UNITED STATES CO URT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ ROSE WOODS, Pl aintiff - Appellant,

v. ROSS DRESS FOR LESS, INC., a foreign corporation,
De fendant - Appellee. No. 21-5067 (D.C. No. 4:18-CV -00327-TCK-JFJ) (N.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BACHARACH , BALDOCK , and EID , Circuit Judges.

________________ _________________ Rose Woods appeals the district court’s entry of summary judgment in favor of Ross Dress fo r Less, Inc., on her Okla homa premises liability claim. Exercising juri sdiction under 28 U.S. C. § 1291, we affirm.

* Oral argument would not help us decide the appeal, so we have decided the appeal ba sed on the record and the parties’ briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). Our order and judgment does not constitute bi nding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgmen t may be cited for its persuasi ve value if otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). FILED United States Court of Appeals Tenth Circuit 

### June 22, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-5067 Document: 010110700311 Date Filed: 06/22/2022 Page: 12 I Woods was injured when she trip ped and fell over a “now hiring” sign that had fallen over near the entr ance of a Ross store. Aplt. App., vol. I at 124. The fall was captu red on video. Woods testified that she did not see the sign as she was entering the store because she wa s “looking up to see where the entrance was” and she was “window shopping.” Id. at 131- 32. The store manager, Megan Butler, te stified that she pl aced the sign in front of the store for the previous tw enty days and never saw it lying flat on the ground. Woods brought this premises liabilit y action in Oklahoma state court. We need not detail the procedural hist ory of the case; fo r present purposes it enough to know Ross remo ved the suit to fede ral court based on diversity jurisdic tion and moved fo r summary judgment. 1 The district court granted the motion and later denied as untimely Woods’ mo tion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e). This appeal followed. 2

1 For a discussion of the procedural history and the issues evaluated in Woods’ previous appeal, see Woods v. Ross Dr ess for Less, Inc. , 833 F. App’x 754 (10th Cir. 2021), and Woods v. Ross Dr ess for Less, Inc. , 985 F.3d 775 (10t h Cir. 2021) (Hartz, J., dissenting).

2 Woods did not appeal the denial of her Rule 59(e) motion. Appellate Case: 21-5067 Document: 010110700311 Date Filed: 06/22/2022 Page: 23 II “We review the distri ct court’s grant of su mmary judgment de novo, applying the same standard s that the district cour t should have applied.” Rocky Mountain Prestr ess, LLC v. Liberty Mut. Fire Ins. Co. , 960 F.3d 1255, 1259 (10th Cir. 2020 ) (internal quotation marks omitted). “‘The court shall grant summary judgment if the movant s hows that th ere is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). “[B]ecause this is a diversity case, we ascertain and apply Oklahoma law such that we reach the re sult that would be reached by an Oklahoma court.” Martinez v. Angel Expl., LLC , 798 F.3d 968, 973 (10th Cir. 2015) (brackets and internal quotation marks omitted). In Oklahoma, a landow ner owes an invitee a duty to “exercise reasonable care to keep th e premises in a reasonably safe condition for the reception of the visitor.” Id. at 974 (brackets omitted) (quoting Scott v. Archon Grp., L.P. , 191 P.3d 1207, 1212 (Okla. 2008)). 3 This duty “applies to defects or conditions which are in the nature of hidd en dangers, traps, snares, or pitfalls and the like wh ich are not known to the invitee and would not be observed by him in the exercise of ordinary care.”

