McCarty et al v. Hillstone Restaurant Group Inc et al

Filing 37

Memorandum Opinion and Order denying 27 Motion for Judgment on the Pleadings. (Ordered by Judge Sam A Lindsay on 11/12/2015) (axm)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
PAMELA MCCARTY and NICK
MCCARTY,
Plaintiffs,
v.
HILLSTONE RESTAURANT GROUP,
INC. d/b/a Houston’s Restaurant,
Defendant.

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Civil Action No. 3:15-CV-518-L

MEMORANDUM OPINION AND ORDER
Before the court is Defendant Hillstone Restaurant Group’s Rule 12[c] Motion for
Judgment on the Pleadings [Doc. No. 27], filed September 4, 2015. After careful consideration of
the parties’ filings, the record, and applicable law, the court denies Defendant Hillstone Restaurant
Group’s Rule 12[c] Motion for Judgment on the Pleadings.
I.

Procedural Background
Pamela McCarty and Nick McCarty (“Plaintiffs” or “the McCartys”) originally filed this

action in the 191st Judicial District Court of Dallas County, Texas, on December 1, 2014, against
Hillstone Restaurants Group (“Hillstone” or “Defendant”) and Ryan Beard (“Beard”). On August
26, 2015, pursuant to court order, the McCartys filed Plaintiffs’ First Amended Complaint
(“Amended Complaint”). The Amended Complaint did not name Beard as a party. Accordingly,
Beard is no longer a party to this action.
In the Amended Complaint, the McCartys assert a claim for premises liability against
Hillstone as a result of injuries allegedly suffered by Mrs. McCarty from a fall that occurred on
February 16, 2014, at a Houston’s restaurant. On February 13, 2015, Hillstone and Beard filed
Memorandum Opinion and Order – Page 1

Defendants’ Notice of Removal, contending that complete diversity of citizenship exists between
the parties and that the amount in controversy, exclusive of interest and costs, exceeds $75,000.
The court denied Plaintiffs’ Motion to Remand on August 18, 2015.
II.

Rule 12(c) - Standard for Judgment on the Pleadings
Any party may move for judgment on the pleadings after the pleadings are closed and when

it would not delay the trial. Fed. R. Civ. P. 12(c). “Rule 7(a) provides that the pleadings are closed
upon the filing of a complaint and an answer (absent a court-ordered reply) . . . .” 5C Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 1367 at 213 (3d ed. 2004) (footnote
omitted). If, however, “a counterclaim, cross-claim, or third-party claim is interposed, . . . the
filing of a reply to a counterclaim, crossclaim answer, or third-party answer normally will mark
the close of the pleadings.” Id. (footnote omitted). A “defendant may not move under Rule 12(c)
prior to filing an answer.” Id. at 214.
A motion brought pursuant to Rule 12(c) “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) (citation omitted). A court, when ruling on a motion
for judgment on the pleadings pursuant to Rule 12(c), applies the same standard as that used for a
motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.
Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008) (citation omitted); Great Plains Trust Co.
v. Morgan Stanley Dean Witter, 313 F.3d 305, 313 n.8 (5th Cir. 2002) (citation omitted).
To defeat a motion to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Reliable Consultants, Inc. v.
Memorandum Opinion and Order – Page 2

Earle, 517 F.3d 738, 742 (5th Cir. 2008); Guidry v. American Pub. Life Ins. Co., 512 F.3d 177,
180 (5th Cir. 2007). A claim meets the plausibility test “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged. The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (internal citations omitted). While a complaint need not contain detailed factual
allegations, it must set forth “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citation omitted). The
“[f]actual allegations of [a complaint] must be enough to raise a right to relief above the speculative
level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in
fact).” Id. (quotation marks, citations, and footnote omitted). When the allegations of the pleading
do not allow the court to infer more than the mere possibility of wrongdoing, they fall short of
showing that the pleader is entitled to relief. Iqbal, 556 U.S. at 679.
In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the
complaint as true and view them in the light most favorable to the plaintiff. Sonnier v. State Farm
Mutual Auto. Ins. Co., 509 F.3d 673, 675 (5th Cir. 2007); Martin K. Eby Constr. Co. v. Dallas
Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.
1996). In ruling on such a motion, the court cannot look beyond the pleadings. Id.; Spivey v.
Robertson, 197 F.3d 772, 774 (5th Cir. 1999). The pleadings include the complaint and any
documents attached to it. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir.
2000). Likewise, “‘[d]ocuments that a defendant attaches to a motion to dismiss are considered
part of the pleadings if they are referred to in the plaintiff’s complaint and are central to [the
plaintiff’s] claims.’” Id. (quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429,
Memorandum Opinion and Order – Page 3

