Dunn v. Wal-Mart Stores Inc
Filing
45
Memorandum Opinion and Order: Before the Court is Defendant Wal-Mart Stores, Inc.'s Motion for Summary Judgment (Doc. No. 29 ). For the reasons previously set forth, the Court grants Defendant's motion for summary judgment on Plaintiff's premises liability claim. (Ordered by Judge Ed Kinkeade on 10/3/2018) (ndt)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
GLENDA K. DUNN,
Plaintiff,
v.
WAL-MART STORES, INC. d/b/a
WALMART,
Defendant.
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Civil Action No. 3:17-CV-1187-K
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Wal-Mart Stores, Inc.’s Motion for Summary
Judgment (Doc. No. 29). The Court has carefully considered the motion, the
response, the reply, the appendices, the applicable law, and any relevant portions of
the record. For the following reasons, the Court concludes Defendant owed Plaintiff
no duty because the condition causing her to fall was open and obvious and,
alternatively, Plaintiff failed to satisfy the required notice element of her slip-and-fall
case. Therefore, the Court finds summary judgment is appropriate and GRANTS
Defendant’s motion.
I.
Factual and Procedural Background
On June 3, 2016, Plaintiff Glenda Dunn (“Plaintiff”) visited one of Defendant’s
store locations in Irving, Texas. Plaintiff noticed floor mats laid out in the front area
ORDER – PAGE 1
of the store. In front of the shopping carts, one mat was laid out that was too large
for the space. Because it could not lay flat, there was a tunnel in the middle of the
mat which Plaintiff also saw. Plaintiff attempted to walk towards a motorized
shopping cart from this area where the large mat was, but she tripped and fell when
she caught her foot in the tunnel. As a result of her fall, Plaintiff sustained injuries
and damages. She filed this lawsuit against Defendant Wal-Mart Stores, Inc.
(“Defendant”) in state court, asserting state law claims for premises liability and
negligence. Defendant removed the case to this Court on the basis of diversity
jurisdiction and subsequently filed this motion for summary judgment.
II.
Standards for Summary Judgment
Summary judgment is appropriate when the pleadings, affidavits and other
summary judgment evidence show that no genuine issue of material fact exists, and
the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c); see
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A dispute of a material fact is
“genuine” if the evidence is such that a reasonable jury could return a verdict in favor
of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
All evidence and reasonable inferences must be viewed in the light most favorable to
the nonmovant, and all disputed facts resolved in favor of the nonmovant. See United
ORDER – PAGE 2
States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Boudreaux v. Swift Transp. Co., Inc.,
402 F.3d 536, 540 (5th Cir. 2005).
The moving party bears the burden of identifying those portions of the record
it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477
U.S. at 322-25. Once the movant satisfies his burden, the nonmovant must present
competent summary judgment evidence showing a genuine fact issue for trial exists.
Id. at 321-25; Anderson, 477 U.S. at 255-57. To meet this burden, the nonmovant
may not rest on the pleadings, but must designate specific facts in the record
establishing a genuine issue of material fact exists. Celotex, 477 U.S. at 325; Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(en banc). The nonmovant may
satisfy this burden by providing depositions, affidavits, and other competent
evidence; not with “conclusory allegations, speculation, and unsubstantiated
assertions.” Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996)
(en banc). Conclusory allegations, unsubstantiated assertions, or a mere scintilla of
evidence cannot defeat a motion for summary judgment. See Anderson, 477 U.S. at
249-52; Boudreaux, 402 F.3d at 540. If the nonmovant fails to make a sufficient
showing to prove the existence of an essential element to the case and on which the
nonmovant will bear the burden of proving at trial, summary judgment must be
granted. Celotex, 477 U.S. at 322.
ORDER – PAGE 3
“Even if there is a dispute regarding some material facts, a movant may obtain
summary judgment if he can prove there is no evidence to support one or more
essential elements of the non-moving party’s claim.” Walker v. Geithner, 400 F. App’x
914, 916 (5th Cir. 2010)(per curium)(citing Celotex, 477 U.S. at 323-25). However,
“[i]t is not sufficient to merely list the elements of the claims and state that there is
no evidence to support the elements.” Seastruck v. Darwell Integrated Tech.,
Civ. No. 3:05-CV-0531-BF, 2008 WL 190316, at *3 (N.D. Tex. Jan. 22, 2008)
(Stickney, M.J.). The movant must cite to the record to demonstrate a lack of
evidence that supports the nonmovant’s claims. Id.
III.
Applicable Law
An invitee is “one who enters on another’s land with the owner’s knowledge and
for the mutual benefit of both.” Rosas v. Buddies Food Store, 518 S.W.2d 534, 536
(Tex. 1975). A landowner owes an invitee a duty to exercise reasonable care to
protect the invitee from dangerous store conditions known to or discoverable by the
store. Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). But this
duty does not make the owner a general insurer of its customers’ safety on the
premises. See id.
