Austin v. Kroger Tex., L.P., 16-10502

• Decision Date: 14 April 2017
• Docket Number: No. 16-10502,16-10502
• Parties: Randy J. AUSTIN, Plaintiff-Appellant v. KROGER TEXAS, L.P., doing business as Kroger Store #209, Defendant-Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

864 F.3d 326

Randy J. AUSTIN, Plaintiff-Appellant

v.KROGER TEXAS, L.P., doing business as Kroger Store #209, Defendant-Appellee

No. 16-10502

United States Court of Appeals, Fifth Circuit.

Filed April 14, 2017

Matthew J. Kita, Dallas, TX, for Plaintiff-Appellant

Donna C. Peavler, Bryan Kyle Briscoe, Peavler Group, P.C., Grapevine, TX, Kimberly Paige Harris, Beasley, Hightower & Harris, P.C., Dallas, TX, for Defendant-Appellee

Before WIENER, DENNIS, and HAYNES, Circuit Judges.

PER CURIAM:

Randy J. Austin appeals the district court's (1) denial of his motion to reconsider an order denying leave to file a surreply and (2) grant of summary judgment to Kroger Texas, L.P., on his ordinary negligence/necessary instrumentalities claim. The district court, in one memorandum opinion and order, both denied the motion to reconsider for Austin's failure to satisfy Federal Rule of Civil Procedure 59(e) and granted summary judgment in favor of Kroger on three independent grounds. For the reasons explained below, we REVERSE in part, VACATE in part, and REMAND the case for further proceedings consistent with this judgment, as more fully explained below.

I. Background

Plaintiff-Appellant Randy J. Austin was a long-time employee of Defendant-Appellee Kroger Texas, L.P., working for the company in various positions since 1997. In 2008, Austin became a "utility clerk" at the Kroger store in Mesquite, Texas. His responsibilities included bagging groceries, consolidating carts, and sweeping, mopping, and cleaning the store's restrooms.

On the morning of July 27, 2009, other employees of the Kroger store at which Austin worked performed an annual cleaning of the store's condenser units, housed on the roof, or "mezzanine level," of the building. This process involved Kroger employees power-washing the condensers, which resulted in a "brownie oily looking substance" leaking through the store's ventilation ducts and creating spills in both the men's and women's restrooms. Austin's supervisor directed him to clean up "whatever mess" the condenser cleaning made. Austin had never worked on a day when the condensers had been power-washed and was, therefore, unfamiliar with the liquid he was to clean up.

Kroger's safety handbook recommends that store management make certain that a cleaning product called "Spill Magic" is adequately supplied at all times. Spill Magic is a powdery absorbent that allows a liquid spill to be cleaned with a broom and dustpan. Normally, Austin's utility cart, which Kroger provided, included Spill Magic. On the day the store cleaned its condenser units, however, Kroger did not have any Spill Magic available for Austin to use. Austin instead attempted to clean up the liquid with a dry mop. He successfully cleaned a small puddle in the women's restroom and then proceeded to clean the men's restroom, where the brownish liquid covered about eighty percent of the floor. Austin placed "wet floor" signs around the area and carefully took "baby steps" as he moved throughout the spill. After successfully cleaning thirty to forty percent of the spill in the men's restroom, Austin slipped in the remaining liquid and fell, fracturing his femur and dislocating his hip. As a result of his injuries, Austin spent nine months in the hospital and underwent six surgeries, leaving his left leg two inches shorter than his right leg.

Austin originally filed the underlying lawsuit against Kroger in June 2011 in state court, seeking damages for the injuries that he suffered as a result of his slip and fall. He alleged causes of action against Kroger for premises liability, gross negligence, and ordinary negligence. In support of his ordinary negligence claim, Austin alleged two different theories of liability: Kroger had (1) engaged in negligent activities and (2) failed to provide Austin a "necessary instrumentality" to perform his job safely—specifically, Spill Magic.

Kroger removed the case to federal district court, and this court ultimately affirmed the district court's grant of summary judgment on Austin's premises liability, gross negligence, and ordinary negligence/negligent activities claims. However, because the district court failed to consider Austin's ordinary negligence/necessary instrumentalities claim, we remanded the case to that court so that it could consider that claim in the first instance. See Austin v. Kroger Texas, L.P. , 614 Fed.Appx. 784 (5th Cir. 2015).

