Smith v. Braum's, Inc.
| Decision Date | 10 August 2016 |
| Docket Number | CASE NO. 4:15-CV-587 |
| Parties | RENEE SMITH v. BRAUM'S, INC. |
| Court | U.S. District Court — Eastern District of Texas |
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant Braum's, Inc.'s Motion for Summary Judgment (Dkt. #19). After reviewing the relevant pleadings, the Court finds that the motion should be granted in part and denied in part.
The above-referenced case arises from alleged injuries Plaintiff Rene Smith ("Plaintiff" or "Smith") sustained when she tripped and fell on the sidewalk outside Defendant Braum's, Inc.'s ("Defendant" or "Braum's") store located at 1331 Mockingbird Lane, Sulphur Springs, Texas (the "Premises") on September 5, 2013 (Dkt. #19 at p. 1).
On July 23, 2015, Plaintiff filed her Original Petition in the County Court of Law No. 5 in Dallas County, Texas, in which she the following claims: (1) premises liability; (2) negligence; and (3) negligence per se (Dkt. #8). On August 24, 2015, Defendant removed the case to the Northern District of Texas based upon diversity jurisdiction (Dkt. #1). On August 27, 2015, the case was transferred to the Eastern District of Texas (Dkt. #4).
On February 26, 2016, Defendant filed its Motion for Summary Judgment (Dkt. #19). On March 15, 2016, Plaintiff filed her response (Dkt. #21). On March 17, 2016, Defendant filed its reply (Dkt. #22).
The purpose of summary judgment is to isolate and dispose of factually unsupported claims or defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Summary judgment is proper if the pleadings, the discovery and disclosure materials on file, and any affidavits "[show] that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A dispute about a material fact is genuine "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 (1986). The trial court must resolve all reasonable doubts in favor of the party opposing the motion for summary judgment. Casey Enters., Inc. v. Am. Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir. 1981) (citations omitted). The substantive law identifies which facts are material. Anderson, 477 U.S. at 248.
The party moving for summary judgment has the burden to show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Id. at 247. If the movant bears the burden of proof on a claim or defense on which it is moving for summary judgment, it must come forward with evidence that establishes "beyond peradventure all of the essential elements of the claim or defense." Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). Where the nonmovant bears the burden of proof, the movant may discharge its burden by showing that there is an absence of evidence to support the nonmovant's case. Celotex, 477 U.S. at 325; Byers v. Dall. Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000). Once the movant has carried its burden, the nonmovant must "respond to the motion for summary judgment by setting forth particular facts indicating there is a genuine issue for trial." Byers, 209 F.3d at 424 (citing Anderson, 477 U.S. at 248-49). The nonmovant must adduce affirmative evidence. Anderson, 477 U.S. at 257. No "mere denial of material factsnor...unsworn allegations [nor] arguments and assertions in briefs or legal memoranda" will suffice to carry this burden. Moayedi v. Compaq Comput. Corp., 98 F. App'x 335, 338 (5th Cir. 2004). Rather, the Court requires "significant probative evidence" from the nonmovant in order to dismiss a request for summary judgment supported appropriately by the movant. United States v. Lawrence, 276 F.3d 193, 197 (5th Cir. 2001). The Court must consider all of the evidence, but must refrain from making any credibility determinations or weighing the evidence. See Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).
In the present case, Defendant moves for summary judgment on the following claims: (1) premises liability; (2) negligence; and (3) gross negligence1. Specifically, Defendant asserts that Defendant had no duty to protect or warn Plaintiff because the condition that allegedly caused Plaintiff to trip and fall was open and obvious and could have been avoided by taking a safer alternative (Dkt. #19 at pp. 5-6). Plaintiff asserts that a question of fact remains as to whether the condition was open and obvious (Dkt. #21 at p. 5).
