NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JODI ALLEN, 

Plaintiff-Appellant, 

 v. 

LOWE’S HOME CENTERS, LLC, 

Defendant-Appellee.

No. 21-55836 

D.C. No. 5:20-cv-02139-JFW-KK 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

John F. Walter, District Judge, Presiding

Submitted May 18, 2022**

Pasadena, California

Before: KLEINFELD, MILLER, and COLLINS, Circuit Judges.

Plaintiff Jodi Allen appeals the district court’s grant of summary judgment to 

Defendant Lowe’s Home Centers, LLC (“Lowe’s”) in this negligence action. The 

district court had original jurisdiction under 28 U.S.C. § 1332(a), and we have 

jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, see Conkle v. Jeong, 73 

F.3d 909, 915 (9th Cir. 1995), we affirm.

* This disposition is not appropriate for publication and is not precedent except as 

provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes that this case is suitable for decision without 

oral argument. See FED. R. APP. P. 34(a)(2)(C).

FILED

MAY 20 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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Allen was injured when he walked into a “big giant steel cart” in the middle 

of an aisle at one of Lowe’s stores. In his complaint, he pleaded two causes of 

action against Lowe’s, namely, negligence and premises liability. “The elements 

of a negligence claim and a premises liability claim are the same: a legal duty of 

care, breach of that duty, and proximate cause resulting in injury.” Kesner v. 

Superior Court, 384 P.3d 283, 300 (Cal. 2016). The district court granted 

summary judgment to Lowe’s on the issue of duty, rejecting Allen’s theories that 

Lowe’s had both a duty to warn of the steel cart and a duty to rectify the dangerous 

condition created by the cart. On this record, the district court correctly rejected 

both theories of duty as a matter of law.

1. “There is no duty to warn of an obvious danger,” and “[t]he invitor may 

assume that an invitee will perceive that which would be obvious to him through 

the ordinary use of his senses.” Beauchamp v. Los Gatos Golf Course, 77 Cal. 

Rptr. 914, 919 (Ct. App. 1969); see also Jacobs v. Coldwell Banker Residential 

Brokerage Co., 221 Cal. Rptr. 3d 701, 708 (Ct. App. 2017) (“Generally, if a danger 

is so obvious that a person could reasonably be expected to see it, the condition 

itself serves as a warning, and the landowner is under no further duty to remedy or 

warn of the condition.”) (citation omitted). 

According to Allen, he and his daughter went to Lowe’s to pick up an order. 

While they were waiting for the order to be prepared, they wandered around the 
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store looking around. Allen walked down an aisle toward the front of the store 

“without ever actually looking down the aisle to see where he was walking.” He 

just “kept walking and kept looking [at items on the shelves], kept walking, kept 

looking” until he “ran into a steel cart.” Allen describes the cart as a “big giant 

steel cart,” which was “five foot wide” and “took up almost the entire width of the 

aisle, with little or no room to walk around it.” Additionally, the cart was “stacked 

up” with “long beam[s]” that were “so high [they] were bending on the cart.” 

According to Allen’s daughter, “it did not appear that a customer would be capable 

of pushing or pulling the cart” because of “the volume of items on the cart and the 

size of the items.” Allen admits that “there was nothing blocking his view of the 

cart”; that “the cart may have been there the entire time as they walked down the 

aisle”; and that “he did not look in front of him as he made his way down the aisle 

before he walked into the cart.” 

Viewing the evidence in the light most favorable to Allen, we agree that, as 

a matter of law, Lowe’s had no duty to warn of the cart. Although Allen is correct 

that “[w]hether the danger was obvious to plaintiff [is] a question of fact for the 

jury,” Atherley v. MacDonald, Young & Nelson, Inc., 298 P.2d 700, 706 (Cal. Ct. 

App. 1956) (citation omitted), that issue may be resolved as a matter of law 

where—as here—there is “no genuine dispute as to any material fact,” see FED. R.

CIV. P. 56(a), and a reasonable jury could reach only one conclusion. On the 
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record before us, a reasonable trier of fact could only find that the cart was an open 

and obvious danger. By Allen’s own words, the cart was a “big giant steel cart, in 

the middle of an aisle and occupying most of the aisle.” Accordingly, the danger 

presented by the cart “should be obvious” to any customer “in the ordinary use of 

his [or her] senses,” and Lowe’s therefore had no duty to warn of it. Danieley v. 

Goldmine Ski Assocs., Inc., 266 Cal. Rptr. 749, 755 (Ct. App. 1990); see also 

Jacobs, 221 Cal. Rptr. 3d at 708 (stating that there is no duty to warn of a danger 

that “a person could reasonably be expected to see”).

2. “[A]lthough the obviousness of a danger may obviate the duty to warn of 

its existence, if it is foreseeable that the danger may cause injury despite the fact 

that it is obvious (for example, when necessity requires persons to encounter it), 

there may be a duty to remedy the danger.” Osborn v. Mission Ready Mix, 273 

Cal. Rptr. 457, 468 (Ct. App. 1990). We agree with the district court that it was 

not reasonably foreseeable that a customer would disregard a “big giant steel cart” 

in the middle of a store aisle. Nor has Allen presented any facts that would support 

the view that he was somehow required to encounter the cart in the way he did. 

Cf. id. at 469 (holding that the plaintiff was entitled to a jury instruction on a 

theory of duty to remedy when his work obligations required him to traverse the 

dangerous condition). 

Because Lowe’s did not owe Allen a duty of care as a matter of law, the 
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district court correctly granted summary judgment on that basis.1

AFFIRMED.

1 Because Allen failed to establish the element of duty, we do not consider the 

parties’ arguments concerning any other element of Allen’s claims or any other 

alternative grounds recited by the district court.