To prove a claim of premises liability, the plaintiff must establish: (1) the
existence of a condition of the premises creating an unreasonable risk of harm to
ORDER – PAGE 4
invitees; (2) the owner had actual or constructive knowledge of some condition of the
premises; (3) the owner failed to exercise reasonable care to reduce or eliminate the
risk; and (4) the failure to exercise reasonable care was the proximate cause of the
injuries. Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). To establish the
second element of the owner’s knowledge, “a slip-and-fall plaintiff . . . [must
establish] that (1) the defendant [created the condition] on the floor, (2) the
defendant actually knew [about the condition] on the floor, or (3) it is more likely
than not that the condition existed long enough to give the premises owner a
reasonable opportunity to discover it.” Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812,
814 (Tex. 2002). To establish constructive knowledge, a plaintiff must point to some
evidence of how long the dangerous condition was there to establish that the owner
had a reasonable opportunity to discover it; it is not enough for a plaintiff to merely
show that an employee came in close proximity to a hazard. Id. at 816. “[M]eager
circumstantial evidence from which equally plausible but opposite inferences may be
drawn is speculative and thus legally insufficient to support a finding.” Gonzalez, 968
S.W.2d at 936.
IV.
Application of the Law to the Facts
Defendant moves for summary judgment on the grounds that: (1) the raised floor
mat was open and obvious and Plaintiff had actual knowledge of it; and (2) Plaintiff
ORDER – PAGE 5
cannot and did not establish Defendant had actual or constructive notice of the
raised floor mat. Plaintiff responds that the raised floor mat was not open and
obvious, but even if it was, the “necessary use” exception applies. As for notice,
Plaintiff contends there is fact question as to Defendant having notice because of the
proximity of “multiple Wal-Mart employees, particularly the cart returners.”
In her original petition filed in state court, Plaintiff asserts state law claims for
premises liability and negligence. “Texas recognizes ‘two types of negligence in failing
to keep the premises safe: that arising from an activity on the premises, and that
arising from a premises defect.’” Reyes v. Dollar Tree Stores, Inc., 221 F. Supp.3d 817,
824 (W.D. Tex. 2016). “Recovery on a negligent activity theory requires that the
plaintiff be injured by or as a contemporaneous result of the activity itself,” not
because of any condition the activity may have created. Arsement v. Spinnaker Expl.
Co., LLC, 400 F.3d 238, 251 (5th Cir. 2005). Plaintiff’s state court petition clearly
alleges that her injuries are based upon a premises defect at Defendant’s store, not
that her injuries were caused by Defendant’s “‘affirmative, contemporaneous
conduct.’” Id. (quoting Mangham v. YMCA of Austin, Tex.—Hays Cmtys., 408 S.W.3d
923, 929 (Tex. App.—Austin 2013)). Moreover, the summary judgment evidence
establishes it is not known who caused the floor mat to be raised. Therefore, the
ORDER – PAGE 6
Court’s analysis treats these claims as one in the same and based upon a condition of
the premises.
A. Open and Obvious
Defendant first argues it owed no duty to Plaintiff because the raised floor mat
was open and obvious and she acknowledged that she knew it was when she entered
the store. It is well-established law in Texas that a landowner owes a duty to an
invitee to make the premises safe against a dangerous condition. See Austin v. Kroger
Tex., L.P., 465 S.W.3d 193, 202 (Tex. 2015). However, the Texas Supreme Court
has consistently recognized “that a landowner’s duty is not absolute.” Id. at 203. In
Austin, the Court addressed the “open and obvious” exception to a landowner’s duty:
When the condition is open and obvious or known to the
invitee, however, the landowner is not in a better position to
discover it. When invitees are aware of dangerous premises
conditions—whether because the danger is obvious or because
the landowner provided an adequate warning—the condition
will, in most cases, no longer pose an unreasonable risk because
the law presumes that invitees will take reasonable measures to
protect themselves against known risks, which may include a
decision not to accept the invitation to enter into the
landowner’s premises.
Id. at 202. In other words, “a landowner generally has no duty to warn of hazards
that are open and obvious or known to the invitee.” Id. at 204 (internal citations
omitted).
