Bisacca v. Pilot Travel Centers, LLC
Filing
43
Memorandum Opinion and Order. The court grants 35 Defendant's Motion for Summary Judgment; dismisses with prejudice this action; denies 38 Plaintiff's request to amend his pleadings; strikes 33 Plaintiff's First Amended Designation of Expert Witnesses; and denies as moot 34 Defendant's Unopposed Motion for Leave to File Amended Expert Designation. (Ordered by Judge Sam A. Lindsay on 8/5/2020) (chmb)
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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ALFONSO BISACCA,
Plaintiff,
v.
PILOT TRAVEL CENTERS, LLC d/b/a
PILOT TRAVEL CENTERS #433,
Defendant.
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Civil Action No. 3:17-CV-3263-L
MEMORANDUM OPINION AND ORDER
Before the court is Defendant’s Unopposed Motion for Leave to File Amended Expert
Designation (Doc. 34), filed April 7, 2020; and Defendant Pilot Travel Centers d/b/a Pilot Travel
Centers #433’s (“Pilot” or “Defendant”) Motion for Summary Judgment (“Motion”) (Doc. 35), filed
April 17, 2020. For the reasons herein explained, the court grants Defendant’s Motion for
Summary Judgment (Doc. 35); denies the request by Plaintiff included in his summary judgment
response to further amend his pleadings (Doc. 38); dismisses with prejudice this action; strikes
Plaintiff’s First Amended Designation of Expert Witnesses (Doc. 33), which was filed on April 3,
2020, without leave of court; and denies as moot Defendant’s Unopposed Motion for Leave to File
Amended Expert Designation (Doc. 34).
I.
Factual and Procedural Background
In this premises liability case, Alfonso Bisacca (“Plaintiff” or “Mr. Bisacca”), a commercial
truck driver, seeks to recover for injuries he allegedly sustained from a slip-and-fall accident on
October 31, 2015, near one of the entrances to Pilot’s convenience store or “truck stop” located at
8787 South Lancaster Road, Dallas, Texas 75241 (the “Premises” or “Pilot Store”). Pl.’s App., Ex.
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3 at 23 (Bisacca dep).1 Plaintiff also asserts in his most recent pleadings that Pilot is responsible for
its employees’ negligence and omissions under the doctrine of respondeat superior.
According to the undisputed summary judgment evidence, Mr. Bisacca met another driver
in the parking lot of the Pilot Store to exchange truck loads before pulling around to the area where
the diesel fuel pumps are located. After pumping diesel fuel, Mr. Bisacca entered the Pilot Store
using the “driver entrance” on the diesel side to get a receipt for the fuel, purchase a drink, and warm
up some soup. Id. at 26; Def.’s App. 15. The parties’ summary judgment evidence also refers to
this entrance as the “diesel entrance,” “diesel side,” and “diesel ramp.” Pl.’s App., Ex. 1 at 117
(Mark Nichols dep.); Pl.’s App., Ex. 4 (Feb. 5, 2015 e-mail). Mr. Bisacca exited the Pilot Store the
same way he entered, and fell near the concrete handicap ramp that leads up to the diesel entrance.
Pilot presented evidence establishing that, at the time of Mr. Bisacca’s accident, there was a yellow
cone on the diesel ramp that said “CAUTION Wet Floor” in Spanish and English and also included
a diagram of a person slipping and falling. Mr. Bisacca acknowledges that he saw the yellow cone
and warning and attempted to avoid the area where the cone was located on the concrete ramp by
taking a narrow path to the side of the ramp, where he fell.
Pilot moved for summary judgment on April 17, 2020, contending that it did not breach any
duty owed to Plaintiff as the owner and operator of the Premises because its placement of the yellow
cone in front of the diesel entrance was adequate under Texas law to warn Plaintiff regarding the
condition of the ramp, and Plaintiff admitted to seeing the yellow wet floor cone positioned on the
handicap ramp on his way into and out the store. Pilot further asserts that it cannot be held liable
1
Because Plaintiff did not sequentially number the pages of his appendix or cite to the appropriate appendix
pages as required by the district’s Local Civil Rules, the page cited by the court is to the relevant page of Plaintiff’s
deposition.
