Wilson-Rush v. Ross Stores, Inc.

Filing 26

MEMORANDUM OPINION AND ORDER: The court ORDERS that defendant's 23 motion for summary judgment be, and is hereby, granted; that plaintiff take nothing on her claims against defendant; and that plaintiff's claims be, and are hereby, dismissed. (Ordered by Judge John McBryde on 8/15/2017) (bdb)

U.S. DTSTR lCT COURT
NORTilliRN DTSTRJCT OF TEXAS

~-~~~;~:~~--.1

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXA
FORT WORTH DIVISION
CLERK,: J.:'. I:•JSTIUCT COURT
lly _ _ _""h:=:----ANGELA WILSON-RUSH,
§
___p~~~
§

Plaintiff,

vs.
ROSS STORES, INC. D/B/A ROSS
DRESS FOR LESS #1213,
Defendant.

§
§
§
§
§
§
§
§

-----

NO. 4:16-CV-917-A

MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of defendant, Ross
Stores, Inc., d/b/a Ross Dress for Less #1213, for summary
judgment. Plaintiff, Angela Wilson-Rush, has failed to respond to
the motion, which is ripe for ruling. The court, having
considered the motion, the record, including the summary judgment
evidence, and applicable authorities, finds that the motion
should be granted.
I.

Plaintiff's Claims
The operative pleading is plaintiff's amended complaint
filed November 21, 2016. In it, plaintiff alleges that on or
about August 23, 2014, she was shopping at defendant's store when
she slipped on a soapy liquid substance and sustained severe
injuries. Plaintiff asserts a cause of action for negligence
against defendant.

II.
Grounds of the Motion
Defendant says that it is entitled to judgment as a matter
of law because plaintiff has not shown that defendant engaged in
any activity that caused the condition plaintiff complains of.
Further, plaintiff cannot sustain a premises liability cause of
action because defendant did not have actual or constructive
notice of an unsafe condition.
III.
Summary Judgement 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
(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."

2

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

•

fl

)

•

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.
475

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

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
law. 1

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

'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.
3

non-moving party,
Matsushita,

there is no genuine issue for trial.

475 U.S. at 597; see also Mississippi Prot. &

Advocacy sys.,

929 F.2d at 1058.
IV.
Analysis

As defendant notes, injuries to persons on the premises of
another are generally divided into two separate causes of action:
negligent activity and premises liability. By negligent activity,
courts mean that the premises owner engaged in affirmative,
contemporaneous conduct that caused the injury. Keetch v. Kroger
Co.,

845 S.W.2d 262, 264

(Tex. 1992). This is clearly not such a

case. Rather, plaintiff alleges that she was injured by a
condition of the premises. See H.E. Butt Grocery Co. v. Warner,
845 S.W.2d 258, 259

(Tex. 1992).

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;

(2)

the owner/occupier knew or should

have known of the existence of the condition;

(3)

the

owner/occupier failed to use reasonable care to reduce or
eliminate the risk by rectifying or warning of the 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,

845

S.W.2d at 264. An owner/occupier is not an insurer of the safety
4

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

(Tex. 2002).

To prevail on the notice element of her claim, plaintiff
must show that: (1) defendant actually created the condition;

(2)

defendant actually knew that the condition existed; or (3) it is
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. Plaintiff has
not come forward with any evidence that defendant created the
condition 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. Plaintiff
testified that she never saw the substance on which she slipped.

5

Doc.' 25 at 8.

"You couldn't see it. I mean you couldn't see it.

It was clear." Id. at 10.

The substance was smooth and it was

not thick. Plaintiff did not see any streaks or dirt. Id. at 11.
If she had been looking down, she would not have seen it. Id. at
12. Because she cannot meet the notice element of her cause of
action, she cannot prevail.

v.
Order
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 plaintiff's claims be,
and are hereby, dismissed.
SIGNED August 15, 2017.

2

The "Doc. _" reference is to the number of the item on the docket in this action.
6