United States Court of Appeals

for the Fifth Circuit

No. 21-30687

Jessica Mackey, 

Plaintiff—Appellant,

versus

American Multi-Cinema, Incorporated, 

Defendant—Appellee.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:20-cv-1350

Before Higginbotham, Higginson, and Oldham, Circuit Judges.

Per Curiam:*

Jessica Mackey tripped and fell on an uneven sidewalk while walking 

into a movie theater. She sued the theater for negligence. The district court 

granted summary judgment to the theater. 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opinion should not be published and is not precedent except under the limited 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.

United States Court of Appeals

Fifth Circuit

FILED

June 8, 2022

Lyle W. Cayce

Clerk

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I. 

Around noon on May 4, 2019, Jessica Mackey and her husband drove 

to a theater operated by American Multi-Cinema (“AMC”) in Harvey, 

Louisiana. As the couple walked toward the theater entrance, the tip of 

Mackey’s sandal caught an uneven expansion joint on the concrete sidewalk. 

The expansion joint created a height deviation of 3⁄4 to 7⁄8 of an inch between 

pavement sections. This is depicted in the red square below: 

Mackey fell forward, struck the pavement with her face, and suffered serious 

personal injuries.

Mackey sued AMC, alleging AMC negligently failed to keep its 

premises reasonably safe or warn patrons about the expansion joint. The 

district court granted AMC’s motion for summary judgment, finding that 

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Mackey failed to create a genuine dispute of material fact as to whether the

expansion joint was unreasonably dangerous. 

Mackey timely appealed. Our review is de novo. Renwick v. PNK Lake 

Charles, LLC, 901 F.3d 605, 611 (5th Cir. 2018). AMC was entitled to 

summary judgment if it could show the absence of “genuine dispute as to any 

material fact.” Fed. R. Civ. P. 56(a). 

II.

To prove a negligence claim against a merchant in a trip-and-fall case, 

the plaintiff must show, among other things, that the condition of the 

premises “presented an unreasonable risk of harm.” La. Rev. Stat. 

§ 9:2800.6(B)(1). The district court concluded that Mackey failed to create a 

genuine fact issue as to whether the expansion joint created an unreasonable 

risk of harm. That is because all agree that the pavement height deviation was 

between 3⁄4 to 7⁄8 of an inch, and Louisiana courts have repeatedly held that 

deviations of this height or higher do not present an unreasonable risk of 

harm. See Chambers v. Vill. of Moreauville, 85 So. 3d 593, 598 (La. 2012) 

(“Louisiana jurisprudence has consistently held that a one-and-one half inch 

deviation does not generally present an unreasonable risk of harm.”); see also 

Buchanan v. Wal-Mart Stores, Inc., 834 F. App’x 58, 62 (5th Cir. 2020) (per 

curiam) (collecting Louisiana cases). Mackey does not challenge this legal 

rule. 

She instead argues that the district court improperly adjudicated 

AMC’s summary judgment motion by not considering each of her exhibits. 

But she does notshow that the undiscussed evidence has any relevance to the

unreasonable risk of harm issue. Most of it concerns other issues like AMC’s 

custody of the sidewalk, and none of it raises a fact issue as to the 

dangerousness of the expansion joint in question.

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Mackey also argues the district court erroneously disregarded her 

argument that the expansion joint was not “open and obvious” by focusing 

on Mackey’s subjective perception—specifically, citing to her deposition 

testimony that she was “[l]ooking at the ground, being careful.” We reject 

this argument, which is based on a stray sentence in a footnote of the district 

court’s opinion. Read fairly, the court’s opinion applies Louisiana’s objective 

standard and concludes that the expansion joint was not unreasonably 

dangerous in part because it was “plainly observable by pedestrians” 

exercising reasonable caution. We find no error in this conclusion. 

We have reviewed Mackey’s other arguments and reject them for the 

reasons explained in the district court’s well-reasoned and thorough opinion.

AFFIRMED.

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