Bell v. Marmaxx Operating Corp

Filing 26

Memorandum Opinion and Order granting 15 Motion for Summary Judgment Pursuant to Federal Rule of Civil Procedure 56. (Ordered by Judge Brantley Starr on 11/23/2021) (ykp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
AMIGUA BELL,
Plaintiff,
v.
MARMAXX OPERATING CORP,
Defendant.

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Civil Action No. 3:20-CV-01910-X

MEMORANDUM OPINION AND ORDER
Before the Court is defendant Marmaxx Operating Corp.’s (Marmaxx) motion
for summary judgment. [Doc. No. 15]. After careful consideration, and as explained
below, the Court GRANTS Marmaxx’s motion for summary judgment and
DISMISSES Bell’s claims.
I.

Factual Background

This case arises from plaintiff Amigua Bell’s alleged slip and fall in a Marshalls
store bathroom in Mesquite, Texas, on or about December 22, 2018. According to
Bell’s complaint, she slipped on “moisture” on the floor. Bell attempted to brace
herself on the sink and countertop to avoid falling, but when she did so the countertop
separated from the wall. Bell fell to the ground, sustaining various injuries. Bell
sued Marmaxx (the owner of the Marshalls store) in this Court under diversity
jurisdiction for damages related to her fall, and Marmaxx filed a motion for summary
judgment.

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II.

Legal Standard

Summary judgment is appropriate if, viewing the evidence in the light most
favorable to the non-moving party, 1 “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” 2 “A fact is material if it ‘might affect the outcome of the suit’” and “[a] factual
dispute is genuine ‘if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.’” 3 “When a moving party alleges that there is an absence of
evidence necessary to prove a specific element of a case, the nonmoving party bears
the burden of presenting evidence that provides a genuine issue for trial.” 4
III.

Analysis

As a threshold matter, the Court notes that Marmaxx argued in its summary
judgment motion that Bell improperly brought her claim as one for negligence when
it should have been brought as one for premises liability. Because the Court
concludes, as explained below, that summary judgment is proper on either claim, it
need not address which claim is the appropriate one here. Under Texas law, to
recover damages in a premises liability, slip-and-fall case, a plaintiff must prove:
(1) Actual or constructive knowledge of some condition on the premises
by the owner/operator;
(2) That the condition posed an unreasonable risk of harm;

1

Howell v. Town of Ball, 827 F.3d 515, 522 (5th Cir. 2016).

2

FED. R. CIV. P. 56(a).

Thomas v. Tregre, 913 F.3d 458, 462 (5th Cir. 2019) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)).
3

4

Thomas v. Barton Lodge II, Ltd., 174 F.3d 636 (5th Cir. 1999).

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(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. 5
Meanwhile, to prevail on a negligence claim, a plaintiff must prove: “(1) a legal duty
owed by one person to another; (2) a breach of that duty; and (3) damage proximately
caused by the breach.”6 Marmaxx alleges that Bell has no evidence to support each
individual element of either a premises liability or negligence claim against
Marmaxx.
Bell does not point to any evidence at all to disprove Marmaxx’s contention and
demonstrate that a genuine dispute of material fact exists here. Rather, Bell’s only
argument is that a “no evidence” summary judgment motion has no place in federal
court, so Marmaxx’s motion failed to shift the burden to Bell to point to any evidence
that supports the elements of her claim. Although neither party cites to it, the Fifth
Circuit addressed this exact issue in 2017 in a case also arising from a slip and fall.
In Austin v. Kroger, the Fifth Circuit responded to the contention that federal law
does not allow such “no evidence” summary judgment motions by explaining that
it has long been the rule that when the nonmovant has the burden of
proof at trial, the moving party may make a proper summary judgment
motion, thereby shifting the summary judgment burden to the
nonmovant, with an allegation that the nonmovant has failed to
establish an element essential to that party’s case. 7
In a footnote, the Fifth Circuit explained an “important distinction:”

5

Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998).

6

Gann v. Anheuser-Busch, Inc., 394 S.W.3d 83, 88 (Tex. App.—El Paso, 2012, no pet.).

