Allen v. Wal-Mart Stores Texas, LLC
Filing
16
OPINION AND ORDER granting 7 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Signed by Judge Melinda Harmon) Parties notified.(rhawkins) Modified on 4/29/2015 (rhawkins, 4).
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
WILLIE ALLEN,
Plaintiff,
VS.
WAL-MART STORES TEXAS, LLC,
Defendant.
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Civ. A. H-14-3628
OPINION AND ORDER
Pending before the Court in the above referenced cause,
seeking damages for alleged negligence, is Defendant Wal-Mart
Stores Texas, L.L.C.’s (“Wal-Mart’s”) partial 12(b)(6) motion to
dismiss for failure to state a claim (instrument #7).
Plaintiff
Willie Allen (“Allen”) has not filed a response to the motion.
Allegations of the Original Petition (#7-2)
Allen alleges that on or about December 30, 2012 he was
shopping at Wal-Mart store #768, 1313 North Fry Road, Katy, Texas
77449, when he slipped on some liquid that was on the floor in
front of the checkout areas behind register 9.
Allen fell to the
concrete floor, injuring his knee, stomach, and face.
had to help
store.
His wife
him up, but he was physically unable to leave the
He claims that it took thirty minutes for employees to
arrive and call an ambulance and another thirty minutes for the
ambulance to arrive.
He was then transported to the Emergency
Room of the Houston Methodist West Hospital.
He suffered multiple
injuries and required medical care.
Allen charges that Wal-Mart owned and controlled the
premises in question where and when the incident occurred.
-1-
He
maintains that he did not do or fail to do anything which caused
or in any way contributed to the incident and that he was without
fault.
falling.
He did not receive any warning prior to his slipping and
He contends that the incident was proximately caused by
Wal-Mart’s negligence and/or its agents, servants, employees,
and/or representatives.
Furthermore, Allen asserts that he was on Wal-Mart’s
premises at the express or implied invitation of Wal-Mart for the
sole benefit of Wal-Mart, which therefore owed him a duty to
exercise ordinary care in its ownership, possession, control,
maintenance
and
use
of
the
premises
to
reduce
or
eliminate
unreasonable risks of harm created by the condition of Wal-Mart’s
premises, of which it was aware or in the exercise of ordinary
care
should
have
known.
Allen claims Wal-Mart should have
discovered the dangerous condition of the wet floor.
Wal-Mart
allegedly breached its duty of ordinary care by permitting the
spill to remain on the floor and not warning customers where to
walk and move about the store.
In sum, he argues that Wal-Mart
was negligent in the following ways:
(1) creating a dangerous
condition and failing to warn about it or to make it safe; (2)
failing to promptly clean up any spills; (3) failing to maintain
a safe property; (4) failing to exercise reasonable care to avoid
a foreseeable risk of injury to Plaintiff and other patrons of the
store; (5) failing to maintain a property free from unnecessary
hazards; (6) failing to properly supervise operation of the store;
(7) failing to maintain a proper number of employees to patrol the
store; (8) failing to properly train its employees; (9) failing to
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maintain, inspect, or repair its machines; (10) failing to prevent
excess water from remaining on the walking surfaces; (11) failing
to warn Plaintiff and the public of an unreasonably dangerous
condition; (12) permitting the area to remain in its dangerous
state; and (13) other acts deemed negligent.
At the time of the
incident, Wal-Mart’s agents, servants and employees were acting
within the course and scope of their employment; thus Wal-Mart is
vicariously liable for their actions.
Standard of Review (#7-2)
Federal Rule of Civil Procedure 8(a)(2) provides, “A
pleading that states a claim for relief must contain . . . a short
and plain statement of the claim showing that the pleader is
entitled to relief.”
When a district court reviews a motion to
dismiss pursuant to Fed. R. Civ. P. 12(b)(6), it must construe the
complaint in favor of the plaintiff and take all well-pleaded
facts as true. Randall D. Wolcott, MD, PA v. Sebelius, 635 F.3d
757, 763 (5th Cir. 2011), citing Gonzalez v. Kay, 577 F.3d 600, 603
(5th Cir. 2009).
