Yerian v. Wal-Mart Stores Texas, LLC

Filing 29

ORDER granting 25 Motion for Summary Judgment. Signed by District Judge J. Campbell Barker on 3/23/2020. (ndc)

No. 6:19-cv-00087
James Yerian,
Plaintiff,
v.
Wal-Mart Stores Texas, LLC,
Defendant.
Before BARKER , District Judge
ORDER
Before the court is defendant’s refiled motion for summary judgment. Doc. 25. Upon consideration of all the moving papers, the court will grant the motion.
Background
This case arises from an October 2017 slip and fall at a WalMart location in Gun Barrel City, Texas. Plaintiff alleges that
he slipped on a clear liquid on the floor of the craft aisle and
suffered injuries. The parties do not dispute that plaintiff was
an invitee shopping at that location on that date, that defendant was the operator of that store, and that plaintiff did slip
and fall on liquid on the floor. Plaintiff alleges premises-liability and a negligent-activity theory of recovery. The allegedly
negligent activity occurred when plaintiff asked a Wal-Mart
employee to show him where a particular product was located. Plaintiff contends that the employee negligently directed him to the dangerous condition (the spilled liquid).
Plaintiff originally brought suit in the 173rd Judicial District of Henderson County, Texas. Defendant removed the
case on March 11, 2019. Doc. 1. Eight months later, after the
close of discovery, defendant filed its first motion for summary judgment. Doc. 16. After briefing was concluded, the
court denied the motion without prejudice to refiling. Doc. 22.

In accordance with the court’s instructions, defendant refiled
its motion for summary judgment on March 6, 2020, and
plaintiff filed its response on March 11, 2020. Docs. 25 and 27.
Also in accordance with the court’s instructions, neither party
refiled its summary judgment evidence. The court will decide
the motion on the original briefing and evidence and the refiled motion and response.
Legal standard
Summary judgment is appropriate only “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); Tolan v. Cotton, 134 S. Ct. 1861, 1866
(2014). A material fact is one that is likely to reasonably affect
the outcome of the case. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). An issue is not genuine if the trier of fact
could not, after an examination of the record, rationally find
for the non-moving party. Matsushita Elec. Indus., Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). As such, the burden of
demonstrating that no genuine issue of material fact exists lies
with the party moving for summary judgment. Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). The court must view the
evidence and take all reasonable factual inferences from the
evidence in the light most favorable to the party opposing
summary judgment. Impossible Elecs. Techniques v. Wackenhut
Protective Sys., Inc., 669 F.2d 1026, 1031 (5th Cir. 1982). Accordingly, the simple fact that the court believes that the non-moving party will be unsuccessful at trial is insufficient reason to
grant summary judgment in favor of the moving party. Jones
v. Geophysical Co., 669 F.2d 280, 283 (5th Cir. 1982).
Once the court determines that the movant has presented
sufficient evidence that no genuine dispute of material fact exists, the burden of production shifts to the party opposing
summary judgment. Matsushita Elec. Indus., Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). In establishing a genuine dispute of material fact, the party opposing summary judgment

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cannot rest on allegations made in their pleadings without
setting forth specific facts establishing a genuine dispute worthy of trial. Topalian v. Ehrman, 954 F.2d 1125, 1132 (5th Cir.
1992). The non-moving party must demonstrate a genuinely
disputed fact by citing to particular parts of materials in the
record, such as affidavits, declarations, stipulations, admissions, interrogatory answers, or other materials; or by showing that the materials cited by the movant do not establish the
absence of a genuine dispute. Fed. R. Civ. P. 56(c)(1)(A)-(B).
“Conclusory allegations unsupported by concrete and particular facts will not prevent an award of summary judgment.”
Duffy v. Leading Edge Prods., 44 F.3d 308, 312 (5th Cir. 1995).
Moreover, unsubstantiated assertions, improbable inferences,
and unsupported speculation are not competent summary
judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th
Cir. 1994). The court may grant summary judgment against a
party who cannot provide any evidence of an essential element of a claim on which that party will bear the burden of
proof at trial. Celotex Corp., 447 U.S. at 322-23.
Finally, “[w]hen opposing parties tell two different stories,
one of which is blatantly contradicted by the record, so that
no reasonable jury could believe it, a court should not adopt
that version of the facts for purposes of ruling on a motion for
summary judgment.” Scott v. Harris, 550 U.S. 372, 380-81
(2007). When there is video evidence available in the record,
the court is not bound to adopt the nonmoving party’s version
of the facts if it is contradicted by the record, but rather should
view the facts in the light depicted by the videotape. Harris v.
Serpas, 745 F.3d 767, 771 (5th Cir. 2014).
The evidence
With its original motion, defendant submitted as Exhibit 1
the affidavit of Darrell Bow, the manager of the Wal-Mart location in question. Attached to the affidavit are sub-exhibits A
through K. Exhibit A is a customer-incident report, created at
the time of the incident. Exhibits B through H are witness

