Dunn v. Wal-Mart Stores, Inc.
| Decision Date | 03 October 2018 |
| Docket Number | Civil Action No. 3:17-CV-1187-K |
| Parties | GLENDA K. DUNN, Plaintiff, v. WAL-MART STORES, INC. d/b/a WALMART, Defendant. |
| Court | U.S. District Court — Northern District of Texas |
Before the Court is Defendant Wal-Mart Stores, Inc.'s Motion for Summary Judgment (Doc. No. 29). The Court has carefully considered the motion, the response, the reply, the appendices, the applicable law, and any relevant portions of the record. For the following reasons, the Court concludes Defendant owed Plaintiff no duty because the condition causing her to fall was open and obvious and, alternatively, Plaintiff failed to satisfy the required notice element of her slip-and-fall case. Therefore, the Court finds summary judgment is appropriate and GRANTS Defendant's motion.
On June 3, 2016, Plaintiff Glenda Dunn ("Plaintiff") visited one of Defendant's store locations in Irving, Texas. Plaintiff noticed floor mats laid out in the front area of the store. In front of the shopping carts, one mat was laid out that was too large for the space. Because it could not lay flat, there was a tunnel in the middle of the mat which Plaintiff also saw. Plaintiff attempted to walk towards a motorized shopping cart from this area where the large mat was, but she tripped and fell when she caught her foot in the tunnel. As a result of her fall, Plaintiff sustained injuries and damages. She filed this lawsuit against Defendant Wal-Mart Stores, Inc. ("Defendant") in state court, asserting state law claims for premises liability and negligence. Defendant removed the case to this Court on the basis of diversity jurisdiction and subsequently filed this motion for summary judgment.
Summary judgment is appropriate when the pleadings, affidavits and other summary judgment evidence show that no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A dispute of a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All evidence and reasonable inferences must be viewed in the light most favorable to the nonmovant, and all disputed facts resolved in favor of the nonmovant. See UnitedStates v. Diebold, Inc., 369 U.S. 654, 655 (1962); Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005).
The moving party bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 322-25. Once the movant satisfies his burden, the nonmovant must present competent summary judgment evidence showing a genuine fact issue for trial exists. Id. at 321-25; Anderson, 477 U.S. at 255-57. To meet this burden, the nonmovant may not rest on the pleadings, but must designate specific facts in the record establishing a genuine issue of material fact exists. Celotex, 477 U.S. at 325; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(en banc). The nonmovant may satisfy this burden by providing depositions, affidavits, and other competent evidence; not with "conclusory allegations, speculation, and unsubstantiated assertions." Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc). Conclusory allegations, unsubstantiated assertions, or a mere scintilla of evidence cannot defeat a motion for summary judgment. See Anderson, 477 U.S. at 249-52; Boudreaux, 402 F.3d at 540. If the nonmovant fails to make a sufficient showing to prove the existence of an essential element to the case and on which the nonmovant will bear the burden of proving at trial, summary judgment must be granted. Celotex, 477 U.S. at 322.
"Even if there is a dispute regarding some material facts, a movant may obtain summary judgment if he can prove there is no evidence to support one or more essential elements of the non-moving party's claim." Walker v. Geithner, 400 F. App'x 914, 916 (5th Cir. 2010)(per curium)(citing Celotex, 477 U.S. at 323-25). However, "[i]t is not sufficient to merely list the elements of the claims and state that there is no evidence to support the elements." Seastruck v. Darwell Integrated Tech., Civ. No. 3:05-CV-0531-BF, 2008 WL 190316, at *3 (N.D. Tex. Jan. 22, 2008) (Stickney, M.J.). The movant must cite to the record to demonstrate a lack of evidence that supports the nonmovant's claims. Id.
An invitee is "one who enters on another's land with the owner's knowledge and for the mutual benefit of both." Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex. 1975). A landowner owes an invitee a duty to exercise reasonable care to protect the invitee from dangerous store conditions known to or discoverable by the store. Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). But this duty does not make the owner a general insurer of its customers' safety on the premises. See id.