The plaintiff’s legal conclusions are not
entitled to the same assumption. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)(“The tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions.”), citing Bell Atlantic Corp. v. Twombly, 556 U.S.
662, 678 (2007); Hinojosa v. U.S. Bureau of Prisons, 506 Fed.
Appx. 280, 283 (5th Cir. Jan. 7, 2012).
“While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, . . . a
plaintiff’s
obligation
to
provide
-3-
the
‘grounds’
of
his
‘entitle[ment]
to
relief’
requires
more
than
labels
and
conclusions, and a formulaic recitation of the elements of a cause
of action will not do . . . .”
Bell Atlantic Corp. v. Twombly,
127 S. Ct. 1955, 1964-65 (2007)(citations omitted).
“Factual
allegations must be enough to raise a right to relief above the
speculative level.”
Id. at 1965, citing 5 C. Wright & A. Miller,
Federal Practice and Procedure
§ 1216, pp. 235-236 (3d ed.
2004)(“[T]he pleading must contain something more . . . than . .
.
a statement of facts that merely creates a suspicion [of] a
legally cognizable right of action”). “Twombly jettisoned the
minimum notice pleading requirement of Conley v. Gibson, 355 U.S.
41 . . . (1957)[“a complaint should not be dismissed for failure
to state a claim unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief”], and instead required that a complaint
allege enough facts to state a claim that is plausible on its
face.”
St. Germain v. Howard,556 F.3d 261, 263 n.2 (5th Cir.
2009), citing In re Katrina Canal Breaches Litig., 495 F.3d 191,
205 (5th Cir. 2007)(“To survive a Rule 12(b)(6) motion to dismiss,
the plaintiff must plead ‘enough facts to state a claim to relief
that is plausible on its face.’”), citing Twombly, 127 S. Ct. at
1974). “‘A claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’”
Montoya v.
FedEx Ground Package System, Inc., 614 F.3d 145, 148 (5th Cir.
2010), quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The
plausibility standard is not akin to a “probability requirement,”
-4-
but asks for more than a “possibility that a defendant has acted
unlawfully.”
Twombly, 550 U.S. at 556.
Dismissal is appropriate
when the plaintiff fails to allege “‘enough facts to state a claim
to relief that is plausible on its face’” and therefore fails to
“‘raise a right to relief above the speculative level.’” Montoya,
614 F.3d at 148, quoting Twombly, 550 U.S. at 555, 570.
In Ashcroft v. Iqbal, 556 U.S. at 679, the Supreme Court
stated that “only a complaint that states a plausible claim for
relief survives a motion to dismiss,” a determination involving “a
context-specific task that requires the reviewing court to draw on
its judicial experience and common sense.” “[T]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory
statements do not suffice” under Rule 12(b).
1949.
Iqbal, 129 S. Ct. at
The plaintiff must plead specific facts, not merely
conclusory allegations, to avoid dismissal.
Collins v. Morgan
Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). “Dismissal
is proper if the complaint lacks an allegation regarding a
required element necessary to obtain relief . . . .“
Rios v. City
of Del Rio, Texas, 444 F.3d 417, 421 (5th Cir. 2006), cert. denied,
549 U.S. 825 (2006).
“Rule 12(b) is not a procedure for resolving contests
about the facts or the merits of a case.”
Gallentine v. Housing
Authority of City of Port Arthur, Tex.,
F. Supp. 2d
, Civ.
A. No. 1:12-CV-417, 2013 WL 244651, *3 (E.D. Tex. Jan. 22, 2012),
citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice
and Procedure:
Civil 2d § 1356, at 294 (1990).
-5-
As noted, on a Rule 12(b)(6) review, although generally
the court may not look beyond the pleadings, the Court may examine
the complaint, documents attached to the complaint, and documents
attached to the motion to dismiss to which the complaint refers
and which are central to the plaintiff’s claim(s), as well as
matters of public record.
Lone Star Fund V (U.S.), L.P. v.
Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010), citing
Collins, 224 F.3d at 498-99; Cinel v. Connick, 15 F.3d 1338, 1341,
1343 n.6 (5th Cir. 1994).
