Wilson v. Target Corporation

Filing 39

Memorandum Opinion and Order....Deft's motion for summary judgment granted; all claims by pltf against deft are dismissed w/prej. (Ordered by Judge John McBryde on 7/6/2012) (wrb)

U.S. DISTRICT COURT
NORTHERN DISTRICT OF TEXAS

FILED
IN THE UNITED STATES DISTRICT C URT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

CLERK. U.S. DISTRICT COURT

By

DEBRA L. WILSON,

---n::::-:::::---_
Deputy

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Plaintiff,

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VS.

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NO. 4:11-CV-781-A

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TARGET CORPORATION,

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Defendant.

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MEMORANDUM OPINION
and
ORDER
Now before the court is the motion for summary judgment
filed in the above action by defendant, Target Corporation.
Plaintiff, Debra L. Wilson, filed a response, and defendant filed
a reply.

Having now considered all of the parties' filings, the

entire summary judgment record, and applicable legal authorities,
the court concludes that the motion should be granted.
1.

Plaintiff's Claims
Plaintiff initiated this removed action by the filing on
August 30, 2011, of her original petition in the District Court
of Tarrant County, Texas, 236th Judicial District.

Plaintiff

claimed that on or about September 3, 2009, she was walking in
one of defendant's stores when she "suddenly and unexpectedly
slipped and fell when she encountered water on the floor."

Notice of Removal, Ex. a, PI.'s Orig. Pet. and Request for
Disclosure ("Pet.H) at 2.

Plaintiff alleged a cause of action

against defendant for negligence--premises liability.
II.

The Motion for Summary Judgment
Defendant argued for summary judgment on the grounds that
there is no genuine issue of material fact as to whether
defendant had actual or constructive knowledge of any hazard on
its premises.
III.

Undisputed Facts
The following facts are undisputed in the summary judgment
record:
On or about September 3, 2009, plaintiff was shopping in
defendant's store in Grand Prairie, Texas.

Although the purpose

of plaintiff's visit to the store was to purchase a cover for her
cell phone, she first stopped to look in other areas of the
store.

At some point plaintiff asked one of defendant's

employees for directions to the store's electronics department.
The employee, who was working at the end of one of the store
aisles, directed plaintiff to go down a certain aisle and turn
left.

Plaintiff turned away from the employee and began walking

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down the aisle.

After approximately four steps, she slipped in

water and fell.
Plaintiff does not know how or when the water got on the
floor of the store, or how long it had been there when she
slipped.

Plaintiff did not see the water either before or

immediately after falling.

Plaintiff discovered the floor was

wet when she realized her pants were wet.
IV.

Applicable Summary Judgment Principles
Rule 56(a) of the Federal Rules of Civil Procedure provides
that the court shall grant summary judgment on a claim or defense
if there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.

Fed. R. civ.

P. 56(a) i Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986).

The movant bears the initial burden of pointing out to

the court that there is no genuine dispute as to any material
fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986).

The movant can discharge this burden by pointing out the absence
of evidence supporting one or more essential elements of the
nonmoving party's claim,

"since a complete failure of proof

concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial."

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Id. at 323.

Once the movant has carried its burden under Rule 56(a), the
nonmoving party must identify evidence in the record that creates
a genuine dispute as to each of the challenged elements of its
case.

Id. at 324.

See also Fed. R. Civ. P. 56(c)

asserting that a fact .
the assertion by
the record

.

("A party

. is genuinely disputed must support

citing to particular parts of materials in
.").

If the evidence identified could not lead

a rational trier of fact to find in favor of the nonmoving party
as to each essential element of the nonmoving party's case, there
is no genuine dispute for trial and summary judgment is
appropriate.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587, 597 (1986).

v.
Analysis
Plaintiff has alleged a claim of negligence--premises
liability.

Premises liability is a "special form of negligence

where the duty owed to the plaintiff depends upon the status of
the plaintiff at the time the incident occurred."

Western Invs.,

Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).
The parties apparently agree that plaintiff was defendant's
invitee, described as "one who enters on another's land with the
owner's knowledge and for the mutual benefit of both."
Buddies Food Store, 518 S.W.2d 534, 537 (Tex. 1975).
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Rosas v.
The owner

or occupier of premises is not an insurer of its invitee's
safety; rather, the owner/occupier owes an invitee the duty to
exercise reasonable care to protect against dangerous conditions
on the premises that are known or reasonably discoverable to it.
Wal-Mart stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex.
1998) .
To prevail on a claim of premises liability requires
plaintiff to show that:

(1) defendant had actual or constructive

knowledge of a condition on the premises;
an unreasonable risk of harm;

(2) the condition posed

(3) defendant failed to exercise

reasonable care to reduce or eliminate the risk; and
(4) defendant's failure to use such care proximately caused the
plaintiff's injuries.
citations omitted);

Gonzalez, 968 S.W.2d at 936

(int~rnal

Corbin v. Safeway stores, Inc., 648 S.W.2d

292, 296 (Tex. 1983).
Defendant argues that plaintiff's premises liability claim
fails because she cannot establish an essential element of her
claim:

that defendant had actual or constructive knowledge of

any allegedly hazardous condition.

A slip-and-fall plaintiff can

satisfy the notice or knowledge element by establishing that "(1)
the defendant placed the SUbstance on the floor,

(2) the

defendant actually knew that the substance was on the floor, or
(3) it is more likely than not that the condition existed long
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enough to give the premises owner a reasonable opportunity to
discover it."
(Tex. 2002).

