     Case: 16-51413      Document: 00514397821         Page: 1    Date Filed: 03/22/2018




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

                                      No. 16-51413
                                                                              Fifth Circuit

                                                                            FILED
                                                                      March 22, 2018

GLORIA ARMENDARIZ,                                                     Lyle W. Cayce
                                                                            Clerk
              Plaintiff - Appellant

v.

WAL-MART STORES, INCORPORATED; WAL-MART STORES TEXAS,
L.L.C.,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 3:16-CV-43


Before HIGGINBOTHAM, JONES, and GRAVES, Circuit Judges.
PER CURIAM:*
       Gloria Armendariz appeals the district court’s grant of summary
judgment for Wal-Mart on the basis that Armendariz failed to establish that
Wal-Mart had actual or constructive knowledge of an improperly placed pallet.
Because we conclude that the district court erred, we VACATE and REMAND.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-51413
                  FACTS AND PROCEDURAL HISTORY
      On December 18, 2013, Gloria Armendariz tripped over an improperly
placed open-sided wooden pallet that was underneath a merchandise display
of nail polish. While looking at the merchandise display, Armendariz’s foot
“got stuck” in the pallet. As she tried to move her foot, Armendariz fell, striking
her left knee and arm and sustaining multiple injuries including a fractured
wrist, torn rotator cuff, knee injury, and damage to a surgically-implanted
bladder sling. While the nail polish display itself was straight, Armendariz
contends that the pallet underneath was “improperly placed” at an angle,
partially blocking the aisle. Armendariz said the pallet’s placement made it
“difficult and almost impossible to go through” the aisle.
      Shortly after the fall, Wal-Mart Assistant Manager Harry Earsley and
another store employee approached Armendariz. Armendariz claims that the
Assistant Manager and her daughter discussed the improper placement of the
pallet. She also alleges the Assistant Manager asked a co-worker “[w]hy wasn’t
this pallet placed right?”     The co-worker did not respond. Armendariz’s
daughter helped her fill out an incident report, which said “[her] left foot got
caught because the pallet was sticking to[o] far out.”
      Armendariz filed suit in Texas state court and Wal-Mart removed the
suit to district court. During discovery, Armendariz deposed multiple Wal-
Mart employees, including Cecilia Rodriguez, Luis Ramirez, and Earsley.
Rodriguez stated that Wal-Mart employees place pallets for merchandise
displays using a pallet jack, and all three employees agreed that employees
must ensure that pallets are “straight and stable.”            Armendariz’s own
deposition and affidavit stated that, at the time of the incident, she was
keeping a “proper lookout” and her shopping cart blocked the misplaced pallet
from view. Wal-Mart moved for summary judgment on Armendariz’s
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                                 No. 16-51413
premises liability claim, contending that there was no evidence to support the
actual or constructive knowledge element and, in the alternative, that Wal-
Mart had no duty to Armendariz because the misaligned pallet was open and
obvious.
      The district court granted summary judgment on all claims, holding that
Armendariz failed to establish the actual or constructive knowledge element of
premises liability. The court also found that Armendariz had not presented
“any evidence that the misaligned pallet occurred for such a prolonged duration
to give [Wal-Mart] constructive notice.” Thereafter, Armendariz filed this
appeal.
                         STANDARD OF REVIEW
      We review a district court’s grant of summary judgment de novo,
applying the same legal standard as the district court. Kemp v. Holder, 610
F.3d 231, 234 (5th Cir. 2010); see also Berquist v. Washington Mut. Bank, 500
F.3d 344, 348 (5th Cir. 2007). Summary judgment is appropriate 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). “In deciding whether a
fact issue has been created, the facts and inferences to be drawn from them
must be reviewed in the light most favorable to the nonmoving party.”
Berquist, 500 F.3d at 348.
                                DISCUSSION
      Under Texas law, a premises owner owes a duty to invitees to “exercise
reasonable care to protect against danger from a condition on the land that
creates an unreasonable risk of harm of which the owner or occupier knew or
by the exercise of reasonable care would discover.”       CMH Homes, Inc. v.
Daenen, 15 S.W.3d 97, 101 (Tex. 2000). Texas courts have repeatedly stated
that this duty “does not make the possessor an insurer of the invitee’s safety.”
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                                  No. 16-51413
Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998); see also
CMH Homes, 15 S.W.3d at 101 (“The duty owed by an owner or occupier of
premises to an invitee is not that of an insurer.”).
      To prevail on a premises liability claim, a plaintiff must prove four
elements: (1) the owner had “actual or constructive knowledge of some
condition on the premises”; (2) “the condition posed an unreasonable risk of
harm”; (3) the owner “did not exercise reasonable care to reduce or eliminate
the risk”; and (4) the owner’s “failure to use such care proximately caused the
plaintiff’s injury.” Id. at 99.
I. Whether the district court erred in holding that Armendariz could
not establish that Wal-Mart had actual or constructive knowledge of
the dangerous condition.
     Armendariz asserts that the evidence raises a genuine issue of material
fact as to Wal-Mart’s actual knowledge of a defective condition, i.e., the
misaligned pallet. Armendariz asserts that Wal-Mart created the dangerous
condition because a Wal-Mart employee incorrectly placed the pallet and Wal-
Mart’s use of open-sided pallets under merchandise displays created an
unreasonable risk to customers.
      Wal-Mart counters that summary judgment is appropriate because
Armendariz did not provide evidence of actual or constructive notice. Further,
Wal-Mart argues that the improperly placed pallet was “open and obvious,”
thus, Wal-Mart had no duty to warn invitees or otherwise insure Armendariz’s
safety.
      Actual knowledge may be established by circumstantial evidence of
knowledge. Keetch v. Kroger Co., 845 S.W.2d 262, 266 (Tex. 1992). But where
“circumstantial evidence is so slight that the choice between opposing plausible
inferences amounts to nothing more than speculation, it is legally no evidence
at all.” Univ. of Tex. at El Paso v. Muro, 341 S.W.3d 1, 5 (Tex. App. – El Paso
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                                  No. 16-51413
2009) (citing Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex. 2001)). “Proof that
the premises owner . . . created a condition which poses an unreasonable risk
of harm may constitute circumstantial evidence that the owner or occupier
knew of the condition.” Keetch, 845 S.W.2d at 266.
      Texas courts have denied summary judgment where there is a genuine
issue of material fact as to whether a store created the defective merchandise
display. Leffall v. Kroger Co., 2005 WL 1313417 (N.D. Tex. May 31, 2005);
Ridner v. Walgreen Co., 2002 WL 31840799 (Tex. App.—El Paso Dec. 19,
2002)). In Ridner, a five-pound automobile security device fell off a pegboard
display onto a customer’s foot. Id. at *5 (citing Keetch, 845 S.W.2d at 266).
The Ridner court said that “mere creation” of a condition which poses an
unreasonable risk of harm “does not establish knowledge as a matter of law.”
Id. at *4. There was also testimony by a safety engineer that in his opinion,
the store “should have recognized the display posed a hazard.” Id. But the
court found a genuine issue of material fact based on other evidence, including
corporate guidelines regarding the placement of goods in such a display and
testimony by a store manager that “he would have concerns about the safety”
of the display if it matched plaintiff’s description. In Leffall, the court found a
genuine issue of material fact where a jury could find that a store “constructed
[a] display using timbers, placed it in a pathway used by customers, later
decided to empty it of plants, and thereby created the condition.” Leffall, 2005
WL 1313417 at *1.
      Wal-Mart attempts to distinguish these cases on the basis that neither
involved an assertion that an unknown person could have altered the
merchandise display after an employee placed it. Instead, Wal-Mart cites
Muro, where testimony indicated it was just as plausible that special event
staff not affiliated with the university had removed a steel sign-post as it was
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                                  No. 16-51413
that the university’s ground crew had done it. Muro, 341 S.W.3d at 2, 5-6. But
Wal-Mart has offered no plausible alternative theory here.
         Here, the evidence shows that Wal-Mart employees generally place
pallets, which are often large and heavy, in the store using a pallet jack. The
merchandise display was straight but the pallet beneath it was misaligned.
This indicates the unlikelihood of a customer having caused the misaligned
packet by bumping and moving the heavy pallet without also moving the
merchandise display. Moreover, the assistant manager’s statements indicate
that an employee placed the misaligned pallet.
         Viewing the facts and inferences in the light most favorable to
Armendariz, we conclude that the evidence is sufficient to raise a genuine issue
of material fact as to Wal-Mart’s actual knowledge. Thus, the district court
erred.
II. Whether summary judgment was appropriate because the
dangerous condition was “open and obvious.”