To prove a claim of premises liability, the plaintiff must establish: (1) the existence of a condition of the premises creating an unreasonable risk of harm toinvitees; (2) the owner had actual or constructive knowledge of some condition of the premises; (3) the owner failed to exercise reasonable care to reduce or eliminate the risk; and (4) the failure to exercise reasonable care was the proximate cause of the injuries. Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). To establish the second element of the owner's knowledge, "a slip-and-fall plaintiff . . . [must establish] that (1) the defendant [created the condition] on the floor, (2) the defendant actually knew [about the condition] on the floor, or (3) it is more likely than not that the condition existed long enough to give the premises owner a reasonable opportunity to discover it." Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002). To establish constructive knowledge, a plaintiff must point to some evidence of how long the dangerous condition was there to establish that the owner had a reasonable opportunity to discover it; it is not enough for a plaintiff to merely show that an employee came in close proximity to a hazard. Id. at 816. "[M]eager circumstantial evidence from which equally plausible but opposite inferences may be drawn is speculative and thus legally insufficient to support a finding." Gonzalez, 968 S.W.2d at 936.
Defendant moves for summary judgment on the grounds that: (1) the raised floor mat was open and obvious and Plaintiff had actual knowledge of it; and (2) Plaintiffcannot and did not establish Defendant had actual or constructive notice of the raised floor mat. Plaintiff responds that the raised floor mat was not open and obvious, but even if it was, the "necessary use" exception applies. As for notice, Plaintiff contends there is fact question as to Defendant having notice because of the proximity of "multiple Wal-Mart employees, particularly the cart returners."
In her original petition filed in state court, Plaintiff asserts state law claims for premises liability and negligence. "Texas recognizes 'two types of negligence in failing to keep the premises safe: that arising from an activity on the premises, and that arising from a premises defect.'" Reyes v. Dollar Tree Stores, Inc., 221 F. Supp.3d 817, 824 (W.D. Tex. 2016). "Recovery on a negligent activity theory requires that the plaintiff be injured by or as a contemporaneous result of the activity itself," not because of any condition the activity may have created. Arsement v. Spinnaker Expl. Co., LLC, 400 F.3d 238, 251 (5th Cir. 2005). Plaintiff's state court petition clearly alleges that her injuries are based upon a premises defect at Defendant's store, not that her injuries were caused by Defendant's "'affirmative, contemporaneous conduct.'" Id. (quoting Mangham v. YMCA of Austin, Tex.—Hays Cmtys., 408 S.W.3d 923, 929 (Tex. App.—Austin 2013)). Moreover, the summary judgment evidence establishes it is not known who caused the floor mat to be raised. Therefore, theCourt's analysis treats these claims as one in the same and based upon a condition of the premises.
Defendant first argues it owed no duty to Plaintiff because the raised floor mat was open and obvious and she acknowledged that she knew it was when she entered the store. It is well-established law in Texas that a landowner owes a duty to an invitee to make the premises safe against a dangerous condition. See Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 202 (Tex. 2015). However, the Texas Supreme Court has consistently recognized "that a landowner's duty is not absolute." Id. at 203. In Austin, the Court addressed the "open and obvious" exception to a landowner's duty:
When the condition is open and obvious or known to the invitee, however, the landowner is not in a better position to discover it. When invitees are aware of dangerous premises conditions—whether because the danger is obvious or because the landowner provided an adequate warning—the condition will, in most cases, no longer pose an unreasonable risk because the law presumes that invitees will take reasonable measures to protect themselves against known risks, which may include a decision not to accept the invitation to enter into the landowner's premises.
Id. at 202. In other words, "a landowner generally has no duty to warn of hazards that are open and obvious or known to the invitee." Id. at 204 (internal citations omitted).
Defendant argues that Plaintiff's admitted knowledge of the raised floor mat establishes that it was "open and obvious" and, therefore, Defendant owed her no duty. The Court agrees. Defendant presented Plaintiff's deposition testimony as evidence in support of summary judgment on this basis. In her deposition, ...
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