Garcia v. Ross Stores, Inc.

• Decision Date: 13 September 2012
• Docket Number: Civ. No. 4:11–cv–02336.
• Citation: 896 F.Supp.2d 575
• Parties: Marta GARCIA, as Representative of the Estate of Juana Ochoa, Plaintiff, v. ROSS STORES, INC., Defendant.
• Court: U.S. District Court — Southern District of Texas

896 F.Supp.2d 575

Marta GARCIA, as Representative of the Estate of Juana Ochoa, Plaintiff,

v.ROSS STORES, INC., Defendant.

Civ. No. 4:11–cv–02336.

United States District Court,

S.D. Texas,

Houston Division.

Sept. 13, 2012.

William David McLeod, Attorney at Law, Houston, TX, for Plaintiff.

Fernando P. Arias, Fletcher Farley et al., Dallas, TX, for Defendant.

MEMORANDUM AND ORDER

KEITH P. ELLISON, District Judge.

Before the Court is Defendant's Motion for Summary Judgment and Brief in Support (“Motion”). (Doc. No. 12.) After considering the Motion, all responses and replies thereto, and the applicable law, the Court concludes that the Motion should be GRANTED.

I. BACKGROUND

Marta Garcia, as representative of the estate of Juana Ochoa (“Ms. Ochoa”), seeks to recover damages as a result of injuries sustained by Ms. Ochoa at the business premises of the Defendant, Ross Stores (“Ross”). On November 29, 2009, Ms. Ochoa was at the store to purchase merchandise held out for sale to the public by Ross. (Doc. No. 12, Compl. ¶ 7.) Ms. Ochoa was with two of her daughters, Rosa Ochoa, age 51, and Maria Ochoa, age 55. (Rosa Ochoa Dep. 10:5–11:4, Sept. 30, 2011.) She and her daughters arrived between 2:30 and 3:00 p.m. (Rosa Ochoa Dep. 10:17, Maria Ochoa Dep. 9:20, Sept. 30, 2011.) When they had been in the store a few minutes, Ms. Ochoa allegedly suffered bodily injuries when she slipped on a hanger that was on the floor and fell. (Compl. ¶ 7.)

The clothes hanger was clear in color. (Maria Ochoa Dep. 15:15–16.) Maria had not observed the hanger prior to the fall, nor did she know how long the hanger had been on the floor. ( Id. at 14:7–12, 17:14–15, 19:24–25.) Similarly, Rosa did not know how long the hanger had been on the floor. (Rosa Ochoa Dep. 25:14–17.) None of Ross's employees told Ms. Ochoa, Maria, or Rosa they knew the hanger had been on the floor prior to the occurrence. (Maria Ochoa Dep. 24:11–16; Rosa Ochoa Dep. 26:10–13.) Neither Rosa nor Maria witnessed their mother fall. (Maria Ochoa Dep. 10:8–9, Rosa Ochoa Dep. 12:18–19, 25:7–9.)

Joslyn Castello was the Area Manager for Ross at the time of the occurrence (Joslyn Castello Dep. 7:17–20, November 11, 2011.) Ms. Castello had arrived for work around 2:00 p.m. ( Id. at 16:6–8.) Ms. Castello learned about Ms. Ochoa's fall from a Store Protection Service (SPS) employee over the speaker. ( Id. at 13:17–18.)

Ms. Castello's deposition establishes that, at the time of this incident, Ross had in place safety procedures to detect and remove hazards in the store aisles. Ross has a recovery policy requiring employees to walk up and down the aisles and recover what is on the floor. ( Id. at 18:6–13.) The program is called START, an acronym for “size, ticket, and recover today.” ( Id. at 18:14–18.) At the time of the occurrence, there were three associates who were performing regular recovery of the women's department. ( Id. at 22:15–23.) The area where Ms. Ochoa fell is known as the “shortage highway” of the misses' department. ( Id. at 27:6–8, 23–25.) Along with the regular recovery being performed by stockroom associates, two SPS employees had walked the shortage highway in the hour before the incident. ( Id. at 26:1–4.) When Ms. Castello arrived at work at 2:00 p.m., she also walked down the shortage highway and did not see anything to be recovered. ( Id. at 31:19–24.)

Marta Garcia is acting on behalf of Ms. Ochoa because Ms. Ochoa died on December 23, 2010. According to her death certificate, the cause of death was ovarian carcinoma which had persisted for the previous 18 months. (Doc. No. 12–8.) None of Ms. Ochoa's daughters had known about their mother's cancer, and instead believed that Ms. Ochoa's death was related to her depression from the fall. (Maria Ochoa Dep. 26:2–5; Rosa Ochoa Dep. 30:22–31:2; Marta Garcia Dep. 16:23–25, Sept. 30, 2011.)

