UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

RICHARD J. SHUST, Plaintiff-Appellant,

v. WAL-MART STORES, INC., Defendant-Appellee. No. 11-5159 (D.C. No. 4:10-CV-00569-GKF-FHM) (N.D. Okla.)

ORDER AND JUDGMENT *

Before MATHESON , Circuit Judge, PORFILIO , Senior Circuit Judge, and BALDOCK , Circuit Judge.

Richard J. Shust appeals from the dist rict court’s grant of summary judgment to Wal-Mart Stores, Inc. on his claim fo r negligence. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### August 22, 2012
Elisabeth A. Shumaker Clerk of Court- 2 - I. Background Mr. Shust sued Wal-Mart , alleging that immediatel y upon entering a Wal-Mart store on a dreary winter’s day, he slipped and fell on a wet floor and was injured as a result of Wal-Mart’s negligence. Wa l-Mart moved for summary judgment, and Mr. Shust opposed the motion. Wal-Mart alleged that base d on the facts asserted in Mr. Shust’s deposition, it was undisputed that he was aware that there was melting snow and slush outside the st ore on the day of the fall, th at he walked through water outside before entering the store, that the water at the entrance to the store came from outside, and that he was able to see the water on the floo r after he fell. Wal-Mart argued that it owed no duty to Mr. Shust because the danger wa s open and obvious, and that additional facts asserted by Mr. Shust in his response to its motion were irrelevant. The district cour t held that Mr. Shust knew or should have known that the floor at the entrance of the store could be wet and slippe ry, that it was an open and obvious danger, and that Wal-Mart owed no duty to him, so his negligence claim failed. See Phelps v. Hotel Mgmt., Inc. , 925 P.2d 891, 893 (Okla. 1996). The court focused on the evidence from Mr. Shust’ s deposition that if he had looked down before he fell, he would have seen the water on the floor. See Aplt. App. at 29, ll. 21-25. The court entered summary judgm ent in favor of Wal-Mart, and Mr. Shust appeals.- 3 - II. Discussion “We review a district court’s grant of summary judgment de novo, applying the same standard as the district court.” Helm v. Kansas , 656 F.3d 1277, 1284 (10th Cir. 2011). “Summary judgment is appropriate ‘if th e movant shows that there is no genuine dispute as to any material fact and the m ovant is entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56( a)). “We view the record on summary judgment in the light most favorable to the nonmoving party.” Klen v. City of Loveland , Colo., 661 F.3d 498, 508 (10th Cir. 2011) . But “although our review is de novo, we conduct that review from the pers pective of the district court at the time it made its ruling, ordinarily limiting our review to the materials adequately brought to the attention of the dist rict court by the parties.” Adler v. Wal-Mart Stores, Inc. , 144 F.3d 664, 671 (10th Cir. 1998). Mr. Shust argues that the district c ourt erred when it de termined that the evidence showed that he acknowledged an open and obvious hazard at the Wal-Mart store. We have carefully reviewed the pa rties’ arguments and the record on appeal, and we do not find any error in the district court’s decision. Moreover, Mr. Shust’s additional argument that his attention was dive rted from the hazard was not raised in his response to Wal-Mart’s summary judgmen t motion and so is outside our review. See id.- 4 - The judgment of the dist rict court is AFFIRMED.

Entered for the Court
Bobby R. Baldock Circuit Judge