Briley v. Wal-Mart Stores, Inc.

Filing 85

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO EXCLUDE EXPERT TESTIMONY. The Court GRANTS IN PART and DENIES IN PART Wal-Marts motion for summary judgment (D.E. 49); DENIES Wal-Marts motion for summary judgment on Plaintiffs gross neglige nce claim (D.E. 48); GRANTS IN PART and DENIES IN PART Plaintiffs motion for summary judgment (D.E. 50); and GRANTS IN PART and DENIES IN PART Wal-Marts motion to strike the testimony of Dr. Jahan Rasty (D.E. 51)..(Signed by Judge Nelva Gonzales Ramos) Parties notified.(bcortez, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
DEANA BRILEY,
Plaintiff,
VS.
WAL-MART STORES, INC., et al,
Defendants.

January 03, 2018
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 2:15-CV-439
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§
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ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
AND MOTION TO EXCLUDE EXPERT TESTIMONY
Plaintiff Deana Briley brings this personal injury action against Wal-Mart Stores
Texas, LLC (Wal-Mart) in connection with her slip and fall at a Wal-Mart store in
Kingsville, Texas. Wal-Mart has moved for summary judgment on Plaintiff’s claims for
negligence, negligence per se, and premises liability. D.E. 49. Wal-Mart also moved
separately for summary judgment on Plaintiff’s gross negligence claim.

D.E. 48.

Plaintiff, in turn, moved for summary judgment on various affirmative defenses WalMart has asserted. D.E. 50. Finally, Wal-Mart has moved to strike the testimony of an
expert proffered by Plaintiff. D.E. 51.
For the following reasons, the Court: (1) GRANTS IN PART and DENIES IN
PART Wal-Mart’s motion for summary judgment (D.E. 49); (2) DENIES Wal-Mart’s
motion for summary judgment on Plaintiff’s gross negligence claim (D.E. 48); (3)
GRANTS IN PART and DENIES IN PART Plaintiff’s motion for summary judgment

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(D.E. 50); and (4) GRANTS IN PART and DENIES IN PART Wal-Mart’s motion to
strike the testimony of Dr. Jahan Rasty (D.E. 51).
FACTS
On the evening of July 18, 2014, Plaintiff was shopping with her daughter at a
Wal-Mart store in Kingsville, Texas, when she slipped and fell on some cherries that had
fallen on the floor. D.E. 16, p. 2; D.E. 53-1, p. 3. At the time, Wal-Mart was promoting
a sale by displaying cherries in an “action alley,” Wal-Mart’s term for the highest-traffic
areas of its stores. D.E. 50-2, pp. 7, 10. Wal-Mart policy calls for placing floor mats
around displays of produce such as cherries and grapes to reduce the risk that customers
will slip on fruit that has fallen to the floor. See D.E. 50-3, p. 16. Wal-Mart does not
typically place floor mats in action alleys, however, and there were no floor mats around
the cherry display when Plaintiff slipped and fell. D.E. 50-2, p. 10; D.E. 50-3, p. 16.
Plaintiff has asserted negligence claims against Wal-Mart in connection with her fall.
STANDARD OF REVIEW
Summary judgment is proper if there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
“A genuine dispute of material fact means that ‘evidence is such that a reasonable jury
could return a verdict for the nonmoving party.’” Royal v. CCC & R Tres Arboles,
L.L.C., 736 F.3d 396, 400 (5th Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). Evidence must be viewed, and all justifiable inferences drawn, in
favor of the party opposing the motion. Anderson, 477 U.S. at 255.