         Wal-Mart asserts that even if it had knowledge, summary judgment was
still properly granted because the misaligned pallet was “open and obvious.”
         Under Texas law, “a landowner generally has no duty to warn of hazards
that are open and obvious or known to the invitee.” Austin v. Kroger, 465
S.W.3d 193, 204 (Tex. 2015). A condition that is “open and obvious is proof of
knowledge and appreciation as a matter of law.” Parker v. Highland Park,
Inc., 565 S.W.2d 512, 521 (Tex. 1978). This is an objective inquiry. Further,
“whether a dangerous condition is concealed or obvious is not controlled by
whether the invitee had personal, subjective knowledge or awareness of it.”
Martin v. Gehan Homes Ltd., 2008 WL 2309265, at *2 (Tex. App.—Austin,
June 4, 2008).


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                                No. 16-51413
      Armendariz asserts that the misaligned pallet was not open and obvious.
She contends that she was keeping a “proper lookout” while shopping, and that
she could not see the pallet because of its height, her shopping cart, and
because she was looking at the display. Her daughter stated that a person
“looking at the display, straight ahead, eye level, [ ] wouldn’t see the pallet
sticking out at a corner.” In other words, the misaligned pallet would not be
obvious to someone pushing a shopping cart and looking at eye-level
merchandise “in the manner contemplated that shoppers would do.” Safeway
Stores, Inc. v. Leck, 543 S.W.2d 207, 210 (Tex. App.–Waco 1976).
      In reviewing the facts in the light most favorable to Armendariz, we
conclude that there are genuine disputes as to material facts regarding the
placement of the misaligned pallet and whether it was open and obvious. Thus,
summary judgment was not appropriate.
      For the reasons set out herein, the judgment of the district court is
VACATED and this matter is REMANDED for further proceedings consistent
with this opinion.




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