Hollinger v. Hobby Lobby Stores, Inc.

Filing 37

MEMORANDUM OPINION AND ORDER - The court finds that the Plaintiff failed to show that there is a genuine dispute as to any material fact that the Defendant had actual or constructive knowledge of the water on the floor. Therefore, the Defendant is entitled to summary judgment on the Plaintiff's sole premises liability claim. Defendant's motion for summary judgment (docket entry 14 ) is accordingly GRANTED. Signed by Judge Richard A. Schell on 3/23/2017. (baf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
TONI HOLLINGER,
Plaintiff,
v.
HOBBY LOBBY STORES, INC.,
Defendants.

§
§
§
§
§
§
§
§
§

Case No. 4:16-CV-103

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
The following are pending before the court:
1.

Defendant’s motion for summary judgment and brief in support (docket entry #14);

2.

Plaintiff Toni Hollinger’s response to Defendant’s motion for summary judgment
(docket entry #17); and

3.

Defendant’s reply in support of its motion for summary judgment (docket entry #18).

Having considered the motion and the responsive briefing thereto, the court finds that the motion
should be GRANTED.
PROCEDURAL AND FACTUAL BACKGROUND
The following facts are largely undisputed:1
On December 21, 2013 at around 11:30 a.m., Plaintiff entered the Hobby
Lobby store in Allen, Texas to shop for some Christmas decorations. The weather
conditions that day were light snow and rain. (“It had [been] … raining … all day.”).
After purchasing a few items, Plaintiff left the premises and returned to her car that
was parked in the lot outside the store. Plaintiff subsequently realized that the debit
card she had used to purchase the merchandise a few minutes earlier was missing.
Approximately 15-20 minutes later, after searching for the card in her vehicle,
1

Citations to the record and internal footnote omitted.

-1-

Plaintiff walked back into the Hobby Lobby store to look for the debit card.
According to Plaintiff, when she returned to the store for the second time, it
was still raining outside and she was without an umbrella. Plaintiff testified that the
store was very crowded. (“It’s the second busiest [store] in the metroplex”). As
Plaintiff re-entered the store, she approached register number 2 where she had
checked out before leaving the store the first time. Suddenly, after taking a few steps,
Plaintiff slipped in some water that had been tracked in by other customers and fell.
Plaintiff testified that she fell forward and was on her stomach, face down, for
approximately 10 minutes, but that no one came to help her. Soon thereafter, another
customer, who was in line at register number 2, came over and helped Plaintiff get
up and walk over to get in line at register number 2. Plaintiff admitted that she
slipped in water tracked in by other customers and that it had been raining off and on
all day long. Plaintiff also admitted that she had no idea how long the water was on
the floor before she slipped in it or how long it had been since any Hobby Lobby
employees had mopped or cleaned the area where she allegedly slipped and fell.
When Plaintiff made it up to the counter of register number 2, she asked the
male clerk if he had her debit card. Curiously, Plaintiff did not notify the clerk that
she had just slipped in water and had fallen. After the clerk told Plaintiff he did not
have her debit card, Plaintiff walked over to register number 1 and spoke with the
store’s customer service manager, Cheryl Huelsman, about the missing card. As with
the clerk at register number 2, Plaintiff failed to notify Ms. Huelsman of the slip and
fall incident; rather, she only inquired about the missing debit card. According to
Plaintiff, Ms. Huelsman responded that “we haven’t seen the card.” Thereafter,
Plaintiff left the premises and drove home, without telling any Hobby Lobby
employee about the slip and fall incident.
According to Plaintiff, when she got home she called the store and asked to
speak to the store manager, Jerry Tropp. Mr. Tropp told Plaintiff that he had her
debit card. Mr. Tropp testified that Plaintiff never mentioned her fall to him during
this conversation. Plaintiff subsequently returned to the store – for the third time that
day – and retrieved the debit card from Ms. Huelsman. Plaintiff admitted that when
she returned to the store to retrieve the debit card, she did not mention the slip and
fall incident to Ms. Huelsman or any other Hobby Lobby employee. According to
Plaintiff, she called the store the following day and reported the slip and fall incident
to Mr. Tropp. However, Mr. Tropp testified that he first learned of the incident about
“a week or two” after it happened when Plaintiff called to report it. Ms. Huelsman
similarly testified that she first learned of the incident about two weeks later when
Plaintiff came into the store and reported that “[she] fell the day [Dec. 21] that [she]