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under a theory of respondeat superior because Plaintiff was not injured as a result of the action or
omissions of any employee or agent of Pilot.
Plaintiff disagrees and responds that the warning provided by Pilot in the form of a yellow
“caution wet floor” cone on the entrance ramp was inadequate under the circumstances. Pl.’s Resp.
8. Additionally, even if adequate, Plaintiff contends that Pilot owed him a duty under Texas’s
necessary-use exception to make the diesel entrance safe because “it was necessary for [him] to use
the ramp to return to his commercial vehicle after leaving the store,” and “[he] was not able to walk
around the ramp, without incident.” Id. at 10. Plaintiff argues that, “[b]ecause th[is] was the only
point of entry on the north side of the Premises reserved for commercial drivers,” Pilot could not
discharge its duty under the necessary-use exception by the mere placement of a yellow “caution
wet floor” cone “near the area where it knew a danger existed.” Id. at 8, 10, 11. Instead of
addressing Defendant’s contention that he is not entitled to recover under the theory of respondeat
superior, Plaintiff clarifies that he is only seeking to recover damages for his premises liability
claim, and, to the extent this is not clear from his pleadings, he seeks leave to amend his pleadings.
The court addresses both of these premises liability arguments in turn. Although the court’s
determination regarding Defendant’s summary judgment motion moots Pilot’s request to amend its
expert designations, it addresses this issue separately to explain briefly why it is striking Plaintiff’s
First Amended Expert Designations, which prompted Pilot to seek leave to amend its own expert
designations. The court also addresses separately Plaintiff’s belated request to amend his pleadings.
II.
Defendant’s Motion for Summary Judgment
A.
Summary Judgment Standard
Summary judgment shall be granted when the record shows that there is no genuine dispute
as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R.
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Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas
Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding 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). When ruling on a motion for summary
judgment, the court is required to view all facts and inferences in the light most favorable to the
nonmoving party and resolve all disputed facts in favor of the nonmoving party. Boudreaux v. Swift
Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005). Further, a court “may not make credibility
determinations or weigh the evidence” in ruling on a motion for summary judgment. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.
Once the moving party has made an initial showing that there is no evidence to support the
nonmoving party’s case, the party opposing the motion must come forward with competent summary
judgment evidence of the existence of a genuine dispute of material fact. Matsushita Elec. Indus.
Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). On the other hand, “if the movant bears the burden
of proof on an issue, either because he is the plaintiff or as a defendant he is asserting an affirmative
defense, he must establish beyond peradventure all of the essential elements of the claim or defense
to warrant judgment in his favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)
(emphasis in original). “[When] the record taken as a whole could not lead a rational trier of fact
to find for the nonmoving party, there is no ‘genuine [dispute] for trial.’” Id. (citation omitted).
Mere conclusory allegations are not competent summary judgment evidence, and thus are
insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th
Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not
competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994).
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The party opposing summary judgment is required to identify specific evidence in the record
and to articulate the precise manner in which that evidence supports his or her claim. Ragas, 136
F.3d at 458. Rule 56 does not impose a duty on the court to “sift through the record in search of
evidence” to support the nonmovant’s opposition to the motion for summary judgment. Id.; see also
Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir. 1992). “Only disputes over
facts that might affect the outcome of the suit under the governing laws will properly preclude the
entry of summary judgment.” Anderson, 477 U.S. at 248. Disputed fact issues that are “irrelevant
and unnecessary” will not be considered by a court in ruling on a summary judgment motion. Id.
If the nonmoving party fails to make a showing sufficient to establish the existence of an element
essential to its case and on which it will bear the burden of proof at trial, summary judgment must
be granted. Celotex, 477 U.S. at 322-23.
B.
Analysis
1.
