Reyes v. Dollar Tree Stores, Inc.

• Decision Date: 19 October 2016
• Docket Number: EP–15–CV–00159–KC
• Citation: 221 F.Supp.3d 817
• Parties: Marta REYES, Plaintiff, v. DOLLAR TREE STORES, INC., and Veronica Macias, Defendants.
• Court: U.S. District Court — Western District of Texas

221 F.Supp.3d 817

Marta REYES, Plaintiff,

v.DOLLAR TREE STORES, INC., and Veronica Macias, Defendants.

EP–15–CV–00159–KC

United States District Court, W.D. Texas, El Paso Division.

Signed October 19, 2016

J. Roberto Oaxaca, Scherr & Legate, PLLC, James F. Scherr, El Paso, TX, for Plaintiff.

C. Robert Dorsett, Jr., Ross Sterling Crossland, Dorsett Johnson & Swift, LLP, Austin, TX, Ramon Benavides, III, Mounce Green Myers Safi Paxson & Galatzan, P.C., El Paso, TX, for Defendant.

ORDER

KATHLEEN CARDONE, UNITED STATES DISTRICT JUDGE

On this day, the Court considered Defendant Dollar Tree Stores, Inc. ("Defendant" or "Dollar Tree"), and Veronica Macias's ("Macias")¹ Amended Motion for Summary Judgment ("Motion for Summary Judgment"), ECF No. 40, and Defendant and Macias's Request for Oral Hearing on the Amended Motion for Summary Judgment ("Motion for Hearing"), ECF No. 56, in the above-captioned case. For the following reasons, Defendant's Motion for Summary Judgment is GRANTED in part and DENIED in part. Further, Defendant's Motion for Hearing is DENIED as moot.

I. BACKGROUND

A. Factual Background

On April 2, 2014, Plaintiff was standing in line to pay for merchandise at Defendant's store located at 116 South Stanton, El Paso, Texas 79901 (the "Store"), when a shoplifter attempting to flee the premises pushed Plaintiff and knocked her to the ground (the "Incident"). Mot. Summ. J. Ex. D, at 1, ECF No. 40–4 ("Defendant's Proposed Undisputed Facts"); Resp. to Def.'s Facts and Additional Proposed Undisputed Facts, at 1, ECF No. 41–1 ("Plaintiff's Proposed Undisputed Facts"). Veronica Macias and Rodolfo Saucedo, both employees of Defendant, were working and present at the Store at the time. See Mot. Summ. J. Ex. C, ECF No. 38–3, 9:10–19 ("Saucedo Deposition—Defendant's Excerpt"); Resp. Ex. 4, ECF No. 41–2, 9:10–19 ("Saucedo Deposition—Plaintiff's Excerpt"). At the time of the Incident, Macias was working as the manager of the Store, and Saucedo was on duty as a "loss prevention officer." Mot. Summ. J. Ex. B, at 2, ECF No. 38–2 ("Police Report").² Such is the extent of Defendant's facts.

Plaintiff submits evidence supporting a richer recounting of the events. According to Saucedo's testimony, he underwent "basic training[ ]" before starting as a loss prevention or security officer at the Store but was not trained specifically how to handle shoplifters and shoplifting incidents. Saucedo Dep.—Pl.'s Excerpt 6:13–22. He did testify that he was allowed to "physically subdue or grab or hold a shoplifter" if the shoplifter "was trying to get away." Id. at 7:2, 14–21. Referring to Dollar Tree's policy on suspected shoplifters, Saucedo stated, "once they pass the register, if the guy is trying to leave, then you can stop the person." Id . at 7:19–21. He continued that he would stop a suspected shoplifter regardless of the estimated value of the merchandise that he suspected was being stolen. Id. at 8:3–6.

Plaintiff offers evidence that Saucedo felt part of his job was to chase and grab shoplifters, that he knew that some shoplifters would run, and that, if they ran, he believed his duty was to pursue and detain them. See id. at 34:45–36. Saucedo also testified that it was his job to prevent suspected shoplifters from bolting because, if they ran, they might endanger other people in the Store. See id. He mentioned that he had, on at least one prior occasion, grabbed a suspected shoplifter as he or she attempted to run. Id.

Saucedo's testimony about Store policy differs from that offered by Macias, the Store manager. See Resp. 10–14. According to Macias, the Store's loss prevention policy is for a Store employee first to greet a customer to acknowledge him or her, and then, as the customer leaves the Store, to check his or her bags and receipts. Macias Dep. 11:7–16. She also testified that if a customer was suspected of shoplifting an amount less than $25.00, he or she would be asked to leave the Store. Id . at 12:22–5–13:1–2. The police would not be called. Id. at 11:18. Macias also stated that shoplifting in the Store was not uncommon: during the six to seven years Macias worked at the Store, more than twenty shoplifting incidents had occurred. Id. at 10:9–18.