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The moving party bears the initial burden of showing the absence of a genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving
party meets that burden, the nonmoving party cannot avoid summary judgment by
“rest[ing] on mere conclusory allegations or denials in its pleadings.” Smith v. Reg’l
Transit Auth., 827 F.3d 412, 417 (5th Cir. 2016) (quoting Hightower v. Tex. Hosp. Ass’n,
65 F.3d 443, 447 (5th Cir. 1995)) (internal quotation mark omitted). Nor must the Court
“sift through the record in search of evidence to support” the nonmoving party’s claim or
defense. Carr v. Air Line Pilots Ass’n, Int’l, 866 F.3d 597, 601 (5th Cir. 2017) (quoting
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994)) (internal quotation marks omitted).
Instead, the nonmoving party must “identify specific evidence in the record and . . .
articulate the precise manner in which that evidence supports his or her claim.” Id.
(quoting Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998)) (internal
quotation marks omitted). “After the nonmovant has been given an opportunity to raise a
genuine factual issue, if no reasonable juror could find for the nonmovant, summary
judgment will be granted.” Caboni v. Gen. Motors Corp., 278 F.3d 448, 451 (5th Cir.
2002).
On cross-motions for summary judgment, the Court must “review each party’s
motion independently, viewing the evidence and inferences in the light most favorable to
the nonmoving party.” Ford Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493, 498 (5th
Cir. 2001).

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DISCUSSION
A. Wal-Mart’s Motions for Summary Judgment
1. Plaintiff’s Claim Does Not Satisfy The Ordinary Notice Requirement for a
Premises Liability Claim
Under Texas law, which governs in this diversity action, “a person injured on
another’s property may have either a negligence claim or a premises-liability claim
against the property owner.” Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 644
(Tex. 2016).1 A premises liability claim arises from a property owner’s duty “to make
the premises safe or to warn of dangerous conditions as reasonably prudent under the
circumstances.” Id.
A claim for premises liability requires:
(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; (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.
Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992) (citing Corbin v. Safeway Stores,
Inc., 648 S.W.2d 292, 296 (Tex. 1983)). To meet the notice element, a plaintiff must
ordinarily “establish[] 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 enough to give the premises owner a reasonable

1

Such a negligence claim is also referred to as a “negligent activity” claim and requires that “contemporaneous,
negligent activity” cause the plaintiff’s injuries. See Occidental Chem. Corp., 478 S.W.3d at 644. As seen below,
this case does not present a negligent activity claim because the allegations and evidence do not involve any
contemporaneous action by Wal-Mart.

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opportunity to discover it.” Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex.
2002). The third means of showing the premises owner’s knowledge is referred to as the
“time-notice rule” and “is based on the premise that temporal evidence best indicates
whether the owner had a reasonable opportunity to discover and remedy a dangerous
condition.” Id. at 816.
Plaintiff cannot establish Wal-Mart’s notice of the cherry spill as needed to reach
the jury on this claim. None of the evidence suggests that any Wal-Mart employee
dropped the cherries on the floor or actually knew about the spill. Therefore, Plaintiff
must rely on circumstantial evidence that the spill lingered on the floor if she is to
establish Wal-Mart’s constructive knowledge of it through ordinary means.
Plaintiff has not met that burden. She contends only that, despite Wal-Mart’s
policy requiring hourly safety sweeps to address any slip hazards in the store’s aisles,
Wal-Mart’s Kingsville store was understaffed when she fell and thus safety sweeps
occurred at most only once every three hours. See D.E. 54, p. 8. Even if true, “[a] store
policy cannot be substituted for temporal evidence in a constructive-notice analysis.”
Murray v. Chick-fil-A, Inc., No. 9-14-CV-11, 2014 WL 11282893, at *4 (E.D. Tex. Dec.
17, 2014), aff’d, 626 Fed. App’x 515 (5th Cir. 2015).
2. Plaintiff Has a Viable Premises Liability Claim Under Corbin Based on
Wal-Mart’s Method of Displaying Cherries
While Plaintiff’s evidence cannot establish a standard slippery-floor claim, Texas
law recognizes a narrow category of premises liability claims in which a condition on the
premises is so inherently dangerous that the storeowner is on notice of the hazard without
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requiring the plaintiff to show when the risk materialized. See Corbin, 648 S.W.2d at
297; see also Nat’l Convenience Stores, Inc. v. Erevia, 73 S.W.3d 518, 523 (Tex. App.—
Houston [1st Dist.] 2002, pet. denied); Crosby v. Minyard Food Stores, Inc., 122 S.W.3d
899, 901 (Tex. App.—Dallas 2003, no pet.). Under these authorities, disputed issues of
fact preclude summary judgment on Plaintiff’s premises liability claim.
The analogous case that supports premises liability in this scenario is Corbin,
which concerned a plaintiff who slipped on green grapes that had fallen from a selfservice display onto a bare, green linoleum tile floor. Corbin, 648 S.W.2d at 296. In
Corbin, the plaintiff adduced evidence that Safeway policy called for non-skid floor mats
to be placed around grape displays, which the store knew were “unusually hazardous and
continual source[s] of slippery material on which customers may fall.”

