United States Court of Appeals

for the Fifth Circuit ____________

No. 22-30647

Summary Calendar 

____________

Oscar Turner, Jr., 

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 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

July 26, 2023

Lyle W. Cayce

Clerk

Case: 22-30647 Document: 00516835319 Page: 1 Date Filed: 07/26/2023
No. 22-30647

2

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.

Case: 22-30647 Document: 00516835319 Page: 2 Date Filed: 07/26/2023
No. 22-30647

3

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 

Case: 22-30647 Document: 00516835319 Page: 3 Date Filed: 07/26/2023
No. 22-30647

4

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 shamaffidavit 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). 

Case: 22-30647 Document: 00516835319 Page: 4 Date Filed: 07/26/2023
No. 22-30647

5

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.” 

Case: 22-30647 Document: 00516835319 Page: 5 Date Filed: 07/26/2023
No. 22-30647

6

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, WalMart 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 

Case: 22-30647 Document: 00516835319 Page: 6 Date Filed: 07/26/2023
No. 22-30647

7

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 

_____________________

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. 

Case: 22-30647 Document: 00516835319 Page: 7 Date Filed: 07/26/2023
No. 22-30647

8

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, WalMart 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. 

Case: 22-30647 Document: 00516835319 Page: 8 Date Filed: 07/26/2023