Case: 20-20202 Document: 00515683159 Page: 1 Date Filed: 12/22/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 22, 2020
No. 20-20202
Lyle W. Cayce
Clerk
Lucian Ardelean,
Plaintiff—Appellant,
versus
Wal-mart, Incorporated,
Defendant—Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-cv-120
Before Clement, Ho, and Duncan, Circuit Judges.
Per Curiam:*
Lucian Ardelean appeals the summary judgment in favor of Wal-
Mart. 1 We AFFIRM.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
1
The defendant’s full name is “Wal-Mart Stores Texas, LLC.”
Case: 20-20202 Document: 00515683159 Page: 2 Date Filed: 12/22/2020
No. 20-20202
I.
Ardelean, a truck driver, hurt his ankle during a delivery to
Wal-Mart’s distribution center in New Caney, Texas. While queued on
Wal-Mart property, Ardelean jumped down from his truck to show some
paperwork to Wal-Mart employees. In doing so, he stumbled on an uneven
seam of pavement, sprained his ankle, and fell down. 2
Ardelean filed negligence and premises liability claims against
Wal-Mart in Texas state court. Wal-Mart timely removed the case on
diversity grounds and later moved for summary judgment. The district court
held a hearing on Wal-Mart’s motion and evidently gave oral reasons for
granting it. In its ensuing order entering final judgment, the court stated that
summary judgment was granted for “the reasons set forth at the hearing.” 3
On appeal, Ardelean challenges summary judgment only as to his
premises liability claim. Wal-Mart raised three independent grounds for
summary judgment in the district court, all of which it presses on appeal. 4
Because we find Ardelean’s claim fails on the first ground—whether the
2
The incident was captured on video, which we have reviewed.
3
Ardelean neglected to have the summary judgment hearing transcribed, depriving
us of the benefit of the district court’s reasoning. See, e.g., Crompton Mfg. Co. v. Plant Fab,
Inc., 91 F. App’x 335, 338 (5th Cir. 2004) (per curiam) (“While an appellant is not always
required to provide a complete transcript of district court proceedings, the appellant does
have a duty to provide those portions that are necessary for a meaningful review.”) (citation
omitted). We are therefore limited to reviewing the existing record. Based on that review,
we conclude summary judgment was warranted. We decline Wal-Mart’s invitation to find
that Ardelean violated Federal Rule of Appellate Procedure 10(b). See Fed. R. App. P.
10(b)(2) (requiring appellant to provide “a transcript of all evidence relevant to [a] finding
or conclusion” in certain circumstances).
4
Wal-Mart argued that (1) the condition of the property that caused Ardelean’s
injury was not “unreasonably dangerous,” (2) even if it was, the condition was “open and
obvious,” and (3) Wal-Mart lacked actual or constructive notice of the condition prior to
the injury.
2
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No. 20-20202
uneven pavement was unreasonably dangerous—we need not consider the
other two.
II.
Summary judgment is warranted 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). “We review a grant of summary judgment de
novo, viewing all evidence in the light most favorable to the nonmoving party
and drawing all reasonable inferences in that party’s favor. Questions of law
are reviewed de novo.” Kariuki v. Tarango, 709 F.3d 495, 501 (5th Cir. 2013)
(cleaned up).
III.
Under Texas law, “[a] claim against a property owner for injury
caused by a condition of real property generally sounds in premises liability.”
Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 642 (Tex. 2016). A
threshold legal question is whether a landowner has a “duty with respect to
those who enter the property.” Id. at 644; see also Walker v. Harris, 924
S.W.2d 375, 377 (Tex. 1996) (“The existence of a duty is a question of law
for the court to decide from the facts surrounding the occurrence . . . .”).
“When the injured person qualifies as an invitee”—like Ardelean 5—“then
as a general rule the landowner owes a ‘duty to make safe or warn against any
concealed, unreasonably dangerous conditions of which the landowner is, or
reasonably should be, aware but the invitee is not.’” Hillis v. McCall, 602
S.W.3d 436, 440 (Tex. 2020) (quoting Austin v. Kroger Tex., L.P., 465 S.W.3d
193, 203 (Tex. 2015), reh’g denied (June 12, 2020)).
Only unreasonably dangerous conditions give rise to premises liability.