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statements, all created at the time of the incident. Exhibit I is
the video-request form created at the time of the incident. Exhibit J is 14 black-and-white photos of the floor with the liquid
on it. Exhibit K is surveillance video of the front exterior and
front entrance if the store, and two angles of the area where
the fall occurred. Defendant further offered Exhibit 2, the affidavit of its counsel, Jessica LaRue. Attached to Exhibit 2 are
sub-exhibits A, plaintiff’s initial disclosures, and B, plaintiff’s
supplemental initial disclosures.
Plaintiff attached exhibits A through D to his response. Exhibit A is plaintiff’s affidavit. Exhibit B is seven of the same 14
black-and-white photos submitted with defendant’s motion.
Exhibits C and D are two angles of surveillance footage. These
are the same two angles of the store’s interior that defendant
provided.

Analysis
The court addresses seriatim plaintiff’s two theories of recovery: premises liability and negligent activity.
I. Premises liability
The elements of a premises-liability cause of action in
Texas are (1) that the defendant had actual or constructive
knowledge of a condition on the premises; (2) that the condition posed an unreasonable risk of harm; (3) that the condition
was concealed (not open and obvious); (4) that the plaintiff
was not aware of the danger; (5) that defendant did not exercise reasonable care to make safe or warn against the unreasonably dangerous condition; and (6) that defendant’s failure
to use reasonable care proximately caused plaintiff’s injuries.
Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). The first
element is at issue here. Without actual knowledge, there
must be sufficient evidence to show that the condition had existed for long enough that the defendant should have discovered it through the exercise of reasonable care and inspection.
See Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex.
2002). In other words, that the defendant had a reasonable
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opportunity to discover it. Id. Establishing the mere possibility that the condition had existed for the requisite amount of
time or that it was possible for it to have been discovered is
not sufficient to prove constructive knowledge. Id. at 816. In
determining whether the defendant should have discovered
the condition, the court may consider (1) the proximity of employees to the condition, (2) the conspicuousness of the condition, and (3) the length of time it existed. Wal-Mart Stores,
Inc. v. Spates, 186 S.W.3d 566, 567-68 (Tex. 2006) (citing Reece,
81 S.W.3d at 816).
As to the length-of-time factor, plaintiff’s only evidence of
when the spill occurred are the photos, which plaintiff claims
show that the water was dirty and had track marks through
it. This claim is dubious at best, given that the photos are lowquality and in black and white. Moreover, the Texas Supreme
Court has held that this kind of “dirty water” evidence is insufficient because of the equal-inferences rule. In one case, the
court held that dirt in macaroni salad on which a plaintiff
slipped was no evidence of the length of time the macaroni
had been on the floor because that evidence could equally
support either the inference that it had accumulated dirt over
a long period of time or that it had been quickly contaminated. Walmart v. Gonzales, 968 S.W.2d 934 (Tex. 1998) (citing
many cases with the same result as to various substances).

As to conspicuousness, the parties agree that the liquid
was clear, and the photos tend to show that there was not a
large amount of liquid. The Texas Supreme Court has held
that clear liquid on a light tile floor is not conspicuous. Reece,
81 S.W.3d at 816. Finally, the proximity factor does nothing to
help plaintiff because, if one does not know when the liquid
got on the floor, one cannot say how many employees, if any,
came within close proximity to it. Reece, 81 S.W.3d at 816. The
Texas Supreme Court has concluded that, without evidence
of how long the spill had been on the floor, an employee walking past the spill and not noticing it a few moments before the

