Fried Ex Rel. Fried v. Cracker Barrel Old Country Store, Inc. , 345 F. App'x 937 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 30, 2009
No. 09-30152 Charles R. Fulbruge III
Summary Calendar Clerk
CARRIE FRIED, Individually and on behalf of their minor child Abigail
Fried; ROBERT FRIED, Individually and on behalf of their minor child
Abigail Fried,
Plaintiffs-Appellants
v.
CRACKER BARREL OLD COUNTRY STORE, INC.,
Defendant-Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:07-CV-9424
Before REAVLEY, JOLLY, and OWEN, Circuit Judges.
PER CURIAM:*
Carrie and Robert Fried appeal the district court’s grant of summary
judgment to the defendant in this personal injury suit filed on behalf of their
minor daughter. We AFFIRM.
The Frieds argue that the defendant’s employee was subject to a
heightened duty of care owed to young children rather than to the usual
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 09-30152
reasonable person standard. They did not advance this argument in the district
court, and we ordinarily do not consider new theories raised on appeal. See
Topalian v. Ehrman, 954 F.2d 1125, 1131–32 n.10 (5th Cir. 1992). Nevertheless,
we agree with the district court that the witness’s description of how the
accident occurred provides no evidence that the defendant’s employee breached
any duty of care, heightened or otherwise, when she opened the restroom door
and it closed suddenly. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc); cf. Brown v. U.S. Fire Ins. Co., 671 So. 2d 1195, 1197 (La.
Ct. App. 1996) (although motorist driving near children has a heightened duty,
driver must act appropriately and is not an insurer of every child’s safety).
AFFIRMED.
2