Garcia v. Ross Stores, Inc.
Filing
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MEMORANDUM AND ORDER GRANTING 12 First MOTION for Summary Judgment (Signed by Judge Keith P Ellison) Parties notified.(sloewe)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MARTA GARCIA, AS
REPRESENTATIVE OF THE
ESTATE OF JUANA OCHOA,
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Plaintiff,
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V.
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Civ. No. 4:11-cv-02336
ROSS STORES, INC.,
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Defendant.
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MEMORANDUM AND ORDER
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Before the Court is Defendant’s Motion for Summary Judgment and Brief in
Support (“Motion”). (Doc. No. 12.) After considering the Motion, all responses and
replies thereto, and the applicable law, the Court concludes that the Motion should be
GRANTED.
I. BACKGROUND
Marta Garcia, as representative of the estate of Juana Ochoa (“Ms. Ochoa”), seeks
to recover damages as a result of injuries sustained by Ms. Ochoa at the business
premises of the Defendant, Ross Stores (“Ross”). On November 29, 2009, Ms. Ochoa
was at the store to purchase merchandise held out for sale to the public by Ross. (Doc.
No. 12, Compl. ¶ 7.) Ms. Ochoa was with two of her daughters, Rosa Ochoa, age 51, and
Maria Ochoa, age 55. (Rosa Ochoa Dep. 10:5-11:4, Sept. 30, 2011.) She and her
daughters arrived between 2:30 and 3:00 p.m. (Rosa Ochoa Dep. 10:17, Maria Ochoa
Dep. 9:20, Sept. 30, 2011.) When they had been in the store a few minutes, Ms. Ochoa
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allegedly suffered bodily injuries when she slipped on a hanger that was on the floor and
fell. (Compl. ¶ 7.)
The clothes hanger was clear in color. (Maria Ochoa Dep. 15:15-16.) Maria had
not observed the hanger prior to the fall, nor did she know how long the hanger had been
on the floor. (Id. at 14:7-12, 17:14-15, 19:24-25.) Similarly, Rosa did not know how long
the hanger had been on the floor. (Rosa Ochoa Dep. 25:14-17.) None of Ross’s
employees told Ms. Ochoa, Maria, or Rosa they knew the hanger had been on the floor
prior to the occurrence. (Maria Ochoa Dep. 24:11-16; Rosa Ochoa Dep. 26:10-13.)
Neither Rosa nor Maria witnessed their mother fall. (Maria Ochoa Dep. 10:8-9, Rosa
Ochoa Dep. 12:18-19, 25:7-9.)
Joslyn Castello was the Area Manager for Ross at the time of the occurrence
(Joslyn Castello Dep. 7:17-20, November 11, 2011.) Ms. Castello had arrived for work
around 2:00 p.m. (Id. at 16:6-8.) Ms. Catello learned about Ms. Ochoa’s fall from a Store
Protection Service (SPS) employee over the speaker. (Id. at 13:17-18.)
Ms. Castello’s deposition establishes that, at the time of this incident, Ross had in
place safety procedures to detect and remove hazards in the store aisles. Ross has a
recovery policy requiring employees to walk up and down the aisles and recover what is
on the floor. (Id. at 18:6-13.) The program is called START, an acronym for “size, ticket,
and recover today.” (Id. at 18:14-18.) At the time of the occurrence, there were three
associates who were performing regular recovery of the women’s department. (Id. at
22:15-23.) The area where Ms. Ochoa fell is known as the “shortage highway” of the
misses’ department. (Id. at 27:6-8, 23-25.) Along with the regular recovery being
performed by stockroom associates, two SPS employees had walked the shortage
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highway in the hour before the incident. (Id. at 26:1-4.) When Ms. Castello arrived at
work at 2:00 p.m., she also walked down the shortage highway and did not see anything
to be recovered. (Id. at 31:19-24.)
Marta Garcia is acting on behalf of Ms. Ochoa because Ms. Ochoa died on
December 23, 2010. According to her death certificate, the cause of death was ovarian
carcinoma which had persisted for the previous 18 months. (Doc. No. 12-8.) None of Ms.