Applicable Substantive Law
In a diversity-jurisdiction suit, the district court
must apply the law of the forum state.
Institute, Inc., 278
Hughes v. Tobacco
F.3d 417, 420-21 (5
th
Cir. 2001), citing
Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).
Furthermore it
is “‘bound to apply the law as interpreted by the state’s highest
court.’”
Id.,
citing
inter
alia
Texas
Dep’t
of
Housing
&
Community Affairs v. Verex Assurance, Inc., 68 F.3d 922, 928 (5th
Cir. 1995).
“‘When there is no ruling by the state’s highest
court, it is the duty of the federal court to determine as best it
can, what the highest court of the state would decide.’”
Id.,
quoting Transcontinental Gas Pipe Line v. Transportation Ins. Co.,
953
F.2d
985,
988
(5th
Cir.
1992).
The Fifth Circuit’s
interpretation of Texas law controls this Court’s decision “unless
a subsequent state court decision or statutory amendment renders
[the Fifth Circuit’s] prior decision clearly wrong.”
Id., citing
Batts v. Tow-Motor Co., 66 F.3d 743, 747 (5th Cir. 1995).
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Under Texas law, to prevail on a claim for negligence,
a plaintiff must prove a legal duty owed by one person to another,
in this case by Wal-Mart to Allen, Wal-Mart’s breach of that duty,
and damages to Allen proximately caused by the breach.
Ford v.
Cimarron Ins. Co., Inc., 230 F.3d 828, 830 (5th Cir. 2000), citing
Greater Houston Transp. Co. v. Phillips, 801 S.W. 2d 523, 525
(Tex. 1990).
Whether a legal duty exists is a question of law for
the court to determine.
552, 563 (Tex. 2005).
Id., citing Tri v. J.T.T., 162 S.W. 3d
If plaintiff fails to allege an essential
element of the cause of action, the court should dismiss the
complaint.
Id., citing Rios v. City of Del Rio, Tex., 444 F.3d
417, 421 (5th Cir. 2006).
Premises liability is a special type of negligence.
Inv., Inc. v. Urena, 162 S.W. 3d 547, 550 (Tex. 2005).
W.
A cause of
action for a premises defect exists where a person is injured as
a result of the condition of the premises.
City of San Antonio v.
Estrada, 219 S.W. 3d 28, 32 (Tex. App.--San Antonio 2006, no
pet.).
The duty owned to the plaintiff depends on his status
(whether he is an invitee, licensee or trespasser) when the
incident giving rise to the suit occurred. Centeq Realty, Inc. v.
Siegler, 899 S.W. 2d 195, 197 (Tex. 1995); Urena, 162 S.W. 3d at
550; Rosas v. Buddie’s Food Store, 518 S.W. 2d 534, 536 (Tex.
1975).
Under Texas law, an invitee is “one who enters on
another’s land with the owner’s knowledge and for the benefit of
both.”1
Rosas, 518 S.W. 2d at 536; in accord, Richendollar v.
1
While Allen has pleaded that he entered Wal-Mart’s
premises for the benefit of Wal-Mart alone, since he was shopping
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Diamond M Drilling Co., 784 F.2d 580, 585 (5th Cir. 1986).
of reasonable care is owed to an invitee.
Id.
A duty
“Premises owners
and occupiers owe a duty to keep their premises safe for invitees
against known conditions that pose unreasonable risks of harm.”
TXI Operations, L.P. v. Perry, 278 S.W. 3d 763, 764 (Tex. 2009).
The premises owner can meet that duty by either adequately warning
the invitee of an unreasonable risk of harm of which the owner
knows or by making the premises reasonably safe.
State v.
Williams, 940 S.W. 2d 583, 584 (Tex. 1996).
In an action for premises liability under Texas law, a
plaintiff must demonstrate that the defendant had control over and
responsibility for the premises and that the control must relate
to the condition or activity that caused the injury.
Cohen v.
Landry’s, Inc., 442 S.W. 3d 818, 824 (Tex. App.--Houston [14th
Dis.]
