Gusman v. Kroger Tex., L.P.
| Decision Date | 02 August 2021 |
| Docket Number | Civil Action 3:19-CV-1763-B |
| Parties | HEATHER GUSMAN, Plaintiff, v. KROGER TEXAS, L.P., Defendant. |
| Court | U.S. District Court — Northern District of Texas |
Before the Court are Plaintiff Heather Gusman's Motion for Partial Summary Judgment (Doc. 33) and Defendant Kroger Texas, L.P. (“Kroger”)'s Motion for Summary Judgment (Doc. 37). For the reasons that follow, both motions are DENIED. Further, Gusman's objections as set forth in her response (Doc. 43) to Kroger's motion are MOOT.
BACKGROUND[1]
This case concerns an injury sustained by Gusman while working at a Kroger grocery store in Burleson, Texas (“the Store”). On January 8, 2019, Gusman was working at the Store as a floor supervisor. Doc. 34, Pl.'s Br., 6-7; Doc. 38, Def.'s Br., 3-4. Another Kroger employee Solomon Van Buren was working at the Store as a courtesy clerk.[2] Doc. 34, Pl.'s Br., 6-7; Doc. 38 Def.'s Br., 3-4.
That day, Gusman alleges, “the [S]tore was busy and understaffed[.]” Doc. 34, Pl.'s Br., 7. At some point, “the [S]tore ran out of grocery carts on one side, ” and Gusman went out to the parking lot to assist Van Buren in retrieving carts.[3] Id. at 6-7; Doc 38, Def.'s Br., 9. Gusman claims that she “was never trained on how to gather carts.” Doc. 34, Pl.'s Br., 7. Kroger, on the other hand, asserts that Gusman had “received training on parking lot safety . . . which includes . . . shopping cart retrieval[.]” Doc. 38, Def.'s Br., 5. Pursuant to Kroger's safety policy, “[c]art retrieval straps shall be used when retrieving more than two carts.” Doc. 36, Pl.'s App., 48. Additionally, per the 2015 safety policy-on which Kroger asserts that Gusman received training-“no more than eight carts could be moved at any one time - that many only if using a cart strap.” Doc. 38, Def.'s Br., 7. That number was reduced to six carts pursuant to updated safety policies effectuated in 2016. Id.
Despite Kroger's safety policies, Van Buren was attempting “to move approximately 50 carts at once to where they were needed.” Doc. 34, Pl.'s Br., 7; see also Doc. 38, Def.'s Br., 7. Moreover, Van Buren “was not using any cart straps because all of them were either lost or broken.” Doc. 34, Pl.'s Br., 7.[4] Gusman did not stop Van Buren, but instead helped him by guiding the carts into the cart corral while Van Buren pushed the carts from the back. Doc. 34, Pl.'s Br., 8-9; Doc. 38, Def.'s Br., 9-10. While doing so, Gusman's arm became “wedged between two carts and, when Van Buren continued pushing the carts, [Gusman] injured her arm.” Doc. 38, Def.'s Br., 10; see also Doc. 34, Pl.'s Br., 9. Gusman claims that her “arm immediately started burning and swelling” and that she “remains in excruciating pain and has extremely limited use of that arm.” Doc. 34, Pl.'s Br., 9.
On June 19, 2019, Gusman filed suit in Texas state court, asserting negligence claims for direct and vicarious liability against Kroger. See generally Doc. 1-2, Notice of Removal Exs., 9-19 (petition). Kroger removed the case to this Court on July 24, 2019, invoking the Court's diversity jurisdiction. Doc. 1, Notice of Removal, 1. On June 15, 2021, Gusman filed a motion for partial summary judgment (Doc. 33). On June 18, 2021, Kroger filed a motion for summary judgment (Doc. 37). Both motions have been fully briefed and are ripe for review.
Federal Rule of Civil Procedure 56(a) provides that 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). The substantive law governing a matter determines which facts are material to a case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The summary-judgment movant bears the burden of proving that no genuine issue of material fact exists. Latimer v. Smithkline & French Lab'ys, 919 F.2d 301, 303 (5th Cir. 1990). Usually, this requires the movant to identify “those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quotation marks omitted).
Once the summary-judgment movant has met this burden, the burden shifts to the non-movant to “go beyond the pleadings and designate specific facts” showing that a genuine issue exists. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (per curiam) (citing Celotex, 477 U.S. at 325). “This burden is not satisfied with ‘some metaphysical doubt as to the material facts,' by ‘conclusory allegations,' by ‘unsubstantiated assertions,' or by only a ‘scintilla' of evidence.” Id. (citations omitted). Instead, the non-moving party must “come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis and quotation marks omitted).