Adequacy of Pilot’s Warning
Under Texas law, property owners generally “have a duty to protect invitees from, or warn
them of, conditions posing unreasonable risks of harm if the owners knew of the conditions or, in
the exercise of reasonable care, should have known of them.” Henkel v. Norman, 441 S.W.3d 249,
251 (Tex. 2014) (citing TXI Operations, L.P. v. Perry, 278 S.W.3d 763, 764-65 (Tex. 2009)). This
general rule is consistent with the Texas Supreme Court’s “recognition that a landowner’s duty to
invitees is not absolute. A landowner ‘is not an insurer of [a] visitor’s safety.’ Instead, a landowner’s
premises-liability duties, like its negligence duties, are limited to a duty to exercise ordinary,
reasonable care.” Austin v. Kroger Texas, L.P., 465 S.W.3d 193, 203 (Tex. 2015). To establish a
premises liability claim, an invitee must prove:
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(1) the property owner had actual or constructive knowledge of the condition causing
the injury; (2) the condition posed an unreasonable risk of harm; (3) the property
owner failed to take reasonable care to reduce or eliminate the risk; and (4) the
property owner’s failure to use reasonable care to reduce or eliminate the risk was
the proximate cause of injuries to the invitee.
Henkel, 441 S.W.3d at 251-52 (citing CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000)).
Pilot’s summary judgment motion focuses on the third element, which is “negated if the
property owner either adequately warned the invitee about the condition or took reasonable actions
designed to make it reasonably safe.” Henkel, 441 S.W.3d at 252 (citing TXI Operations, 278
S.W.3d at 765); Kroger, 465 S.W.3d at 202-03 (“Ordinarily, the landowner need not do both, and
can satisfy its duty by providing an adequate warning even if the unreasonably dangerous condition
remains.”). Regarding this element, the court in Henkel further explained:
If the evidence conclusively establishes that the property owner adequately warned
the injured party of the condition, then the property owner was not negligent as a
matter of law. Bill’s Dollar Store, Inc. v. Bean, 77 S.W.3d 367, 369 (Tex. App.—
Houston [14th Dist.] 2002, pet. denied). To be adequate, a warning must be more
than a general instruction such as “be careful”; the warning must notify of the
particular condition. TXI Operations, 278 S.W.3d at 765. In TXI, for example, a
speed limit sign was not an adequate warning of a pothole. Id. We held that the sign
“neither informed the driver of road hazards generally, nor did it identify the
particular hazard.” Id[.]; see State v. McBride, 601 S.W.2d 552, 556-57 (Tex. Civ.
App.—Waco 1980, writ ref’d n.r.e.) (holding signs that read “35 MPH” and
“SLOW” were insufficient to warn of the actual condition of the construction area,
which was that it was muddy and slick when wet). In contrast, a warning by a cashier
to a customer to “watch the wet spot” was an adequate warning as a matter of law.
Bill’s Dollar Store, 77 S.W.3d at 370. And a wet floor warning sign and verbal
warning to “ ‘be careful’ because the ‘floor may be a little damp’ ” was adequate as
a matter of law to discharge a property owner’s duty to an invitee. Brooks v. PRH
Invs., Inc., 303 S.W.3d 920, 925 (Tex. App.—Texarkana 2010, no pet.).
Henkel, 441 S.W.3d at 252.
Plaintiff contends that Pilot’s use of the yellow caution cone was not adequate because it did
not communicate the specific condition he faced. Specifically, Plaintiff argues that, because the
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yellow cone cautioned that the “floor” rather than the outside pavement or ramp was wet and
slippery, the warning was confusing:
The wording used on the cone in this case was “caution wet floor.” In light of the
placement of the cone – outside the building, straddling the boundary between the
unpainted sidewalk and the painted ramp – the term ‘floor’ is confusing at best, and
does not communicate the specific condition Alfonso Bisacca faced: a wet and
slippery surface outside of the building. In common parlance, ‘floor’ denotes ‘the
base of a room’ (Webster’s) or ‘that part of a room, hallway, or the like, that forms
its lower enclosing surface and upon which one walks (Dictionary.com). In simple
terms, a ‘floor’ is located inside a building – and it is certainly reasonable that one
seeing such a warning posted outside of a building, near an entrance, would take it
to be referring to the floor inside the building. The location where Alfonso Bisacca
fell could much more adequately be described as pavement, a sidewalk, or a ramp;
a sign placed where the “caution wet floor” sign was, indicating that the pavement,
sidewalk or ramp was wet, may well have been adequate to satisfy Pilot’s duty to
warn. But the use of the term ‘floor’ should create a fact issue for summary
judgment purposes as to adequacy.