Id. at 294.

According to the plaintiff, no mat was present when he fell, nor did Safeway take other
precautionary measures to reduce the risk that customers would slip on grapes that
inevitably fell from the display. See id. at 297. The Texas Supreme Court held that the
evidence could support a jury finding that Safeway’s grape display itself constituted an
ongoing, unreasonably dangerous condition giving rise to premises liability without
independent evidence of notice of the particular spill. Id. at 296.
As in Corbin, Plaintiff has cited evidence indicating that Wal-Mart policy requires
special safety measures around displays of loose fruits like cherries because such displays
pose inherent slip-and-fall risks. See D.E. 54-1, p. 10 (Joseph Todd Dep.); see also D.E.
54-2, p. 16 (Juan Garza Dep.). Wal-Mart nonetheless located this display in a high-traffic
action alley and allegedly made matters worse by consciously deviating from its policy
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requiring floor mats near cherry displays. See D.E. 54-1, p. 10 (Joseph Todd Dep.) (“my
choice, store choice” not to use mats with the cherry display).
Construing the evidence in Plaintiff’s favor, there is a factual dispute as to whether
the cherry display, like the grape display in Corbin, constituted an inherently,
unreasonably dangerous condition from the moment it was put in place. See CMH
Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000) (“The grape display in Corbin
allowed grapes to fall on the floor throughout each day and had no mat to protect
customers from slipping.

The display constituted a dangerous condition from the

moment it was used.” (citation omitted)); see also Keetch, 845 S.W.2d at 265 (describing
Corbin as holding that “Safeway did not have to know that a particular grape was on the
floor at a particular time because it knew that the grapes would be on the floor due to the
nature of the display”). The question of whether the natural propensities of the cherry
display, when placed in an action alley and without any floor mats, created an ongoing,
unreasonably dangerous condition on the premises is therefore one for the jury to decide.
Wal-Mart, which concedes that this is a premises liability case, contends that as a
matter of pleading, Plaintiff’s complaint does not sufficiently allege “that the cherry
display in [and] of itself was a dangerous condition.” D.E. 64, p. 3; see also D.E. 51,
p. 5. However, Plaintiff does allege sufficient facts regarding the essence of a premises
liability claim: that Wal-Mart owed her a duty of care as an invitee on the premises, but
breached that duty by maintaining an unreasonably dangerous condition in its store with
respect to the cherries and thereby caused her injury. See D.E. 16, pp. 2, 3. Construing
the facts alleged in the complaint in Plaintiff’s favor, her failure to articulate the precise
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operation of her legal theory does not entitle Wal-Mart to summary judgment. See
Eastland v. Tenn. Valley Auth., 553 F.2d 364, 370 (5th Cir. 1977) (“The formal issues
framed by the pleadings are not determinative on a motion for summary judgment . . . .”);
see also Perna v. Kroger Tex., L.P., No. 3:13-cv-1606-N, 2014 WL 11456890, at *2
(N.D. Tex. Feb. 19, 2014) (plaintiff’s “failure to specifically state a claim for premises
liability” did not require summary judgment in premises owner’s favor because “the
substance of [plaintiff’s] petition supports recovery under a theory of premises liability”).
Wal-Mart next attempts to distinguish Corbin by relying on Brookshire Grocery
Co. v. Taylor, 222 S.W.3d 406 (Tex. 2006), but that case is inapposite. Brookshire held
that a self-service soft drink dispenser was not itself an unreasonably dangerous
condition, notwithstanding patrons’ known propensity to spill ice onto the floor below.
Id. at 408. Brookshire is distinguishable because the record in that case, unlike the record
here, lacked evidence that the dispenser was any more dangerous than similar drink
dispensers, or that shoppers were any more likely to spill ice around it. Id.
Here, there are two reasons why a jury could reasonably find that this cherry
display posed an unreasonably greater danger to customers than Wal-Mart’s typical
cherry display: (1) due to its location in an action alley, where more customer traffic
might foreseeably result in more spilled cherries; and (2) because it lacked the safety
measures Wal-Mart normally uses for cherry displays. See Erevia, 73 S.W.3d at 523
(noting store owner’s disregard for its policy requiring floor mats around self-service
barrel-type soft drink displays and sustaining Corbin-style premises liability claim). For