431 (7th Cir. 1993)). In this regard, a document that is part of the record but not referred to in a
plaintiff’s complaint and not attached to a motion to dismiss may not be considered by the court
in ruling on a 12(b)(6) motion. Gines v. D.R. Horton, Inc., 699 F.3d 812, 820 & n.9 (5th Cir. 2012)
(citation omitted). Further, it is well-established and ‘“clearly proper in deciding a 12(b)(6) motion
[that a court may] take judicial notice of matters of public record.”’ Funk v. Stryker Corporation,
631 F.3d 777, 783 (5th Cir. 2011) (quoting Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5th Cir.
2007) (citing Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5th Cir. 1994)).
The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid
claim when it is viewed in the light most favorable to the plaintiff. Great Plains Trust Co. v.
Morgan Stanley Dean Witter, 313 F.3d 305, 312 (5th Cir. 2002). While well-pleaded facts of a
complaint are to be accepted as true, legal conclusions are not “entitled to the assumption of truth.”
Iqbal, 556 U.S. at 679 (citation omitted). Further, a court is not to strain to find inferences
favorable to the plaintiff and is not to accept conclusory allegations, unwarranted deductions, or
legal conclusions. R2 Invs. LDC v. Phillips, 401 F.3d 638, 642 (5th Cir. 2005) (citations omitted).
The court does not evaluate the plaintiff’s likelihood of success; instead, it only determines
whether the plaintiff has pleaded a legally cognizable claim. United States ex rel. Riley v. St.
Luke’s Episcopal Hosp., 355 F.3d 370, 376 (5th Cir. 2004). Stated another way, when a court
deals with a Rule 12(b)(6) motion, its task is to test the sufficiency of the allegations contained in
the pleadings to determine whether they are adequate enough to state a claim upon which relief
can be granted. Mann v. Adams Realty Co., 556 F.2d 288, 293 (5th Cir. 1977); Doe v. Hillsboro
Indep. Sch. Dist., 81 F.3d 1395, 1401 (5th Cir. 1996), rev’d on other grounds, 113 F.3d 1412 (5th
Cir. 1997) (en banc). Accordingly, denial of a 12(b)(6) motion has no bearing on whether a

Memorandum Opinion and Order – Page 4

plaintiff ultimately establishes the necessary proof to prevail on a claim that withstands a 12(b)(6)
challenge. Adams, 556 F.2d at 293.
III.

Analysis
A.