Texas substantive law governs this dispute, since the case is pending before the Court under its diversity jurisdiction. Homoki v. Conversion Servs., Inc., 717 F.3d 388, 396 (5th Cir. 2013). "The Texas Supreme Court has consistently recognized...that negligent activity claims and premises liability claims involve two independent theories of recovery that fall within the scope of negligence." Garcia v. Ross Stores, Inc., 896 F. Supp. 2d 575, 579 (S.D. Tex. 2012); see Gen. Elec. Co. v. Mortiz, 257 S.W.3d 211, 214-15 (Tex. 2008); Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997); see also Mayer v. Willowbrook Plaza Ltd. P'ship,278 S.W.3d 901, 909 (Tex. App.—Houston [14th Dist.] 2009, no pet.); Brooks v. PRH Invs., Inc., 303 S.W.3d 920 (Tex. App.—Texarkana 2010, no pet.). To pursue relief for an injury under negligent activity law, an injury must flow from ongoing, contemporaneous activity rather than a condition created by that activity. Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). An injury is the contemporaneous result of a negligent activity where the evidence shows that the activity occurred near both the time and location of the injury. Kroger Co. v. Persley, 261 S.W.3d 316, 320 (Tex. App.—Houston [1st Dist.] 2008, no pet.). On the other hand, a cause of action rooted in premises liability arises from property conditions that make it unsafe. In re Texas Dep't of Transp., 218 S.W.3d 74, 77 (Tex. 2007). "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." Garcia, 896 F. Supp. 2d at 579 (citing Lucas v. Titus Cty. Hosp. Dist./Titus Mem'l Hosp., 964 S.W.2d 144, 153 (Tex. App.—Texarkana 1998, pet. denied)).
In the present case, Plaintiff was injured by a condition created by an activity, not the Defendant's activity itself. The Texas Supreme Court's previous decisions demonstrate that Plaintiff can only recover under a premises liability theory. In Keetch, the plaintiff fell thirty minutes after a Kroger employee had sprayed chemicals on plants. 845 S.W.2d at 264. The court noted that "[a]t some point, almost every artificial condition can be said to have been created by an activity," and that the plaintiff "was not injured by the activity of spraying," but "by a condition created by the spraying." Id. Likewise, in the present case, Plaintiff was injured by the condition created by the broken sidewalk. Therefore, Plaintiff may only recover under a premises liability claim, and the Court will grant Defendant's motion for summary judgment as to Plaintiff's negligence claim.
The elements for a cause of action for premises liability include: (1) the existence of a condition on the premises creating an unreasonable risk of harm; (2) that the premises owners/occupiers knew, or should have known, of the existence of that condition; (3) that the premises owner/occupier failed to use reasonable care to reduce or eliminate the risk by rectifying or warning of the condition; and (4) that such failure was a proximate cause of the incident and of Plaintiff's injuries. Keetch, 845 S.W.2d at 264. Defendant contends that Plaintiff's claim fails because "Defendant had no duty to protect or warn the Plaintiff because the condition complained of was open and obvious to Plaintiff and Plaintiff could have avoided the condition by taking a safer alternative." (Dkt. #19 at pp. 5-6).
In a premises liability case, "the scope of the duty turns on the plaintiff's status." Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex. 2010) (citing W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005)). In the present case, Smith was an invitee2, and generally, "a property owner owes invitees a duty to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition about which the property owner knew or should have known." Id. (citing Urena, 162 S.W.3d at 550; see Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex. 1998)).
However "[a] landowner 'is not an insurer of [a] visitor's safety." Austin, 465 S.W.3d at 203 (quoting Del Lago Partners, 307 S.W.3d at 769). "Instead, a landowner's premises-liability duties, like its negligence duties, are limited to a duty to exercise ordinary, reasonable care." Id. at 203-04 (citing Kroger Co. v. Elwood, 197 S.W.3d 793-94 (Tex. 2006)).
The Texas Supreme Court "has repeatedly described a landowner's duty as a duty to make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is, or reasonably should be, aware but the invitee is not." Austin, 465 S.W.3d at 203; see, e.g.,, Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 412 (Tex. 2009); Brookshire Grocery Co. v. Goss, 262 S.W.3d 793, 794 (Tex. 2008); Gen. Elec. Co. v. Mortiz, 257 S.W.3d 211, 216 (Tex. 2008); Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); Shell Oil Co. v. Khan, 138 S.W.3d 288, 295 (Tex. 2004). "Ordinarily, the landowner need not do both, and can satisfy its duty by providing an adequate warning even if the unreasonably dangerous condition remains." Austin, 465 S.W.3d at 203; see State v. Williams, 940 S.W.2d 583, 584 (Tex. 1996) (); see also TXI Operations, L.P. v. Perry, 278 S.W.3d 763, 765 (Tex. 2009) ...
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