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these reasons, Wal-Mart’s motion for summary judgment (D.E. 49) is DENIED IN
PART on Plaintiff’s premises liability claim.
3. Plaintiff’s Gross Negligence Claim Survives
Should the jury find that Wal-Mart was negligent in maintaining an unreasonably
dangerous cherry display, it is similarly for the jury to determine whether Wal-Mart’s
failure to exercise ordinary care constituted gross negligence. Gross negligence under
Texas law requires (1) that the defendant’s acts or omissions, viewed objectively, pose
“an extreme degree of risk, considering the probability and magnitude of the potential
harm to others”; and (2) that the defendant have “actual, subjective awareness of the risk
involved, but nonetheless proceed[] with conscious indifference to the rights, safety, or
welfare of others.” Tex. Civ. Prac. & Rem. Code § 41.001(11). “Evidence of simple
negligence is not enough to prove either the objective or subjective elements of gross
negligence.” Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998). “[G]ross
negligence can never be the result of ‘momentary thoughtlessness, inadvertence, or error
of judgment.’” Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 326 (Tex. 1993)
(quoting Burk Royalty Co. v. Walls, 616 S.W.2d 911, 920 (Tex. 1981)).
Construing all evidence in Plaintiff’s favor, questions of fact exist as to whether
the cherry display objectively created an extreme degree of risk and if so, whether WalMart nonetheless proceeded with conscious indifference to that risk.

A jury could

reasonably find that Wal-Mart, despite knowing that cherry displays pose particular
hazards to customers, chose to place this display in a part of the store that would make it

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more dangerous than an ordinary cherry display and compounded its error by
disregarding its policy requiring mats around cherry displays.
Plaintiff has also adduced evidence that Wal-Mart did not adopt any substitute
safety measures, such as warnings, to use around the display. See D.E. 54-1, p. 11.
Moreover, safety sweeps were conducted less frequently than Wal-Mart’s policy required
under normal conditions. See D.E. 54-2, p. 7. As such, Plaintiff has identified sufficient
evidence upon which a finding of gross negligence could potentially rest. Wal-Mart’s
motion for summary judgment on Plaintiff’s gross negligence claim (D.E. 48) is
DENIED.
4. Wal-Mart Is Entitled To Summary Judgment on Plaintiff’s Claims for
Negligent Activity and Negligence Per Se
Default. Wal-Mart is entitled to summary judgment on Plaintiff’s remaining
claims. As a preliminary matter, Plaintiff’s summary judgment response defended her
premises liability claim but was silent regarding her negligent activity and negligence per
se theories.

D.E. 54.

