United States Court of Appeals

for the Fifth Circuit

No. 20-10580

Wayne Johnson, 

Plaintiff—Appellant,

versus

The Kroger Company, 

Defendant—Appellee.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:19-CV-00371-E

Before Barksdale, Southwick, and Graves, Circuit Judges.

Per Curiam:*

Wayne Johnson appeals the district court’s grant of summary 

judgment to The Kroger Company in this diversity action for damages 

resulting from a slip and fall at a Texas grocery store. Finding no error, 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opinion should not be published and is not precedent except under the limited 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

January 13, 2021

Lyle W. Cayce

Clerk

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Facts and Procedural History

On October 7, 2018, Wayne Johnson was shopping in the Krogerstore 

in Duncanville, Texas, when he slipped and fell. At the time of the accident, 

Johnson was walking near a refrigerated cooler that had been leaking. Kroger

knew about the leaking cooler the night before the incident and had placed 

two yellow warning cones on the floor next to the leaking cooler. The cones 

included graphics of a stick figure slipping and warned “CAUTION” and 

“WET FLOOR” in English and Spanish. Johnson, who slipped and fell right 

next to the cones, does not dispute that he saw the cones. However, Johnson 

said a store employee directed him where to walk.

Johnson later filed suit against Kroger, alleging negligence predicated 

on a theory of premises liability, in Dallas County district court. Kroger 

removed to federal district court on the basis of diversity and moved for 

summary judgment asserting that it adequately warned Johnson of the wet 

floor. The district court granted summary judgment for Kroger, and Johnson 

subsequently filed this appeal.

Standard of Review

We review a district court's grant of summary judgment de novo, 

applying the same standard as the district court. McCarty v. Hillstone Rest. 

Grp., Inc., 864 F.3d 354, 357 (5th Cir. 2017). Summary judgment is proper 

“if the movant shows that 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). A genuine dispute of material fact exists only if “a reasonable jury 

could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 248 (1986). We must view all facts and inferences in the 

light most favorable to the nonmoving party. McCarty, 864 F.3d at 358. 

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Discussion

Johnson asserts that the district court erred by: finding that the cones 

presented an adequate warning while ignoring the fact that the water on the 

floor continued to expand in size; failing to allow Johnson the benefit of 

proportionate responsibility; and failing to consider Kroger’s admission that 

it failed to use a “snake,” which would have been feasible and was standard 

practice.1

Kroger asserts that its duty is to warn against or make safe a dangerous 

condition, but not both. Kroger also asserts that it provided adequate 

warning to Johnson and had no duty to provide further warning. 

In his deposition, Johnson testified that he medically retired from 

Firestone Polymers in June 2012 because of a back injury from a slip and fall 

at work on August 30, 2010. Johnson said he suffered from a herniated disc 

and had surgery prior to the Kroger fall. At the time of the Kroger fall, 

Johnson was under the care of Dr. Berliner for his previous back injury, which 

was continuing to cause pain that radiated down his right leg when he walked 

and required him to take pain medication. 

Johnson testified that he went to the store early in the morning to get 

butter for breakfast and an employee pointed him in the direction of the dairy 

section. Johnson slipped and fell on his way to get the butter, and hit his right 

knee, back and right shoulder. There is no indication that any employee told 

him specifically where to walk. The record establishes that Johnson 

determined where to walk based on where the cones were positioned, 

indicating he clearly saw the cones. Johnson testified that he was “walking 

straight. I was trying to get to the butter aisle” and “I was looking straight. 

1 “Snakes” or “socks” are water-absorbing devices placed up against the cooler.

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Not looking down at the floor.” Thus, Johnson did not see the water on the 

floor where he fell. 

Andrea Landry, the store manager, testified in her deposition that 

there were spill pads up against the cooler at the time of Johnson’s fall, 

indicating that employees had previously attempted to wipe up any water. 

Landry also testified that she believed there was a sock or snake in front of 

the cooler at the time of the fall because “typically it’s a standard practice” 

along with putting up “wet floor” signs. However, later Landry testified that 

she was not certain whether a sock or snake or spill pads were used. Photos 

and video do not show the presence of any absorbent materials at the time of 

the fall.

