Henson v. Kroger Texas, L.P.
MEMORANDUM OPINION AND ORDER granting 20 Motion for Summary Judgment filed by Kroger Texas, L.P. The court ORDERS that defendant's motion for summary judgment be, and is hereby, granted; that plaintiff take nothing on her claims against defendant; and that such claims be, and are hereby, dismissed. (Ordered by Judge John McBryde on 5/16/2017) (tln)
. U.S. DISTRICT COURT
NORTh"'ERN DTSTR'CT OF TEXAS
IN THE UNITED STATES DISTRICT
NORTHERN DISTRICT OF TEXA
FORT WORTH DIVISION
KROGER TEXAS, L.P.,
MAY I 6 2017
NO. 4: 16-CV-298-A
MEMORANDUM OPINION AND ORDEI!Came on for consideration the motion of d1=fendant, Kroger
Texas, L. P. , for summary judgment. The court, having ·conside>red
the motion, the response of plaintiff, Judith Henson, the reply,
the record, the summary judgment evidence, and applicable
authorities, finds that the motion should be granted.
Plaintiff's operative pleading is her amended complaint
filed June 21, 2016. Doc.' 12. In it, she alleges that on August
30, 2014, while shopping at defendant's premises in the aisle
where defendant stocks and displays dog food that is packaged in
four and eight pound bags, she was injured when an eight pound
bag of dog food fell on her. Specifically:
3.3 Defendant's employees stacked large eight (B) lb.
bags of dog food on top of the four (4) lb. bags on the
highest shelf in the aisle.
" reference is to the number of the item on the docket in this action.
3.4 Unbeknownst to Plaintiff, she attempted to remove a
four (4) lb. bag, but was injured when an eight (8) lb.
bag that was stacked on top of the four (4) lb. bag
struck the left side of her body.
Doc. 12 at 2. Plaintiff asserts a premises liability claim,
seeking to recover for injuries allegedly sustained when an eight
pound bag of dog food fell on her. Doc. 12 at 3-4.
Grounds of the Motion
Defendant says that it is entitled to judgment because
plaintiff can produce no evidence of an unreasonably dangerous
premises condition about which defendant had actual or
constructive notice. And, in the event plaintiff is asserting a
claim based on an unreasonably dangerous premises defect,
plaintiff cannot prevail because such defect was open and obvious
and/or actually known to plaintiff and defendant owed her no duty
to warn or to protect her from such defect.
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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
The movant bears the initial burden of pointing out to
the court that there is no genuine dispute as to any material
Celotex Corp. v. Catrett, 477
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."
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
Id. at 324; see also Fed. R. Civ. P. 56 (c)
asserting that a fact .
the assertion by
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
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 597 (1986).
In Mississippi Prot. & Advocacy
Sys. v. Cotten, the Fifth Circuit explained:
Where the record, including affidavits,
interrogatories, admissions, and depositions could not,
as a whole, lead a rational trier of fact-to find for
the nonmoving party, there is no issue for trial.
929 F. 2d 1054, 1058
(5th Cir. 1991).
The standard for granting a motion for summary judgment is
the same as the standard for rendering judgment as a matter of
Celotex Corp., 477 U.S. at 323.
If the record taken as a
whole could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial.
at 597; see also Mississippi Prot. &
Advocacy Sys., 929 F.2d at 1058.
This is a diversity case in which Texas law applies. Cleere
Drilling Co. v. Dominion Exploration & Prod., Inc., 351 F.3d 642,
(5th Cir. 2003). In Texas, an owner/occupier owes a duty to
use reasonable care to make and keep its premises safe for
business invitees. Clayton Williams, Jr., Inc. v. Olivo, 952
S.W.2d 523, 527
(Tex. 1997). The elements of a cause of action
for premises liability are:
(1) existence of a condition of the
premises creating an unreasonable risk of harm;
owner/occupier knew or should have known of the existence of the
(3) the owner/occupier failed to use reasonable care
to reduce or eliminate the risk by rectifying or warning of the
In Boeing Co. v. Shipman, 411 F.2d 365,374-75 (5th Cir. 1969) (en bane), the Fifth Circuit
explained the standard to be applied in determining whether the court should enter judgment on motions
for directed verdict or for judgment notwithstanding the verdict.
condition; and (4)
such failure was a proximate cause of
plaintiff's injury. CMG Homes, Inc. v. Daenen, 15 S.W.3d 97, 99
(Tex. 2000); Keetch v. Kroger Co., 845 S.W.2d 262, 264
1992). An owner/occupier is not an insurer of the safety of its
guests; it is not liable to invitees for conditions of which it
did not have actual or constructive knowledge. Wal-Mart Stores,
Inc. v. Reece, 81 S.W.3d 812, 814
To prevail on the notice element of her claim, plaintiff
must show that: (1) defendant actually created the condition;
defendant actually knew that the condition existed; or (3)
more likely than not that the condition existed long enough to
give defendant reasonable notice of it. Reece, 81 S.W.3d at 814.
