Cruz v. W.H.Braum, Inc.
Filing
22
ORDER granting 13 Motion for Summary Judgment. All pending motions are denied as moot and plaintiff's case is dismissed. Signed by District Judge J. Campbell Barker on 3/16/2021. (ndc)
Case 6:20-cv-00217-JCB Document 22 Filed 03/16/21 Page 1 of 7 PageID #: 277
No. 6:20-cv-00217
Amanda Cruz,
Plaintiff,
v.
Braum’s, Inc.,
Defendant.
ORDER
Before the court is defendant Braum’s Inc.’s motion for
summary judgment. Doc. 13. Plaintiff brought this suit after
she fell in one of defendant’s stores. See Doc. 1 at 2-3. Plaintiff’s complaint raises theories of premises liability and negligent action. Defendant’s motion for summary judgment is
based on a lack of evidence going towards the condition of the
premises and whether defendant breached any duty of care
to warn plaintiff. Doc. 13 at 6. For the following reasons, the
court grants defendant’s motion.
Background
On June 8, 2018, plaintiff entered defendant’s store in Tyler, Texas. Doc. 2 at 2. Plaintiff claims that she was near a drink
dispenser when she fell “due to a large amount of liquid on
the floor.” Id. at 2-3. She asserts that she was never warned
about any condition on the floor. See id. at 3. As a result of the
fall, plaintiff filed this case in Texas state court. See id. Defendant filed a notice of removal in this court on April 27, 2020.
Doc. 1.
Over the course of this case, defendant has produced exhibits appearing to show that a yellow wet floor sign was
placed next to the drink station. See Doc. 13, Exhs. C, D, E. At
her deposition, plaintiff agreed that her view of the yellow
sign was not obstructed. See Doc. 13, Exh. B 27:17-20; 28:2-4.
Case 6:20-cv-00217-JCB Document 22 Filed 03/16/21 Page 2 of 7 PageID #: 278
She also indicated that she did not know what caused her to
slip:
Q: Were your clothes wet after you slipped?
A: After I slipped, I didn’t—I didn’t pay attention if it was
wet or not. I was embarrassed and I wanted to get up.
Q: Did you see any—any, like, wet substance on the floor
prior to the incident?
A: Not walking up, I didn’t.
...
Q: So do you know what you actually slipped and fell on?
A: No, ma’am.
Id. at 30:19-25, 31:17-19. Later, in the same deposition, plaintiff
reiterated that she did not see any “wet substance or water on
the floor prior to [her] fall.” Id. at 52:8-11.
Standards
Courts “shall grant summary judgment 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); Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247 (1986). In making this determination, courts
must view all evidence and draw all reasonable inferences in
the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The
moving party bears the initial burden of informing the court
of the basis for its belief that there is no genuine issue for
trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party must either (1) submit summary judgment evidence
that negates the existence of a material element of plaintiff’s
claim or (2) show that there is no evidence to support an essential element of a plaintiff’s claim. Id. at 322-25.
-2-
Case 6:20-cv-00217-JCB Document 22 Filed 03/16/21 Page 3 of 7 PageID #: 279
Texas state law recognizes negligent-activity and premises-defect claims as two independent theories of negligence. 1
See Gen. Elec. Co. v. Mortiz, 257 S.W.3d 211, 214-15 (Tex. 2008).
Although “[t]he lines between negligent activity and premises liability are sometimes unclear,” the Texas Supreme
Court recognizes a distinction between these two claims, explaining that “negligent activity encompasses a malfeasance
theory based on affirmative, contemporaneous conduct by the
owner that caused the injury, while premises liability encompasses a nonfeasance theory based on the owner's failure to
take measures to make the property safe.” Del Lago Partners,
Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010). “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 v. Ross Stores, Inc., 896 F. Supp. 2d 575, 579
(S.D. Tex. 2012). So, for example, if a clothing store’s customer
slipped on a rogue hanger, the resulting lawsuit would sound
in premises liability and not in negligent activity. See id.
To maintain a premise-liability claim, plaintiff must
demonstrate:
(1) a condition of the premises created an unreasonable
risk of harm to the invitee;
(2) the owner knew or reasonably should have known of
the condition;
(3) the owner failed to exercise ordinary care to protect the
invitee from danger; and
(4) the owner's failure was a proximate cause of injury to
the invitee.
Fort Brown Villas III Condo. Ass’n v. Gillenwater, 285 S.W.3d 879,
883 (Tex. 2009). A condition poses an unreasonable risk of
When jurisdiction is based on diversity, the substantive law of the
forum state applies. Bayle v. Allstate Ins. Co., 615 F.3d 350, 355 (5th Cir.
2010) (citing Erie R.R. v. Tompkins, 304 U.S. 64 (1938)). Therefore, because
the court's subject matter in this case is based on diversity jurisdiction, the
court applies Texas substantive law. See id.
1
-3-
Case 6:20-cv-00217-JCB Document 22 Filed 03/16/21 Page 4 of 7 PageID #: 280
harm when there is a “sufficient probability of a harmful
event occurring that a reasonably prudent person would have
foreseen.” Hall v. Sonic Drive-In of Angleton, Inc., 177 S.W.3d
636, 646 (Tex. App. 2005) (cleaned up).
Analysis
The court grants defendant’s motion on the basis that this
case is a premises-liability claim rather than a negligent-activity claim. “The Texas Supreme Court has recognized that negligent activity claims and premises liability claims involve
two independent theories of recovery that fall within the
scope of negligence.” Garcia, 896 F. Supp. 2d at 579 (citing
Moritz, 257 S.W.3d at 214-15, among others). Plaintiff brought
both theories in her complaint, but she has not provided any
rationale for treating this case as a negligent-activity claim.
