Cardner v. Home Depot U.S.A. Inc.

• Decision Date: 24 March 2006
• Docket Number: No. 4:05-CV-96.,4:05-CV-96.
• Citation: 561 F.Supp.2d 640
• Parties: William CARDNER, Plaintiff, v. HOME DEPOT U.S.A., INC. d/b/a the Home Depot and Home Depot Lewisville, Defendant.
• Court: U.S. District Court — Eastern District of Texas

561 F.Supp.2d 640

William CARDNER, Plaintiff, v. HOME DEPOT U.S.A., INC. d/b/a the Home Depot and Home Depot Lewisville, Defendant.

No. 4:05-CV-96.

United States District Court, E.D. Texas, Sherman Division.

March 24, 2006.

Cary William Schulman, Leon & Schulman, Dallas, TX, for Plaintiff.

Arthur Kittredge Smith, Law Offices of Arthur K. Smith, Allen, TX, for Defendant.

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

RICHARD A. SCHELL, District Judge.

Pending before the court is Defendant Home Depot U.S.A., Inc.'s motion for summary judgment (docket entry # 5). Having considered the Defendant's motion, the Plaintiffs response (docket entry # 21) and the Defendant's reply thereto (docket entry # 23), the court is of the opinion that the motion should be denied.

BACKGROUND

The facts of the case are undisputed. On May 8, 2002, the Plaintiff purchased cinder blocks at the Home Depot in Lewisville, Texas. Pl. Orig. Pet., p. 1. § III. The Plaintiff had frequented the Lewisville Home Depot in the past and was familiar with Home Depot's products and the manner in which Home Depot merchandised its products. Pl. Dep. 6:12-15; 7:6-10. The Plaintiff was aware that Home Depot was designed as a "do-it-yourself' warehouse. Pl. Dep. 7:13-18.

The Plaintiff had previously purchased cinder blocks from the Lewisville Home Depot. Pl. Dep. 7:24-25 to 8:1-2. On those occasions, the Plaintiff loaded the cinder blocks into his vehicle (Pl.Dep. 8:16.-25) because they were readily available and easily accessible (Pl.Dep. 9:17-22). At times, however, the Plaintiff sought assistance in transporting the cinder blocks from the display to his vehicle but such assistance could not be located. Pl. Dep. 14:4-12, 23-25 to 15:1.

On the date of the incident, the Plaintiff paid the cashier for the cinder blocks, exited the store and drove his pickup truck into the contractor's loading area. Pl. Dep. 24:14-18. After approximately five minutes, the Plaintiff observed two employees; however, the employees entered the store before the Plaintiff could approach them. Pl. Dep. 26:21-25 to 28:1-9.

Approximately five more minutes passed before the Plaintiff observed another employee. Pl. Dep. 29:14-17. The Plaintiff approached the employee and stated, "Here's my receipt. I need to get some cinder blocks and some landscape timbers and I've been waiting and can you help me." Pl. Dep. 30:17-23. The employee responded that he was busy and that the Plaintiff was welcome to help himself. Pl. Dep. 30:23-25 to 31:1-3. The employee then signed the Plaintiffs receipt for landscape timbers and six cinder blocks. Pl. Dep. 31:5-9.

The Plaintiff subsequently backed his pickup truck to the cinder block display. Pl. Dep. 33:12-16. The Plaintiff then lowered the truck's tailgate and climbed onto the tailgate in order to load the cinder blocks into the truck. Pl. Dep. 34:22-25 to 35:1. At that time, the Plaintiff discovered the cinder blocks were banded together. Pl. Dep. 35:5-13. The cinder blocks were stacked to a height of eight to ten feet. Pl. Dep. 35:20-25. The band was positioned vertically around the cinder blocks. Pl. Dep. 36:7-10.

After inspection (Pl.Dep. 36:11-14), the Plaintiff determined that the banding was relatively taut. The Plaintiff, however, was able to place his fingers under the banding and pull the banding out one to two inches. Pl. Dep. 22:20-25. The Plaintiff initially attempted to slide the banding off of the cinder blocks, but to no avail. Pl. Dep. 37:1-5. The Plaintiff ultimately concluded that he would have to cut the banding. Pl. Dep. 37:6-11. The Plaintiff subsequently retrieved a pocket knife (Pl. Dep. 37:16-23) that had a three to four inch blade (Pl.Dep. 15:18-22). While holding the knife with his right hand, the Plaintiff placed two fingers of his left hand underneath the banding in order to create tension on the band. Pl. Dep. 38:3-15. The Plaintiff, using a left-to-right motion, cut the banding. Pl. Dep. 38:20-25. In so doing, the Plaintiff cut his arm, severing tendons. Pl. Orig. Pet., p. 2, § III.