Pl.’s Resp. 8-9 (citation and footnote omitted). The court disagrees, as this hypothetical argument
is contrary to and not supported by the undisputed summary judgment evidence.
As noted, Defendant presented evidence that, at the time of Mr. Bisacca’s accident, there was
a yellow cone on the handicap ramp in front of the diesel entrance to the store that said “CAUTION
Wet Floor” in Spanish and English and also included a diagram of a person slipping and falling.
This evidence establishes that Pilot adequately warned of the particular condition in question—that
the area where the cone was placed, on the handicap ramp in front of the diesel entrance to the store,
was slippery when wet. Moreover, Plaintiff’s deposition testimony establishes that he saw and
understood that the “caution wet floor” sign displayed on the yellow cone positioned on the
handicap ramp in front of the diesel entrance was warning about the condition of the ramp and, for
this reason, he took extra precautions by veering to avoid and go around the area, walking around
to the edge of the ramp, and slowing his walk. Def.’s App. 15, 17-22. Accordingly, the evidence
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conclusively establishes that Pilot adequately warned Plaintiff of the ramp’s condition, such that
Pilot cannot be negligent as a matter of law unless Texas’s necessary-use exception applies.
2.
Applicability of Necessary-Use Exception
The leading Texas case on the necessary-use exception is Parker v. Highland Park, Inc., 565
S.W.2d 512 (Tex. 1978). In Parker, the court concluded that the exception applied because the facts
in that case established that the dimly lighted staircase with narrow, uneven steps was the only
means available for the plaintiff to exit her apartment. Id. at 514-15. In Austin v. Kroger, the Texas
Supreme Court recognized that Parker represents an exception to the general rule that “landowners
have no duty to protect or warn [] persons when they are aware of the risks and could have avoided
them.” Kroger, 465 S.W.3d at 208. The necessary-use exception arises “when the invitee
necessarily must use the unreasonably dangerous premises, and despite the invitee’s awareness and
appreciation of the dangers, the invitee is incapable of taking precautions that will adequately reduce
the risk.” Id. at 204. The exception, therefore, applies “when the facts demonstrate that (1) it was
necessary that the invitee use the unreasonably dangerous premises and (2) the landowner should
have anticipated that the invitee was unable to avoid the unreasonable risks despite the invitee’s
awareness of them.” Id. at 207. When the necessary-use exception applies, the obviousness of the
danger and the plaintiff’s awareness of the risk do not relieve a property owner of the duty to make
its premises reasonably safe. Id. at 204 (citation omitted). Whether “a duty exists is a question of
law for the court,” and if no duty exists, “a jury cannot impose [such] a duty.” Id. at 209 (citation
omitted).
Plaintiff contends that the necessary-use exception applies because he had no other way of
entering and exiting the Premises:
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Here, Pilot could not discharge its duty to [him] as a matter of law by merely
placing a yellow sign on the painted ramp, because it was necessary for [him] to use
the ramp to return to his commercial vehicle after leaving the store. Just as the
plaintiff in Parker could not exit the apartment building without using the dangerous
stairs, [he] was not able to walk around the ramp, without incident, to return to his
commercial vehicle parked in Defendant Pilot’s parking lot.