Ochoa’s daughters had known about their mother’s cancer, and instead believed that Ms.
Ochoa’s death was related to her depression from the fall. (Maria Ochoa Dep. 26:2-5;
Rosa Ochoa Dep. 30:22-31:2; Marta Garcia Dep. 16:23-25, Sept. 30, 2011.)
Ms. Garcia alleges on Ms. Ochoa’s behalf that Ms. Ochoa’s fall caused serious
and permanent injuries and also affected her emotional well-being. (Id. ¶ 13.) She argues
that Ross negligently allowed the creation and continued existence of this condition,
making the store a dangerous place. Furthermore, Ms. Garcia argues that Ross failed to
warn Ms. Ochoa of the dangerous condition although Ross knew or should have known
of its existence.
Ross filed this Motion, arguing that Ms. Garcia’s claims fail as a matter of law.
Ross asserts that, because she complains of a condition of the Ross’s premises, she must
bring her claim under a premises liability theory, rather than a negligent activity theory.
(Doc. No. 12, Mot. Sum. Jgmt 1.) To establish her claim, Ross contends that Ms. Garcia
must show that Ross had actual or constructive knowledge of a condition on the premises
which posed an unreasonable risk of harm, that Ross did not exercise reasonable care to
reduce or eliminate the risk, and that failure to use such care proximately caused Ms.
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Ochoa’s injuries. Id. Ross alleges that Ms. Garcia fails to show a genuine issue of
material fact as to notice and causation. Id.
II. LEGAL STANDARD
Summary judgment is proper when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Kee v. City of Rowlett, 247 F.3d 206, 210 (5th Cir. 2011)
(internal quotations omitted). The party seeking summary judgment bears the burden of
demonstrating that there is no actual dispute as to any material fact of the case. Willis v.
Roche Biomed. Lab., 61 F.3d 313, 315 (5th Cir. 1995) (citing Celotex v. Catrett, 477 U.S.
317, 322 (1986)); Fed. R. Civ. P. 56(a).
Furthermore, the summary judgment standard “provides that the mere existence
of some factual dispute will not defeat a motion for summary judgment; Rule 56 requires
that the fact dispute be genuine and material.” Willis, 61 F.3d at 315. First, “[o]nly
disputes over facts that might affect the outcome of the suit under the governing law are
material.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Second,
a dispute is genuine “if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Id. (citing Anderson, 477 U.S. at 248).
Conclusory allegations and unsubstantiated assertions do not satisfy the nonmovant’s summary judgment burden. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994) (noting that a non-movant’s burden is “not satisfied with ‘some
metaphysical doubt as to the material facts’” (quoting Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986))); Topalian v. Ehrman, 954 F.2d 1125,
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1131 (5th Cir. 1992) (“Mere conclusory allegations are not competent summary judgment
evidence, and they are therefore insufficient to defeat or support a motion for summary
judgment.”). The Court will view all the evidence in the light most favorable to the party
opposing the motion and draw all reasonable inferences in that party's favor. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 261 (1986).
III. ANALYSIS
The Court grants Ross’s Motion on the basis that this case is a “premises liability”
claim rather than a “negligent activity” claim. Ms. Garcia contends that leaving a hanger
on the floor is a negligent activity. (Doc. No. 21, ¶17.) The Texas Supreme Court has
consistently recognized, however, that negligent activity claims and premises liability
claims involve two independent theories of recovery that fall within the scope of
negligence. See Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 214–15 (Tex. 2008)
(distinguishing between “negligent-activity claim” or “theory” and “premises-condition
claim” or “theory”); Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex.
1997) (stating that there are “two types of negligence in failing to keep the premises safe:
that arising from an activity on the premises, and that arising from a premises defect”);
see also Mayer v. Willowbrook Plaza Ltd. Partnership, 278 S.W.3d 901, 909 (Tex.
App.—Houston [14th Dist.] 2009, no pet.); Brooks v. PRH Investments, Inc., 303 S.W.3d
920 (Tex. App. 2010).