The Plaintiff originally sued the Defendant in the 158th Judicial District Court of Denton County, Texas on May 7, 2004. On March 10, 2005, the Defendant removed the Plaintiffs lawsuit to this court based on diversity jurisdiction. On May 13, 2005, the Defendant filed its motion for summary judgment. The Defendant seeks judgment against the Plaintiff on the following grounds:

1. The Plaintiff created his own peril by using his own knife to cut the banding on the cinder blocks thereby negating the element of proximate cause; and

2. The banding on the cinder blocks did not create an unreasonable risk of harm.

The court notes that the Defendant characterized the second ground of its motion as a "no evidence" motion for summary judgment. A no evidence motion for summary judgment is only available in the Texas state courts. See TEX.R. CIV. P. 166a(i). Accordingly, the court will apply the appropriate federal standard to the Defendant's motion for summary judgment.

LEGAL STANDARD

The purpose of summary judgment is to isolate and dispose of factually unsupported claims or defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The trial court must resolve all reasonable doubts in favor of the party opposing the motion for summary judgment. Casey Enterprises, Inc. v. American Hardware Mut. Ins. Co., 655

F.2d 598, 602 (5th Cir.1981) (citations omitted). The substantive law identifies which facts are material. See id. at 248, 106 S.Ct. 2505.

The party moving for summary judgment has the burden to show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See id. at 247, 106 S.Ct. 2505. If the movant bears the burden of proof on a claim or defense on which it is moving for summary judgment, it must come forward with evidence that establishes "beyond peradventure all of the essential elements of the claim or defense." Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). But if the nonmovant bears the burden of proof, the movant may discharge its burden by showing that there is an absence of evidence to support the nonmovant's case. Celotex, 477 U.S. at 323, 325, 106 S.Ct. 2548; Byers v. Dallas Morning News, Inc., 209 F.3d 419, 424 (5th Cir.2000). Once the movant has carried its burden, the nonmovant "must set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). The nonmovant must adduce affirmative evidence. See Anderson, 477 U.S. at 257, 106 S.Ct. 2505.

DISCUSSION AND ANALYSIS

In order to maintain a premises liability cause of action, the Plaintiff must prove that (1) the Defendant was an owner or occupier of the premises, (2) a condition on the premises posed an unreasonable risk of harm, (3) the Defendant knew or reasonably should have known of the danger, (4) the Defendant failed to exercise reasonable care to reduce or eliminate the risk of harm and (5) the Defendant's breach proximately caused the Plaintiffs injuries. Plainview Motels, Inc. v. Reynolds, 127 S.W.3d 21, 29" (Tex.App.—Tyler 2003, pet. denied), citing CMH Homes Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000). The Defendant does not contest that it was the owner or occupier of the premises in question. See id.

1. A CONDITION ON THE PREMISES POSED AN UNREASONABLE RISK OF HARM

"A condition poses an unreasonable risk of harm for premises defect purposes when there is a `sufficient probability of a harmful event occurring that a reasonably prudent person would have foreseen it or some similar event as likely to happen.'" Id., quoting County of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex.2002). "Foreseeability does not require that the exact sequence of events that produced an injury be foreseeable." Id. (citation omitted). "Instead, only the general danger must be foreseeable." Id., citing Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996).

The Defendant argues that the Plaintiff failed to adduce any evidence that the banding on the cinder blocks posed an unreasonable risk of harm. The court disagrees. The nature of the Defendant's business is to allow customers to view merchandise in its warehouse, make a selection and then self-load the item into the customer's vehicle. See id. at 30; Crosier Dep. 35:8-25 to 36:1-23. Considering that a customer could reasonably be expected to cut the banding on the cinder block display in order to retrieve the desired number of cinder blocks for self-loading, a fact issue exists regarding the potential for injury to a customer who undertakes cutting the banding. See Reynolds, 127 S.W.3d at 30. Accordingly, the court concludes that a genuine issue of material fact exists with respect to whether the banded cinder block display posed an unreasonable risk of harm.

2., THE DEFENDANT KNEW OR REASONABLY SHOULD HAVE KNOWN OF THE DANGER

"To prove an action for premises liability, the invitee must establish that a land owner either `knew, or after reasonable inspection should have known, of an' unreasonably dangerous condition.'" Reynolds, 127 S.W.3d at 30, quoting Motel 6 G.P. v. Lopez, 929 S.W.2d 1, 3-4 (Tex. 1996). "A possessor's knowledge can be actual or constructive." Id. (citation omitted). "Actual knowledge is what a person actually knows." Id. (citation omitted). "On the other hand, proof of constructive knowledge requires only that the...