2014,
omitted).
pet.
for
review
filed
Oct.
2,
2014)(citations
The plaintiff can show control “by ownership,
occupation, management or possession of the premises,” or “by a
contractual agreement expressly assigning the right of control or
an actual exercise of control.”
An
invitee/plaintiff
Id.
must
elements to establish such a claim:
knowledge
of
some
condition
also
prove
the
following
“(1) Actual or constructive
on
the
premises
by
the
owner/operator2; (2) that the condition posed an unreasonable risk
the entry was also for his benefit at the time.
2
The Texas Supreme Court discusses the notice issue in
Wal-Mart Stores, Inc. v. Reece, 81 S.W. 3d 812, 815 (Tex. 2002).
Observing that “[t]he rule requiring proof that a dangerous
condition existed for some length of time before a premises owner
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of harm3; (3) that the owner/operator did not exercise reasonable
may be charged with constructive notice is firmly rooted in our
jurisprudence,” id., the high court opined,
The so-called “time-notice rule” is
based on the premise that temporal evidence
best indicates whether the owner had a
reasonable opportunity to discover and remedy
a dangerous condition. . . . 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. Constructive notice
demands a more extensive inquiry. Without
some temporal evidence, there is no basis
upon which the factfinder can reasonably
assess the opportunity the premises owner had
to discover the dangerous condition.
What constitutes a reasonable time for a
premises owner to discover a dangerous
condition will, of course, vary depending
upon the facts and circumstances presented.
And proximity evidence will often be relevant
to the analysis. Thus, if the dangerous
condition is conspicuous, for example, a
large puddle of dark liquid on a light floor
would likely be, then an employee’s proximity
to the condition might shorten the time in
which a jury could find that the premises
owner should reasonably have discovered it.
Similarly, if an employee was in close
proximity to a less conspicuous hazard for a
continuous and significant period of time,
that,
too,
could
affect
the
jury’s
consideration of whether the premises owner
should have become aware of the dangerous
condition. But in either case, there must be
some proof of how long the hazard was there
before liability can be imposed on the
premises owner for failing to discover and
rectify, or warn of, the dangerous condition.
Otherwise, owners would face strict liability
for any dangerous conditions on their
premises, an approach we have clearly
rejected.
Id. at 816 (citations omitted).
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care
to
reduce
of
eliminate
the
risk;
and
(4)
that
the
owner/operator’s failure to use such care proximately caused the
plaintiff’s injuries.”
Wal-Mart Stores, Inc. v. Gonzalez, 968
S.W. 2d 934, 936 (Tex. 1998).
See also Wal-Mart Stores, Inc. v.
Sparkman, No. 02-13-00355-CV, 2014 WL 6997166 (Tex. App.--Fort
Worth Dec, 11, 2014, pet. for review filed Jan. 26, 2015)(In a
slip and fall case under Texas law, the plaintiff must prove that
“(1) Wal-Mart had actual or constructive knowledge of the wet
floor, (2) the wet floor posed an unreasonable risk of harm, and
(3) Wal-Mart failed to use ordinary care to reduce or eliminate
the unreasonable risk of harm by failing to adequately warn [him]
of the wet floor and by failing to make the wet floor safe.”).4
To establish notice, the plaintiff must show “(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 opportunity to discover it.”
Wal-Mart Stores,
Inc. v. Reece, 81 S.W. 3d 812, 814 (Tex. 2002).
“Furthermore the
3
“A condition poses an unreasonable risk of harm for
premises-defect purposes when there is a ‘sufficient probability
of a harmful event occurring that a reasonably prudent person
would have foreseen it or some similar event as likely to
happen.’” County of Cameron v. Brown, 80 S.W. 3d 549, 556 (Tex.
2002), quoting Rosas, 518 S.W. 2d at 537. Whether a condition is
unreasonably dangerous is usually a fact question.
Cohen v.
Landry’s, Inc., 442 S.W. 3d at 827.
4
Contrary to this appellate court’s use of “and” in the
last element, the Supreme Court has emphasized the “significance
of the disjunctive” in the instruction for the last element and
held that the owner can provide the requisite protection “by
either warning the plaintiff or making the premises reasonably
safe.”