Under Local Rule 7.4, failure to respond is taken as a

representation of no opposition to the relief sought. Plaintiff’s failure to address these
claims in her response constitutes grounds for judgment in Wal-Mart’s favor.
Furthermore, Wal-Mart has demonstrated that, as a matter of law, Plaintiff cannot
succeed on either of these claims.
Negligent Activity. First, “[r]ecovery on a negligent activity theory requires that the
person have been injured by or as a contemporaneous result of the activity itself rather
than by a condition created by the activity.” Keetch, 845 S.W.2d at 264; see also
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Occidental Chem. Corp., 478 S.W.3d at 644 (“When the injury is the result of a
contemporaneous, negligent activity on the property, ordinary negligence principles
apply.”). Plaintiff has neither pled nor shown evidence of a negligent activity claim.
Instead, Plaintiff testified that she did not see any Wal-Mart employees nearby when she
fell, nor did she see the cherries drop in her path. D.E. 53-1, pp. 5–6. Thus, Plaintiff has
not shown evidence that Wal-Mart’s “contemporaneous, negligent activity” caused her
injury as necessary to prevail on this claim. Occidental Chem. Corp., 478 S.W.3d at 644;
see also Keetch, 845 S.W.2d at 264 (differentiating premises liability and negligent
activity claims).
Negligence Per Se. With respect to her negligence per se claim, Plaintiff has not
identified any statute, ordinance, or regulation upon which such a claim might rest.
“Without a citation to a statutory provision, the Court is unable to determine whether the
facts alleged state a violation of any statute.” Del Castillo v. PMI Holdings N. Am. Inc.,
No. 4:14-cv-03435, 2016 WL 3745953, at *5 (S.D. Tex. July 13, 2016). Even if WalMart disregarded its own policy by forgoing floor mats around the display, that will not
support a negligence per se claim. See Mann v. Geriatric Servs., Inc., No. 4-4-649-cv,
2005 WL 3445987, at n.6 (Tex. App.—San Antonio Dec. 14, 2005, no pet.).
As such, the Court GRANTS IN PART Wal-Mart’s motion for summary
judgment (D.E. 49) on Plaintiff’s negligent activity and negligence per se claims.
B. Plaintiff’s Motion for Summary Judgment
Wal-Mart has asserted various affirmative defenses, including (1) comparative
negligence; (2) that the incident was caused by an unknown third party, not in Wal11 / 20

Mart’s control; (3) that Plaintiff’s injuries were not caused by any Wal-Mart employee
acting within the course and scope of his employment; (4) that Plaintiff failed to mitigate
her own damages; (5) that Plaintiff’s injuries were the result of preexisting conditions;
and (6) that any recovery by Plaintiff should be reduced based on any jury findings
against her or any third parties. D.E. 19, pp. 2–4. Plaintiff has moved for summary
judgment as to each of these defenses, on no-evidence grounds. D.E. 50. The Court will
address each in turn.
Comparative negligence. “An individual must keep a proper lookout where he is
walking, and a jury is allowed to make a reasonable inference that failure to do so was the
proximate cause of his injuries.” Moore v. Kitsmiller, 201 S.W.3d 147, 152 (Tex. App.—
Tyler 2006, pet. denied) (citation omitted). It is a fact question whether Plaintiff “fail[ed]
to use ordinary care in regard to . . . her own safety” and by her negligence contributed to
her injury. Kroger Co. v. Keng, 23 S.W.3d 347, 351 (Tex. 2000). Plaintiff testified that
there was nothing obstructing her view before her accident, but that immediately before
her fall, she was looking ahead to the frozen food aisle rather than directly in front of her.
See D.E. 53-1, pp. 4–5. This evidence could support a jury finding of comparative
negligence.2

See Cruz v. Home Depot U.S.A., Inc., No. CV 4:15-1566, 2016 WL

2926369, at *3 (S.D. Tex. May 19, 2016) (“[W]hether Plaintiff’s conduct was a factual

2

Plaintiff claims that no reasonable jury could find her negligent because two Wal-Mart employees testified that
they did not know whether she had done anything to cause her own injuries. D.E. 50, pp. 3–4. However, neither
witness saw Plaintiff before she fell. D.E. 50-2, p. 14 (Joseph Todd. Dep.); D.E. 50-3, pp. 13–14 (Juan Garza Dep.).
Thus, their testimony does not speak to the jury question of whether Plaintiff exercised reasonable care for her own
safety as she traveled through the Wal-Mart store. See Fed. R. Civ. P. 56(c); Fed. R. Evid. 602.

