Turner v. Wal-Mart Louisiana ( 2023 )

Case: 22-30647 Document: 00516835319 Page: 1 Date Filed: 07/26/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-30647
Summary Calendar FILED
____________ July 26, 2023
Lyle W. Cayce
Oscar Turner, Jr., Clerk
Plaintiff—Appellant,
versus
Wal-Mart Louisiana, L.L.C.; Wal-Mart, Incorporated,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:21-CV-3417
______________________________
Before Smith, Southwick, and Douglas, Circuit Judges.
Per Curiam: *
A customer sued Wal-Mart for injuries he suffered after being allowed
to use a wrench on an automobile he brought in for servicing. The district
court struck portions of the plaintiff’s affidavit and granted Wal-Mart
summary judgment. We conclude that the district court erred when striking
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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certain portions of the affidavit. Nevertheless, summary judgment was
proper. AFFIRMED.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2020, Oscar Turner visited a Wal-Mart in Shreveport,
Louisiana, to get new tires. While he was in the waiting area, a Wal-Mart
employee told him that the mechanics were having trouble removing the lug
nuts from his tires. The employee offered to let Turner remove the lug nuts,
and Turner entered the service bay area to help. Turner accepted a wrench
from the employee, attempted to use it to remove the lug nuts, and fell
backward and injured himself when the wrench slipped. Turner had worked
on cars before and had removed lug nuts from tires many times.
Turned sued Wal-Mart in state court. Wal-Mart removed the case to
federal court in the Western District of Louisiana, based on diversity
jurisdiction. Wal-Mart moved for summary judgment, arguing that any
hazard had been open and obvious. Turner attached an affidavit to his
opposition to the motion. Wal-Mart moved to strike the affidavit.
The district court granted the motion to strike after finding that
portions of the affidavit contradicted Turner’s prior testimony. The court
also granted Wal-Mart’s summary judgment motion. It relied on a Louisiana
Supreme Court opinion that also denied liability on quite similar facts. See
Caserta v. Wal-Mart Stores, Inc., 90 So. 3d 1042 (La. 2012). Turner timely
appealed.
DISCUSSION
Turner makes two arguments. First, he argues the district court erred
by striking certain portions of his affidavit. Second, he argues that summary
judgment was improper. We address the arguments in that order.
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I. Affidavit
We review a motion to strike for an abuse of discretion. Cambridge
Toxicology Grp., Inc. v. Exnicios, 495 F.3d 169, 178 (5th Cir. 2007). A party
may not “defeat a motion for summary judgment using an affidavit that
impeaches, without explanation, sworn testimony.” Seigler v. Wal-Mart
Stores Tex., L.L.C., 30 F.4th 472, 477 (5th Cir. 2022) (quotation marks and
citation omitted). “However, not every discrepancy in an affidavit justifies
disregarding it when evaluating summary judgment evidence. Instead, the
bar for applying the [sham affidavit] doctrine is a high one, typically
requiring affidavit testimony that is inherently inconsistent with prior
testimony.” Id. (quotation marks and citations omitted).
The district court identified three discrepancies between Turner’s
deposition testimony and his later affidavit.
First, Turner testified that a Wal-Mart employee “asked [him] to take
[the lug nut] off” and then Turner “tr[ied] [to] take it off.” In his affidavit,
Turner asserts “he did not request or agree with defendant, Wal-Mart, to
attempt to remove the lug nuts.” Despite saying he had not agreed, the
affidavit also swears that a Wal-Mart employee “persuaded him to attempt
to remove the lug nuts.” Turner’s initial testimony implies that he agreed to
take the lug nuts off, while part of the affidavit explicitly states he did not
agree. Because these statements are inconsistent, the district court did not
abuse its discretion in striking the relevant portion of the affidavit.
Second, when asked whether the wrench was “defective,” Turner
testified “I don’t know.” In his affidavit, Turner avers that the wrench was
“defective.” Turner provides no explanation for the inconsistency, such as
acquiring additional information that allowed him to form an opinion.
Moreover, whether the wrench was defective is central to Turner’s
negligence claim. A panel of this court reasonably declined to find an abuse
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of discretion where an excluded inconsistency relates to a key element of the
plaintiff’s claim. Free v. Wal-Mart La., L.L.C., 815 F. App’x 765, 766–67 (5th
Cir. 2020). We decline to do so here, too.