-2-

came in.”2
DEF. MTN. FOR SUMM. JUDG., pp. 3-5.
On December 3, 2015, the Plaintiff filed her original petition in the 199th Judicial District
Court of Collin County, Texas. On February 9, 2016, the Defendant removed this case to this court
on the basis of diversity jurisdiction. In the Plaintiff’s original petition, and subsequent first
amended petition, the Plaintiff sued the Defendant for damages pursuant to a premises liability
theory of recovery. The Defendant now moves for summary judgment on the Plaintiff’s theory of
recovery.
SUMMARY JUDGMENT 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 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 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
Enterprises, Inc. v. American Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir. 1981) (citations
omitted). The substantive law identifies which facts are material. See id. at 248.
Both parties have a responsibility in the summary judgment process. Celotex, 477 U.S. at

2

The Plaintiff only disputes the Defendant’s assertion that she did not notify anyone at the store
on the date of her accident about her slip and fall. According to the Plaintiff, the Plaintiff made eye
contact with a store manager after she fell and while she was still on the floor. Additionally, according to
the Plaintiff, the Plaintiff advised another manager on the day of her accident about the fall. See PL.
RESP. TO MTN. FOR SUMM. JUDG., p. 2 (docket entry #17).

-3-

323–24. First, the party seeking summary judgment must show that the admissible evidentiary
material of record and any affidavits submitted by the nonmoving party are insufficient to permit the
nonmoving party to carry its burden of proof. The nonmoving party must then set forth “specific
facts showing that there is a genuine issue for trial” and “may not rest upon the mere allegations or
denials of his pleadings.” Anderson, 477 U.S. at 248. “Conclusional allegations and denials,
speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not
adequately substitute for specific facts showing a genuine issue for trial.” Roach v. Allstate
Indemnity Co., 2012 WL 1478745 (5th Cir. 2012), citing SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir.
1993).
DISCUSSION AND ANALYSIS
The parties are in agreement that Texas substantive law governs this diversity case. See
Granados v. Wal-Mart Stores, Inc., 653 F. App’x 366, 367 (5th Cir. 2016). Under Texas law, the
Defendant owed the Plaintiff, its invitee, “‘a duty to exercise reasonable care to protect her from
dangerous conditions in the store known or discoverable to it.’” Id. (citation omitted). “To recover
damages on a slip-and-fall claim, an invitee plaintiff must establish: (1) Actual or constructive
knowledge of some condition on the premises by the owner/operator; (2) That the condition posed
an unreasonable risk of harm; (3) That the owner/operator did not exercise reasonable care to reduce
or eliminate the risk; and (4) That the owner/operator's failure to use such care proximately caused
the plaintiff's injuries.” Id. at 367-368 (citation omitted).
The Defendant argues that the Plaintiff failed to offer evidence that the Defendant had actual

-4-

or constructive knowledge of the condition on the premises.3 See Granados, 653 F. App’x at 368.
The Plaintiff “may satisfy the knowledge element ‘by establishing that (1) the defendant placed the
substance on the floor, (2) the defendant actually knew that the substance was on the floor, or (3) it
is more likely than not that the condition existed long enough to give the premises owner a
reasonable opportunity to discover it.’” Id. (citation omitted). Since there is no evidence that the
Defendant placed the water on the floor, the court need only consider the final two factors.
A.

