Patel v. Wal-Mart Stores, Inc.

Filing 33

MEMORANDUM OPINION AND ORDER - It is therefore ORDERED that Defendants Motion for Summary Judgment (Dkt. [ 22 ) is hereby DENIED. It is further ORDERED that Defendants No-Evidence Motion for Summary Judgment (Dkt. 23 ) is hereby DENIED. Signed by Judge Amos L. Mazzant, III on 8/5/2016. (baf, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

NARMADABEN PATEL

v.
WALMART STORES, INC.

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CASE NO. 4:15-CV-427
Judge Mazzant

MEMORANDUM OPINION AND ORDER
Pending before the Court are Defendant’s Motion for Summary Judgment (Dkt. #22) and
Defendant’s No-Evidence Motion for Summary Judgment (Dkt. #23). After reviewing the
relevant pleadings, the Court finds that motions should be denied.
BACKGROUND
On July 7, 2013, Plaintiff Narmadaben Patel slipped and fell in a puddle of fabric
softener while she was visiting Defendant Wal-Mart Stores, Inc. (“Defendant” or “Wal-Mart”)
location at 6001 N. Central Expressway, Plano, Texas 75023 (the “Premises”), in which she
sustained injuries (Dkt. #6 at ¶¶ 8-9; Dkt. #22 at p. 1). Plaintiff contends that, as a result of her
fall, she suffered a left patella fracture that has impaired her gait, and caused subsequent injury to
her lower back (Dkt. 29 at p. 1).
On July 30, 2015, Plaintiff filed her First Amended Complaint, in which she claimed
damages under a premises liability theory (Dkt. #6). On May 3, 2016, Defendant filed its
Motion for Summary Judgment (Dkt. #22). On June 8, 2016, Plaintiff filed her response (Dkt.
#28). On June 15, 2016, Defendant filed its reply (Dkt. #30).
Also on May 3, 2016, Defendant filed its No-Evidence Motion for Summary Judgment
(Dkt. #23). On June 8, 2016, Plaintiff filed her response (Dkt. #29). On June 15, 2016,
Defendant filed its reply (Dkt. #30).
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LEGAL STANDARD
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.

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No “mere denial of material facts

nor…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).
ANALYSIS
Defendant argues that the Court should grant summary judgment for Defendant, as to
Plaintiff’s premises liability claim for the following reasons: (1) Defendant did not have actual
or constructive knowledge of the condition; and (2) there is no evidence that a condition on the
premises posed an unreasonable risk of harm. (Dkt. #22 at p. 5; Dkt. #23 at p. 2). Plaintiff
asserts that there is evidence that Wal-Mart had constructive knowledge of the puddle of fabric
softener on the floor, which caused Plaintiff’s fall (Dkt. #28 at p. 3).
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 elements for a cause of action for premises liability include: (1) the existence of a
condition of the premises creating an unreasonable risk of harm; (2) that the premises
owners/occupier 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 v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992).
Defendant contends that Plaintiff has no evidence that Wal-Mart had actual or constructive
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knowledge of the potentially harmful condition (Dkt. #23 at p. 2). Additionally, Defendant
contends that Plaintiff has no evidence that fabric softener on the floor was an unreasonably
dangerous condition or posed an unreasonable risk of harm (Dkt. #23 at p. 2).
A plaintiff may establish actual or constructive knowledge of a potentially harmful
condition in one of three ways: (1) proof that the employees caused the harmful condition; (2)
proof that the employees either saw or were told of the harmful condition prior to the plaintiff’s
injury; or (3) proof that the harmful condition was present for so long that it should have been
discovered in the exercise of reasonable care. Garcia v. Ross Stores, Inc., 896 F. Supp. 2d 575,
580 (S.D. Tex. 2012); see Keetch, 845 S.W.2d at 264. Plaintiff has no evidence and does not
argue that Target employees caused the fabric softener to spill on the floor. Additionally,
Plaintiff does not assert that employees either saw or were told of the harmful condition prior to
the plaintiff’s injury. As there is no credible evidence, and Plaintiff does not seem to assert the
contrary, the Court finds that Defendant did not have actual knowledge of the fabric softener
spill.
However, Plaintiff asserts that Defendant had constructive knowledge of fabric softener
spill (See Dkt. #28 at p. 2). To show constructive knowledge, Plaintiff must prove that the
condition existed for a sufficient period of time for Defendant to have a reasonable opportunity
to discover it. Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 815 (Tex. 2002); CMH Homes,
Inc. v. Daenen, 15 S.W.3d 97, 102-103 (Tex. 2000). In Reece, the Texas Supreme Court adopted
the “time-notice rule” for determining if a defendant has constructive knowledge of a hazardous
condition. 81 S.W.3d at 816. This “‘time-notice rule’ is based on the premise that temporal
evidence best indicates whether the owner had a reasonable opportunity to discover and remedy
a dangerous condition.”

Id.