Finally, Turner testified that he had taken lug nuts off tires
“[p]robably a thousand times.” In his affidavit, Turner avers that he had
been “figuratively speaking” and that he “ha[d] taken lug nuts off many
times, but nowhere near a thousand times.” A “summary
judgment affidavit may supplement deposition testimony by clarifying or
amplifying the facts with greater detail but may not simply ‘tell[] the same
story differently.’” Bouvier v. Northrup Grumman Ship Sys., Inc., 350 F.
App’x 917, 920–21 (5th Cir. 2009) (quoting S.W.S. Erectors, Inc. v. Infax,
Inc., 72 F.3d 489, 496 (5th Cir. 1996) (alteration in original)). “[T]he sham-
affidavit doctrine is not applicable when discrepancies between
an affidavit and other testimony can be reconciled such that the statements
are not inherently inconsistent.” Seigler, 30 F.4th at 477. Turner’s affidavit
clarifies his earlier hyperbolic testimony and is reconcilable. As a result, the
district court abused its discretion when excluding this third statement.
As we will explain, the error was harmless.
II. Summary judgment
We review a district court’s grant of summary judgement de novo.
Nationwide Mut. Ins. Co. v. Baptist, 762 F.3d 447, 449 (5th Cir. 2014).
Summary judgment is proper when “there is no genuine dispute as to any
material fact.” FED. R. CIV. P. 56(a). A party cannot defeat summary
judgment with “conclus[ory] allegations, unsupported assertions, or
presentation of only a scintilla of evidence.” McFaul v. Valenzuela, 684 F.3d
564, 571 (5th Cir. 2012). Instead, “the nonmovant must go beyond the
pleadings and designate specific facts” that prove a genuine issue of material
fact exists. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
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Under Louisiana’s duty-risk formulation for negligence liability, a
plaintiff must prove: “(1) the defendant had a duty to conform his conduct
to a specific standard (the duty element); (2) the defendant’s conduct failed
to conform to the appropriate standard (the breach element); (3) the
defendant’s substandard conduct was a cause in fact of the plaintiff’s injuries
(the cause-in-fact element); (4) the defendant’s substandard conduct was a
legal cause of the plaintiff’s injuries (the scope of liability or scope of
protection element); and (5) the actual damages (the damages
element).” Lemann v. Essen Lane Daiquiris, Inc., 923 So. 2d 627, 633 (La.
2006).
We now examine the Louisiana Supreme Court opinion on which the
district court relied. It held this: “If the facts of a particular case show that
the complained-of condition should be obvious to all, the condition may not
be unreasonably dangerous, and the defendant may owe no duty to the
plaintiff.” Caserta, 90 So. 3d at 1043. The plaintiff in Caserta also suffered
injury while attempting to remove a lug nut in a Wal-Mart service area. Id.
The plaintiff was “a machinist who regularly uses a lug wrench, and typically
services his own truck.” Id. Further, the plaintiff “admitted he was using
his body weight to put pressure on the lug” and that the “wrench was not
defective.” Id. The court concluded that “any risk from attempting to
remove the frozen lug nut should have been obvious to plaintiff, and could
have been avoided through the use of ordinary care. Therefore, defendants
owe no duty to plaintiff.” Id. (citation omitted).
Caserta’s import, however, changed on March 17, 2023, when the
Louisiana Supreme Court decided Farrell v. Circle K Stores, Inc., 359 So. 3d
467 (La. 2023). The court “clarif[ied] [] that whether a condition is open and
obvious is embraced within the breach of the duty element of the duty/risk
analysis.” Id. at 478. Thus, whether a condition is open and obvious is “not
a consideration for determining the legal question of the existence of a duty.”
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Id. (emphasis added). Obviously, open and obvious defects are still part of
the analysis, but its consideration occurs at a different point.
Because Farrell was published after briefing in this case was complete,
we requested supplemental briefing from the parties. With that briefing in
hand, we review the district court’s grant of summary judgment.
We begin with duty. “The existence of a duty is a question of law.
The inquiry is whether the plaintiff has any law (statutory, jurisprudential, or
arising from general principles of fault) to support the claim that the
defendant owed him a duty.” Id. at 473 (citation omitted). Here, Louisiana
Civil Code articles 2315 and 2316 supply a duty. See id. Article
2315(A) provides: “Every act whatever of man that causes damage to another
obliges him by whose fault it happened to repair it.” Article 2316 states:
“Every person is responsible for the damage he occasions not merely by his
act, but by his negligence, his imprudence, or his want of skill.” Here, Wal-
Mart had a duty to keep its premises in a “reasonably safe condition” for
patrons. See Farrell, 359 So. 3d at 473–74.