Under Texas law, a premises owner has “a duty to protect invitees 

from, or warn them of, conditions posing unreasonable risks of harm if the 

owners knew of the conditions or, in the exercise of reasonable care, should 

have known of them.” Henkel v. Norman, 441 S.W.3d 249, 251 (Tex. 2014). 

Further, to prevail on a premises-liability claim, Johnson must establish: 

(1) the property owner had actual or constructive knowledge of 

the condition causing the injury; (2) the condition posed an 

unreasonable risk of harm; (3) the property owner failed to take 

reasonable care to reduce or eliminate the risk; and (4) the 

property owner’s failure to use reasonable care to reduce or 

eliminate the risk was the proximate cause of injuries to the 

invitee.

Henkel, 441 S.W.3d at 251-52; see also Austin v. Kroger Texas, L.P., 465 

S.W.3d 193, 202-03 (Tex. 2015). “The third element is negated if the 

property owner either adequately warned the invitee about the condition or 

took reasonable actions designed to make it reasonably safe.” Henkel at 252.

The issue here is whether the cones provided adequate warning of the 

condition. If so, then Kroger was not negligent as a matter of law. See id. 

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“To be adequate, a warning must be more than a general instruction such as 

‘be careful’; the warning must notify of the particular condition.” Id. The 

adequacy of the warning turns on whether the action was “reasonably 

prudent under the circumstances.” TXI Operations, L.P. v. Perry, 278 

S.W.3d 763, 764 (Tex. 2009). In TXI, a speed limit sign was an inadequate 

warning of a pothole. Id.; see also State v. McBride, 601 S.W.2d 552, 556-57 

(Tex.Civ.App.-Waco 1980) (cones, barrier and signs warning “35 MPH” 

and “SLOW” were inadequate to warn of muddy and slick construction 

area). 

However, in Henkel, a homeowner telling a mail carrier “don’t slip” 

was adequate to warn him of an icy sidewalk. 441 S.W.2d at 250; see also

Golden Corral Corp. v. Trigg, 443 S.W.3d 515, 520 (Tex.App.-Beaumont 

2014) (wet floor sign was adequate to warn of wet floor); Brooks v. PRH Invs., 

Inc., 303 S.W.3d 920, 925 (Tex.App.-Texarkana 2010) (wet floor sign and 

verbal warning to “be careful” by employee mopping adequate to warn of 

wet floor); and Bill’s Dollar Store, Inc. v. Bean, 77 S.W.3d 367, 370 (Tex.App.-

Houston [14th Dist.] 2002) (warning by cashier to “watch the wet spot” 

adequate warning of spill).

Here, the two warning cones included graphics of a stick figure 

slipping and warned “CAUTION” and “WET FLOOR” in English and 

Spanish. The district court found that to be an adequate warning. Based on 

the Texas cases cited above, we agree that the warning cones adequately 

warned Johnson of the wet floor. See Henkel, 441 S.W.3d at 250; see also 

Trigg, 443 S.W.3d at 520. Further, Johnson acknowledges that he saw the 

warning cones. Indeed, Johnson fell right next to the cones. But, despite 

seeing the warning cones, Johnson also acknowledged that he did not look 

down to see where the floor was wet. There is no authority for Johnson’s 

assertions that Kroger had to also provide a verbal warning of the wet floor 

or that a third cone or different configuration was necessary. Moreover, the 

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record indicates an employee merely pointed Johnson toward the aisle 

containing the butter and did not instruct him where to walk to get there. 

While an additional verbal warning may have been beneficial, there is no 

requirement of such. Likewise, although a snake or sock likely would have 

absorbed some or all of the water, Kroger has no duty to simultaneously warn 

and take reasonable actions to make the hazard safe. Henkel at 252. Thus, 

Johnson’s alternative arguments regarding “necessary use” and 

“contributory negligence” are without merit and we need not discuss 

Kroger’s waiver arguments.

Because the district court did not err in granting Kroger’s motion for 

summary judgment to Kroger, we AFFIRM. 

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