Sepulveda v. Skechers USA Retail, LLC

• Decision Date: 20 September 2021
• Docket Number: 5:20-cv-00915-JKP-ESC
• Parties: ALICIA SEPULVEDA, Plaintiff, v. SKECHERS USA RETAIL, LLC and SKECHERS USA, INC., Defendants.
• Court: U.S. District Court — Western District of Texas

ALICIA SEPULVEDA, Plaintiff, v. SKECHERS USA RETAIL, LLC and SKECHERS USA, INC., Defendants.

No. 5:20-cv-00915-JKP-ESC

United States District Court, W.D. Texas, San Antonio Division

September 20, 2021

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

JASON PULLIAM UNITED STATES DISTRICT JUDGE

Before the Court is Defendant Skechers USA Retail, LLC and Skechers USA, Inc.'s (Skechers) Motion for Summary Judgment (ECF No. 38) to which Plaintiff responded and Skechers replied (ECF Nos. 41, 42). After careful consideration of the arguments and evidence of the parties, the Court grants the motion.

I. BACKGROUND

Plaintiff Alicia Sepulveda (“Sepulveda”) brings this action for injuries she sustained when she tripped and fell while entering a San Antonio Skechers. On June 25, 2018, as Sepulveda entered the Skechers store located at 8650 Fourwinds Drive, her foot caught in a mat at the entrance to the store and she fell face first onto the floor. The impact of the fall lacerated her head, which resulted in having a metal plate surgically implanted into her head and face.

Plaintiff brought a cause of action for negligence in the 408th Judicial District, Bexar County, Texas on June 3, 2020. Defendants removed the case to this Court on the basis of diversity jurisdiction. Skechers moves for summary judgment contending Sepulveda cannot establish any essential element of a premises liability claim. Because the Court is sitting in diversity and the incidents at issue took place in Texas Texas law governs Plaintiffs claims. Romo v. Ford Motor Co., 798 F.Supp.2d 798, 805 (S.D. Tex. 2011).

II. STANDARD OF REVIEW

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). A genuine dispute of material fact exists when “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 (1986). A dispute is “genuine” where “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. at 249; see also Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d 481, 489 (5th Cir. 2001) (“A [dispute] is ‘genuine' if it is real and substantial, as opposed to merely formal, pretended, or a sham.”) (emphasis omitted). A dispute is “material” only if it “might affect the outcome of the suit under the governing law.” Id. 477 U.S. at 248; see also Wiley v. State Farm Fire & Cas. Co., 585 F.3d 206, 210 (5th Cir. 2009) (“A fact is material only if its resolution would affect the outcome of the action[.]”).

The party moving for summary judgment bears the initial burden of informing the Court of the basis for the motion, and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets its initial burden, the burden shifts to the nonmoving party to produce evidence supporting its claims or defenses. Id.; Celtic Marine Corp. v. James C. Justice Co., Inc., 760 F.3d 477, 481 (5th Cir. 2014). The nonmoving party may not rest upon mere allegations or denials of the adverse party's evidence, but instead must produce admissible evidence that shows there is a genuine dispute of material fact for trial. Lynch Props., Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622, 625 (5th Cir. 1998). If the nonmoving party does not produce evidence to show a genuine dispute of material fact, the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323.

While all evidence and reasonable inferences are viewed in the light most favorable to the nonmovant, and all disputed facts are resolved in favor of the nonmovant, the judge's function “is not ‘to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine [dispute] for trial.'” Tolan v. Cotton, 572 U.S. 650, 656 (2014) (quoting Anderson, 477 U.S. at 249); Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005). And “[u]nsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment.” United States v. Renda Marine, Inc., 667 F.3d 651, 655 (5th Cir. 2012) (quoting Brown v. City of Hous., 337 F.3d 539, 541 (5th Cir. 2003)); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc). “Factual controversies are resolved in favor of the nonmoving party ‘only when an actual controversy exists, that is, when both parties have submitted evidence of contradictory facts.'” Olabisiomotosho v. City of Hous., 185 F.3d 521, 525 (5th Cir. 1999) (quoting McCallum Highlands, Ltd. v. Washington Capital Dus, Inc., 66 F.3d 89, 92 (5th Cir. 1995)).

