sign upon entering or while looking in the ‘beer cave.’” Louisiana courts,
however, have explained that such an argument is off-point. In holding that a
grocery store had exercised reasonable care in a slip and fall case, a Louisiana
court noted, “[d]espite the fact that [the plaintiff] denied seeing any warning
signs or cones, she had multiple opportunities to observe the warning sign or
cone upon entering and exiting through the corridor.” Turner v. Brookshire
Grocery Co., 785 So. 2d 161, 165 (La. Ct. App. 2001); see also Melancon, 59 So.
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                                 No. 18-30818
3d at 516 (“The only explanation for [the Plaintiff’s] lack of awareness
regarding the wet floor is her inattentiveness.”). In short, Circle K did not act
negligently, regardless whether Foreman saw the signage.
      The judgment of the district court is AFFIRMED.




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