7

Austin v. Kroger Texas L.P., 864 F.3d 326, 335 (5th Cir. 2017).

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[W]hile it is true that a movant cannot support a motion for summary
judgment with a conclusory assertion that the nonmovant has no
evidence to support his case, a movant may support a motion for
summary judgment by pointing out that there is no evidence to support
a specific element of the nonmovant’s claim. 8
Accordingly, the Fifth Circuit concluded that “[the movant] satisfied its
summary judgment burden when it alleged that there was no evidence of causation—
an essential element to [the nonmovant’s] ordinary negligence claim.”9
As the Fifth Circuit noted, it was not announcing a new rule in Austin. Rather,
the Fifth Circuit had previously explained the distinction between a summary
judgment motion alleging that there is no evidence to support a claim in general and
one alleging that there is no evidence to support specific elements. For example, in
Ashe v. Corley, a case Bell cites, the nonmovants argued that the summary judgment
motion had not shifted the burden of proof to the movant by alleging a lack of evidence
to support the nonmovant’s claim in general. 10 Accordingly, as here, the nonmovants
did not point to any evidence whatsoever to support their claims. Although the Fifth
Circuit agreed with the nonmovants, it warned that they had “truly walked the
razor’s edge with their response to the [movant’s] motion. Had the [movant] pointed
to an absence of fact on any essential element of either of the [nonmovants’] claims,
the [nonmovants’] response would have been completely inadequate to prevent
summary judgment.” 11

8

Id. at 335 n.10.

9

Id. at 335.

10

Ashe v. Corley, 992 F.2d 540 (5th Cir. 1993).

11

Id. at 544 n.5.

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Since Austin, every district court opinion that this Court has found has read it
to stand for the principle that the burden shifts to the nonmovant to show that she
has evidence if, as Marmaxx has done here, the movant alleges that there is no
evidence to support specific elements of the nonmovant’s claim. For example, in Cid
v. Wal-Mart Stores East, Inc., the court explained that “in the realm of premises
liability, a no evidence motion for summary judgment is feasible—so long as the
movant points out that there is no evidence to support a specific element of the
nonmovant’s claim.” 12 In Dillick v. Price Pfister, Inc., the court granted summary
judgment where the movant alleged that the plaintiff had no evidence to prove each
element

of

its

products

liability,

breach

of

warranty,

fraud,

negligent

misrepresentation, Texas Deceptive Trade Practices Act, and intentional infliction of
emotional distress claims.13 In Berry v. Golla, the court granted summary judgment
based on the movant’s allegation that the record contained no evidence as to three
specific elements of the nonmovant’s vicarious liability negligence claim. 14
Here, Marmaxx has not merely made conclusory allegations that Bell lacks
evidence to support her claim in general.

Rather, Marmaxx points to specific

elements for which there is no evidence. Accordingly, by alleging that Bell lacks
evidence to prove specific elements of her claim, Marmaxx shifted the burden to Bell

12 Cid v. Wal-Mart Stores East, Inc., No. 3:19-0012-C, 2020 WL 3485622, at *2 (N.D. Tex., May
18, 2020) (Cummings, J.).

Dillick v. Price Pfister, Inc., No. 3:18-CV-00400, 2020 WL 4677688, at *1 & n.1 (S.D. Tex.
June 8, 2020) (“Here, the defendants’ motion alleges that Dilick has failed to produce evidence of every
element for every claim.
In doing so, they meet the letter, if not quite the spirit, of
what Austin requires.”).
13

14

Berry v. Golla, No. H-7-2629, 2018 WL 1453275, at *3 (S.D. Tex. Mar. 23, 2020).

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to demonstrate the existence of evidence supporting a genuine issue of material fact.
Bell did not do so.

So, the Court must grant Marmaxx’s motion for summary

judgment.
IV.

CONCLUSION

For the foregoing reasons, the Court GRANTS the defendant’s motions for
summary judgment and DISMISSES WITH PREJUDICE Bell’s claims. A final
judgment will follow shortly.
IT IS SO ORDERED this 23rd day of November 2021.

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BRANTLEY STARR
UNITED STATES DISTRICT JUDGE

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