3 The parties agree fo r purposes of summary j udgment that Woods was an invitee— viz. , “‘one who possesses an in vitation to be upon the premises, express or implied,’” Martinez , 798 F.3d at 974 n.3 (quoting McKinney v. Harrington , 855 P.2d 602, 604 (Okla. 1993)). Appellate Case: 21-5067 Document: 010110700311 Date Filed: 06/22/2022 Page: 34 Southerland v. Wal-Mart Stores, Inc. , 848 P.2d 68, 69 (O kla. Civ. App. 1993). But “[i]t does not ex tend to ‘dangers whic h are so apparent and readily observable that one would reasonably expect them to be discovered.’” Martinez , 798 F.3d at 974 (quoting Scott , 191 P.3d at 1212). Indeed, “the invitor is not a guarantor of the safety of its invitees.” Dover v. W.H. Braum, Inc. , 111 P.3d 243, 245 (Okla. 2005). And “the mere fact that an injury occurs carries with it no presumption of negligence.” Gillham v. Lake Country Raceway , 24 P.3d 858, 860 (Okla. 2001). Oklahoma “generally eliminate[s] a landowner’ s duty to protect a thirdparty [from] dangers so open and obvious as to reasonably expect others to detect them for themselves.” Wood v. Mercedes-Benz of Okla. , 336 P.3d 457, 459 (Okla. 2014) (internal quotation marks omitted). Still, “the open and obvious doctrine is not absolute.” Id. The existence and extent of a duty turns largely on the foreseeability of injury. See id. at 459-60. For example, in Mercedes-Benz , the defendant car dealership’s sprinkler sy stem activated ove rnight, when temperatures were freezing, leaving a layer of ice throughout th e property. See id. at 458. When the plaintiff, a catering employee, arrived the next day to work a catered event at the dealer ship, she recognized the danger posed by the ice before she slipped and fell. See id. But the court not ed she was not a customer of the dealership who, like an ordinary invitee, could avoid the open and obvious hazard by leaving the premises; ra ther, she “was present Appellate Case: 21-5067 Document: 010110700311 Date Filed: 06/22/2022 Page: 45 to fulfill her employer’s contractual duty to prov ide service fo r an event sponsored by the dealer.” Id. at 459 n.6. And after she fell, an employee of the dealership acknowledg ed he “should have put salt down when [he] got [t]here.” Id. at 458 (brackets and internal quotation marks omitted). Under those circumstances, the Mercedes-Benz court concluded th e dealership had a duty to take precau tionary measures for the catering employees. Id. at 460. The court reasoned th at the dealership had no tice of the icy condition and also knew that catering employee s would cater the scheduled business event, and thus it was foreseeable that the catering employees would encounter the hazard. Id. The court emphasized th at the icy condition was not dispositive of the dealership’s duty because, unlike a “random customer,” the plaintiff “was required to cross the hazar dous condition in furtherance of her employment.” Id. at 460 n.8. We have observed that Mercedes-Benz aligns with the majority view as formulated in the Rest atement, which “created an exception [to the open and obvious doctrine] al lowing liabili ty where a la ndowner should anticipate the harm desp ite the open and obvious na ture of the condition.”
Martinez , 798 F.3d at 976. Under the Restatement, “[a] possessor of land is not liable to his in vitees for physical harm caused to th em by any activity or condition on th e land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite su ch knowledge or obviousness.” Restatemen t (Second) of Torts § 343A(1) (Am. L. Inst. Appellate Case: 21-5067 Document: 010110700311 Date Filed: 06/22/2022 Page: 56 1965). This exception migh t apply, for example, “‘ where the possessor has reason to expect that the inv itee’s attention may be distracted , so that he will not discover what is obvious, or w ill forget what he has discovered, or fail to protect hims elf against it.’” Martinez , 798 F.3d at 976-77 (emphasis added) (quoting Restat ement § 343A cmt. f). Here, Woods was a random customer entering the store as an invitee. The store manager testified that for the past twenty days she had placed the sign outside the stor e every morning and left it up until the store closed at night and she had ne ver seen the sign lying flat on the ground before this occasion. On the day Wood s fell, the video depicts the bright blue and white sign on the walkway between the store’s two sliding automatic doors. Some 58 other patrons and pass ersby avoided the sign. During the entirety of the video preceding Woods’ fall, which lasts seven minutes and thirty seconds, only tw o other people contacte d the sign—a woman who bumped it with her heel as she grasped a child’s hand, and a man who stepped on it while speak ing with another person and looking at something in his hand. Both individuals left th e premises. This evidence does not suggest that Ross had act ual or constructive knowle dge of the da nger posed by the sign or th at any risk of danger was foreseeable. Although Woods insists the danger was foreseeable be cause the two patr ons contacted the sign, neither of them reentered the stor e, and Woods cites no evidence that they reported the fallen si gn to store employees. Appellate Case: 21-5067 Document: 010110700311 Date Filed: 06/22/2022 Page: 67 Woods also emphasizes the “distraction except ion” to the open and obvious doctrine discussed in Martinez and the Restatement— viz ., that the open and obvious doctrine might not apply when a possessor of land has reason to expect an invi tee could be distracted. See Aplt. Opening Br. at 16; see also Martinez , 798 F.3d at 976- 77. Citing her te stimony that she was “window shopping,” Aplt. App., vol. I at 132, Woods contends she was distracted and a jury could “reason ably infer [that her] attention was diverted,” Aplt. Opening Br. at 17. The problem, however, is that Woods waited until her motion to alter or amen d the judgment to ra ise this theory, and “we do not ordinarily entertain arguments made for the first time in a motion to alter or amend the judgment,” Sprint Nextel Corp. v. Middle Man, Inc. , 822 F.3d 524, 535 ( 10th Cir. 2016). Wood s’ summary judgment response generally argued the sign was not an open and obvio us danger and it was foreseeable that the sign could be blow n over by the wind. See Aplt. App., vol. I at 158-64. Al though she obliqu ely acknowledged she was not “paying attention,” id. at 161, she did not cite Martinez , Mercedes-Benz , or the Restatement, nor did she did she argue her distraction theory as an exception to the open and obvious doctrine until he r untimely Rule 59(e) motion, see id. , vol. II at 335-38 (citing Martinez , Mercedes-Benz , and the Restatement in support of the theory that she was distract ed by the window displays); see also id. at 339 (“Plaintiff was ‘w indow shopping’ and may have been distracted by cars or passe rsby.”). Under thes e circumstances, Appellate Case: 21-5067 Document: 010110700311 Date Filed: 06/22/2022 Page: 78 we decline to cons ider her argument. See Sprint Nextel , 822 F.3d at 535-36 & n.9 (declining to consider appellant’s impaired-title theory first raised in the motion to alter or am end, noting that although appellant stated in summary judgment proceedi ngs that it was permitted to transfer title of telephones to its customers, appellant “did not (1) explai n why it held title to the telephones free and clear or (2) discuss the property-law principles [it] relied upon”); see also Servants of the Paraclete v. Does , 204 F.3d 1005, 1012 (10th Cir. 2000) (recognizing that a Rule 59(e) motion “is not appropriate to . . . advan ce arguments that could have been raised in prior briefing”).
III The district court’s judgment is affirmed.

Entered for the Court

Per Curiam Appellate Case: 21-5067 Document: 010110700311 Date Filed: 06/22/2022 Page: 8