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cause of his injuries is not susceptible of resolution on summary judgment.”). Plaintiff’s
motion for summary judgment on this defense is denied.
Unknown third party. Wal-Mart asserted the affirmative defense that an unknown
third party was responsible for the alleged unreasonably dangerous condition on the
premises. However, there is no evidence that anyone altered Wal-Mart’s cherry display,
took unforeseeable action to create a hazard near the display, or made it more dangerous.
As such, the evidence is insufficient to raise a disputed issue of material fact on this
affirmative defense, and Plaintiff is entitled to summary judgment on it.
Course and scope of employment.

Wal-Mart also asserted the defense that

Plaintiff’s injuries were caused by conduct outside the course and scope of employment.
Plaintiff has elicited evidence that the conduct of which she complains was Wal-Mart’s
intentional choice. Joseph Todd, who manages Wal-Mart’s Kingsville store, testified that
it was a “[d]irection from higher up” to place the cherry display in an action alley and
“my choice, store choice” to dispense with any mats around it. D.E. 54-1, p. 10. WalMart does not contend that Mr. Todd or his supervisors exceeded their authority in
making these decisions. Nor does Wal-Mart suggest that Plaintiff’s injury was caused by
some other conduct outside of the course and scope of Wal-Mart employment.
Therefore, Plaintiff’s motion for summary judgment on this defense is granted.
Failure to mitigate.

Failure to mitigate is demonstrated, for instance, when a

plaintiff disregards her physician’s advice or refuses treatment for her alleged injuries.
See Nabors Well Servs., Ltd. v. Romero, 456 S.W.3d 553, 560 (Tex. 2015). Wal-Mart
has produced sufficient evidence of Plaintiff’s failure to mitigate her injuries to submit
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the defense to the jury. Specifically, medical records from after Plaintiff’s accident
indicate that she expressed disinterest in treatment after her physician recommended
epidural steroid injections for her back pain. See D.E. 53-5, p. 5. Plaintiff further
testified that she discontinued the injections because she found them ineffective, and that
she had not had an injection for at least a year before her deposition, despite continued
pain which she attributes to her fall. D.E. 53-1, pp. 8–9.
While Plaintiff has pursued other courses of treatment, a jury could nonetheless find
that Plaintiff did not “care for and treat [her] injuries as a reasonable prudent person
would under the same or similar circumstances.” Moulton v. Alamo Ambulance Serv.,
Inc., 414 S.W.2d 444, 449 (Tex. 1967). Plaintiff’s motion for summary judgment on this
defense is denied.
Pre-existing condition. Under Texas law, a tortfeasor takes his victim as he finds
him, and may be held liable for aggravating a plaintiff’s pre-existing injuries. See Katy
Springs & Mfg., Inc. v. Favalora, 476 S.W.3d 579, 591 (Tex. App.—Houston [14th Dist.]
2015, pet. denied). Plaintiff nonetheless bears the burden of showing that she was injured
and that her injuries were proximately caused by Wal-Mart’s negligence, and not a preexisting condition. See Miller v. Borden, Inc., 664 F.2d 543, 544–45 (5th Cir. 1981)
(citing Tex. & Pac. Ry. v. Van Zandt, 317 S.W.2d 528, 530 (Tex. 1958)).
To support this defense, Wal-Mart has offered the testimony of Dr. Ajeya P. Joshi,
M.D. Dr. Joshi testified that, based on his review of Plaintiff’s medical records, he
believes that Plaintiff suffered from lumbar arthritis before she fell. See D.E. 53-4, p. 3.
Dr. Joshi further testified to his opinion that any pain that Plaintiff currently suffers is
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more likely from her lumbar arthritis than any acute injury from her fall. See id. at 4.
Thus Wal-Mart has submitted sufficient evidence to raise disputed factual issues on this
defense. Plaintiff’s motion for summary judgment against Wal-Mart on its pre-existing
condition defense is denied.
Reduction of Award. Finally, the parties agree that it is premature to reduce
Plaintiff’s recovery, if any, by any jury findings against her. D.E. 50, p. 5; D.E. 53, pp.
13–14. As such, Plaintiff’s motion for summary judgment on this defense is denied.
In sum, Plaintiff’s motion for summary judgment (D.E. 50) is GRANTED IN
PART as relating to Wal-Mart’s affirmative defenses that an unknown third party or a
Wal-Mart employee acting outside the scope of his employment caused the alleged
unreasonably dangerous condition on the premises.

