Hill v. PetSmart, Inc.
| Docket Number | Civil Action 6:20-CV-00004 |
| Decision Date | 30 March 2022 |
| Parties | EARLEEN HILL, Plaintiff, v. PETSMART, INC., Defendant. |
| Court | U.S. District Court — Southern District of Texas |
A “whodunit” is a mystery or detective story. This case is a whodunit-of sorts. Plaintiff Earleen Hill seeks damages arising out of a slip and fall at PetSmart's Victoria, Texas location. PetSmart filed a Motion for Summary Judgment arguing that Hill's single claim for premises liability fails under Texas law. The Court concludes that there is a genuine issue of material fact as to whether PetSmart had actual or constructive knowledge of the substance-here, dog urine-that caused Hill's slip and fall. There are conflicting accounts as to whose dog urinated on PetSmart's floor (and when). For this reason and the reasons that follow, the Court DENIES the Motion for Summary Judgment.
On January 6, 2020, Hill filed this lawsuit in the 24th Judicial District Court of Victoria County, Texas. (Dkt. No. 1-4). PetSmart removed the case to this Court on the basis of diversity jurisdiction.[1] (Dkt. No. 1). In Hill's live pleading, she alleges that she visited PetSmart's Victoria location on or around January 15 2018.[2] (Dkt. No. 1-2 at ¶ 10). While “walking inside the store near the front entrance, ” Hill stepped in what she believed to be animal urine, feces, or both. (Id.). As a result, she fell and “was transported by ambulance to the emergency room where it was determined that immediate hip surgery was needed and subsequently performed.” (Id. at ¶¶ 11-12). Hill asserts a single claim under Texas law for premises liability. (Id. at ¶¶ 13-19). She seeks more than $200, 000 in actual damages, court costs, and interest. (Id. at ¶ 2).
Summary judgment is appropriate when 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 material fact is one that might affect the outcome of the suit under governing law, ” and “a fact issue is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Renwick v. PNK Lake Charles, L.L.C., 901 F.3d 605, 611 (5th Cir. 2018) (quotations omitted). The moving party “always bears the initial responsibility of informing the district court of the basis for its motion, ” and identifying the record evidence “which it believes demonstrate[s] the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2253, 91 L.Ed.2d 265 (1986). “If the moving party fails to meet [its] initial burden, the motion [for summary judgment] must be denied, regardless of the nonmovant's response.” United States v. $92, 203.00 in U.S. Currency, 537 F.3d 504, 507 (5th Cir. 2008) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam)).
If the movant meets this burden, the nonmovant must come forward with specific facts showing there is a genuine issue for trial. Fed.R.Civ.P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The nonmovant must “go beyond the pleadings and by [the nonmovant's] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Nola Spice Designs, LLC v. Haydel Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015) (citation omitted). “The nonmovant must identify specific evidence in the record and articulate the precise manner in which that evidence supports his or her claim.” Carr v. Air Line Pilots Ass'n, Int'l, 866 F.3d 597, 601 (5th Cir. 2017) (per curiam) (cleaned up). “If the evidence is merely colorable, or is not significantly probative, ” summary judgment is appropriate. Parrish v. Premier Directional Drilling, L.P., 917 F.3d 369, 378 (5th Cir. 2019) (citation omitted).
The nonmovant's burden “will not be satisfied by ‘some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.'” Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005) (quoting Little, 37 F.3d at 1075). Hearsay evidence and unsworn documents that cannot be presented in a form that would be admissible in evidence at trial do not qualify as competent opposing evidence. Fed.R.Civ.P. 56(c)(2); Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987). For evidence to be admitted, the materials “need only be capable of being ‘presented in a form that would be admissible in evidence.'” LSR Consulting, LLC v. Wells Fargo Bank, N.A., 835 F.3d 530, 534 (5th Cir. 2016) (quoting Fed.R.Civ.P. 56(c)(2)) (emphasis in original).