State v. Williams, 940 S.W. 2d 583, 584 (Tex.
1996)(emphasis added by this Court).
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plaintiff must allege that he suffered physical harm caused by a
condition of the land.”
Corbin v. Safeway Stores, Inc., 648 S.W.
2d 292, 295 (Tex. 1983).
Negligent action and premises liability are separate
claims under Texas law.
Wright v. Target Corp., No. 3:14-CV-244-
L, 2014 WL 5090027, at *4 (N.D. Tex. Oct. 10, 2014).
“Recovery 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. Negligence in the
former context means simply doing or failing
to do what a person of ordinary prudence in
the same or similar circumstances would have
not done or done. Negligence in the latter
context means failure to use ordinary care to
reduce or eliminate an unreasonable risk of
harm created by a premises condition which
the owner or occupier [of land] knows or in
the exercise of ordinary care should know
about.”
Id., quoting Timberwalk Apartments, Partners, Inc. v. Cain, 972
S.W. 2d 749, 753 (Tex. 1999).
“‘[A] premises defect claim is
based on the property itself being unsafe.’”
Id., quoting State
v. Shumake, 199 S.W. 3d 279, 284 (Tex. 2006).
See also Del Lago
Partners, Inc. v. Smith
, 307 S.W. 3d 762, 776 (Tex.
2010)(“[N]egligent activity encompasses a malfeasance theory based
on affirmative, contemporaneous conduct by the owner that caused
the injury, while premises liability encompasses a nonfeasance
theory based on the owner’s failure to take measures to make the
property safe.”).
The Texas Supreme Court has “rejected attempts
to blur the distinction between these two claims.”
State v.
Shumake, 199 S.W. 3d at 284, citing Keetch v. Kroger Co., 845 S.W.
2d 262, 264 (Tex. 1992)(holding that the trial court correctly
-11-
refused to submit a negligent activity theory of liability to the
jury and properly submitted the question whether the store knew or
should have known of the unsafe condition).
A plaintiff cannot
pursue both a negligent activity and a premises defect theory of
recovery based on the same injury.
Austin v. Kroger Texas L.P.,
746 F.3d 191, 197 (5th Cir. 2014).
Wal-Mart’s Partial 12(b)(6) Motion (#7)
Wal-Mart complains that Allen fails to identify the
particular kind of negligence claim he is asserting, but uses the
general term “negligence.”
Texas law requires a plaintiff suing
a premises owner for negligence to identify his cause of action as
either premises liability or negligent activity, which are two
independent theories of recovery, as this Court has discussed
above.
Although Allen identifies his cause of action as one for
negligence, it actually is for premises liability because it is
the result of Wal-Mart’s purported failure to prevent injury to
him because of a wet substance on the floor, an unsafe condition
of the premises, rather than any affirmative, contemporaneous,
ongoing activity.
In addition to claiming in essence premises liability
negligence for the liquid on the floor of the store, Allen asserts
that Wal-Mart committed employment-based negligence in asserting
negligent training of its employees in Section VI(h) of his
Original
negligence
Petition.
cannot
Wal-Mart argues that employment-based
properly
serve
as
the
basis
for
imposing
premises liability, nor do such claims constitute breaches of duty
to which premises liability may attach.
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Wal-Mart has been unable
to find even one Texas case in which a premises liability verdict
was used against a defendant based on a breach of its duty of care
through employment-based conduct.
Nor is an employment-based negligence claim proper in
the context of a negligent activity action under the facts here.
Allen has not alleged any affirmative contemporaneous acts that
breach Wal-Mart’s duty of care and that caused the injury to
Allen.
A plaintiff fails to plead a negligent activity claim
where he fails to connect an alleged breach of duty to an alleged
affirmative contemporaneous activity. In re Tex. DOT, 218 S.W. 3d
74, 77-78 (Tex. 2007)(emphasizing the distinction between causes
of action based on negligent activities and those based on premise
defects and concluding that allegations that negligent activities
created conditions at the scene of an accident was improperly
pleaded as a negligent activity claim where there was no ongoing
activity at the time of the accident); H.E. Butt Grocery Co. v.