Further, the proximity of an employee to the location where the
incident occurred merely indicates that it was possible for the
owner/occupier to discover the condition, not that it reasonably
should have discovered the condition. There must be temporal
evidence of the amount of time that the condition had existed.
Id. at 816-17.
Here, as defendant points out, plaintiff cannot, and has
not, produced any evidence to show that defendant knew or should
have known of an unreasonably dangerous condition. A condition is
not unreasonably dangerous just because it is not foolproof,
e.g., that something more could have been done to prevent
something falling off a shelf and striking a customer is not
evidence of unreasonable danger. Brookshire Grocery Co. v.
Taylor, 222 S.W.3d 406, 408
(Tex. 2006). Plaintiff has not come
forward with any evidence that the condition was actually
unreasonably dangerous or that defendant knew of the condition.
She has no temporal evidence of how long the condition existed.
Reece, 81 S.W.3d 812, 816
(Tex. 2002); Keetch, 845 S.W.2d at 265.
Nor is there any evidence that the overlapping condition of the
bags of dog food was caused by defendant and not other
To the extent that plaintiff is treating the overlapping
placement of the bags of dog food as a premises condition,
defendant contends that such condition was open and obvious to
plaintiff or actually made known to her. Austin v. Kroger Texas,
L.P., 465 S.W.3d 193, 203-04
A landowner's duty is
to warn against concealed, unreasonably dangerous conditions. Id.
Here, plaintiff admitted in response to requests for admission
that she did not seek assistance in removing the four pound bag
from the shelf. Doc. 22 at 33. She testified that she saw the way
the bags were stacked-the heavier bags overlapping the lighter
The court notes that the summary judgment evidence establishes that plaintiff cannot prove the
case she has pleaded. Her amended complaint says that defendant "stacked large eight (8) lb. bags of dog
food on top of the four (4) lb. bags." Doc. 12 at 2, ~ 3.3. However, plaintifftestified that the bags were
standing up and that the bag that fell was next to (not on top of) the bag she took. Doc. 22 at 11-12.
Specifically, the bags were stacked as close as they could be together. Doc. 22 at 14.
bags--and that when she reached up to get the four pound bag, she
felt that it was stuck between two other bags and she had to tug
on it to get it free. Doc. 22 at 14-15, 17.
(As noted, infra,
plaintiff's affidavit, now claiming that she did not know that
the bags were so closely shelved, Doc. 25 at 7, directly
contradicts this testimony and will not be considered.)
In her summary judgment response, plaintiff relies on a
case, Univ. of Tex. at Austin v. Hayes, 279 S.W.3d 877
App.-Austin 2009), that was reversed by the Texas Supreme Court.
327 S.W.3d 113
(Tex. 2010). In reversing the appellate court, the
Supreme Court pointed out that showing what a defendant typically
does or how it wrote up an incident report after an accident is
no evidence of defendant's actual knowledge of the condition of
the premises at the time of the accident. 327 S.W.3d at 117-18.
And, the fact that the plaintiff cannot show defendant received
reports of prior injuries or of the potential danger caused by
the condition is a factor to consider. Id. at 118. If there is no
evidence of actual knowledge of a dangerous condition at the time
of the accident, the plaintiff fails to establish a premises
defect claim. Id. Such are the facts in this case.
Here, plaintiff is not only relying on an after-action
report, she attempts to change the facts established by her own
admissions and testimony by stating in her affidavit that the
store manager admitted that the stacking of "heavy" bags created
a dangerous condition. Doc. 25 at 7-8. Neither plaintiff's
discovery responses nor her deposition testimony had disclosed
any conversation with the store manager about the possibility of
dog food bags falling and injuring customers.• And, plaintiff
controverts her own admissions and testimony that she could see
as well as feel that the bags were closely stacked in an
overlapping manner. Doc. 25 at 7. As defendant notes, the court
will not consider an affidavit or declaration that contradicts
without explanation prior sworn testimony. S.W.S. Erectors, Inc.
v. Infax, Inc.,
72 F.3d 489, 495
(5th Cir. 1996); Powell v.
Dallas Morning News, L.P., 776 F. Supp. 2d 240, 246-47 (N.D. Tex.
2011), aff'd, 486 F. App'x 469
(5th Cir. 2012).
For the reasons discussed, plaintiff has not presented
sufficient summary judgment evidence to raise a genuine fact
issue for trial and defendant is entitled to judgment as a matter
Even had such a conversation occurred, it would not be sufficient to raise a genuine fact issue
for trial in this case. Plaintiff admits that the manager on duty the day of the accident told plaintiff that he
was filling in for the regular store manager. Doc. 22 at 24. There is no evidence to show when or to
whom the alleged instructions not to put heavy items on the top shelf were given. It is just as likely that
the manager was speaking of his experience at another store. Evidence that creates only surmise or
suspicion is in effect no legal evidence. Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 755 (Tex.
The court ORDERS that defendant's motion for summary
judgment be, and is hereby, granted; that plaintiff take nothing
on her claims against defendant; and that such claims be, and are
SIGNED May 16, 2017.
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