United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 22-40479 

Summary Calendar 

____________ 

Jill Trahan Dougay, 

Plaintiff—Appellee, 

versus

Dolgencorp of Texas, Incorporated, doing business as Dollar 

General, 

Defendant—Appellant. 

______________________________ 

Appeal from the United States District Court 

for the Eastern District of Texas 

USDC No. 1:19-CV-419 

______________________________ 

Before Davis, Duncan, and Engelhardt, Circuit Judges.

Per Curiam:*

In this premises-liability suit, Defendant-Appellant Dolgencorp of 

Texas, Inc. (“Dollar General”) appeals the district court’s denials of its 

motion for judgment as a matter of law and renewed motion for judgment as 

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*

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

United States Court of Appeals 

Fifth Circuit 

FILED 

April 5, 2023 

Lyle W. Cayce 

Clerk 

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a matter of law following a jury verdict in favor of Plaintiff-Appellee Jill 

Trahan Dougay. Finding no error, we AFFIRM. 

I. 

On April 28, 2019, Dougay was shopping at a Dollar General store in 

Bridge City, Texas. While Dougay was walking down an aisle towards a store 

employee to ask a question, she tripped on a metal platform cart holding blue 

plastic swimming pools and sustained injuries to her foot and ankle. Dougay 

filed a premises liability suit against Dollar General in Texas state court for 

damages she sustained as a result of the fall. Dollar General removed the case 

to federal court. 

The case proceeded to trial, and at the close of Plaintiff’s evidence, 

Dollar General moved for judgment as a matter of law under Federal Rule of 

Civil Procedure 50(a). Dollar General argued that the placement of the pool 

display did not pose an unreasonable risk of harm, and even if it did, the harm 

was open and obvious. The district court denied the motion. 

At the conclusion of the trial, the jury returned a verdict on liability, 

finding that Dougay was thirty-two percent at fault and Dollar General was 

sixty-eight percent at fault. Consistent with the jury’s verdict, the district 

court entered a final judgment awarding Dougay $357,110.14. Following the 

verdict, Dollar General filed a renewed motion for judgment as a matter of 

law under Rule 50(b). It again asserted that the evidence was legally 

insufficient to support the jury’s verdict because the pool display was open 

and obvious and, therefore, it did not owe Dougay a duty to warn. 

The district court denied Dollar General’s renewed motion, finding 

that there was “ample evidence” that supports the jury’s verdict. The 

district court found this evidence included a video of the incident and 

Dougay’s testimony that she could not see the front part of the cart that she 

tripped on. It additionally rejected Dollar General’s assertion that because 

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Dougay knew the pools were raised off the ground that “she necessarily knew 

of the presence and location of the supports on which the display rested.” 

Specifically, the district court refused to “indulge” the inference that 

because Dougay knew the pools rested on a cart, she therefore knew about 

the location of any protrusions from the cart. Dollar General timely appealed. 

II. 

“A motion for judgment as a matter of law . . . in an action tried by 

jury is a challenge to the legal sufficiency of the evidence supporting the 

jury’s verdict.”1

 We review a district court’s denial of a Rule 50 motion for 

judgment as a matter of law de novo, using the same legal standard as the 

district court.2

 Although our review is de novo, “we recognize that our 

standard of review with respect to a jury verdict is especially deferential.”3

 

Accordingly, a “litigant cannot obtain judgment as a matter of law unless the 

facts and inferences point so strongly and overwhelmingly in the movant’s 

favor that reasonable jurors could not reach a contrary conclusion.”4

III. 

Dollar General asserts that the swimming pool display was open and 

obvious as a matter of law and therefore Dougay failed to establish that it 

owed her a duty to warn. Under Texas law,5

 a property owner “generally has 

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1 Flowers v. S. Reg’l Physician Servs., Inc., 247 F.3d 229, 235 (5th Cir. 2001) (internal 

quotation marks and citation omitted). 