Warner, 845 S.W. 2d 258, 258-59 (Tex. 1992)(Where plaintiff
alleges that she slipped in a puddle of water, chicken blood, and
other fluids on the floor near the “bag your own chicken counter”
of an H.E.B. store, plaintiff is limited to a premises liability
theory and cannot assert a simple negligence theory that H.E.B.
negligently failed to bag chickens for its customers.)( citing
Keech).
In sum, Allen cannot raise a premises-based claim of
negligent activity against Wal-Mart based on alleged employmentbased negligence, i.e., failures in hiring, training, supervision
or retention of employees and that Wal-Mart is liable for failing
to engage in such activity.
Negligent activity claims require
-13-
affirmative, contemporaneous conduct to impose liability rather
than the failure to engage in affirmative conduct.
Even
if
the
Court
finds
that
Allen
is
bringing
a
separate, independent cause of action against Wal-Mart for
negligent hiring, supervising, training or retaining, such simple
negligence claims require direct negligence by the employer rather
than vicarious liability.
Morris v. JTM Materials, Inc., 78 S.W.
3d 28, 49 (Tex. App.--Fort Worth 2002), citing Castillo v. Gared,
Inc., 1 S.W. 3d 781, 786 (Tex. App.--Houston [1st Dist.] 1999, pet.
denied)(“An employer owes a duty to other employees and to the
general public to ascertain the qualifications and competence of
the employees it hires, especially when the employees are engaged
in occupations that require skill or experience and that could be
hazardous to the safety of others. . . . Therefore, an employer is
liable for negligent hiring, retention, or supervision if it hires
an incompetent or unfit employee whom [sic] it knows, or by the
exercise of reasonable care should have known, was incompetent or
unfit, thereby creating an unreasonable risk of harm to others. .
. . . [Such claims] are all simple negligence causes of action
based on an employer’s direct negligence rather than on vicarious
liability. . . . Liability for negligent hiring and retention is
not dependent however, upon a finding that the employee was acting
in the course and scope of his employment when the tortious act
occurred.
Instead the employer is liable if its negligence in
hiring or retaining the unfit employee was a proximate cause of
the plaintiff’s injuries.”)(citations omitted).
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Furthermore,
to
sue
Wal-Mart
for
negligent
hiring,
training, or supervision, Allen must also establish that a WalMart employee committed an actionable tort against Allen.
e.g.,
Wansey
v.
Hole,
379
See,
S.W. 3d 246, 247-48 (Tex.
2010)(negligent hiring)(“[T]here is broad consensus among Texas
courts that such a claim requires that the plaintiff suffer some
damages from the foreseeable misconduct of an employee hired
pursuant to the defendant’s negligent practices.”); Brown v. Swett
& Crawford of Tex., 178 S.W. 3d 373, 384 (Tex. App.--Houston [1st
Dist.] 2005, no pet.)(“To prevail on a claim for negligent hiring
or supervision, the plaintiff is required to establish not only
that the employer was negligent in hiring or supervising the
employee, but also that the employee committed an actionable tort
against the plaintiff.”).
Furthermore Wal-Mart points out that Allen failed to
state a claim under Rule 12(b)(6) because he failed to plead any
facts that would support a cause of action under any employment
negligence theory.
Allen does not identify any employee hired by
Wal-Mart who was allegedly negligently hired, trained, supervised
or retain, nor any facts relating to any hiring or termination
decision made by Wal-Mart that is related to the incident.
Court’s Decision
After reviewing the record and the applicable law, this
Court concurs with Wal-Mart that Allen fails to state a claim
against Wal-Mart for any theory of employment-based negligence in
Section VI(h)(“Failing to properly train its employees”) of his
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Original Complaint and that his suit is limited to the theory of
premises liability.
ORDERS
Accordingly, the Court
that
Wal-Mart’s
partial
12(b)(6)
motion
to
dismiss is GRANTED.
SIGNED at Houston, Texas, this
29th
day of
2015.
___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
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April ,
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