In reviewing a motion for summary judgment, the district court must view the evidence in the light most favorable to the nonmovant. Coleman v. Hous. Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997). This means that factual controversies are to be resolved in the nonmovant's favor, “but only when . . . both parties have submitted evidence of contradictory facts.” Little, 37 F.3d at 1075.
As a preliminary matter, PetSmart raises two hearsay objections under Rules 801 and 802 of the Federal Rules of Evidence. First, PetSmart objects to Hill's deposition testimony that, after Hill fell, a customer said, “it's a shame that they don't clean up - urine on the floor.” (Dkt. No. 16 at 1). PetSmart also objects to Hill's statement to PetSmart's store leader Kelly Johnson-immediately after Hill fell-that another customer told Hill that it was “that customer's dog that urinated.” (Id.). Hill, in response, argues that both statements fall under an exception to the rule against hearsay because they are present sense impressions under Rule 803(1). (Dkt. No. 18 at 4-6). The Court sustains PetSmart's first objection but overrules the second.
Under the Federal Rules of Evidence, “Hearsay is not admissible unless any of the following provides otherwise: [1] a federal statute; [2] these rules; or [3] other rules prescribed by the Supreme Court.” Fed.R.Evid. 802. Hearsay is “a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to provide the truth of the matter asserted in the statement.” Fed.R.Evid. 801(c). A “statement” is defined as “a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.” Fed.R.Evid. 801(a).
A present sense impression is not excluded by the rule against hearsay. Fed.R.Evid. 803(1). A present sense impression is defined as a “statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.” Id. The focus of the inquiry is “the timeliness of the statement.” First State Bank of Denton v. Maryland Cas. Co., 918 F.2d 38, 42 (5th Cir. 1990). “The classic ‘present sense impression' is the recounting of an event that is occurring before the declarant's eyes, as the declarant is speaking[.]” Navarette v. California, 572 U.S. 393, 407, 134 S.Ct. 1683, 1694, 188 L.Ed.2d 680 (2014) (Scalia, J., dissenting). “The justification for this hearsay exception relies on the contemporaneousness of the event under consideration and the statement describing that event.” Rock v. Huffco Gas & Oil Co., 922 F.2d 272, 280 (5th Cir. 1991).
PetSmart first objects to the statement “it's a shame that they don't clean up - urine on the floor.” (Dkt. No. 16 at 1). During Hill's deposition, she stated that a woman standing behind her made that statement. (Dkt. No. 15-2 at 24). Hill also claimed during her deposition that this statement was made “[a]t the same time” that Johnson arrived at the scene of the accident. (Id.). During Johnson's deposition, she stated that she “probably” arrived at the scene of the fall “less than a minute and a half” after Hill fell. (Dkt. No. 15-5 at 9).
Hill advances two theories for why the statement is a present sense impression. Hill's first theory is that the woman's statement “was describing the event or condition made the subject of [her] fall”-urine-and that the statement was made “immediately after the incident” because it was less than one-and-a-half minutes later. (Dkt. No. 18 at 5). Hill's second theory is that the woman's “statement was even made while perceiving the event or condition” that resulted in Hill's fall. (Id.). In other words, the event was still ongoing at the time that the customer observed it.
The Fifth Circuit, citing the Advisory Committee Notes, has noted that “in many, if not most instances, Precise contemporaneity is impossible, and hence a Slight lapse is allowable” under Rule 803(1). United States v Cain, 587 F.2d 678, 681 (5th Cir. 1979) (capitalization in original). But the Fifth Circuit has held that a “slight lapse” in time does not include an out-of-court statement made at least fifteen minutes after the incident it describes. Id. The Fifth Circuit has not provided further bright-line guidance. Nonetheless, courts in this district have explained that “[p]recise contemporaneity is not required.” Canatxx Gas Storage Ltd. v. Silverhawk Cap. Partners, LLC, No. 4:06-CV-1330, 2008 WL 1999234, at *13 (S.D. Tex. May 8, 2008); see also Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 6814 (4th ed.) (). At first blush, then, the woman's statement appears to satisfy ...
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