The summary judgment evidence shows that unpainted concrete on one side
of the ramp (to his right) was partially blocked by Pilot’s placement of ice and
package storage containers. (See Ex. 4; attached photographs). [Mr.] Bisacca testified
that he attempted to walk around the ramp to his left, but was unable to do so safely
causing him to slip and fall on the dangerous ramp. (Ex. 3; Bisacca Depo. P. 35, L.
19-P. 36, L. 10; P. 37, L. 23-P. 38, L. 3). Pilot should have anticipated that its
customers, including [Mr.] Bisacca, could not avoid the unreasonable risk that
accompanies crossing a painted, wet, slick ramp any more than the plaintiff in Parker
could avoid the risk of descending dimly lit, poorly constructed stairs. Because that
was the only point of entry on the north side of the Premises reserved for commercial
drivers, Pilot could not conclusively discharge its duty of care by mere placement of
a yellow sign near the area where it knew a danger existed.
Pl.’s Resp. 10-11. Defendant replies that the necessary-use exception is not relevant to the
determination of its summary judgment motion but, even if it is, it is still entitled to summary
judgment because Plaintiff has failed to come forward with competent summary judgment evidence
to raise a genuine dispute of fact regarding either of the exception’s two elements as required for the
exception to apply.
While Plaintiff contends that the diesel entrance where he fell was the only entrance into the
store “reserved for commercial drivers” such that it was necessary for him to enter and exit the store
through that particular entrance, he points to no evidence to support this argument or show that
commercial truck drivers were only permitted to use this entrance. Additionally, the undisputed
summary judgment evidence, including Plaintiff’s own evidence, establishes that there was a second
entrance on the other side of the store. Plaintiff, however, does not point to any evidence or explain
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why he could not have entered the store using the other entrance, even if doing so was less
convenient.
Consequently, he has not shown, as he contends, that the facts in this case are similar to those
in Parker. The court, therefore, concludes that the necessary-use exception does not apply, as
Plaintiff has failed to identify evidence and set forth specific facts sufficient to raise a genuine
dispute of material fact regarding either requirement of the exception. See Kennedy v. Wal-Mart
Stores Tex., LLC, 03-19-00587-CV, 2020 WL 1943357, at *3 (Tex. App.—Austin Apr. 23, 2020,
no pet.) (“As there was more than one way for Kennedy to retrieve the bottle of wine, which would
have allowed her to avoid it falling on her foot, the “necessary use” exception does not apply.”);
Simpson v. Orange Cty. Building Materials, Inc., No. 09-18-00240-CV, 2019 WL 407790, at *5
(Tex. App.—Beaumont Feb.7, 2019, no pet.) (“[W]hen the summary judgment evidence established
that the plaintiff could have avoided the condition, then the necessary-use exception does not apply,
and summary judgment is appropriate.”). As no genuine dispute of material facts exists as to
Plaintiff’s premises liability claim, Pilot is entitled to judgment as a matter of law on this claim,
which will be dismissed with prejudice. For the same reason, Plaintiff cannot recover under a
respondeat superior theory of recovery, which is based on his premises liability claim.
III.
Plaintiff’s Request to Amend His Pleadings
Instead of addressing Defendant’s respondeat superior argument, Plaintiff included a section
at the end of his summary judgment response that is titled “Dismissal of Alfonso Bisacca’s Claim
for Respondeat Superior” and asserts that he “seeks damages against Defendant Pilot solely under
his claim for premises liability. He seeks leave to amend his First Amended Complaint, if that
remains unclear.” Pl.’s Resp. 11.