Negligent activity claims involve “affirmative, contemporaneous conduct by the
owner that caused the injury,” while premises liability claims encompass “a nonfeasance
theory based on the owner’s failure to take measures to make the property safe.” Del
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Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010). Recovery on a negligent
activity claim requires that the plaintiff have been injured by or as a contemporaneous
result of the “activity itself” rather than by a “condition” created by the activity. Brooks,
303 S.W.3d at 923; Olivo, 952 S.W.2d at 527; Keetch v. Kroger Co., 845 S.W.2d 262,
264 (Tex. 1992). If the injury was caused by a condition created by the activity rather
than the activity itself, a plaintiff is limited to a premises defect theory of liability. Lucas
v. Titus County Hosp. Dist./Titus Mem'l Hosp., 964 S.W.2d 144, 153 (Tex. App. 1998).
In this case, Ms. Ochoa was injured by a condition created by an activity, not the
activity itself. Ms. Ochoa was not contemporaneously injured when Ross employees were
placing clothing on hangers, for example. The Texas Supreme Court’s decisions in
similar slip-and-fall cases clarify that Ms. Ochoa can recover only under a premises
liability theory. In Keetch, the plaintiff fell thirty minutes after a Kroger employee had
sprayed chemicals on plants. Keetch, 845 S.W.2d at 264. Because the activity of spraying
the plants was not ongoing, the plaintiff could not bring a negligent activity claim. The
court noted “[a]t some point, almost every artificial condition can be said to have been
created by an activity,” and that the plaintiff in Keetch “was not injured by the activity of
spraying,” but “by a condition created by the spraying.” Id. See also Stanley Stores, Inc.
v. Veazey, 838 S.W.2d 884, 885–86 (Tex.App.-Beaumont 1992, writ denied); Kroger Co.
v. Persley, 261 S.W.3d 316 (Tex. App. 2008). Other courts that have considered the
scenario in this case—a plaintiff tripping on a hanger—have applied a premises liability
theory. Lipsky v. Firebaugh Realty Corp., 26 A.D.3d 313, 809 N.Y.S.2d 535 (2006);
Monte v. T.J. Maxx, 293 A.D.2d 722, 741 N.Y.S.2d 117 (2002); Adams v. Sears, Roebuck
& Co., 227 Ga. App. 695, 490 S.E.2d 150 (1997). Because Ms. Ochoa was injured by a
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hanger on the floor not contemporaneously caused by Ross’s activities, Ms. Ochoa may
recover only under a premises liability claim.
Thus, the Court looks to the requirements of premises liability, and finds that Ms.
Garcia, as a matter of law, cannot establish actual or constructive knowledge of the
hanger by Ross. Ms. Garcia must demonstrate actual or constructive knowledge of the
hanger in order to succeed under a premises liability claim. Corbin v. Safeway Stores,
Inc., 648 S.W.2d 292 (Tex. 1983). Under Texas law, an owner's knowledge of a
potentially harmful condition can be established in one of the following three ways: 1)
proof that employees caused the harmful condition; 2) proof that employees either saw or
were told of the harmful condition prior to the plaintiff's injury; or 3) proof that the
harmful condition was present for so long that it should have been discovered in the
exercise of reasonable care. See Keetch, 845 S.W.2d at 264; cited by Threlkeld v. Total
Petroleum, Inc., 211 F.3d 887, 892 (5th Cir. 2000). Ms. Garcia does not have evidence
that the employees placed the hanger on the floor. Nor can Ms. Garcia establish that Ross
saw the hanger before the fall or had been told of the harmful condition. To Ms.
Castello’s knowledge, no one at Ross Stores was aware that the hanger was on the ground
before the incident occurred. (Joslyn Castello Dep. 18:2-5.) Depositions of Ms. Ochoa’s
daughters do not contradict this statement. None of Ross’s employees told Maria or Rosa
they knew the hanger had been on the floor prior to the occurrence. (Maria Ochoa Dep.
24:11-16; Rosa Ochoa Dep. 26:10-13.)
Thus, Ms. Garcia must rely on a constructive knowledge theory, but cannot
demonstrate that the dangerous condition existed long enough that Ross should have
known of it. The so-called “time-notice rule” is based on the principle that temporal
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evidence best indicates whether the owner had a reasonable opportunity to discover and
remedy a dangerous condition. Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 816 (Tex.