Plaintiffs’ Amended Complaint

The McCartys assert a claim for premises liability against Hillstone in the Amended
Complaint. Hillstone contends that the allegations of the Amended Complaint are insufficient to
state a claim for premises liability and that the Amended Complaint should be dismissed. In their
Amended Complaint, Plaintiffs refer to an injury Mrs. McCarty suffered in California in August
2013 when she fell from a ladder and “shattered” her heel. The court mentions this incident for
purposes of background information only, as it has no bearing as to whether the McCartys have
sufficiently pleaded a claim for premises liability.
The factual allegations pertaining to the claim for premises liability are as follows:
2.02 Shortly after one of the hospital stays relating to her heel, on
February 16, 2014, Mrs. McCarty and her husband went to dinner at Houston’s
Restaurant (“Houston’s”) with another married couple. Since her accident in
August[] 2013, Mrs. McCarty rarely went out to public places because her physical
limitations controlled everything she did. However, to celebrate her birthday, Mrs.
McCarty ventured to Houston’s with her husband and friends. On the night of the
accident, Mrs. McCarty was on crutches.
2.03 Upon information and belief, Defendant Hillstone Restaurant
Group, Inc. was the owner/operator of Houston’s at the time of the incident made
the basis of this suit. Defendant had extended an open invitation to the public,
including the Plaintiffs, to enter the premises by operating a restaurant at the
location.
2.04 At the time of the incident, Plaintiffs were invitees who entered
Houston’s with Defendant Hillstone Restaurant Group, Inc.’s knowledge and for
their mutual benefit.
2.05 At some point after dinner, Mrs. McCarty needed to visit the
restroom. On her way to the restroom, Mrs. McCarty was making her way past the
kitchen when one of her crutches slipped on the tile causing her to fall.
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2.06 The tile floor outside the kitchen, which one must traverse in order
to get to the restroom, was sticky, slick and greasy and caused Mrs. McCarty’s
crutch to slip from underneath her. Mrs. McCarty fell hard on her left side, which
was the same side as her bad foot. After her fall, Mrs. McCarty was physically
contorted and could not move. She was in excruciating pain.
2.07 Additionally, one of the witnesses who came to Mrs. McCarty’s aid
after the accident saw water or other liquid splattered across the tile floor outside
the kitchen that were consistent with water or other liquid sloshing off of the wait
staff’s drink trays.
2.08 Someone called EMS and, after their arrival and initial treatment,
EMS transported Mrs. McCarty to Baylor Plano. She had a broken hip and
underwent emergency surgery to repair her dislocated broken femur. Mrs. McCarty
has incurred medical bills relating to the hip injury, her surgery and rehabilitation,
to the extent she was able to undergo rehabilitation efforts. Mrs. McCarty could not
properly or fully rehabilitate her broken hip because of her injured foot.
...
2.11 Mrs. McCarty’s fall at Houston’s caused serious bodily injury,
requiring that she seek significant and continuing medical care. Plaintiffs’ medical
expenses are in the hundreds of thousands of dollars and continue to increase as a
result of her continuing care.
2.12 Mrs. McCarty is unable to perform household services and to
administer to the needs of Mr. McCarty and their family. Further, her injury has led
to loss of consortium in Mr. and Mrs. McCarty’s marriage.
2.13 The condition of the tile floor outside the kitchen, which one must
traverse to get to the restroom, posed an unreasonable risk of harm. Defendant
Hillstone Restaurant Group, Inc. created and/or knew or should have known of the
condition of the tile floor outside of the kitchen and the danger it presented to its
patrons. Defendant Hillstone Restaurant Group, Inc.’s managers, employees,
and/or wait staff repeatedly and constantly traversed the tile floor outside of the
kitchen to get to and from the kitchen to the tables with patrons’ food and drinks.
2.14 Defendant Hillstone Restaurant Group, Inc. breached its duty of
ordinary care by creating a dangerous condition and/or failing to warn the public,
and specifically Plaintiffs, of the dangerous condition and failing to make such
condition reasonably safe.
2.15 Mr. and Mrs. McCarty bring this action against Defendant to recover
for the damages set forth below which resulted from Defendant’s failure to take

Memorandum Opinion and Order – Page 6

adequate measures to ensure a safe area for patrons to traverse on their way to the
restroom.
...
3.02 Premises liability requires a showing that: (1) the owner/operator
had actual or constructive knowledge of some condition on the premises, (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.
(citation omitted).
3.03 As shown above, Defendant owned and operated Houston’s.
Defendant had actual or constructive knowledge of the condition of the tile floor
outside its kitchen, which one must traverse in order to get to the restroom. Such
tile floor presented a dangerous condition and posed an unreasonable risk of harm
for the public, and specifically for Plaintiffs. Specifically, the tile floor outside of
the kitchen was sticky and greasy.
3.04 Restaurants should have safe facilities for their customers, and
Defendant Hillstone Restaurant Group, Inc. d/b/a Houston’s Restaurant failed in
this regard. By knowingly allowing an area that patrons had to traverse to be
maintained in such a dangerous condition, Defendant subjected Plaintiff, and all
other invitees, to a condition that posed an unreasonable risk of harm.
3.05 Defendant breached its duty of ordinary care in, inter alia, the
following ways:
a.

Failing to provide a safe area to get to the restaurant’s restrooms;

b.

Failing to properly maintain the work area outside of the kitchen;

c.

Failing to properly train and supervise employees charged with
maintaining the work area outside of the kitchen;

d.

Failing to properly warn individuals of the dangerous condition
created by the Defendants and their employees;

e.

Failing to place proper warning signs such as “slippery when wet” on
or around the work area outside of the kitchen; and

f.

Failing to properly safeguard individuals from the dangerous
condition presented by Defendants and their employees; and/or

g.