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In his First Amended Complaint (Doc. 28), the live pleading, which the court allowed him
to file June 10, 2019, after Pilot moved for summary judgment the first time, Plaintiff expressly
alleges: “Defendant is responsible for the above-referenced negligent acts and/or omissions of its
employees under the doctrine of respondeat superior, as said employees were acting under the
course and scope of their employment with Defendant.” Pl.’s First. Am. Compl. ¶ 14 (emphasis
added). Plaintiff’s intent to assert a premises liability claim under the doctrine of respondeat
superior is, therefore, clear and requires no clarification. Even if he did not intend to seek relief
under this theory, the time for pleading amendments expired April 26, 2018, approximately two
years before Pilot filed its amended summary judgment motion. In addition, Plaintiff has not
established good cause as required to further amend his pleadings after expiration of the deadline
for amendment of pleadings in the scheduling order and after Pilot moved the second time for
summary judgment.2 Given the timing of Plaintiff’s request, it would also be unfair to and prejudice
Defendant if Plaintiff was allowed to amend his pleadings to avoid summary judgment on this
ground. Accordingly, Plaintiff’s request to further amend his pleadings for this purpose is denied.
2
Before the court can modify a scheduling order and grant leave to amend a pleading under Rule 15(a) of the
Federal Rules of Civil Procedure, the movant must first show “good cause” for failure to meet the scheduling order
deadline under Rule 16(b). S & W Enters., L.L.C. v. Southwest Bank of Alabama, 315 F.3d 533, 536 (5th Cir. 2003)
(“Rule 16(b) governs amendment of pleadings after a scheduling order deadline has expired.”). A scheduling order “may
be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b). The good cause standard requires
the “party seeking relief to show that the deadlines [could not] reasonably be met despite the diligence of the party
needing the extension.” S & W, 315 F.3d at 535 (citation omitted). “Only upon the movant’s demonstration of good
cause to modify the scheduling order will the more liberal standard of Rule 15(a) apply to the district court’s decision
to grant or deny leave.” Id. at 536. In deciding whether to allow an untimely amendment, a court considers “(1) the
explanation for the failure to timely move for leave to amend; (2) the importance of the amendment; (3) potential
prejudice in allowing the amendment; and (4) the availability of a continuance to cure such prejudice.” Id. (internal
quotation marks, brackets, and citations omitted).
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IV.
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Defendant’s Motion to Amend its Expert Designations
Although unopposed, the court determines that there is no need for Defendant to amend its
expert designations. Defendant requests to amend its expert designations in light of Plaintiff’s First
Amended Designation of Experts Witnesses (Doc. 33), filed April 3, 2020, in which Plaintiff
identified several new medical providers after the court granted the parties’ unopposed motion to
extend the discovery deadline, including discovery pertaining to experts, to April 3, 2020. While
the court extended the discovery and other deadlines in its Second Amended Scheduling Order (Doc.
29), including the deadline for challenging experts that was extended to April 17, 2020, it did not
extend the deadlines for the parties to make their respective expert designations, which expired
between September and November of 2018. Accordingly, Plaintiff was required but failed to obtain
leave of court to amend his expert designations long after expiration of the deadline for doing so,
and he has not shown good cause under Rule 16(b) as required for amendment of the scheduling
order and extension or revival of his expert designation deadline. The court, therefore, strikes
Plaintiff’s First Amended Designation of Expert Witnesses (Doc. 33) and denies as moot
Defendant’s Unopposed Motion for Leave to File Amended Expert Designation (Doc. 34).
V.
Conclusion
For the reasons explained, the court concludes that Plaintiff has failed to raise a genuine
dispute of material fact as to his premises liability claim, and Defendant is entitled to judgment as
a matter of law. The court, therefore, grants Defendant’s Motion for Summary Judgment (Doc. 35)
and dismisses with prejudice Plaintiff’s premises liability claim against Defendant in this action,
whether asserted directly against Defendant or under a theory of respondeat superior. Further, the
court denies Plaintiff’s request to amend his pleadings (Doc. 38); strikes Plaintiff’s First Amended
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Designation of Expert Witnesses (Doc. 33), which was filed on April 3, 2020, without leave of
court; and denies as moot Defendant’s Unopposed Motion for Leave to File Amended Expert
Designation (Doc. 34). The court, as required by Rule 58 of the Federal Rules of Civil Procedure,
will issue judgment by separate document.
It is so ordered this 5th day of August, 2020.
_________________________________
Sam A. Lindsay
United States District Judge
Memorandum Opinion and Order – Page 13
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