What qualifies as a “reasonable opportunity to discover and

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remedy” turns on the facts and circumstances of the case. Id. Therefore, “when determining
whether a defendant can be held to have had constructive knowledge of a hazardous condition,
the court must consider evidence of (1) proximity, (2) conspicuity, and (3) longevity.” Pena v.
Home Depot U.S.A., Inc., 32 F. Supp. 3d 792, 798 (S.D. Tex. 2013); see Reece, 81 S.W.3d at
815-17; see also Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 567 (Tex. 2006).
In the present case, there is no evidence regarding proximity. The only evidence before
the Court is that a Wal-Mart employee inspected the area at approximately 5:35 p.m. (Dkt. #28,
Exhibit 3 at 46:17-22; see Dkt. #22, Exhibit F). He left the area at approximately 5:42 p.m. (See
Dkt. #22, Exhibit 4 at 73:22-74:1). It also appears from the testimony that puddle of fabric
softener was not conspicuous. In the Plaintiff’s deposition, she testified that the liquid “was
clear just the same color as the tiles on the floor.” (Dkt. #22, Exhibit 3 at 18:6-11). She also
testified that she did not see anything on the floor prior to slipping (Dkt. #22, Exhibit 3 at 16:1820).
Therefore, the Court will turn its analysis to the temporal conditions. The parties do not
dispute the timeline of events in the case. The video of the incident shows that a Wal-Mart
employee inspected the area at approximately 5:35 p.m. (Dkt. #22, Exhibit 4 at 73:22-74:6; see
Dkt. #22, Exhibit F). The video further shows a spill of the fabric softener occurred at 5:48 p.m.,
and that Plaintiff slipped and fell at 6:12 p.m., or twenty-four (24) minutes later (Dkt. #22 at p. 6;
Dkt. #28 at p. 2; see Dkt. #22, Exhibit F). After reviewing the video and other relevant evidence,
the Court finds that, viewing the evidence in a light most favorable to Plaintiff, there is a fact
issue as to whether the condition, a fabric softener spill, existed a sufficient period of time for
Wal-Mart to have a reasonable opportunity to discovery it. “[T]his is not a situation where there
is no evidence from which a jury could infer the approximate length of time” the condition

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existed to allow for a reasonable opportunity of discovery. See Jones v. Valero Energy Corp.,
No. 5:08-CV-193, 2009 WL 3063326 (E.D. Tex. Sept. 21, 2009)1. The Court finds a material
fact issue exists as to whether Wal-Mart had a reasonable opportunity to discover the condition;
and therefore, Defendant’s motion for summary judgment should be denied.
Defendant also asserts that there is no evidence that a condition on the premises posed
an unreasonable risk of harm (Dkt. #23 at p. 2). Wal-Mart’s corporate representative, Paul Kea
(“Kea”), testified during his deposition that the fabric softener spill was a dangerous condition
(Dkt. #29, Exhibit 1 at 77:7-23). Additionally, the assistant manager of the Premises, Martha
Stevens (“Stevens”), testified that the floor was slippery based on her observation (Dkt. #29,
Exhibit 2 at 64:17-19). Additionally, she testified that the slippery floor potentially posed a
dangerous condition (Dkt. #29, Exhibit 2 at 64:20-22). After reviewing the relevant pleadings,
the Court finds that a material fact issue exists as to whether the fabric softener spill was a
dangerous condition which posed an unreasonable risk of harm; and therefore, Defendant’s
motion for summary judgment should be denied.
CONCLUSION
It is therefore ORDERED that Defendant’s Motion for Summary Judgment (Dkt. #22) is
hereby DENIED.

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Defendant asserts that “the [Texas Supreme Court] in Garcia v. Ross Stores, Inc., stated ‘a dangerous condition
that has existed for forty-five minutes or less has been considered to be legally insufficient to show constructive
knowledge.’” (Dkt. #22 at p. 6) (citing Garcia, 896 F. Supp. 2d at 580-81 (citing Threlkeld v. Total Petroleum, Inc.,
211 F.3d 887, 894 (5th Cir. 2000); Brookshire Food Stores, L.L.C. v. Allen, 93 S.W.3d 897, 900-01 (Tex. App.—
Texarkana 2002, no pet.); Wal-Mart Stores, Inc. v. Lopez, 2000 WL 31971, at *2 (Tex. App.—San Antonio, no
pet.); Kimbell, Inc. v. Roberson, 570 S.W.2d 587, 590 (Tex. Civ. App.—Tyler 1978, no writ))). After reviewing the
cases cited by Defendant, the Court finds them to be distinguishable. The cases cited by Defendant were cases in
which there was no evidence as to when the spill was created. In the present case, the parties agree that the spill
occurred at 5:48 p.m. (See Dkt. #22, Exhibit F). Additionally, there is testimony that the last inspection by a WalMart employee occurred at approximately 5:35 p.m. (See Dkt. #22, Exhibit 4 at 73:22-74:6). There is also testimony
that employees were supposed to inspect “high action areas[,]” like the aisle in which Plaintiff fell, every thirty
minutes (Dkt. #22, Exhibit 1 at 54:7-56:12; 89:18-90:8). Therefore, the Court finds that, unlike the finding in
Garcia, there remains a question of fact as to whether Wal-Mart had a reasonable opportunity to discover the
condition.

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It is further ORDERED that Defendant’s No-Evidence Motion for Summary Judgment
(Dkt. #23) is hereby DENIED.

SIGNED this 5th day of August, 2016.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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