With respect to breach, Louisiana courts apply the risk/utility
balancing test, which considers four factors: “(1) the utility of the
complained-of condition; (2) the likelihood and magnitude of harm,
including the obviousness and apparentness of the condition; (3) the cost of
preventing the harm; and, (4) the nature of the plaintiff’s activities in terms
of social utility or whether the activities were dangerous by nature.” Id. at
474. The second factor includes analysis of “open and obvious” conditions.
Id. at 478. We analyze each factor.
“If [the complained-of condition] was meant to be there, it often will
have social utility.” Id. at 474. Wal-Mart contends that “the utility of
allowing customers the choice of removing their own over-tightened lug nuts
is high.” Allowing customers the option to remove their own lug nuts when
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employees cannot do so saves customers the trouble of having to go
elsewhere. Certainly, customer involvement in such activities may pose
safety risks. We find this factor to be neutral.
Turning to the second factor, “[t]he likelihood of the harm factor asks
the degree to which the condition will likely cause harm.” Id. at 474. If a
condition “is likely to cause harm, that weighs in favor of finding it
unreasonably dangerous. If it is unlikely to cause harm, that weighs in favor
of it not being unreasonably dangerous.” Id. “The more obvious the risk, the
less likely it is to cause injury because it will be avoided.” Id. To that end,
the “open and obvious concept asks whether the complained of condition
would be apparent to any reasonable person who might encounter it.” Id. at
478. Finally, the “magnitude of the harm factor asks whether the condition
presents a risk of great or small injury and the likelihood of each.” Id. at 474.
Turner argues that Wal-Mart, by purportedly restricting the service
bay to employees, had already determined the likelihood and magnitude of
harm to be high. Turner asserts that when customers enter the service bay,
they are at risk of being “struck and killed by falling objects” or “vehicle[s].”
The correct focus is on Turner’s use of the wrench. Here, as in
Caserta, 1 voluntarily opting to remove lug nuts and then applying one’s
weight to do so, as Turner did, presents an “obvious” risk. See Caserta, 90
So. 3d at 1043. Individuals can likely “avoid[] any harm through the exercise
of ordinary care,” which weighs against finding there was an “unreasonable
risk of harm.” Rodriguez v. Dolgencorp, LLC, 152 So. 3d 871, 872 (La. 2014).
Further, we conclude that voluntarily removing a lug nut with a wrench does
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1
Farrell clarified that the “open and obvious” inquiry relates to breach, not duty.
Farrell, 359 So. 3d at 478. We still, however, read the substance of Caserta’s “open and
obvious” analysis — not its placement — as valid guidance.
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not present a high magnitude of harm. Consequently, the likelihood and
magnitude of harm here is “minimal.” See Farrell, 359 So. 3d at 479.
Next, we evaluate the cost of prevention. Turner argues it would not
cost Wal-Mart any money to prevent harm by not allowing customers into
the service bay. Wal-Mart argues that the record does not contain evidence
on the cost of prevention. We agree that “the record is void of any []
evidence” regarding the cost of prevention. Id. at 479. As a result, we do not
consider this factor.
Finally, we consider the social utility of Turner’s activities. Turner
argues that there was no social utility to his conduct. In any event, there may
be some social utility to customers removing their own lug nuts when
employees cannot do so. Further, removing lug nuts does not seem
particularly dangerous by nature. As a result, this factor weighs in favor of
breach, though it does not necessarily “weigh heavily as a consideration in
determining an unreasonably dangerous condition.” Id.
After applying the risk/utility balancing test, we conclude that
“reasonable minds could only agree that the condition”— the risk of injury
from applying one’s weight to remove lug nuts from a tire — was not
unreasonably dangerous. See id. at 478. Thus, Wal-Mart met its initial
burden of identifying the absence of factual support for the breach element of
Turner’s claims. Turner has failed to produce factual support sufficient to
establish a genuine issue of material fact. See id. at 479. Consequently, Wal-
Mart did not breach any duty owed.
The district court’s erroneous exclusion of a portion of Turner’s
affidavit does not affect this conclusion. The district court properly granted
summary judgment. AFFIRMED.
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