Actual Knowledge

In the Plaintiff’s brief response to the Defendant’s motion for summary judgment, the
Plaintiff argues that there is a reasonable inference that the Defendant had actual knowledge that the
floor was wet. The Plaintiff contends that Cheryl Huelsman was aware that it was raining on
December 21, 2013. Additionally, the Plaintiff contends that it was Cheryl Huelsman’s job to
remain in close proximity to the entrance doors whenever she was not assisting a cashier. Further,
the Plaintiff notes that Cheryl Huelsman and Jerry Tropp testified that additional rugs and caution
cones were on the floor at the time of the incident. Although the Plaintiff testified that there were
no mats on the floor where she slipped and fell, the Plaintiff contends that since Cheryl Huelsman
and Jerry Tropp stated that additional rugs, as well as caution cones, were placed on the floor, the
Defendant must have placed the additional rugs on the floor because they were aware that customers
were tracking rainwater into the store. The Plaintiff contends that the Defendant cannot argue that

3

The Defendant’s motion for summary judgment focuses on the first element (knowledge).
However, in the last two paragraphs of its motion for summary judgment, the Defendant summarily
argues that the Plaintiff also failed to offer any evidence on the final three elements. The Defendant,
however, did not cite the court to any authority in regard to the final three elements. Further, the
Defendant did not provide the court with any discussion or analysis concerning the final three elements.
Accordingly, the court will only analyze the first element since it is the only element that has been fully
briefed.

-5-

it did not know about the rainwater since it took steps to mitigate the same.
The Plaintiff relies on Duprie v. Dolgencorp of Texas, 59 S.W.3d 196 (Tex. App. –
Beaumont 2000, pet. denied) in support of her actual knowledge allegation. However, such reliance
is misplaced. In Duprie, the defendant’s assistant manager testified that it had been raining heavily
on the day in question. Id. at 198. At the time of the incident, “it had either stopped raining or was
drizzling very lightly.” Id. Because the ground outside of the store was wet, customers had tracked
rainwater into the store. Id. The assistant manager testified that she had mopped up the water from
the tile floor that the customers had tracked into the store. Id. She further testified that “she had
moved a mat that had been near the front of the store, while a mat outside the store was at the end
of the sidewalk, nowhere near the door. She said it had not occurred to her that without these mats
a customer would have no opportunity or ability to dry his or her feet.” Id. Based on these facts, the
Duprie court concluded that “the evidence of the proprietor’s notice of a dangerous condition
consisted of actual, not constructive notice, because Dollar General’s employees were aware that
customers entering the store were creating a dangerous condition by tracking in rainwater from
outside.” Id. at 199.
Here, however, the Plaintiff merely argues that there is a reasonable inference that the
Defendant had actual knowledge that the floor was wet. As noted above, the Plaintiff contends that
since Cheryl Huelsman and Jerry Tropp testified that additional rugs and caution cones were placed
on the floor, the Defendant must have placed the additional rugs on the floor because they were
aware that customers were tracking rainwater into the store. However, the mere fact that the
Defendant’s employees took steps to address a potential hazard does not lead to the conclusion that
the Defendant had actual knowledge of the rainwater on the floor. See Henderson v. Wal-Mart
-6-

Stores, Inc., 2015 WL 970673, *5 (E.D. Tex. 2015). Further, unlike the facts in Duprie, the Plaintiff
did not offer any evidence that the Defendant had actual knowledge that the floor was wet, i.e., the
Plaintiff did not offer evidence that the Defendant had mopped the floor to remove the rainwater.
Placing additional rugs and caution cones on the store floor on a rainy day does not prove that store
employees had actual knowledge that there was, in fact, water on the store floor. The court,
therefore, finds that the Plaintiff failed to show that there is a genuine dispute as to any material fact
that the Defendant had actual knowledge of the water on the floor. As such, the Defendant is entitled
to judgment as a matter of law on this issue.
B.