Wal-Mart stores, Inc. v. Reece, 81 S.W.3d 812, 814
Even if the owner or occupier of the premises

created a hazardous condition, the plaintiff must still prove
that the owner or occupier "knew or should have known of the
condition."
1992).

Keetch v. Kroger Co., 845 S.W.2d 262, 265 (Tex.

Proof of how long the condition existed is required to

impose liability on the premises owner for failing to discover
and correct the condition.

Reece, 81 S.W.3d at 816.

Defendant contends that plaintiff has adduced no evidence
that defendant had actual or constructive knowledge of the
allegedly hazardous condition.

The court agrees.

Plaintiff's

deposition testimony demonstrates her complete lack of knowledge
or evidence about how long the water was on the floor prior to
the time she slipped and fell, how the water got on the floor,
whether any of defendant's employees saw the water or saw her
fall, whether the water was on the floor at the time any of
defendant's employees walked down the aisle, or any idea as to
the origin of the water.

In short, plaintiff has adduced no

summary judgment evidence to show that defendant had either
actual or constructive knowledge of how the water got on the
floor.

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Plaintiff contends that her testimony created a genuine
issue of material fact as to defendant's knowledge of the
condition because of the proximity of one of its employees to the
place where she fell and the size of the spill.

Plaintiff relies

on language from Texas Supreme Court decisions holding that the
question of constructive notice--that is, whether a premises
owner had a reasonable opportunity to discover a hazardous
condition--"requires analyzing the combination of proximity,
conspicuity, and longevity."

Wal-Mart Stores, Inc. v. Spates,

186 S. W. 3d 566, 567 (Tex. 2006)
S.W.3d at 816).

(per curiam)

(citing Reece, 81

According to plaintiff, both proximity and

conspicuity are present here: defendant's employee was
approximately four steps from the area where plaintiff fell, and
the hazard that caused her fall stretched the length of the store
aisle.

These facts, plaintiff contends, are sufficient to create

a genuine issue of material fact as to defendant's actual or
constructive knowledge.
Missing from plaintiff's argument, however, is any
discussion of the lynchpin of a constructive notice analysis:
temporal evidence.

As the Texas Supreme Court explained:

The so-called "time-notice rule" is based on the
premise that temporal evidence best indicates whether
the owner had a reasonable opportunity to discover and
remedy a dangerous condition.
. An employee's
proximity to a hazard, with no evidence indicating how
long the hazard was there, merely indicates that it was
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possible for the premises owner to discover the
condition, not that the premises owner reasonably
should have discovered it.
Constructive notice demands
a more extensive inquiry. without some temporal
evidence, there is no basis upon which the factfinder
can reasonably assess the opportunity the premises
owner had to discover the dangerous condition.
Reece, 81 S.W.3d at 816 (internal citation omitted).

The court

further explained that a reasonable time for discovery could vary
depending on the facts of the case:

the more conspicuous a

hazard, the less time the plaintiff must show the employee was in
proximity.

Id.

Here, plaintiff contends the water that caused her fall was
conspicuous because it stretched the length of the aisle. 1
However, plaintiff also testified that it was difficult to see
the water because of the store's light-colored floors, and she
admitted that she did not see the water either before or
immediately after she fell.

Plaintiff only discovered the water

when she realized her clothing was wet.

Even accepting

plaintiff's evidence of conspicuity, however,

"there must be some

proof of how long the hazard was there before liability can be
imposed on the premises owner for failing to discover and
rectify, or warn of, the dangerous condition."

Id.

Plaintiff's

unequivocal testimony was that she did not know how long the

I

Plaintiff did not contend she saw the water down the length of the aisle; rather, she assumed such was

the case when she saw defendant's employee begin to clean the water starting at the opposite end of the
aisle from where she fell.
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water was on the floor prior to her fall.

She has adduced no

summary judgment evidence to the contrary.
Plaintiff also argues that her testimony as to the lack of
other employees or customers in the vicinity of the hazard is
evidence of the length of time the water was on the floor.

The

Texas Supreme Court rejected a very similar argument as "pure
speculation."

Spates, 186 S.W.3d at 568.

The court reaches the

same conclusion here.
Because defendant has carried its initial burden to show the
absence of evidence to support an essential element of
plaintiff's claims, plaintiff's obligation at this point is to
direct the court to summary judgment evidence that raises a
genuine issue of material fact on that point.
at 322-5.

Celotex, 477 U.S.

The sum of plaintiff's testimony is that she has no

evidence that defendant had actual or constructive knowledge of
the unsafe condition that allegedly caused her to fall.
Accordingly, summary judgment is warranted on plaintiff's
premises liability claim. 2

2Much of plaintiffs response is devoted to seeking a continuation of time to respond to the summary
judgment motion. As explained in the court's previous orders denying plaintiffs requests for a
continuance, the court entered its scheduling order in this case on January 4. 2012. Plaintiff knew then
the time frame within which she had to prosecute her case. Plaintiff contends now the additional time is
needed to depose two individuals named in defendant's disclosures. According to plaintiff the
depositions were scheduled for June 21. 2012. Presumably the depositions have now occurred. Had
plaintiff uncovered facts pertinent to her claims. the court assumes plaintiff would have brought such
information to the court's attention. Plaintiff has failed to do so.
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VI.
Order
Therefore,
The court ORDERS that defendant's motion for summary
judgment be, and is hereby, granted, and that all claims and
causes of action brought by plaintiff, Debra L. Wilson, against
defendant, Target Corporation, be, and are hereby, dismissed with
prejudice.
SIGNED July 6, 2012.

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