When a party bears the burden of proof, “he must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). “When the nonmoving party bears the burden of proof at trial, summary judgment is warranted if the nonmovant fails to ‘make a showing sufficient to establish the existence of an element essential to its case.'” Nebraska v. Wyoming, 507 U.S. 584, 590 (1993) (quoting Celotex, 477 U.S. at 322; Apache Corp. v. W & T Offshore, Inc., 626 F.3d 789, 793 (5th Cir. 2010)). “In such a situation, there can be ‘no genuine [dispute] as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 322-23.

III. DISCUSSION

A. Evidentiary Objections

Skechers objects to several portions of Sepulveda's summary judgment evidence. The admissibility of summary judgment evidence is subject to the same rules that govern the admissibility of evidence at trial. Okpala v. City of Houston, 397 F. App'x. 50, 55 n.15 (5th Cir. 2010); Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 387-88 (5th Cir. 2009); Pegram v. Honeywell, Inc., 361 F.3d 272, 285 (5th Cir. 2004) (citing Resolution Tr. Corp. v. Starkey, 41 F.3d 1018, 1024 (5th Cir. 1995)). But “[a]t the summary judgment stage, evidence need not be authenticated or otherwise presented in an admissible form.” Maurer v. Indep. Town, 870 F.3d 380, 384 (5th Cir. 2017) (citing Fed.R.Civ.P. 56(c); Lee v. Offshore Logistical & Transp., LLC, 859 F.3d 353, 355 (5th Cir. 2017)).

First, Skechers objects to the deposition of Jesse Sepulveda and seeks to strike it in its entirety on the basis that Mr. Sepulveda has not previously been identified as a fact witness. Mr. Sepulveda was produced as a witness at the request of Skechers who deposed Mr. Sepulveda. The fact of the deposition shows that the witness was known to Skechers. Additionally, Skechers was aware that Mr. Sepulveda was a witness likely to have discoverable information when employees Johnathan Carver and Sarah Alvarado submitted their incident reports as Mr. Sepulveda was present during the incident. ECF Nos. 41-4 (Carver Dep. 48:21-23); 41-7 (Alvarado Dep. 27:11-29:9); 41-4 at 18 (Carver's Customer Incident Report noting “Husband” and “Alicia” with phone numbers under each).^[1]Moreover, despite knowing of the existence of the witness, Skechers did not move to compel disclosure, but objected only after Plaintiff submitted the deposition testimony as part of her summary judgment evidence. Therefore, this objection is overruled.

Next, Skechers objects to the affidavit of Joe Gonzales on the basis that Mr. Gonzales has not been identified as a fact witness. Skechers' previous motion to exclude Mr. Gonzales's testimony (ECF No. 18) was denied by the Honorable Elizabeth S. Chestney prior to the filing of the subject objection. ECF No. 37. Judge Chestney's order and the transcript of the hearing on the motion make clear: “Plaintiff has designated Gonzalez as a non-retained, testifying expert under Rule 26(a)(2)(C). Such witnesses are not required to provide an expert report under Rule 26(a)(2)(B) and may testify as both a fact witness and also provide expert testimony under Rule 702 of the Federal Rules of Evidence. See Fed. R. Civ. P. 26 advisory committee's notes to 2010 amendments, at ¶ 7.” ECF Nos. 37 at 2; 40 (Hearing Transcript at 9:9-11:16). Accordingly, this objection is overruled.

Finally, Skechers objects to Mrs. Sepulveda's testimony “where she describes a ‘condition' of the subject mat that she claims caused her fall.” ECF No 41 at 4. Skechers objects to the testimony because Mrs. Sepulveda testifies that she did not see the condition of the mat. Rather, Mrs. Sepulveda testifies that she felt the condition of the mat with her foot. Mrs. Sepulveda may testify about her own experiences including what she felt with her foot during the incident. As to offering an opinion about a condition of the mat, a lay witness may testify in the form of an opinion if it is “rationally based on the witness's perception; helpful to clearly understanding the witness's testimony or to determining a fact in issue; and not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed.R.Civ.P. 701. Thus, the objection is overruled.

B. Defendants' Motion for Summary Judgment

1. Theory of Liability

“Under the general umbrella of negligence, there are distinct species of claims . . . .” Odom v. Kroger Texas L.P., No. 3:13-cv-579, 2014 WL 585329, at *3 (N.D. Tex. Feb. 14, 2014). Negligent activity and premises liability are two such distinct claims under Texas law. Allen v. Wal-Mart Stores Texas, LLC, No. 14-cv-3628, 2015 WL 1955060, at...