Plaintiff’s motion is otherwise

DENIED IN PART.
C. Wal-Mart’s Motion to Exclude
Finally, Wal-Mart moves to exclude the testimony of Plaintiff’s expert, Dr. Jahan
Rasty, Ph.D., in its entirety.3 D.E. 51. Before expert testimony may be submitted to the
jury, the Court must act as a gatekeeper by “making a ‘preliminary assessment of whether
the reasoning or methodology underlying the testimony . . . properly can be applied to the
facts in issue.’” Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243–44 (5th Cir. 2002)
(quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592–93 (1993)). Daubert
and its principles apply to both scientific and non-scientific expert testimony. Kumho

3

The Court did not find it necessary to consider Dr. Rasty’s testimony in deciding the parties’ cross-motions for
summary judgment.

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Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999). Courts need not admit testimony that
is based purely on the ipse dixit of the expert. Gen. Elec. Co. v. Joiner, 522 U.S. 136,
146 (1997).
A mechanical engineer by training, Dr. Rasty has offered testimony on two issues:
(1) friction and the slippery nature of cherries; and (2) store policies and the
reasonableness of Wal-Mart’s actions. The admissibility of this opinion testimony must
be evaluated separately as to each subject area.
Friction. Dr. Rasty has measured how the dynamic coefficient of friction (DCOF)
between the bottom of a flip-flop shoe (as Plaintiff was wearing when she fell) and a tiled
surface varies due to different floor coverings and the presence of one or multiple
cherries. See D.E. 51-1, pp. 4–5; D.E. 56-1, p. 3.
Wal-Mart faults Dr. Rasty for testing the DCOF of a “typical” flip-flop on a
“typical” tile floor (sometimes covered with a “typical” mat), without replicating the flipflop Plaintiff was wearing, the tile in the Kingsville Wal-Mart, or the mats Wal-Mart
uses. D.E. 51, p. 4. These quibbles with Dr. Rasty’s methodology go to the weight the
jury might afford to Dr. Rasty’s testimony, and not to its admissibility. They may be
addressed through “[v]igorous cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof.” Daubert, 509 U.S. at 596.
The Court also disagrees that Dr. Rasty’s DCOF opinions are “so basic” and
“within the common sense of a trier of fact” that they should be excluded. D.E. 51, p. 8.
Certainly, it is intuitive that multiple cherries are slipperier than a single cherry and that a
mat increases traction on a tile floor. Nonetheless, the Court is unpersuaded that a jury
16 / 20