While property owners must “exercise ordinary care to keep [their] premises
5
An invitee is a person who “enters the property of another ‘with the owner’s
knowledge and for the mutual benefit of both.’” Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1,
3 (Tex. 1996) (quoting Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex. 1975)).
3
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in a reasonably safe condition,” Seideneck v. Cal Bayreuther Assocs., 451
S.W.2d 752, 754 (Tex. 1970), Texas follows the established common law
principle that “an owner or possessor of property is not an insurer of the
safety of those on the premises,” Mellon Mortg. Co. v. Holder, 5 S.W.3d 654,
658 (Tex. 1999) (cleaned up). Merely because a condition causes an injury
does not make it unreasonably dangerous. See Brookshire Grocery Co. v.
Taylor, 222 S.W.3d 406, 408 (Tex. 2006) (“A condition is not unreasonably
dangerous simply because it is not foolproof.”). Therefore, a plaintiff “must
establish that the premises owner knew or should have known of a dangerous
condition on the premises that presented an unreasonable risk of harm.”
Brinson Ford, Inc. v. Alger, 228 S.W.3d 161, 162 (Tex. 2007) (per curiam); see
also CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000). An
unreasonable risk is one that poses foreseeable harm. See Seideneck, 451
S.W.2d at 754 (asking whether “there is a sufficient probability of a harmful
event occurring that a reasonably prudent person would have foreseen it or
some similar event as likely to happen”) (citing, inter alia, Restatement
(Second) of Torts § 283 (1965)).
Applying these principles, we conclude that the uneven pavement at
issue did not present an unreasonably dangerous condition. As the cause of
his injury, Ardelean points to a less-than-one-inch difference between two
sections of pavement. 6 Ardelean argues this small seam qualifies as
unreasonably dangerous, or at least presents a fact dispute defeating
summary judgment. He relies heavily on a decision from a Texas appellate
court involving a small gradient in a sidewalk, Cohen v. Landry’s Inc., 442
S.W.3d 818 (Tex. App.—Houston [14th Dist.] 2014, pet. denied), arguing
the case means that “a difference in elevation of less than an inch between
sections of a walking surface is, as a matter of law, not ‘not unreasonably
6
The record contains photos of the pavement, which we have reviewed.
4
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dangerous.’” But, as Wal-Mart correctly argues, Cohen is distinguishable in
several ways.
To begin with, Cohen’s setting is quite different. Cohen involved a
small elevation change in a sidewalk outside a restaurant just off a boardwalk,
a location Wal-Mart’s brief aptly describes as a “tourist destination.”
Someone strolling from a boardwalk into a restaurant has expectations
different from someone on the grounds of a Wal-Mart distribution center, an
industrial-scale commercial facility “that greets thousands of enormous
trucks full of merchandise every year.” Moreover, the “magnitude of the
burden of guarding against the injury” in Cohen was dramatically lower than
in this case. See Golden Spread Council, Inc. No. 562 of Boy Scouts of Am. v.
Akins, 926 S.W.2d 287, 289–90 (Tex. 1996). Asking a restaurateur to level a
small section of sidewalk outside its front door (or at least to warn patrons
about the hazard) is worlds away from requiring Wal-Mart to eliminate less-
than-one-inch imperfections in the driving and parking areas of a 1.1 million-
square-foot facility not frequented by the general public. Cohen does not
justify charging a premises owner with such heightened duty of care.
Furthermore, the Cohen plaintiff presented expert evidence showing
that the elevation change at issue—a “small abrupt rise[] in [a] walking
surface”—was “difficult to see.” 442 S.W.3d at 828. Thus, the sidewalk
“creat[ed] a significant trip and fall hazard for pedestrians walking along the
sidewalk.” Id.; see also id. (referencing expert testimony that “[s]mall abrupt
changes in elevation . . . in [an] exterior concrete walkway . . . have long been
recognized in . . . authoritative safety literature as presenting a serious and
unreasonable risk of pedestrian missteps and falls”). Ardelean produced no
similar evidence here. That is, he presented no evidence (expert or
otherwise) to establish that the minor seam in the distribution facility
pavement “created a significant trip and fall hazard” for those persons, like
Ardelean, who typically use the facility.
5
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In sum, we conclude that the uneven pavement at issue was not an
unreasonably dangerous condition and that Wal-Mart owed no applicable
duty of care to Ardelean under Texas law.
AFFIRMED.
6