IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-30843

Summary Calendar

JOSEPHINE MCGINNIS,

Plaintiff - Appellant

v.

TARGET CORPORATION OF MINNESOTA, also known as Target 

Corporation; ACE AMERICAN INSURANCE COMPANY,

Defendants - Appellees

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:18-CV-9693

Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

In this slip-and-fall case, the district court granted summary judgment 

to Target in a thorough opinion. Josephine McGinnis appeals that adverse 

judgment.1 She contends that the district court erred in concluding that no 

* Pursuant to 5TH CIR. R. 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 

CIR. R. 47.5.4.

1 “This court reviews a district court’s grant of summary judgment de novo, applying 

the same legal standards as the district court.” Am. Home Assurance Co. v. United Space 

All., LLC, 378 F.3d 482, 486 (5th Cir. 2004).

United States Court of Appeals

Fifth Circuit

FILED

April 14, 2020

Lyle W. Cayce

Clerk

 Case: 19-30843 Document: 00515380877 Page: 1 Date Filed: 04/14/2020
No. 19-30843

2

record evidence established that wax on Target’s floor presented an 

unreasonable risk of harm, which McGinnis is required to prove under 

Louisiana’s merchant liability statute. See LA. STAT. 9:2800:6(B)(1) (“[T]he 

claimant shall have the burden of proving . . . [that] [t]he condition presented 

an unreasonable risk of harm to the claimant and that risk of harm was 

reasonably foreseeable.”).

In support of this contention, McGinnis first points to several Louisiana 

cases that she claims stand for the proposition that “wax on a floor can be an 

unreasonably dangerous condition.” See Duckett v. K-Mart Corp., 94-0579 (La. 

10/17/94), 645 So. 2d 621; Savoie v. Sw. La. Hosp. Ass’n, 2003-982 (La. App. 3 

Cir. 2/25/04), 866 So. 2d 1078; Choyce v. Sisters of Incarnate Word, (La. App. 2 

Cir. 8/19/94), 642 So. 2d 287. McGinnis is correct insofar as she asserts that 

wax can create a dangerous condition. But a waxed floor is not per se 

dangerous, as demonstrated by the cases McGinnis relies on. Rather, absent 

some other indication of dangerousness (e.g., long term wax build up or expert 

testimony explaining the inherently dangerous nature of a particular waxed 

floor), evidence that a floor was recently waxed alone cannot suffice for a jury 

to find the existence of an unreasonably dangerous condition. E.g., Trench v. 

Winn-Dixie Montgomery LLC, 14-152 (La. App. 5 Cir. 9/24/14), 150 So. 3d 472, 

477 (“[E]ven if the manager stated that the floor had just been waxed and 

speculated that wax could have caused [the plaintiff’s] fall, there is no evidence 

that anyone actually saw any wax buildup or any other foreign substance was 

on the floor.”).

McGinnis next calls the court’s attention to deposition testimony 

purportedly establishing that she fell because her foot caught on the waxed 

floor. However, McGinnis herself admitted that she “had no idea what was on 

 Case: 19-30843 Document: 00515380877 Page: 2 Date Filed: 04/14/2020
No. 19-30843

3

the floor” and merely speculated that the waxing caused her fall.2 McGinnis’s 

daughter, who was with McGinnis at the time of her fall, also testified that she 

saw nothing on the floor. The testimony of Ashley McGill, a former Target 

employee, further confirms that there was nothing unusual about the floor—it 

was not sticky, slick, wet, or improperly waxed.

McGinnis notes that McGill stated that the floor had “a lot of grip” when 

waxed and that she had previously tripped on it. But McGill further stated

that it was her failure to pick up her feet, and not wax or anything else on the 

floors, that caused her to stumble. McGill’s deposition testimony thus does not 

create a material issue of fact precluding summary judgment.

For the foregoing reasons, we AFFIRM the district court’s judgment.

2 Such speculation is insufficient to avoid summary judgment. See Boudreaux v. Swift 

Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005) (quoting Little v. Liquid Air Corp., 37 F.3d 

1069, 1075 (5th Cir.1994) (en banc)) (“[The plaintiff’s] burden will not be satisfied by ‘some 

metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated 

assertions, or by only a scintilla of evidence.’”).

 Case: 19-30843 Document: 00515380877 Page: 3 Date Filed: 04/14/2020