would find Dr. Rasty’s DCOF testimony to be of such little value that it should be
excluded entirely. “[M]atters of slip resistance and surface friction are ‘beyond the
understanding and experience of the average lay citizen.’” Rosenfeld v. Oceania Cruises,
Inc., 654 F.3d 1190, 1194 (11th Cir. 2011) (quoting United States v. Rouco, 765 F.2d
983, 995 (11th Cir. 1985)); see also Leonard v. Bearcat Corp., No. 4:01CV00608 ERW,
2002 WL 34532924, at *2 (E.D. Mo. Aug. 20, 2002) (denying motion to exclude expert
testimony regarding coefficient of friction in slip and fall case). As such, the Court
DENIES IN PART Wal-Mart’s motion to exclude Dr. Rasty’s testimony regarding his
DCOF analysis (D.E. 51).
Store Policies. Dr. Rasty also opined on the reasonableness of Wal-Mart’s safety
policies, whether they were observed at the time of the accident, and whether Wal-Mart’s
alleged failure to follow its policies caused Plaintiff’s fall. See D.E. 51, pp. 5–7; D.E. 511, pp. 11–14, 16. The Court will exclude this testimony.
First, the Court does not perceive anything in Dr. Rasty’s experience or training
that would qualify him as an expert on these issues: his specialized knowledge relates to
mechanical engineering, not retail safety. Second, Dr. Rasty has not compared WalMart’s safety policies to those of other retailers, weighed the costs and benefits of his
suggested improvements to Wal-Mart policy, or tested Wal-Mart’s contention that,
because floor mats can roll up and present their own trip hazards when in action alleys, it
was safer not to use floor mats around the display. See D.E. 54-1, p. 10. His opinions
regarding the reasonableness of Wal-Mart’s behavior and the proximate cause of the
accident are therefore of minimal help to the jury in determining the facts in issue. See
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Fed. R. Evid. 702(a); see also Kyong Hui Lane v. Target Corp., No. CIV.A. C-05-306,
2006 WL 870805, at *6 (S.D. Tex. Apr. 3, 2006) (“[T]he jury . . . will not need [expert
testimony] to know how to use ‘reason’ to evaluate the dangerousness of a product
display.”).
Finally, Dr. Rasty’s testimony regarding Wal-Mart’s alleged unreasonableness and
the accident’s proximate cause improperly opines on “the legal, not a factual, ‘cause of
the accident.’” Owen v. Kerr-McGee Corp., 698 F.2d 236, 240 (5th Cir. 1983). An
expert’s opinion “is not objectionable just because it embraces an ultimate issue.” Fed.
R. Evid. 704(a). Nonetheless, this rule is not “intended to allow a witness to give legal
conclusions.” Owen, 698 F.2d at 240.
Where he ventures beyond his DCOF analysis, Dr. Rasty “has applied terms of
law such as . . . ‘proximate cause’ and ‘reasonableness’ to the facts of this case to reach a
legal conclusion favorable to” Plaintiff. Heatherly v. Nat’l Presto Indus., Inc., No. SA07-CA-0062-FB, 2008 WL 11334519, at *7 (W.D. Tex. Dec. 3, 2008). As such, the
Court will exclude those portions of his testimony. See also Diamond Offshore Co. v.
Survival Sys. Int’l, Inc., No. CIV.A. H-11-1701, 2013 WL 371648, at *8 (S.D. Tex. Jan.
29, 2013).
In sum, Wal-Mart’s motion (D.E. 51) is DENIED IN PART as it relates to Dr.
Rasty’s DCOF analysis. The Court otherwise GRANTS IN PART Wal-Mart’s motion.

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CONCLUSION
For the foregoing reasons, the Court:
(1) GRANTS IN PART and DENIES IN PART Wal-Mart’s motion for
summary judgment (D.E. 49):
a. Plaintiff may prosecute her Corbin-based premises liability claim;
b. Plaintiff’s claim for negligent activity is DISMISSED;
c. Plaintiff’s claim for negligence per se is DISMISSED;
(2) DENIES Wal-Mart’s motion for summary judgment on Plaintiff’s gross
negligence claim (D.E. 48);
(3) GRANTS IN PART and DENIES IN PART Plaintiff’s motion for summary
judgment; (D.E. 50):
a. Wal-Mart may defend on the basis of failure to mitigate, pre-existing
condition, and comparative negligence;
b. Wal-Mart’s affirmative defenses of unknown third party and course and
scope of employment are DISMISSED;
c. The Court dismisses as premature Plaintiff’s challenge to the defense
seeking a reduction of award;
(4) GRANTS IN PART and DENIES IN PART Wal-Mart’s motion to strike
the testimony of Dr. Jahan Rasty (D.E. 51):
a. The Court FINDS that Dr. Rasty’s testimony regarding friction is
admissible; and

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b. The Court EXCLUDES Dr. Rasty’s opinions regarding store policies.
ORDERED this 3rd day of January, 2018.
___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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