Following our remand, Kroger moved for summary judgment on Austin's ordinary negligence/necessary instrumentalities claim. After the close of summary judgment briefing, but before summary judgment was granted, Austin moved for reconsideration of his previously denied motion for leave to file a surreply. Attached to that motion was an expert report on causation, which Austin claimed would establish a material issue of fact as to causation. Although the expert report was first filed with the district court in Austin's motion for reconsideration, it had previously been provided to Kroger about a week before Kroger filed its summary judgment motion. A few weeks after Austin moved for reconsideration, the district court—in the same memorandum opinion and order—both denied Austin's motion for reconsideration and granted Kroger's motion for summary judgment. Austin timely appealed both rulings.

II. Standard of Review

This court reviews de novo a district court's grant of summary judgment, applying the same standard as the district court. Ford Motor Co. v. Tex. Dep't of Transp. , 264 F.3d 493, 498 (5th Cir. 2001). Summary judgment is appropriate "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 issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the non-moving party." Gates v. Tex. Dep't of Protective & Regulatory Servs. , 537 F.3d 404, 417 (5th Cir. 2008) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). "The court need consider only the cited materials, but it may consider other materials in the record." FED. R. CIV. P. 56(c)(3). All evidence is viewed in the light most favorable to the nonmoving party and all reasonable inferences are drawn in that party's favor. Crawford v. Formosa Plastics Corp. , La., 234 F.3d 899, 902 (5th Cir. 2000).

This court reviews the district court's denial of a motion for reconsideration for an abuse of discretion. Calpetco 1981 v. Marshall Exploration, Inc. , 989 F.2d 1408, 1414 (5th Cir. 1993). "A trial court abuses its discretion when its ruling is based on an erroneous view of the law or a clearly erroneous assessment of the evidence." United States v. Yanez Sosa , 513 F.3d 194, 200 (5th Cir. 2008) (quoting United States v. Ragsdale, 426 F.3d 765, 774 (5th Cir. 2005) ).

III. Discussion

The district court articulated three independent grounds for granting Kroger's summary judgment motion on Austin's ordinary negligence/necessary instrumentalities claim: (1) Kroger had no duty to provide Spill Magic because Austin failed to create a genuine issue of material fact as to whether Spill Magic was a necessary instrumentality; (2) Kroger had no duty to provide Austin with a necessary instrumentality while he was performing "customary work"; and (3) Austin failed to create a genuine issue of material fact as to whether Kroger's failure to provide Spill Magic caused his injuries. The district court also denied Austin's motion for reconsideration because it failed to satisfy the requirements of Federal Rule of Civil Procedure 59(e). We address each ground for summary judgment in turn, and discuss the denial of Austin's motion for reconsideration within the discussion on causation.

A. Issue of Material Fact as to Whether Spill Magic was a Necessary Instrumentality

The district court first concluded that Kroger did not owe Austin a duty to provide Spill Magic because Austin's evidence did not create a material fact issue about whether Spill Magic was necessary for the safe performance of his job. Because there is a genuine issue of material fact as to whether Spill Magic was necessary to the safe performance of Austin's job, summary judgment was not appropriate on this ground.

Under Texas law, an employer has a duty to "provide needed safety equipment" to employees. Kroger Co. v. Elwood , 197 S.W.3d 793, 794 (Tex. 2006) ; see also Martinez v. Delta Brands, Inc. , 515 S.W.2d 263, 265 (Tex. 1974) ("[T]he employer [has a duty] to furnish equipment adequate to enable an employee safely to do a job[.]"). However, employers have "no duty to provide equipment or assistance that is unnecessary to the job's safe performance." Elwood , 197 S.W.3d at 795.

In Allsup's Convenience Stores, Inc. v. Warren , a Texas Court of Appeals considered several factors relevant to determining that an instrumentality was not necessary for the safe performance of an employee's job: (1) the employee had never requested the instrumentality in question; (2) the employee had not complained that the task she was performing was unsafe; (3) the employee had safely performed the task in the past without injury; (4) there was no evidence that the instrumentality "was commonly used in, or had been established by industry standards or customs as a safety measure for" her job; (5) there was no evidence that "a reasonably prudent employer would have provided such instrumentality"; and (6) there was no medical evidence that the instrumentality would have prevented the employee's injury. 934 S.W.2d 433, 438 (Tex. App.—Amarillo 1996, writ denied). Here, the district court applied those factors and determined that there was no evidence from which a reasonable jury could conclude that Spill Magic was a necessary instrumentality for the safe performance of Austin's job.

Applying the Allsup's factors, we hold that there is a material fact issue as to whether Spill Magic was a necessary...