Ladapo v. Target Stores Inc
Filing
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MEMORANDUM OPINION AND ORDER granting 13 MOTION for Judgment on the Pleadings and Brief In Support filed by Target Stores Inc. (Ordered by Judge Sidney A Fitzwater on 11/21/2014) (Judge Sidney A Fitzwater)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JACKIE SUE LADAPO,
Plaintiff,
VS.
TARGET STORES, INC.,
Defendant.
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§ Civil Action No. 3:14-CV-2602-D
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MEMORANDUM OPINION
AND ORDER
Plaintiff Jackie Sue Ladapo (“Ladapo”) sues defendant Target Stores, Inc. (“Target”)
to recover for injuries she allegedly suffered when a drawer used to store cosmetics came out
and fell on her foot while she was working at a Target store as employee of an independent
contractor of Target. Target moves under Fed. R. Civ. P. 12(c) for judgment on the
pleadings. It contends that Ladapo cannot recover because a premises owner is liable to the
employee of an independent contractor only for claims arising from a concealed preexisting
defect, and Target owed no duty to Ladapo because she alleges that she was fully aware of
the condition of the drawer before it fell on her foot. The court grants the motion.
Rule 12(c) provides that “[a]fter the pleadings are closed—but early enough not to
delay trial—a party may move for judgment on the pleadings.” A Rule 12(c) motion “is
designed to dispose of cases where the material facts are not in dispute and a judgment on
the merits can be rendered by looking to the substance of the pleadings and any judicially
noticed facts.” Hebert Abstract Co. v. Touchstone Props., Ltd., 914 F.2d 74, 76 (5th Cir.
1990) (per curiam) (citations omitted). The motion “should be granted only if there is no
issue of material fact and if the pleadings show that the moving party is entitled to prevail
as a matter of law.” Greenberg v. Gen. Mills Fun Grp., Inc., 478 F.2d 254, 256 (5th Cir.
1973) (per curiam).
Ladapo alleges in her state court original petition1 that, on June 14, 2012, she was
working at the Target store in Cedar Hill, Texas as an employee of an independent contractor
of Target and was assisting and marketing to Target customers cosmetics that it had
purchased from her employer. Orig. Pet. ¶ III. Because Ladapo was an employee of an
independent contractor, the duty that Target owed her was to warn her of concealed
preexisting defects on the premises.
Generally, a landowner is liable to employees of an independent
contractor only for claims arising from a pre-existing defect
rather than from the contractor’s work, and then only if the preexisting defect was concealed: “With respect to existing defects,
an owner or occupier has a duty to inspect the premises and
warn of concealed hazards the owner knows or should have
known about.”
Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 215 (Tex. 2008) (footnote omitted) (quoting Shell
Oil Co. v. Khan, 138 S.W.3d 288, 295 (Tex. 2004)). The duty to warn an employee of an
independent contractor of an open and obvious defect is on the independent contractor, not
the owner or occupier. “Placing the duty on an independent contractor to warn its own
1
Ladapo filed this case pro se in state court, so her operative pleading is her state court
original petition. Target removed the case to this court based on diversity of citizenship.
Ladapo is now represented by counsel.
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employees or make safe open and obvious defects ensures that the party with the duty is the
one with the ability to carry it out.” Id. at 216.2
Ladapo alleges that the cosmetics that Target displayed and stored at the Cedar Hill
store were stored in a locking drawer, and that
[o]n several occasions prior to June 14, 2012, [Ladapo] and
others had complained to [Target] that a particular drawer was
not functioning properly and would pull out and fall. On June
14, 2012 while [Ladapo] was performing services for the benefit
of [Target], the drawer came all the way out and fell on
[Ladapo’s] foot, severely injuring same.
Orig. Pet. ¶ III. Ladapo affirmatively pleads that the malfunctioning drawer that injured her
when it came all the way out and fell on her foot was a hazard of which she was acutely
aware. In fact, she asserts that she had actually complained about this particular defective
drawer prior to June 14, 2012, the date it fell and injured her foot. Therefore, Ladapo’s
attempt in her response to distinguish Moritz on the basis that “[a] pre-existing defect was
concealed; the face of the drawer was visible to the Plaintiff, but not the mechanism that
controlled the drawer from stopping and falling out onto the floor,” P. Resp. [3], is negated
by her unequivocal allegation that “[o]n several occasions prior to June 14, 2012, [Ladapo]
and others had complained to [Target] that a particular drawer was not functioning properly
and would pull out and fall.” Orig. Pet. ¶ III. The same is true for her apparent attempt in
her response to Target’s motion to rely on a concealed and faulty drawer mechanism. See
2
This interpretation and application of Moritz has been followed in cases like Spencer
v. United States, 2011 WL 3273052, at *3-4 (S.D. Tex. July 29, 2011).
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P. Resp. [4] (referring to “the Plaintiff’s claim herein that the drawer mechanism was
concealed and faulty, causing injury to her”). Whether the drawer, or, more precisely, the
door mechanism was faulty and hazardous, Ladapo knew the drawer was defective and
actually complained about it to Target before June 14, 2012.
Accordingly, Target is entitled to judgment on the pleadings under Rule 12(c) because
it owed no duty to warn Ladapo about a defective drawer that she already knew was
defective, and the hazardous nature of which was not concealed.
Because Ladapo was pro se when she filed this suit, Target accepts that Ladapo’s
petition should be liberally construed, but it maintains that she is limited, as a matter of law,
to a premises liability theory of recovery. Target posits that, because that theory fails as a
matter of law, there is no basis on which she can recover. Although in ¶ IV of her original
petition Ladapo refers to alleged acts of negligence that can be construed as asserting a claim
that is distinct from a premises liability claim, she neither contends in her response to
Target’s motion that she can recover under a theory other than premises liability, nor does
she move for leave to amend to plead that or any other theory of liability. Instead, she argues
that Target is not entitled to relief under a proper application of the Rule 12(c) standard and
that Moritz is factually distinguishable from her case. Because Ladapo is only alleging a
premises liability claim under which she cannot recover as a matter of law, she does not
contend that she can recover under a theory other than premises liability, and she does not
move for leave to amend, the court dismisses her lawsuit in its entirety.
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The court grants Target’s Rule 12(c) motion and dismisses this action by judgment
filed today.
SO ORDERED.
November 21, 2014.
_________________________________
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE
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