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plaintiff’s fall could not establish constructive knowledge. Id.
at 817 (citing Gonzales, 968 S.W.2d at 936) (explaining that
even where a spill is highly conspicuous or where an employee was in close proximity to a less conspicuous spill for a
“significant period of time,” “there must be some proof of
how long the hazard was there before liability can be imposed
on the premises owner for failing to discover and rectify, or
warn of, the dangerous condition. Otherwise, owners would
face strict liability for any dangerous condition on their premises, an approach we have clearly rejected.”).
In this case, the dirt and track marks in the water are, as a
matter of law, no evidence of how long the water had been
there. The clear water on a light tile floor is, as a matter of law,
inconspicuous. And, without any evidence of when the spill
occurred, constructive knowledge cannot be established
simply by showing that the employee who was escorting
plaintiff, or some other employee, walked past the spill moments before the fall.
Therefore, the court grants defendant’s motion as to the
premises-liability claim on the ground that plaintiff has no evidence sufficient for a jury to find defendant’s knowledge or
constructive knowledge of the condition. “Without some temporal evidence, there is no basis upon which the factfinder can
reasonably assess the opportunity the premises owner had to
discover the dangerous condition.” Reece, 81 S.W.3d at 816.
II. Negligent activity
In Texas, a negligent-activity theory is viable only if the
plaintiff is injured as a contemporaneous result of the activity,
rather than by a condition created by the activity. Austin v.
Kroger Texas, L.P., 465 S.W.3d 193 (Tex. 2015). Whereas premises liability is a nonfeasance theory, negligent activity is a
malfeasance theory. Del Lago Partners, Inc. v. Smith, 307 S.W.3d
762, 776 (Tex. 2010). A claim for negligent activity is submitted
on a general-negligence question. United Scaffolding, Inc. v.
Levine, 537 S.W.3d 463, 471 (Tex. 2017). Texas recognizes that
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almost all artificial conditions are necessarily created by an
activity but has repeatedly refused to blur the lines between
negligent activity and premises liability, holding that an activity that creates a condition is not the kind of contemporaneous activity necessary for a negligent activity claim. United
Scaffolding, 537 S.W.3d at 472; Del Lago, 307 S.W.3d at 776.
Plaintiff argues that Austin v. Kroger “largely negate[s]”
“the notion that a premises liability case cannot exist on the
same facts as a negligence case.” Doc. 27 at 4 (citing Austin,
465 S.W.3d 193). That case dealt with an employee who
slipped and fell while cleaning a spill as part of his job duties.
The court reaffirmed that “when a claim does not result from
contemporaneous activity, the invitee has no negligent-activity claim, and his claim sounds exclusively in premises liability.” Id. at 215. The court did state, however, that an injury
may have more than one proximate cause and a negligent-activity claim could exist on the same facts as a premises-liability claim. Id. at 216.
So negligent activity and premises liability may be raised
in the same action on an appropriate fact pattern, and this appears to be an appropriate fact pattern. Plaintiff alleges a contemporaneous activity that did not create the condition, so, at
this threshold stage, the claim seems viable. But defendant
does not appear to seriously dispute that proposition. Rather,
defendant argues that plaintiff has no proof that the activity
(defendant’s employee escorting plaintiff to the requested
product) was negligent or that the activity caused the injury.
Plaintiff argues that the employee’s malfeasance in directing
plaintiff to the spill caused his injury.
Plaintiff’s summary-judgment evidence on this claim consists of the videos and plaintiff’s own affidavit, which states
that the employee “directed [him] to within less than two feet
of the clear liquid that caused [him] to fall.” But the video directly and conclusively contradicts his affidavit in showing
that she did not direct him to that aisle. No reasonable and

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properly instructed juror could find that activity to be negligent or a proximate cause of the injury.
In this case, Wal-Mart and its employee had a duty to act
reasonably in showing plaintiff where his requested product
was located. In Texas, a person violates the duty of reasonable
care if he fails to act as a person of ordinary prudence would
have acted in the same or similar circumstances. Texas Pattern
Jury Charges, General Negligence & Intentional Personal Torts,
§ 2.1. It is impossible for a reasonable jury to find that the employee acted unreasonably in this case. An employee who
points a visitor to a product is not obligated to investigate
whether any dangerous condition exists in any part of the
store that the plaintiff might have to pass through in order to
get to the intended aisle. One also cannot say that the employee was negligent for failing to identify the puddle on the
floor of an aisle that she neither walked down nor intended
plaintiff to walk down. Texas law establishes that the employee in this case had no obligation to be the absolute insurer
of plaintiff’s safety. Austin v. Kroger Texas, L.P., 465 S.W.3d 193,
203-04 (Tex. 2015). Plaintiff was in at least as good a position
to discover and take precaution against the spill as the employee.
A proximate cause of an injury is that cause which, in a
natural and continuous sequence, produces the injury and
without which the injury would not have occurred. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). A proximate
cause sets in motion a natural and unbroken chain of events
leading directing and proximately to a reasonably foreseeable
result or injury. Hart v. Van Zandt, 399 S.W.2d 791, 793 (Tex.
1965). In Texas, the act or omission complained of must be
such that a person using ordinary care would have foreseen
that the injury, or some similar injury, might reasonably result
therefrom. Texas Pattern Jury Charges, General Negligence &
Intentional Personal Torts, § 2.4.

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The employee’s actions in this case may be a cause in fact,
but the result of her actions was not foreseeable. Plaintiff may
have found the aisle on his own or at the direction of another
person. By the time he found the aisle by other means, the
spill may have been cleaned up. But because he asked the employee to show him where it was, it could fairly be concluded
that he would not have fallen if she had not done so. However, the employee had no reason to foresee that her actions
would lead to the injury. The court concludes above that the
employer had no constructive knowledge of the spill, and the
court must conclude that this employee also had no constructive knowledge. Therefore, in the ordinary execution of her
job duties, the employee had no reason to believe that her actions would result in the fall.
Conclusion

Defendant has carried its burden to show that plaintiff has
no evidence of one or more elements of each of plaintiff’s
causes of action and has shown that it is entitled to judgment
as a matter of law. Therefore, the court grants defendant’s motion for summary judgment (Doc. 25) and will render its judgment by separate instrument.
So ordered by the court on March 23, 2020.

J. C AMPBELL B ARKER
United States District Judge

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