2002). Otherwise, owners would face strict liability for any dangerous condition on their
premises, an approach that Texas courts have rejected. CMH Homes, Inc. v. Daenen, 15
S.W.3d 97, 103 (Tex. 2000).
A speculative, subjective opinion as to how long an item has been on the floor is
not sufficient. Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 937 (Tex. 1998). An
employee's proximity to a hazard, with no evidence indicating how long the hazard was
there, merely indicates that it was possible for the premises owner to discover the
condition, not that the premises owner reasonably should have discovered it. Reece, 81
S.W.3d at 816.
Ms. Garcia points to one case in which defendant was found liable, although the
plaintiff could produce no evidence of the defendant’s constructive knowledge of the
dangerous condition. Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 294 (Tex. 1983).
However, Corbin was exceptional because the defendant was aware that the area in
which the plaintiff fell, near a grape bin, was unusually hazardous. Id. In fact, the
defendant had a store policy that mats were required near the grape bins, but defendant
had failed to place the mats. Id. Because of the known and unusually high risks
accompanying customer usage of a self-service display of grapes, the court found that the
defendant was liable for the plaintiff’s injuries. Id. The Texas Supreme Court has limited
Corbin to its facts, and, generally, courts require that plaintiffs show notice. Keetch v.
Kroger Co., 845 S.W.2d 262 (Tex. 1992); Brookshire Grocery Co. v. Taylor, 222 S.W.3d
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406, 408 (Tex. 2006); CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000); Rice
Food Mkt., Inc. v. Hicks, 111 S.W.3d 610, 613 (Tex. App. 2003).
A dangerous condition that has existed for forty-five minutes or less has been
considered to be legally insufficient to show constructive knowledge. See Threlkeld, 211
F.3d at 887; Brookshire Food Stores, L.L.C. v. Allen, 93 S.W.3d 897, 900-1; Wal-Mart
Stores, Inc. v. Lopez, 2000 Tex. App. LEXIS 2007 (Tex. App.—San Antonio 2000, no
pet.); Kimbell, Inc. v. Roberson, 570 S.W. 2d 587, 590 (Tex. Civ. App.—Tyler 1978, no
writ). Ms. Castello’s deposition indicates that a number of individuals were tasked with
recovery every thirty minutes—including other store associates and two SPS employees.
(Joslyn Castello Dep. at 22:15-23; 26:1-4; 31:19-24.) Ms. Castello indicates that she
walked along the shortage highway next to the women’s clothing around 2:00 p.m.—
thirty minutes before the incident—and did not see a hanger on the ground. (Id. at 31:1924.) Ms. Garcia has not provided contradictory evidence to indicate how long the hanger
was on the ground before Ms. Ochoa fell. Ms. Ochoa’s two daughters did not see the
hanger before the fall. (Maria Ochoa Dep. at 14:7-12, 17:14-15, 19:24-25; Rosa Ochoa
Dep. 25:14-17.) Ms. Garcia has not adduced evidence to establish a genuine issue of
material fact that Ross had actual or constructive notice of the hanger.
Ms. Garcia cites Ms. Castello’s deposition in an attempt to create a fact issue,
focusing on Ms. Castello’s testimony that floor associates would perform recovery at the
beginning of their shift. (Joslyn Castello Dep. 23:22-24:7.) However, Ms. Castello also
testified that they would perform recovery throughout their shift if they saw something
needing to be recovered. (Id. at 89:14-21.) The Court does not view these statements as a
contradiction since employees could be instructed to recover items at the beginning of
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their shift, but also be attentive to items on the floor throughout their shift. Ms. Garcia
also points to Ms. Castello’s allegedly contradictory statements about the location of Ms.
Ochoa’s fall—at one point Ms. Castello states it was in the misses’ department (Id. at
26:23-25), later she states it was in women’s clothing. (Doc. No. 21-3.) The area in which
Ms. Ochoa fell is not in dispute as a material fact. Both Ms. Garcia and Ross are in
agreement that Ms. Ochoa fell along the shortage highway, near the clothing section
labeled “Ladies” in the exhibit photos of the incident scene. (Doc. No. 12-6 and 12-7.)