2 Nobach v. Woodland Vill. Nursing Ctr., Inc., 799 F.3d 374, 377 (5th Cir. 2015).

3 Flowers, 247 F.3d at 235 (internal quotation marks and citation omitted). 

4 OneBeacon Ins. Co. v. T. Wade Welch & Assocs., 841 F.3d 669, 675 (5th Cir. 2016) 

(internal quotation marks and citations omitted). 

5

 We apply Texas substantive law to this diversity case. See Austin v. Kroger Tex. 

L.P., 746 F.3d 191, 196 (5th Cir. 2014) (per curiam). 

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no duty to warn of hazards that are open and obvious or known to the 

invitee.”6

 A hazard is considered open and obvious “when the evidence 

conclusively establishes that an invitee would have knowledge and full 

appreciation of the nature and extent of danger, such that knowledge and 

appreciation of the danger are considered as proved as a matter of law.”7

 

This is an objective inquiry that asks “what a reasonably prudent person 

would have known under similar circumstances.”8

 Finally, in applying this 

objective test, courts must consider the “totality of the particular 

circumstances the plaintiff faced.”9

On appeal, the parties dispute whether Dougay established that Dollar 

General owed her a duty to warn. Dollar General contends that the evidence 

presented at trial “firmly established the claimed premises defect was open 

and obvious” and the only evidence to the contrary was Dougay’s conclusory 

and unsupported testimony that she could not see the front of the cart. It 

specifically argues that a reasonably prudent person “who saw the swimming 

pools when approaching the display, deduced there was something 

underneath to support the pools, and navigated around the pools, all of which 

Dougay did, would have been able to see the front of the cart if [he/she] had 

merely looked.” 

Having reviewed the briefings, evidence presented at trial, and the 

closed-circuit video, we cannot say that “the facts and inferences point so 

strongly and overwhelmingly in [Dollar General’s] favor that reasonable 

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6 Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 204 (Tex. 2015). 

7 Los Compadres Pescadores, L.L.C. v. Valdez, 622 S.W.3d 771, 788 (Tex. 2021) 

(internal quotation marks and citation omitted). 

8 Id. (citing Tex. Dep’t of Hum. Servs. v. Okoli, 440 S.W.3d 611, 614 (Tex. 2014)). 

9 Id. at 788-89 (internal quotation marks and citation omitted). 

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jurors could not reach a contrary conclusion.”10 Despite Dollar General’s 

assertions to the contrary, there was evidence presented at trial, including 

Dougay’s testimony, video footage, and testimony from Dollar General’s 

corporate representative,11 which provide a legally sufficient evidentiary basis 

for the jury’s verdict that the front of the cart was not open and obvious.12 

And although Dollar General points to conflicting evidence in the record, 

“we are not free to reweigh the evidence or to re-evaluate credibility of 

witnesses” and cannot “substitute for the jury’s reasonable factual 

inferences other inferences that we may regard as more reasonable.”13 

We therefore conclude that the district court did not err in denying 

Dollar General’s motions for judgment as a matter of law under Rules 50(a) 

and 50(b). For these reasons, and those given by the district court, we 

AFFIRM. 

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10 Coffel v. Stryker Corp., 284 F.3d 625, 630 (5th Cir. 2002) (internal quotation 

marks and citation omitted). 

11 Dollar General’s corporate representative testified that she could see the front of 

the cart as “somebody who has been around these for a while” but that “[d]epending on 

the angle that” a customer was coming from, they may not be able to see the front of the 

cart. 

12 Plaintiffs’ reliance on Reeves v. Home Depot, U.S.A., Inc., No. 16-CA-615, 2018 

WL 405120 (W.D. Tex. Jan. 12, 2018) is inapposite. Unlike the situation in Reeves where 

the court found “there was nothing obscuring the platform . . . from view,” Dougay 

presented evidence to the jury that the front of the cart was obscured from view at the angle 

she was walking down the aisle. See id. at *4 (holding that “[a]ny person walking down the 

aisle should have seen the stationary and openly visible order picker and walked around it, 

as Reeves did twice before ultimately tripping over its protruding platform”). 

13 McBeth v. Carpenter, 565 F.3d 171, 176 (5th Cir. 2009) (internal quotation marks 

and citation omitted). 

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