Weddington v. Ace Parking Management Inc

Filing 9

MEMORANDUM OPINION AND ORDER: Defendant's 3 Motion to Dismiss is GRANTED, and this case is DISMISSED without prejudice for failure to state a claim. Plaintiff may file an amended complaint within twenty-one days asserting additional facts in support of her negligence claim. If she does not, this case will be dismissed with prejudice. (Ordered by Judge Barbara M.G. Lynn on 4/21/2016) (axm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ELEANOR WEDDINGTON,
Plaintiff,
v.
ACE PARKING MANAGEMENT, INC.,
Defendant.

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No. 3:16-cv-00529-M

MEMORANDUM OPINION AND ORDER
Before the Court is Defendant’s Motion to Dismiss Pursuant to Federal Rule of Civil
Procedure 12(b)(6), filed on March 2, 2016 [Docket Entry #3]. Under the Local Rules, a
Response to an opposed motion must be filed within twenty-one days from the date the motion
was filed. L.R. 7.1. Plaintiff has not filed a Response, and notice was given by the Court that
the deadline had expired. The Court therefore proceeds without the benefit of a Response. For
the reasons stated below, the Motion is GRANTED.
I.

BACKGROUND

Plaintiff Eleanor Weddington filed this premises liability case in Texas state court on
December 10, 2015, alleging that Defendant Ace Parking, Inc. is liable for damages she suffered
in December 2013, when she claims she slipped and fell on ice in Defendant’s parking lot,
fracturing her ankle. Original Pet. [Docket Entry #1-2] at ¶ 3.1. She alleges Defendant’s
negligence was the proximate cause of her injuries. Defendant removed the case on February 25,
2016, on the basis of diversity jurisdiction, and moved to dismiss Plaintiff’s claim.
II.

LEGAL STANDARD

Rule 8(a) requires that a pleading contain “a short and plain statement of the claim

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showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To survive a Rule 12(b)(6)
Motion to Dismiss, a plaintiff must plead “enough facts to state a claim to relief that is plausible
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). The plausibility standard requires more than a sheer possibility that the
defendant acted unlawfully, id., and Plaintiff’s factual allegations “must be enough to raise a
right to relief above the speculative level.” Twombly, 550 U.S. at 555.
III.

ANALYSIS

Under Texas law, the duty owed to a plaintiff by a premises owner depends on the
plaintiff’s status. Scott & White Mem’l Hosp. v. Fair, 310 S.W.3d 411, 412 (Tex. 2010).
Assuming Plaintiff is correct that she was an “invitee” on Defendant’s premises, Pet. at ¶ 4.1,
Defendant owed her a duty “to exercise reasonable care to protect against danger from a
condition on the land that create[d] an unreasonable risk of harm of which [Defendant] knew or
by the exercise of reasonable care would discover.” Scott & White Mem’l Hosp., 310 S.W.3d at
412 (quoting CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000)).
Plaintiff has failed to allege the existence of a condition posing an unreasonable risk of
harm on Defendant’s premises. The Supreme Court of Texas has held that because naturally
accumulated ice “results from precipitation beyond a premises owner’s control,” and invitees
“are at least as aware as landowners of the existence of [ice] that has accumulated naturally
outdoors and will often be in a better position to take immediate precautions against injury,”
naturally accumulated ice on a defendant’s premises does not pose an unreasonable risk of harm
to invitees. Id. at 412, 414; see also Lough v. Pack, 2013 WL 1149524, at *2 (Tex. App.–Fort

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Worth 2013, no pet.) (“[N]aturally occurring ice does not present an unreasonable risk of harm
unless there is assistance or involvement of unnatural contact.” (internal citation omitted)).
Plaintiff’s Original Petition does not contain any facts indicating that the ice she slipped
on did not accumulate naturally. Indeed, Plaintiff alleges she fell following “inclement weather
in the form of snow and ice precipitation.” Original Pet. at ¶ 3.1. Plaintiff also has not alleged
any exception to the general rule that naturally accumulated ice does not constitute an
unreasonable risk of harm to invitees, because “the hazard complained of by [Plaintiff] is the
slipperiness of the ice itself. Such a danger is one that is normally associated with ice. . . .” Scott
& White Mem’l Hosp., 310 S.W.3d at 417. Thus, Plaintiff has not alleged facts which support a
claim for negligence under Texas law, and her claim must be dismissed.
IV.

CONCLUSION

Defendant’s Motion is therefore GRANTED, and this case is DISMISSED without
prejudice for failure to state a claim. Plaintiff may file an amended complaint within twenty-one
days asserting additional facts in support of her negligence claim. If she does not, this case will
be dismissed with prejudice.
SO ORDERED.
April 21, 2016.
_________________________________
BARBARA M. G. LYNN
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF TEXAS

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