Ms. Castello interchangeably refers to the area as the ladies, women’s, and the misses’
department. (Joslyn Castello Dep. 25:2-6, 78:24.) The mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly supported
motion for summary judgment; the standard is that there be no genuine issue of material
fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Ms. Garcia has not
alleged a material fact dispute here.
Finally, Ms. Garcia also asserts that res ipsa loquitur is applicable. Res ipsa
loquitur is an evidentiary rule by which negligence may be inferred if Ms. Garcia proves:
1) the accident is of the type not ordinarily occurring in the absence of negligence, and 2)
that the instrumentality of the accident was under the exclusive management and control
of Ross. Haddock v. Anspiger, 793 S.W. 2d 948, 950 (Tex. 1990); Clay v. BMS, Inc., 61
S.W. 3d 489, 492 (Tex. App—San Antonio 2001, no pet.), citing Mobil Chemical Co. v.
Bell, 517 S.W. 2d 245, 251 (Tex. 1974). Ms. Garcia has not established that the hanger
was in the exclusive control of Ross. The hanger could have been placed on the floor by a
member of the public, or even Ms. Ochoa herself. Thus res ipsa loquitur cannot apply.
See, e.g., Trejo v. Laredo Nat. Bank, 185 S.W.3d 43, 48 (Tex. App. 2005) (teller machine
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was not under defendant's exclusive control, and could have been tampered with by the
public); Lucas, 964 S.W.2d at 157 (holding that doctrine of res ipsa loquitur did not
apply because “the chair was in a public waiting area, it is possible that someone other
than the hospital broke the recliner before [the plaintiff] fell”); Graham v. Fed-X, Inc.,
384 S.W.2d 785, 787 (Tex. Civ. App. 1964) (holding that doctrine did not apply to a
bottle falling off a shelf because so many people had “equal access to the bottle racks”).
Ross also alleges that Ms. Ochoa failed to prove causation for her injuries. The
lack of notice of the hanger is sufficient to grant Ross’s Motion, but the Court will,
nevertheless, consider Ross’s causation argument here. Although Ms. Garcia has
submitted Ms. Ochoa’s medical records to the Court (Doc. No. 14-16), she has not
referenced or identified any of these documents in her Response (Doc. No. 21) to
establish causation of her injuries. Ms. Garcia cites only Ross’s Notice of Removal to
demonstrate that Ms. Ochoa suffered injuries. However, a notice of removal is not
competent summary judgment evidence. Arguments of counsel—absent, for example,
affidavits—fail to meet the evidentiary standard necessary to create a genuine issue of
material fact. Graham v. Fed-X, Inc., 384 S.W.2d 785, 787 (Tex. Civ. App. 1964).
The party opposing summary judgment is required to identify specific evidence in
the record and to articulate the precise manner in which that evidence supports his or her
position. Fed. R. Civ. P. 56(e); Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994);
Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998); Skotak v. Tenneco
Resins, Inc., 953 F.2d 909, 915 (5th Cir. 1992) (because plaintiff failed to refer to articles
of evidence in summary judgment, “articles were not properly before that court in
deciding whether to grant the motion” and could not be considered). Rule 56 does not
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impose upon the district court a duty to sift through the record in search of evidence to
support a party's opposition to summary judgment. Skotak, 953 F.2d at 915 cited by
Ragas, 136 F.3d at 458. Without further explanation in Ms. Garcia’s Response, the
hospital records of Ms. Ochoa lack context and do not raise a genuine issue of material
fact with regard to proximate causation.
Therefore, Ross has established that there is no genuine issue of material fact with
regard to both notice and causation. Ross is entitled to a judgment as a matter of law.
IV. CONCLUSION
For the reasons explained above, Ross’s Motion (Doc. No. 12) is GRANTED.
IT IS SO ORDERED.
SIGNED at Houston, Texas on this the 13th day of September, 2012.
KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE
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