ORDER – PAGE 7
Defendant argues that Plaintiff’s admitted knowledge of the raised floor mat
establishes that it was “open and obvious” and, therefore, Defendant owed her no
duty. The Court agrees. Defendant presented Plaintiff’s deposition testimony as
evidence in support of summary judgment on this basis. In her deposition, Plaintiff
testified that: (1) she uses a walker to move around; (2) she saw a rug with “a big
tunnel” in the middle in the shopping cart area; (3) she saw this as soon as walked
into the store and before she walked towards and onto the mat; (4) she knew to avoid
that mat so she would not fall; (5) anyone, herself included, would assume they
would fall if their foot got stuck in the tunnel of the raised mat; (6) she asked another
customer to retrieve a motorized shopping cart for her because it was located in the
area where the floor mat was raised; (7) even though the customer was seated in the
cart to bring it to her, she did not want to tell him how to turn on the cart; and
(8) Plaintiff then set aside her walker and walked towards him and the cart, trying to
get around the raised mat when her foot got caught on it. This summary judgment
evidence shows Plaintiff had actual knowledge about the raised mat from the moment
she walked into the store and that she even took “reasonable measures to protect
[herself] against the known risk” of the raised floor mat. See id. at 203.
In her response, Plaintiff argues that the raised floor mat was not “open and
obvious” and she “did not fully appreciate” any danger because she was focused on
ORDER – PAGE 8
the motorized carts and not where she was walking. Plaintiff’s own deposition
testimony belies her argument. Plaintiff testified saw the raised mat as soon as she
entered the store and before she walked in the shopping cart area where it was.
Plaintiff also testified that she knew she would trip if her foot got caught on it. She
even asked another customer to get her a motorized cart because it was in the area
with the raised mat. The Court finds the summary judgment evidence establishes
that the raised floor mat was “open and obvious” and, “since there is no need to warn
against obvious or known dangers,” Defendant had no duty to Plaintiff here. See id.
at 204.
Plaintiff argues that if the raised floor mat was an open and obvious condition,
the “necessary-use” exception applies. Plaintiff cites the Texas Supreme Court case of
Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978), in which the Court
recognized a “necessary-use” exception. Under this very narrow exception, a
landowner may still owe a duty to an invitee even if a condition is “open and
obvious” where “it is necessary that the invitee use the dangerous premises and the
landowner should have anticipated that the invitee is unable to take measures to
avoid the risk.” Austin, 465 S.W.3d at 208. In its reply, Defendant contends this
exception does not apply because it was not necessary to Plaintiff to use that area
where the raised floor mat was located.
ORDER – PAGE 9
The Court concludes that this exception clearly does not apply here. Plaintiff’s
own deposition testimony again undercuts her argument. The exception applies
where “it is necessary that the invitee use the dangerous premises and the landowner
should have anticipated that the invitee is unable to take measures to avoid the risk.” Id.
(emphasis added). Defendant presented Plaintiff’s deposition testimony that, after
seeing the raised floor mat, she asked another customer to retrieve a motorized cart
for her and this customer agreed. He went to get a cart for her and was seated in it to
bring to her, but Plaintiff decided to walk towards the carts anyway, leaving her
walker to the side, because she didn’t “want to talk like a baby to him” in trying to
explain how to turn on the cart. Then when she walked towards him and the cart
without her walker, Plaintiff caught her foot on the mat and fell. Plaintiff’s own
testimony proves that it was not necessary she walk in that area and also that she was
able to take measures to avoid tripping on the mat. See id. at 207-08 (must be
necessary for invitee to use the dangerous premises for this very narrow exception to
apply). Plaintiff presents no evidence to create a fact question that the “necessaryuse” exception applies.
The Court finds that the condition created by the raised floor mat was “open
and obvious” and Plaintiff had actual knowledge of it. Accordingly, Defendant had
no duty to Plaintiff when she was aware of the risk and could have avoided it. See
ORDER – PAGE 10
id. at 206-08 (recognizing the very limited application of the “necessary-use”
exception and emphasizing “the Court’s more-recently reaffirmed general rule
confirms that landowners have no duty to protect or warn such persons when they
are aware of the risks and could have avoided them.”). Summary judgment is
appropriate on Plaintiff’s premises liability claim on these grounds.
B. Actual or Constructive Notice
Even if the condition was not open and obvious and known to Plaintiff, her
premises liability claim would still fail because she did not create a genuine issue of
material fact as to the required notice element. To prevail in a slip-and-fall case, the
plaintiff must establish, among other things, that the owner had actual or
constructive notice about the dangerous condition. See Ketch, 845 S.W.2d at 264.
To satisfy notice, the plaintiff must show: (1) the defendant created the dangerous
condition on the floor; (2) the defendant actually knew of the dangerous condition
on the floor; or (3) it is more likely than not that the condition existed long enough
that the premises owner had a reasonable opportunity to discover it. See Reece, 81
S.W.3d at 814.
