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Josephine McGinnis v. Target Corporation of MN, et ( 2020 )


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  •      Case: 19-30843      Document: 00515380877         Page: 1    Date Filed: 04/14/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-30843
FILED
April 14, 2020
Summary Calendar
Lyle W. Cayce
Clerk
JOSEPHINE MCGINNIS,
Plaintiff - Appellant
v.
TARGET CORPORATION OF MINNESOTA, also known as Target
Corporation; ACE AMERICAN INSURANCE COMPANY,
Defendants - Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:18-CV-9693
Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
In this slip-and-fall case, the district court granted summary judgment
to Target in a thorough opinion. Josephine McGinnis appeals that adverse
judgment. 1 She contends that the district court erred in concluding that no
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
1 “This court reviews a district court’s grant of summary judgment de novo, applying
the same legal standards as the district court.” Am. Home Assurance Co. v. United Space
All., LLC,
    378 F.3d 482
    , 486 (5th Cir. 2004).
Case: 19-30843     Document: 00515380877     Page: 2   Date Filed: 04/14/2020
No. 19-30843
record evidence established that wax on Target’s floor presented an
unreasonable risk of harm, which McGinnis is required to prove under
Louisiana’s merchant liability statute. See LA. STAT. 9:2800:6(B)(1) (“[T]he
claimant shall have the burden of proving . . . [that] [t]he condition presented
an unreasonable risk of harm to the claimant and that risk of harm was
reasonably foreseeable.”).
In support of this contention, McGinnis first points to several Louisiana
cases that she claims stand for the proposition that “wax on a floor can be an
unreasonably dangerous condition.” See Duckett v. K-Mart Corp., 94-0579 (La.
10/17/94),
    645 So. 2d 621
    ; Savoie v. Sw. La. Hosp. Ass’n, 2003-982 (La. App. 3
Cir. 2/25/04),
    866 So. 2d 1078
    ; Choyce v. Sisters of Incarnate Word, (La. App. 2
Cir. 8/19/94),
    642 So. 2d 287
    . McGinnis is correct insofar as she asserts that
wax can create a dangerous condition.        But a waxed floor is not per se
dangerous, as demonstrated by the cases McGinnis relies on. Rather, absent
some other indication of dangerousness (e.g., long term wax build up or expert
testimony explaining the inherently dangerous nature of a particular waxed
floor), evidence that a floor was recently waxed alone cannot suffice for a jury
to find the existence of an unreasonably dangerous condition. E.g., Trench v.
Winn-Dixie Montgomery LLC, 14-152 (La. App. 5 Cir. 9/24/14),
    150 So. 3d 472
    ,
477 (“[E]ven if the manager stated that the floor had just been waxed and
speculated that wax could have caused [the plaintiff’s] fall, there is no evidence
that anyone actually saw any wax buildup or any other foreign substance was
on the floor.”).
McGinnis next calls the court’s attention to deposition testimony
purportedly establishing that she fell because her foot caught on the waxed
floor. However, McGinnis herself admitted that she “had no idea what was on
2
Case: 19-30843       Document: 00515380877         Page: 3     Date Filed: 04/14/2020
No. 19-30843
the floor” and merely speculated that the waxing caused her fall. 2 McGinnis’s
daughter, who was with McGinnis at the time of her fall, also testified that she
saw nothing on the floor. The testimony of Ashley McGill, a former Target
employee, further confirms that there was nothing unusual about the floor—it
was not sticky, slick, wet, or improperly waxed.
McGinnis notes that McGill stated that the floor had “a lot of grip” when
waxed and that she had previously tripped on it. But McGill further stated
that it was her failure to pick up her feet, and not wax or anything else on the
floors, that caused her to stumble. McGill’s deposition testimony thus does not
create a material issue of fact precluding summary judgment.
For the foregoing reasons, we AFFIRM the district court’s judgment.
2Such speculation is insufficient to avoid summary judgment. See Boudreaux v. Swift
Transp. Co.,
    402 F.3d 536
    , 540 (5th Cir. 2005) (quoting Little v. Liquid Air Corp.,
    37 F.3d 1069
    , 1075 (5th Cir.1994) (en banc)) (“[The plaintiff’s] burden will not be satisfied by ‘some
metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated
assertions, or by only a scintilla of evidence.’”).
3