On the day of the Incident, the shoplifter, Timothy Compton, attempted to steal two bags of Reese's Pieces candy from the Store. See Police Report 1; Saucedo Dep.—Def.'s Excerpt 12:18–22. Although Defendant and Plaintiff agree that Compton was fleeing the Store after being caught shoplifting, Plaintiff points out that the summary judgment evidence includes conflicting versions of the events that precipitated Compton's flight. See Def.'s Facts 1; Pl.'s Facts 2.

According to Defendant's evidence, there are two versions of what transpired prior to Compton's attempted flight. The Police Report states that Saucedo told the police officer at the scene that he apprehended Compton at the exit of the Store and then walked with him to the back of the Store to get his information before Compton fled. See Police Report 2. Saucedo states in his deposition that he did not stop or question Compton before he fled. Saucedo Dep.—Def.'s Excerpt 11:21–12:3, 46:6–25–47:1–22. Saucedo testified that, on the day of the Incident, a customer approached him to tell him that someone was stealing in the back of the Store—the "food area." See id. at 11:13. The customer provided Saucedo with a description of the shoplifter. Id. at 11:15–16. Subsequently, Saucedo "found the guy" and "was just keeping an eye on him" while Compton continued shoplifting in the food aisle. Id. at 11:15–20. According to Saucedo, he followed Compton toward the front to speak with him, and Compton started running when he reached a register near the front of the Store. Id. at 11:25–7, 12:2. Saucedo explains that he started running after Compton, and that soon after, Compton knocked Plaintiff to the ground. Id. at 12:3. Saucedo stated that, after Compton knocked Plaintiff over, Saucedo "tried to grab [Compton]" because Saucedo knew that Compton "was going to run away from the incident." Saucedo Dep.—Pl.'s Excerpt 14:24–15:1.

B. Procedural Background

Plaintiff filed her Petition in the 327th District Court of El Paso County, Texas, on April 17, 2015. See Notice of Removal Ex. A, at 2 ("Plaintiff's Original Petition"). Defendant removed the case to federal court on May 29, 2015. See Notice of Removal. On May 25, 2016, Defendant filed its Motion for Summary Judgment, see Mot. Summ. J., and on June 13, 2016, Plaintiff filed her Response, see Resp., ECF No. 41. Defendant did not file a Reply in support of its Motion for Summary Judgment.

II. DISCUSSION

A. Standard

A court must enter summary judgment "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) ; see also Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Weaver v. CCA Indus., Inc. , 529 F.3d 335, 339 (5th Cir. 2008). "A fact is ‘material’ if its resolution in favor of one party might affect the outcome of the lawsuit under governing law." Sossamon v. Lone Star State of Tex. , 560 F.3d 316, 326 (5th Cir. 2009) (quoting Hamilton v. Segue Software, Inc. , 232 F.3d 473, 477 (5th Cir. 2000) (per curiam)). A dispute about a material fact is genuine only "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) ; Ellison v. Software Spectrum, Inc. , 85 F.3d 187, 189 (5th Cir. 1996).

"[The] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex , 477 U.S. at 323, 106 S.Ct. 2548 ; Wallace v. Tex. Tech. Univ. , 80 F.3d 1042, 1046–47 (5th Cir. 1996). To show the existence of a genuine dispute, the nonmoving party must support its position with citations to "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials[ ]" or show "that the materials cited [by the movant] do not establish the absence ... of a genuine dispute, or that [the movant] cannot produce admissible evidence to support the fact." FED. R. CIV. P. 56(c).

The court resolves factual controversies in favor of the nonmoving party; however, factual controversies require more than "conclusory allegations," "unsubstantiated assertions," or "a ‘scintilla’ of evidence." Little v. Liquid Air Corp. , 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (internal citations omitted). Further, when reviewing the evidence, the court must draw all reasonable inferences in favor of the nonmoving party and may not make credibility determinations or weigh evidence. Man Roland, Inc. v. Kreitz Motor Express, Inc. , 438 F.3d 476, 478–79 (5th Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ). Thus, the ultimate inquiry in a summary judgment motion is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson , 477 U.S. at 251–52, 106 S.Ct. 2505.

B. Analysis

In her Petition, Plaintiff brings a negligence claim and a premises liability claim against both Defendant and Macias. Pet. 3–4. In the Motion, Defendant first argues that Plaintiff's negligence claim fails because, under the circumstances, negligence does not provide a viable theory under which Plaintiff can recover. See Mot. Summ. J. 3–4. Alternatively, Defendant argues, if negligence does provide a viable theory of recovery, Plaintiff's negligence claim fails as a matter of law because Plaintiff ...