Creating a dangerous/hazardous condition [ ] and failing to adequately
warn or otherwise protect Plaintiffs from such condition.

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3.06 Defendant’s breach of its duty of ordinary care, including, inter alia,
the foregoing negligent acts and/or omissions, whether taken singularly or in any
combination, was the proximate cause of Plaintiffs’ injuries and damages which are
described below.
Pls.’ First Am. Compl. ¶¶ 2.02-2.08, 2.11-2.15, 3.02-3.06.
B.

Discussion

The elements of a premises liability claim are:
(1) [a]ctual or constructive knowledge of a condition on the premises by the owner
or occupier; (2)[t]hat the condition posed an unreasonable risk of harm; (3)[t]hat
the owner or occupier did not exercise reasonable care to reduce or eliminate the
risk; and (4)[t]hat the owner or occupier’s failure to use such care proximately
caused the plaintiff's injury.
CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000) (citations omitted). In a previous
opinion, the court held that Plaintiffs’ Original Petition did not allege sufficient facts regarding
Hillstone’s actual or constructive knowledge of the condition of the premises or the reasonable
care exercised by Hillstone to reduce or make safe the alleged risk, and it ordered Plaintiffs to
replead to correct these deficiencies or omissions. Hillstone contends that the Amended Complaint
fails to allege sufficient facts to support a claim for premises liability. Specifically, Hillstone
contends that the McCartys have failed to allege facts: (1) showing that it had actual or constructive
knowledge of the allegedly dangerous or unsafe condition; (2) showing that the condition created
or posed an unreasonable risk of harm; (3) demonstrating that it failed to use reasonable care to
eliminate or reduce the risk of harm; and (4) showing that its lack of care caused their injury. The
court disagrees.
To state a claim for relief, a pleading must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Rule 8(a)’s simplified
pleading standard applies to all civil actions, with limited exceptions.” Swierkiewicz v. Sorema,
Memorandum Opinion and Order – Page 8

N.A., 534 U.S. 506, 513 (2002). No heightened pleading exception applies in this action. The
court interprets Swierkiewicz, Twombly, Iqbal, and Rule 8 to require that a pleading set forth the
allegations in sufficient detail to provide fair notice of the nature of the claim and that the right to
relief be “above the speculative level.” In other words, the pleader must set forth “enough facts to
state a claim to relief that is plausible on its face,” which means that a claim must be more than
merely “conceivable.” Twombly, 550 U.S. at 570.
In deciding whether a claim has been sufficiently pleaded, a court does not abandon
common sense and reason. The court has painstakingly reviewed the Amended Complaint and is
convinced that the McCartys have set forth sufficient allegations from which it can draw the
reasonable inference that Hillstone is liable for the injury alleged. In other words, the court can
reasonably infer from the allegations in the Amended Complaint that more than a mere possibility
exists to show wrongful conduct by Hillstone as to the claim asserted. The factual allegations of
the Amended Complaint allow the court to make a reasonable inference that each of the elements
of a premises liability claims has been sufficiently pleaded. A pleader is not required to allege
each and every fact that may be relevant to his or her claim. Such a requirement would necessarily
run counter to the pleading standard contemplated under Rule 8.
A Rule 12(c) motion only tests the adequacy of the pleadings. As stated before, matters of
proof or evidence are not to be considered by the court; thus, a plaintiff is not required to prove his
or her claim at this stage of the litigation. “Rule 8 establishes a pleading standard without regard
to whether a claim will succeed on the merits.” Swierkiewicz, 534 U.S. at 514. If Hillstone
believes that proof is lacking as to any of the elements necessary for Plaintiffs to prevail on a claim
for premises liability, it must address the matter by way of summary judgment. Further, any

Memorandum Opinion and Order – Page 9

concerns that Hillstone has regarding more detailed facts about Mrs. McCarty’s fall and injuries
may be obtained through the discovery process. See id. at 512.
IV.

Conclusion
For the reasons herein stated, the court concludes that the McCartys have sufficiently

pleaded a premises liability claim. Accordingly, the court denies Defendant Hillstone Restaurant
Group’s Rule 12([c]) Motion for Judgment on the Pleadings.
It is so ordered this 12th day of November, 2015.
_________________________________
Sam A. Lindsay
United States District Judge

Memorandum Opinion and Order – Page 10