Woods v. Ross Dress For Less

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 22, 2022
• Docket: 21-5067
• Status: Unpublished

Opinion

Appellate Case: 21-5067 Document: 010110700311 Date Filed: 06/22/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT June 22, 2022 _________________________________ Christopher M. Wolpert Clerk of Court ROSE WOODS,

Plaintiff - Appellant,

v. No. 21-5067 (D.C. No. 4:18-CV-00327-TCK-JFJ) ROSS DRESS FOR LESS, INC., a (N.D. Okla.) foreign corporation,

Defendant - Appellee. _________________________________

ORDER AND JUDGMENT * _________________________________

Before BACHARACH, BALDOCK, and EID, Circuit Judges. _________________________________

Rose Woods appeals the district court’s entry of summary judgment

in favor of Ross Dress for Less, Inc., on her Oklahoma premises liability

claim. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

* Oral argument would not help us decide the appeal, so we have decided the appeal based on the record and the parties’ briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).

Our order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 21-5067 Document: 010110700311 Date Filed: 06/22/2022 Page: 2

I

Woods was injured when she tripped and fell over a “now hiring”

sign that had fallen over near the entrance of a Ross store. Aplt. App., vol.

I at 124. The fall was captured on video. Woods testified that she did not

see the sign as she was entering the store because she was “looking up to

see where the entrance was” and she was “window shopping.” Id. at 131-

32. The store manager, Megan Butler, testified that she placed the sign in

front of the store for the previous twenty days and never saw it lying flat

on the ground.

Woods brought this premises liability action in Oklahoma state court.

We need not detail the procedural history of the case; for present purposes

it enough to know Ross removed the suit to federal court based on

diversity jurisdiction and moved for summary judgment. 1 The district court

granted the motion and later denied as untimely Woods’ motion to alter or

amend the judgment under Federal Rule of Civil Procedure 59(e). This

appeal followed. 2

1 For a discussion of the procedural history and the issues evaluated in Woods’ previous appeal, see Woods v. Ross Dress for Less, Inc., 833 F. App’x 754 (10th Cir. 2021), and Woods v. Ross Dress for Less, Inc., 985 F.3d 775 (10th Cir. 2021) (Hartz, J., dissenting). 2 Woods did not appeal the denial of her Rule 59(e) motion. 2 Appellate Case: 21-5067 Document: 010110700311 Date Filed: 06/22/2022 Page: 3

II

“We review the district court’s grant of summary judgment de novo,

applying the same standards that the district court should have applied.”

Rocky Mountain Prestress, LLC v. Liberty Mut. Fire Ins. Co., 960 F.3d

1255, 1259 (10th Cir. 2020) (internal quotation marks omitted). “‘The

court shall grant summary judgment 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)).

“[B]ecause this is a diversity case, we ascertain and apply Oklahoma law

such that we reach the result that would be reached by an Oklahoma court.”

Martinez v. Angel Expl., LLC, 798 F.3d 968, 973 (10th Cir. 2015) (brackets

and internal quotation marks omitted).

In Oklahoma, a landowner owes an invitee a duty to “exercise

reasonable care to keep the premises in a reasonably safe condition for the

reception of the visitor.” Id. at 974 (brackets omitted) (quoting Scott v.

Archon Grp., L.P., 191 P.3d 1207, 1212 (Okla. 2008)). 3 This duty “applies

to defects or conditions which are in the nature of hidden dangers, traps,

snares, or pitfalls and the like which are not known to the invitee and

would not be observed by him in the exercise of ordinary care.”

3 The parties agree for purposes of summary judgment that Woods was an invitee—viz., “‘one who possesses an invitation to be upon the premises, express or implied,’” Martinez, 798 F.3d at 974 n.3 (quoting McKinney v. Harrington, 855 P.2d 602, 604 (Okla. 1993)). 3 Appellate Case: 21-5067 Document: 010110700311 Date Filed: 06/22/2022 Page: 4

Southerland v. Wal-Mart Stores, Inc., 848 P.2d 68, 69 (Okla. Civ. App.

1993). But “[i]t does not extend to ‘dangers which are so apparent and

readily observable that one would reasonably expect them to be

discovered.’” Martinez, 798 F.3d at 974 (quoting Scott, 191 P.3d at 1212).

Indeed, “the invitor is not a guarantor of the safety of its invitees.” Dover

v. W.H. Braum, Inc., 111 P.3d 243, 245 (Okla. 2005). And “the mere fact

that an injury occurs carries with it no presumption of negligence.”

Gillham v. Lake Country Raceway, 24 P.3d 858, 860 (Okla. 2001).

Oklahoma “generally eliminate[s] a landowner’s duty to protect a third-

party [from] dangers so open and obvious as to reasonably expect others to

detect them for themselves.” Wood v. Mercedes-Benz of Okla., 336 P.3d

457, 459 (Okla. 2014) (internal quotation marks omitted).

Still, “the open and obvious doctrine is not absolute.” Id. The

existence and extent of a duty turns largely on the foreseeability of injury.

See id. at 459-60. For example, in Mercedes-Benz, the defendant car

dealership’s sprinkler system activated overnight, when temperatures were

freezing, leaving a layer of ice throughout the property. See id. at 458.