Plaintiff cannot maintain a negligent-activity claim on
these facts because there are no allegations of “affirmative,
contemporaneous conduct by the owner that caused the injury.” See id. (citing Del Lago, 307 S.W.3d at 776). Because nothing in the record suggests that plaintiff was contemporaneously injured by the actions of defendant’s employees, the
court examines the motion for summary judgment under a
premises-liability theory. See id. (reaching the same conclusion on similar facts after consulting the leading Texas state
law decisions).2
Defendant’s motion first focuses on a lack of proof going
to the first element of plaintiff’s claim—a condition on the
premises that created an unreasonable risk of harm to plaintiff. Gillenwater, 285 S.W.3d at 883. Defendant argues that
“Plaintiff cannot identify any condition on the floor prior to
her slipping and falling . . . . She also cannot identify what she
Although plaintiff mentioned that there was a Braum’s employee
“wiping down the counters,” Doc. 19 at 1, plaintiff never clearly alleged
that water from this cleaning activity made its way onto the floor. See id.
at 5 (“The wet substance could have been water or an awful Sprite Zero
for all Plaintiff knew.”).
2
-4-
Case 6:20-cv-00217-JCB Document 22 Filed 03/16/21 Page 5 of 7 PageID #: 281
slipped on.” Doc. 13 at 6. Defendant relies on plaintiff’s deposition and what it describes as a lack of any summary judgment evidence presented by the plaintiff. See id. at 6-7. Defendant also cites to several Texas state court cases where a
similar evidentiary showing was insufficient to survive summary judgment. See id. at 6-8. In response, plaintiff provided
no case law supporting her position nor did she distinguish
any of the state law cases discussed by the plaintiff.
In Shoemaker v. Kohl’s Department Stores, Inc., the plaintiff
went to the Kohl’s customer service department to change the
address on her credit card account. 2017 WL 1192797, at *2
(Tex. App. 2017). She waited there in a chair provided by
Kohl’s while calling customer service on her phone for several
minutes. See id. The Shoemaker plaintiff alleged that her chair
then slipped out from under her, causing her to land on the
floor. See id. In the resulting litigation, the Shoemaker plaintiff
contended that the concrete floor was “very shiny,” and she
attributed part of her fall to the “slick floor.” Id. The Dallas
Court of Appeals nonetheless found that she had failed to present sufficient evidence to survive summary judgment. See id.
at 3-4. The failure to present evidence of a foreign substance
on the floor that contributed to her fall was dispositive. See id.
at 4 (“Given the absence of evidence suggesting the presence
of a foreign substance, this was insufficient to create a fact issue to defeat Kohl’s no-evidence summary judgment motion.”).3
Like the plaintiff in Shoemaker, plaintiff has provided no
evidence going towards the presence of a dangerous condition on defendant’s floor. To the contrary, plaintiff’s
Shoemaker is just one of several cases referenced by the plaintiffs. See,
e.g., Hatamieh v. Kroger Texas, L.P., No. 3:16-CV-1599-B, 2018 WL 1014158
*2 (N.D. Tex. 2015); Thoreson v. Thompson, 431 S.W.2d 341, 344 (Tex. 1968)
(“[W]here common knowledge will not suffice, plaintiff must establish the
degree of risk by competent evidence.”). These cases demonstrate that a
plaintiff must provide some evidence or a factual basis on the first prong
to survive summary judgment.
3
-5-
Case 6:20-cv-00217-JCB Document 22 Filed 03/16/21 Page 6 of 7 PageID #: 282
deposition testimony demonstrates that she has no idea what
might have been on the floor. See Doc. 13, Exh. B at 30:19-25,
31:17-19, 52:8-11 (plaintiff affirming that she did not see any
“wet substance or water on the floor prior to [her] fall.”). In
her response, the plaintiff argues that her fall demonstrates
that the floor was wet. See Doc. 19 at 5. This argument is foreclosed by the Texas Supreme Court, which has held that “the
fact an accident happens is no evidence that there was an unreasonable risk of such an occurrence; because almost any activity involves some risk of harm.” Thoreson, 431 S.W.2d at 344
(citations omitted). Even drawing all reasonable inference in
plaintiff’s favor, she has failed to provide any evidence to support an essential element of her claim. See Celotex, 477 U.S. at
323-25.
In the alternative, the yellow floor signing reading “CAUTION” near the incident provided adequate warning to the
plaintiff of any risk arising from any dangerous condition. See
Doc. 13, Exhs. C, D, and E. The duty to use ordinary care encompasses two methods of making a dangerous condition
reasonably safe: either by warning of the danger or by eliminating the danger. State v. Williams, 940 S.W.2d 583, 584 (Tex.
1996). Here, defendant alleviated any liability arising from the
alleged dangerous condition by warning plaintiff. She walked
right by the yellow sign prior to her accident, and thus either
was aware, or should have been aware, of the dangerous condition. See Doc. 13, Exh. B at 27:7-9, 27:17-20, and 28:2-4. Contrary to the arguments of the plaintiff, the record demonstrates that the sign was not obstructed. Therefore, defendant
has submitted summary judgment evidence that negates the
existence of a material element of plaintiff’s claim. See Celotex,
477 U.S. at 323-25.
Conclusion
For these reasons, defendant’s motion for summary judgment (Doc. 13) is granted. All pending motions are denied as
moot and plaintiff’s case is dismissed.
-6-
Case 6:20-cv-00217-JCB Document 22 Filed 03/16/21 Page 7 of 7 PageID #: 283
So ordered by the court on March 16, 2021.
J. C AMPBELL B ARK ER
United States District Judge
-7-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?