Constructive Knowledge

“‘To establish a premises owner's constructive knowledge of the presence of an unreasonable
risk of harm, a plaintiff generally must prove that the risk existed for a time sufficiently long to
permit the premises owner (or his employee) to (1) discover it and (2) correct it.’” Henderson, 2015
WL 970673, at *2, quoting Dixon v. Wal-Mart Stores, Inc., 330 F.3d 311, 316 (5th Cir. 2003). “This
is known as the ‘time-notice rule’ and ‘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., quoting Wal-Mart Stores v. Reece, 81 S.W.3d 812, 815 (Tex. 2002) (“disapproving of cases that
found constructive notice based on proximity of an employee to the condition and noting that ‘[t]he
rule requiring proof that a dangerous condition existed for some length of time before a premises
owner may be charged with constructive notice is firmly rooted in our jurisprudence’”) (citation
omitted in the original).
The Plaintiff contends that there is “ample” evidence that the Defendant had constructive
knowledge that the floor was wet and relies on the facts and arguments stated previously. In support
-7-

of her constructive notice claim, the Plaintiff relies on Wal-Mart Stores, Inc. v. Sparkman, 2014 WL
6997166 (Tex. App. – Fort Worth 2014, pet. denied). However, such reliance is misplaced. In
Sparkman, the plaintiff slipped and fell as she entered the defendant’s store on a rainy day. Id., at
*1. The defendant “had implemented its inclement weather guidelines that day by placing two
orange caution signs in the entryway.” Id. However, unlike the instant case, the Sparkman
defendant mopped the floor but used a dust mop rather than a dry mop. As such, the dust mop
“spread the water around instead of absorbing it like a dry mop would.” Id. The Sparkman court
found that “there was evidence that the employee’s use of the dust mop only made the dangerous
condition more difficult to see because it dispersed the water over the floor instead of soaking it up.”
Id. at *3. As such, the court held that “[t]he jury was free to believe that in the roughly fifteen
minutes between when the employee mopped the floor and when Sparkman fell, a reasonable
inspection of the employee’s work would have revealed that she had not remedied the dangerous
condition.” Id.
Here, the Plaintiff appears to suggest that, prior to her fall, the Defendant had constructive
knowledge of the presence of rainwater on the floor near the entrance doors because Cheryl
Huelsman was in close proximity to the entrance doors. “However, constructive notice cannot be
established based on proximity alone; instead, [the Plaintiff] must show that the hazard was present
for a sufficient length of time to charge [the Defendant] with knowledge of it.” Robinson v.
Wal-Mart Stores Texas, L.L.C., 561 F. App’x 417, 419 (5th Cir. 2014); citing Wal-Mart Stores, Inc.
v. Reece, 81 S.W.3d 812, 815 (Tex. 2002) (“‘The rule requiring proof that a dangerous condition
existed for some length of time before a premises owner may be charged with constructive notice
is firmly rooted in our jurisprudence.’”); Dixon v. Wal-Mart Stores, Inc., 330 F.3d 311, 314 (5th Cir.
-8-

2003) (“‘The argument that constructive knowledge can be inferred from the close physical
proximity of an unreasonable risk to the employees of a premises owner was recently rejected by the
Texas Supreme Court in Wal-Mart Stores, Inc. v. Reece.’”). Unlike Sparkman, the instant Plaintiff
did not present any evidence concerning the length of time that the water existed on the floor prior
to her slip and fall. Absent evidence establishing the length of time that the rainwater existed on the
floor prior to the Plaintiff’s slip and fall, the court finds that the Plaintiff failed to show that there
is a genuine dispute as to any material fact that the Defendant had constructive knowledge of the
water on the floor. As such, the Defendant is entitled to judgment as a matter of law on this issue.
CONCLUSION
Based on the foregoing, the court finds that the Plaintiff failed to show that there is a genuine
dispute as to any material fact that the Defendant had actual or constructive knowledge of the water
on the floor. Therefore, the Defendant is entitled to summary judgment on the Plaintiff’s sole
premises liability claim. Defendant’s motion for summary judgment (docket entry #14) is
accordingly GRANTED.
IT IS SO ORDERED.
.

SIGNED this the 23rd day of March, 2017.

_______________________________
RICHARD A. SCHELL
UNITED STATES DISTRICT JUDGE

-9-