Moore v. Golden Corral Corporation

Filing 46

MEMORANDUM OPINION AND ORDER granting 40 Motion for Summary Judgment filed by Golden Corral Corporation. (Ordered by Judge John McBryde on 10/31/2017) (npk)

VICKI MOORE,
Plaintiff,

vs.

NO. 4:17-CV-256-A

GOLDEN CORRAL CORPORATION,
Defendant.
MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of defendant, Golden
Corral Corporation, for summary judgment. The court, having
considered the motion, the response of plaintiff, Vicki Moore,
the reply, the record, the summary judgment evidence, and
applicable authorities, finds that the motion should be granted.
I.

Plaintiff's Claim
The operative pleading is plaintiff's first amended
complaint filed April 28, 2017. In it, plaintiff says that she
was injured on or about April 25, 2015, at defendant's premises
when she "slipped and fell due to water which was leaking in the
restroom." Doc. 1 9 at 2, '

8. Plaintiff says that defendant knew

or should have known of the dangerous condition but failed to
exercise reasonable care to eliminate the risk. Id. at '

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

9.

II.
Grounds of the Motion
Defendant urges two grounds in support of its motion. First,
defendant did not have actual or constructive knowledge of a
hazardous condition. Second, even if defendant did have such
knowledge, it adequately warned plaintiff of the condition.
III.
Applicable Summary Judgment Standard
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."

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

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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 )

•

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).

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. 2

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.

2

ln Boeing Co. v. Shipman, 411 F.2d 365, 3 74-75 (5th Cir. 1969) (en bane), the Fifth Circuit
explained the standard to be applied in determining whether the couti should enter judgment on motions
for directed verdict or for judgment notwithstanding the verdict.
3

Matsushita, 475 U.S. at 597; see also Mississiopi Prat. &
Advocacy Sys., 929 F.2d at 1058.

IV.
Analysis
This is a diversity case in which Texas law applies. Cleere
Drilling Co. v. Dominion Exploration & Prod., Inc., 351 F.3d 642,
646

(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;

(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 v. Kroger Co., 845 S.W.2d 262, 264

(Tex.

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

4

(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. Although
plaintiff alleges that she slipped on water that was leaking, she
offers no evidence that such was the case. Nor does she describe
the water in any manner to show that any other person would have
known of its presence or to show how long the condition had
existed. At most, plaintiff's evidence might show a possibility
that the dangerous condition existed, which is insufficient to
establish her claim. Wal-Mart Stores, Inc. v. Gonzalez, 968
S.W.2d 934, 936

(Tex. 1998).

5

As in Threlkeld v. Total Petroleum, Inc., plaintiff offers
no proof that defendant caused the harmful condition; that its
employees either saw or were told of the harmful condition prior
to plaintiff's alleged injury therefrom; or that the condition
was present for so long that it should have been discovered in
the exercise of reasonable care. 211 F.3d 887, 892

(5th Cir.

2000). In Threlkeld, the evidence showed that, at worst, the
restroom where the plaintiff slipped and fell on water went
unobserved by defendant's employees for forty-five minutes, which
was insufficient to establish that the water was present for so
long a time as to give defendant actual or constructive knowledge
of its presence. 211 F.3d at 894. Here, the evidence establishes
that the restroom where plaintiff fell was inspected by
defendant's staff every twenty minutes. Doc. 42 at GOL 00009.
There is simply insufficient evidence to raise a genuine
issue of material fact as to an essential element of plaintiff's
claim. The court need not address the second ground of the
motion.

v.
Order
The court ORDERS that defendant's motion for summary
judgment be, and is hereby, granted; that plaintiff take nothing

6

on her claims against defendant; and,
are hereby, dismissed with prejudice.
SIGNED October 31, 2017.

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that such claims be, and