When the plaintiff, a catering employee, arrived the next day to work a

catered event at the dealership, she recognized the danger posed by the ice

before she slipped and fell. See id. But the court noted she was not a

customer of the dealership who, like an ordinary invitee, could avoid the

open and obvious hazard by leaving the premises; rather, she “was present

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to fulfill her employer’s contractual duty to provide service for an event

sponsored by the dealer.” Id. at 459 n.6. And after she fell, an employee of

the dealership acknowledged he “should have put salt down when [he] got

[t]here.” Id. at 458 (brackets and internal quotation marks omitted). Under

those circumstances, the Mercedes-Benz court concluded the dealership had

a duty to take precautionary measures for the catering employees. Id. at

460. The court reasoned that the dealership had notice of the icy condition

and also knew that catering employees would cater the scheduled business

event, and thus it was foreseeable that the catering employees would

encounter the hazard. Id. The court emphasized that the icy condition was

not dispositive of the dealership’s duty because, unlike a “random

customer,” the plaintiff “was required to cross the hazardous condition in

furtherance of her employment.” Id. at 460 n.8.

We have observed that Mercedes-Benz aligns with the majority view

as formulated in the Restatement, which “created an exception [to the open

and obvious doctrine] allowing liability where a landowner should

anticipate the harm despite the open and obvious nature of the condition.”

Martinez, 798 F.3d at 976. Under the Restatement, “[a] possessor of land is

not liable to his invitees for physical harm caused to them by any activity

or condition on the land whose danger is known or obvious to them, unless

the possessor should anticipate the harm despite such knowledge or

obviousness.” Restatement (Second) of Torts § 343A(1) (Am. L. Inst.

5 Appellate Case: 21-5067 Document: 010110700311 Date Filed: 06/22/2022 Page: 6

1965). This exception might apply, for example, “‘where the possessor has

reason to expect that the invitee’s attention may be distracted, so that he

will not discover what is obvious, or will forget what he has discovered, or

fail to protect himself against it.’” Martinez, 798 F.3d at 976-77 (emphasis

added) (quoting Restatement § 343A cmt. f).

Here, Woods was a random customer entering the store as an invitee.

The store manager testified that for the past twenty days she had placed the

sign outside the store every morning and left it up until the store closed at

night and she had never seen the sign lying flat on the ground before this

occasion. On the day Woods fell, the video depicts the bright blue and

white sign on the walkway between the store’s two sliding automatic

doors. Some 58 other patrons and passersby avoided the sign. During the

entirety of the video preceding Woods’ fall, which lasts seven minutes and

thirty seconds, only two other people contacted the sign—a woman who

bumped it with her heel as she grasped a child’s hand, and a man who

stepped on it while speaking with another person and looking at something

in his hand. Both individuals left the premises. This evidence does not

suggest that Ross had actual or constructive knowledge of the danger posed

by the sign or that any risk of danger was foreseeable. Although Woods

insists the danger was foreseeable because the two patrons contacted the

sign, neither of them reentered the store, and Woods cites no evidence that

they reported the fallen sign to store employees.

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Woods also emphasizes the “distraction exception” to the open and

obvious doctrine discussed in Martinez and the Restatement—viz., that the

open and obvious doctrine might not apply when a possessor of land has

reason to expect an invitee could be distracted. See Aplt. Opening Br. at

16; see also Martinez, 798 F.3d at 976-77. Citing her testimony that she

was “window shopping,” Aplt. App., vol. I at 132, Woods contends she was

distracted and a jury could “reasonably infer [that her] attention was

diverted,” Aplt. Opening Br. at 17. The problem, however, is that Woods

waited until her motion to alter or amend the judgment to raise this theory,

and “we do not ordinarily entertain arguments made for the first time in a

motion to alter or amend the judgment,” Sprint Nextel Corp. v. Middle

Man, Inc., 822 F.3d 524, 535 (10th Cir. 2016). Woods’ summary judgment

response generally argued the sign was not an open and obvious danger and

it was foreseeable that the sign could be blown over by the wind. See Aplt.

App., vol. I at 158-64. Although she obliquely acknowledged she was not

“paying attention,” id. at 161, she did not cite Martinez, Mercedes-Benz, or

the Restatement, nor did she did she argue her distraction theory as an

exception to the open and obvious doctrine until her untimely Rule 59(e)

motion, see id., vol. II at 335-38 (citing Martinez, Mercedes-Benz, and the

Restatement in support of the theory that she was distracted by the window

displays); see also id. at 339 (“Plaintiff was ‘window shopping’ and may

have been distracted by cars or passersby.”). Under these circumstances,

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we decline to consider her argument. See Sprint Nextel, 822 F.3d at 535-36

& n.9 (declining to consider appellant’s impaired-title theory first raised in

the motion to alter or amend, noting that although appellant stated in

summary judgment proceedings that it was permitted to transfer title of

telephones to its customers, appellant “did not (1) explain why it held title

to the telephones free and clear or (2) discuss the property-law principles

[it] relied upon”); see also Servants of the Paraclete v. Does, 204 F.3d

1005, 1012 (10th Cir. 2000) (recognizing that a Rule 59(e) motion “is not

appropriate to . . . advance arguments that could have been raised in prior

briefing”).

III

The district court’s judgment is affirmed.

Entered for the Court

Per Curiam