# 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, De fendant-Appellant Dolgencorp of Texas, Inc. (“Dollar General”) appeal s 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 Case: 22-40479 Document: 00516702487 Page: 1 Date Filed: 04/05/2023No. 22-40479

2 a matter of law following a jury verd ict in favor of Plaintiff-Appellee Jill Trahan Dougay. Finding no error, we AFFIRM

. I. On April 28, 2019, Dougay was sho pping 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 plat form cart holding blue plastic swimming pools and sustained inju ries 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 th e 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 distri ct court denied the motion. At the conclusion of the trial, the ju ry returned a verdict on liability, finding that Dougay was thirty-two pe rcent 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 renewe d motion for judgment as a matter of law under Rule 50(b). It again asse rted that the evidence was legally insufficient to support the jury’s verd ict because the pool display was open and obvious and, therefore, it di d 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 Case: 22-40479 Document: 00516702487 Page: 2 Date Filed: 04/05/2023No. 22-40479

3 Dougay knew the pools were raised off the ground that “she necessarily knew of the presence and location of the supports on whic h the display rested.” Specifically, the district court refu sed 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 th e 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 lega l standard as the district court. 2 Although our review is de novo , “we recognize that our standard of review with respect to a ju ry 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 coul d not reach a contrary conclusion.” 4
III.
Dollar General asserts that the swi mming 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). Case: 22-40479 Document: 00516702487 Page: 3 Date Filed: 04/05/2023No. 22-40479

4 no duty to warn of haza rds 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 in vitee would have knowledge and full appreciation of the nature and extent of danger, such that knowledge and appreciation of the danger are consid ered as proved as a matter of law.” 7 This is an objective inquiry that as ks “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. Dolla r 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 coul d not see the front of the cart. It specifically argues that a reasonably prudent person “who saw the swimming pools when approaching the displa y, deduced there was something underneath to support the pools, and na vigated around the pools, all of which Dougay did, would have been able to s ee the front of the ca rt if [he/she] had merely looked.” Having reviewed the briefings, evid ence presented at trial, and the closed-circuit video, we ca nnot say that “the facts and inferences point so strongly and overwhelmingly in [Dolla r 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). Case: 22-40479 Document: 00516702487 Page: 4 Date Filed: 04/05/2023No. 22-40479

5 jurors could not reach a contrary conclusion.” 10 Despite Dollar General’s assertions to the contrary , there was evidence presen ted at trial, including Dougay’s testimony, video footage, an d testimony from Dollar General’s corporate representative, 11 which provide a legally su fficient 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 eviden ce 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 dist rict 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 th ose 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, th ey 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 obscurin g 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 tr ipping over its protruding platform”).

13 McBeth v. Carpenter , 565 F.3d 171, 176 (5th Cir. 2009) (internal quotation marks and citation omitted). Case: 22-40479 Document: 00516702487 Page: 5 Date Filed: 04/05/2023