“[C]ourts are required to view the facts and draw reasonable inferences in the light most favorable to the party opposing the summary[-]judgment motion.” Scott v. Harris, 550 U.S. 372, 378 (2007) (alterations incorporated) (quotations marks omitted). But the Court need not “sift through the record in search of evidence to support a party's opposition to summary judgment.” Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citation and quotation marks omitted). If the non-movant is unable to make the required showing, the Court must grant summary judgment. Little, 37 F.3d at 1076.
In their respective motion briefs, each party asks the Court to enter summary judgment on Kroger's liability. See Doc. 34, Pl.'s Br., 6; Doc. 38, Def.'s Br., 1. Thus, the Court must determine whether a genuine issue of material fact exists as to Kroger's negligence. See Celotex, 477 U.S. at 323.
In Texas, a plaintiff seeking to prove negligence must establish: “(1) a legal duty owed to the plaintiff by the defendant; (2) a breach of that duty; (3) an actual injury to the plaintiff; and (4) a showing that the breach was the proximate cause of the injury.” Gutierrez v. Excel Corp., 106 F.3d 683, 687 (5th Cir. 1997) (citation omitted).
Kroger argues that the Court should grant summary judgment in its favor because Gusman cannot prevail on any of her claims as a matter of law. Doc. 38, Def.'s Br., 1. The Court disagrees, finding that genuine issues of material fact exist as to whether Gusman may succeed on her claims. Accordingly, the Court DENIES Kroger's motion for summary judgment.
As a preliminary matter, Gusman asserts-and Kroger does not dispute-that Kroger is a nonsubscriber under the Texas Workers' Compensation Act (TWCA). “To encourage employers to obtain workers' compensation insurance, [the TWCA] penalizes nonsubscribers by precluding them from asserting certain common-law defenses in their employees' personal-injury actions[.]” Kroger Co. v. Keng, 23 S.W.3d 347, 349 (Tex. 2000). Thus, in an action against a nonsubscriber-employer “to recover damages for personal injuries or death sustained by an employee in the course and scope of the employment, ” the TWCA precludes a nonsubscriber from asserting that “(1) the employee was guilty of contributory negligence; (2) the employee assumed the risk of injury or death; or (3) the injury or death was caused by the negligence of a fellow employee.” Tex. Lab. Code. § 406.033; see also Odom v. Kroger Tex., L.P., 2014 WL 585329, at *3 (N.D. Tex. Feb. 14, 2014) (). Accordingly, Kroger can only defend against Gusman's negligence claims by demonstrating that Gusman cannot establish one or more elements of her claims. See Odom, 2014 WL 585329, at *3. And indeed, that is what Kroger attempts to do.
First, Kroger argues that Gusman's claims fail because Gusman “cannot establish the threshold element of ‘duty.'” Doc. 38, Def.'s Br., 1. Next, Kroger argues that Gusman “was the sole proximate cause of her injur[y], ” thus negating the element of causation. Id. The Court addresses both arguments below and finds that genuine issues of material fact exist as to whether Gusman may succeed on her claims.
“The existence of a duty is a threshold question of law, ” and “[t]he nonexistence of duty ends the inquiry into whether negligence liability may be imposed.” Saucedo v. Horner, 329 S.W.3d 825, 830 (Tex. App.-El Paso 2010, no pet.). Kroger argues that summary judgment is proper because it did not owe a duty to Gusman to warn or protect her from “the risk of trying to move a train of 50 or more shopping carts[.]” Doc. 38, Def.'s Br., 15. The Court disagrees.
“[A]s [Gusman]'s employer, [Kroger] had the nondelegable duty to use ordinary care in providing [Gusman] with a safe workplace.” Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996) (citations omitted). This duty required Kroger to “warn [Gusman] of the hazards of employment and provide needed safety equipment or assistance.” Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006) (per curiam) (citations omitted). However, “an employer is not an insurer of its employees' safety.” Id. And under Texas law, Kroger thus “owe[d] no duty to warn of hazards that are commonly known or already appreciated by” Gusman. Id.
Kroger suggests that Gusman already appreciated the hazard that led to her injury because of the safety training she received from Kroger. Doc. 38, Def.'s Br., 5-8. However, genuine issues of material fact...
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