Defendant contends there is no evidence that it had any notice, actual or
constructive, of the raised floor mat, therefore summary judgment must be granted
for that reason. Plaintiff submits no summary judgment evidence, or even argument,
ORDER – PAGE 11
that Defendant created the condition or had actual knowledge of the condition. In
fact, her deposition testimony establishes that she does not know how the “tunnel” in
the floor mat came to be, that no Wal-Mart employees were in that area when she
fell, that she does not know if a customer caused the tunnel, that no caution or
warning signs were in that area, and that she did not have any conversations with any
Wal-Mart employees that day or thereafter. Moreover, Plaintiff’s responsive
argument regarding notice addresses only constructive notice. See D&M Specialties,
Inc. v. Apache Creek Props., L.C., Civil Action No. SA-12-CA-588-FB, 2014 WL
12493290, at *3 (W.D. Tex. Aug. 21, 2014)(internal citation omitted)(when a party
fails to respond to an argument in the opposing party’s motion for summary
judgment, the party concedes that argument.)
Having considered the summary
judgment record, the Court finds Plaintiff failed to establish a fact question that
Defendant caused the mat to be raised or had actual knowledge of it.
Plaintiff is left to establish the notice element through constructive knowledge
which requires Plaintiff to first prove the length of time the floor mat was raised. See
Reece, 81 S.W.3d at 815 (prerequisite to establishing “owner’s constructive knowledge
of a hazardous condition [is] show[ing] that the hazardous condition existed for some
definite length of time.”). Proximity to a dangerous condition is only one
consideration in the Court’s constructive knowledge analysis. See Wal-Mart Stores,
ORDER – PAGE 12
Inc. v. Spates, 186 S.W.3d 566, 567 (Tex. 2006)(per curiam). Plaintiff must submit
evidence regarding the length of time the floor mat was raised. See Reece, 81 S.W.3d
at 816. In support of its argument that there is no temporal evidence, Defendant
cites Plaintiff’s deposition testimony that she had no idea how long the mat had been
raised before she fell; Plaintiff knew only that it was like that when she walked into
the store. Plaintiff argues Defendant had constructive notice because the condition
was located in the front of the store which was “frequented by multiple Wal-Mart
employees, particularly the cart returners.” As her only supporting evidence, Plaintiff
offers still photographs from the surveillance video camera (“still photos”). Plaintiff
contends these still photos prove Wal-Mart employees were in the area where she fell
either working or looking in the direction of the raised floor mat during the thirty
(30) minutes before Plaintiff’s fall. Plaintiff then concludes that this is evidence
showing constructive knowledge because “it is much more likely than not that” the
floor mat was raised that entire time period and seen by those near-by employees
“but was dismissed by [them] as a condition that could not cause injury.”
These still photos are simply not proof of how long the raised floor mat was
there. See Reece, 81 S.W.3d at 816. None of these still photos actually show the floor
mat or even the shopping carts; the camera was focused solely on the doors and that
initial entry area. Plaintiff did not present any witness testimony or statements or
ORDER – PAGE 13
any other evidence in an attempt to show the length of time the floor mat may have
been raised. The fact that Wal-Mart employees may have worked in that area or
even looked towards the shopping carts is not evidence of the length of time the mat
was raised. See Reece, 81 S.W.3d at 816 (reversing jury verdict after concluding
“employee’s proximity, with no evidence indicating how long hazard was, merely
indicates that it was possible for premises owner to discover condition, not that
premises owner reasonably should have discovered it”). The only evidence is
Plaintiff’s testimony that she did not know how long it had been like that, only that
it was that way when she entered the store. See Spates, 186 S.W.3d at 568; Cox v.
H.E.B. Grocery, L.P., No. 03-13-00714-CV, 2014 WL 4362884, at *3 (Tex. App.—
Austin Aug. 27, 2014)(affirming summary judgment because there was no proof from
which a factfinder could draw reasonable inference as to how long peach had been on
floor, so “it was equally probable” that it had been on floor for two minutes or two
hours).
Plaintiff had the burden “to demonstrate that it was more likely than not that the
[raised floor mat] had been there for a long time.” Gonzalez, 968 S.W.2d at 935
(plaintiff must create a triable issue as to whether “the dangerous condition existed
long enough to give the proprietor a reasonable opportunity to discover the
condition.”). With no evidence as to how long the floor mat may have been raised,
ORDER – PAGE 14
there is no basis upon which a factfinder could evaluate Defendant’s opportunity to
discover it and remove or correct it. See Spates, 186 S.W.3d at 568. Plaintiff failed to
meet her summary judgment burden to create a genuine issue of material fact as to
Defendant having notice about the raised floor mat, which is a required element. See
Walker, 400 F. App’x at 916 (“Even if there is a dispute regarding some material facts,
a movant may obtain summary judgment if he can prove there is no evidence to
support one or more essential elements of non-moving party’s claim.”). The Court
finds summary judgment on Plaintiff’s premises liability claim is appropriate.
V.
Conclusion
For the reasons previously set forth, the Court grants Defendant’s motion for
summary judgment on Plaintiff’s premises liability claim.
SO ORDERED.
Signed October 3rd, 2018.
______________________________________
ED KINKEADE
UNITED STATES DISTRICT JUDGE
ORDER – PAGE 15
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