Ms. Garcia alleges on Ms. Ochoa's behalf that Ms. Ochoa's fall caused serious and permanent injuries and also affected her emotional well-being. ( Id. ¶ 13.) She argues that Ross negligently allowed the creation and continued existence of this condition, making the store a dangerous place. Furthermore, Ms. Garcia argues that Ross failed to warn Ms. Ochoa of the dangerous condition although Ross knew or should have known of its existence.

Ross filed this Motion, arguing that Ms. Garcia's claims fail as a matter of law. Ross asserts that, because she complains of a condition of the Ross's premises, she must bring her claim under a premises liability theory, rather than a negligent activity theory. (Doc. No. 12, Mot. Sum. Jgmt 1.) To establish her claim, Ross contends that Ms. Garcia must show that Ross had actual or constructive knowledge of a condition on the premises which posed an unreasonable risk of harm, that Ross did not exercise reasonable care to reduce or eliminate the risk, and that failure to use such care proximately caused Ms. Ochoa's injuries. Id. Ross alleges that Ms. Garcia fails to show a genuine issue of material fact as to notice and causation. Id.

II. LEGAL STANDARD

Summary judgment is proper when “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 judgment as a matter of law.” Kee v. City of Rowlett, 247 F.3d 206, 210 (5th Cir.2001) (internal quotations omitted). The party seeking summary judgment bears the burden of demonstrating that there is no actual dispute as to any material fact of the case. Willis v. Roche Biomed. Lab., 61 F.3d 313, 315 (5th Cir.1995) (citing Celotex v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); Fed.R.Civ.P. 56(a).

Furthermore, the summary judgment standard “provides that the mere existence of some factual dispute will not defeat a motion for summary judgment; Rule 56 requires that the fact dispute be genuine and material.” Willis, 61 F.3d at 315. First, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law are material.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Second, a dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505).

Conclusory allegations and unsubstantiated assertions do not satisfy the non-movant's summary judgment burden. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (noting that a non-movant's burden is “not satisfied with ‘some metaphysical doubt as to the material facts' ” (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986))); Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.1992) (“Mere conclusory allegations are not competent summary judgment evidence, and they are therefore insufficient to defeat or support a motion for summary judgment.”). The Court will view all the evidence in the light most favorable to the party opposing the motion and draw all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 261, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

III. ANALYSIS

The Court grants Ross's Motion on the basis that this case is a “premises liability” claim rather than a “negligent activity” claim. Ms. Garcia contends that leaving a hanger on the floor is a negligent activity. (Doc. No. 21, ¶ 17.) The Texas Supreme Court has consistently recognized, however, that negligent activity claims and premises liability claims involve two independent theories of recovery that fall within the scope of negligence. See Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 214–15 (Tex.2008) (distinguishing between “negligent-activity claim” or “theory” and “premises-condition claim” or “theory”); Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex.1997) (stating that there are “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”); see also Mayer v. Willowbrook Plaza Ltd. Partnership, 278 S.W.3d 901, 909 (Tex.App.-Houston [14th Dist.] 2009, no pet.); Brooks v. PRH Investments, Inc., 303 S.W.3d 920 (Tex.App.2010).

Negligent activity claims involve “affirmative, contemporaneous conduct by the owner that caused the injury,” while premises liability claims encompass “a nonfeasance theory based on the owner's failure to take measures to make the property safe.” Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex.2010). Recovery on a negligent activity claim requires that the plaintiff have been injured by or as a contemporaneous result of the “activity itself” rather than by a “condition” created by the activity. Brooks, 303 S.W.3d at 923;Olivo, 952 S.W.2d at 527;Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992). If the injury was caused by a condition created by the activity rather than the activity itself, a plaintiff is limited to a premises defect theory of liability. Lucas v. Titus County Hosp. Dist./Titus Mem'l Hosp., 964 S.W.2d 144, 153 (Tex.App.1998).

In this case, Ms. Ochoa was injured by a condition created by an activity, not the activity itself. Ms. Ochoa was not contemporaneously injured when Ross employees were placing clothing on hangers, for example. The Texas Supreme Court's decisions in similar slip-and-fall cases clarify that Ms. Ochoa can recover only under a premises liability theory. In Keetch, the plaintiff fell thirty minutes after a Kroger employee had sprayed chemicals on plants. Keetch, 845 S.W.2d at 264. Because the activity of spraying the plants was not ongoing, the plaintiff could not bring a negligent activity claim. The court noted “[a]t some point, almost every artificial condition can be said to have been created by an activity,” and that the plaintiff in Keetch “was not injured by the activity of spraying,”...