Banks v. Wal-Mart Stores Inc
Filing
35
MEMORANDUM OPINION AND ORDER denying as moot 31 MOTION to Compel Production of signed HIPAA, granting 27 MOTION for Summary Judgment. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SANDRA BANKS
§
§
§
§
§
§
§
§
§
§
I
Plaintiff,
v.
WAL-MART STORES TEXAS, LLC and
WAL-MART STORES, INC.,
Defendants.
July 08, 2016
David J. Bradley, Clerk
CIVIL ACTION NO. H-15-2259
MEMORANDUM OPINION AND ORDER
Plaintiff Sandra Banks ("Banks" or "Plaintiff") sued defendant
Wal-Mart Stores, Inc. and Wal-Mart Stores Texas, LLC ("Defendants"
or
"Wal-Mart")
Harris
County,
timely removed. 2
Stores
Texas,
in
Texas,
the
127th
under
Cause
No.
District
2015-34952. 1
Court
of
Defendant
Pending before the court is Defendant Wal-Mart
LLC's
Traditional
("Motion for Summary Judgment")
reasons
Judicial
stated below,
Motion
for
Summary
(Docket Entry No.
the Motion for
27) .
Judgment
For the
Summary Judgment will be
granted, and this action will be dismissed.
1
Plaintiff's Original Petition, Exhibit A to Notice of
Removal, Docket Entry No. 1-2.
The Original Petition only names
Wal-Mart Stores, Inc.
Banks amended to also include Wal-Mart
Stores Texas, LLC.
See Plaintiff's First Amended Original
Complaint ("Amended Complaint"), Docket Entry No. 21. Defendant's
Original Answer to Plaintiff's First Amended Original Complaint,
Docket Entry No. 22, p. 1, asserts that Wal-Mart Stores Texas, LLC
was incorrectly named as Wal-Mart Stores, Inc., although both are
named in the Amended Complaint.
2
Notice of Removal, Docket Entry No. 1.
I.
Background
Banks alleges that on June 11, 2014, she was grocery shopping
at a Wal-Mart in Houston, Texas, "when she tripped and fell over a
bar that was sticking out from the bottom of a mid-isle
freezer," resulting in serious injuries. 3
[sic]
Banks asserts a premises
liability claim and seeks damages for physical pain and mental
anguish, disfigurement, physical impairment, and medical expenses. 4
After a period of discovery, Wal-Mart moved for summary judgment. 5
II.
A.
Motion for Summary Judgment
Standard of Review
Summary judgment is appropriate if the movant establishes that
there is no genuine dispute about any material fact and the movant
is entitled to judgment as a matter of
56(a) . 6
law.
Fed.
R.
Ci v.
P.
Disputes about material facts are genuine "if the evidence
is such that a
reasonable jury could return a verdict for the
nonmoving party. "
Anderson v.
Liberty Lobby,
3
Inc.,
Amended Complaint, Docket Entry No. 21, p. 2
pp. 2-3 ~~ 6-8.
~~
~
106 S.
Ct.
7; see also
4
See id. at 3
5
See Motion for Summary Judgment, Docket Entry No. 27, p. 2.
9, 12.
6
Wal-Mart labels its motion as a "Traditional Motion for
Summary Judgment pursuant to Texas Rule of Civil Procedure 166a."
Id. at 1.
Because this action was removed on the basis of
diversity jurisdiction, the court will analyze the motion using the
applicable standard under Federal Rule of Civil Procedure 56. See
Rosero v. Fuentes, Civ. Action Nos. 1-10-85, 1-10-51, 2011
WL 4017871, at *2 (S.D. Tex. Sept. 8, 2011); see also Kinqman
Holdings, LLC v. Bank of New York, Civ. Action No. 3:13-CV-1688-L,
2014 WL 1462908, at *3 n.3 (N.D. Tex. April 15, 2014).
See
also note 10 infra.
-2-
2505, 2510 (1986).
The moving party is entitled to judgment as a
matter
"the
of
law
if
nonmoving
party
has
failed
to
make
a
sufficient showing on an essential element of her case with respect
to which she has the burden of proof."
10 6
s. Ct. 2 54 8
I
Celotex Corp. v. Catrett,
2 55 2 ( 19 8 6) .
A party moving for summary judgment "must
'demonstrate the
absence of a genuine issue of material fact,' but need not negate
the elements of the nonmovant' s case."
37 F.3d 1069, 1075 (5th Cir. 1994)
Little v. Liguid Air Corp. ,
(en bane)
(per curiam)
(quoting
"If the moving party fails to meet
Celotex, 106 S. Ct. at 2553).
this initial burden, the motion must be denied, regardless of the
nonmovant's response."
this burden,
Id.
If, however,
the moving party meets
"the nonmovant must go beyond the pleadings"
and
produce evidence that specific facts exist over which there is a
genuine
2553-54)
issue
for
trial.
Id.
(citing Celotex,
106 S.
Ct.
at
The nonmovant "must do more than simply show that there
is some metaphysical doubt as to the material facts."
Matsushita
Electric Industrial Co.,
106 S.
Ltd. v.
Zenith Radio Corp.,
Ct.
1348, 1356 (1986).
"In order
to
avoid
summary
judgment,
the
nonmovant
must
identify specific facts within the record that demonstrate the
existence of a genuine issue of material fact."
Mining Co., L.P., 565 F.3d 268, 273
CQ,
Inc. v. TXU
(5th Cir. 2009).
"The party
must also articulate the precise manner in which the submitted or
identified evidence supports his or her claim."
quotation marks and citation omitted)
-3-
Id.
(internal
"When evidence exists in
the summary judgment record but the nonmovant fails even to refer
to it in the response to the motion for summary judgment,
evidence is not properly before the district court."
Id.
that
(same).
In reviewing the evidence "the court must draw all reasonable
inferences in favor of the nonmoving party,
credibility determinations
Sanderson Plumbing Products,
or weigh the
and it may not make
evidence."
Reeves v.
Inc., 120 S. Ct. 2097, 2110
(2000).
The court resolves factual controversies in favor of the nonmovant,
"but only when there is an actual controversy, that is, when both
parties have submitted evidence of contradictory facts."
Little,
37 F.3d at 1075.
B.
Analysis
Banks asserts that Wal-Mart "knew or should have known that a
dangerous condition existed at their store, which condition posed
an unreasonable risk of harm to [Banks] . " 7
The elements of a Texas
premises liability cause of action are:
See Amended Complaint, Docket Entry No. 21, p. 3 ~ 9. Banks
labels her claim "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
"
Allen v.
Wal-Mart Stores Texas, LLC, Civ. Action No. H-14-3628, 2015
WL 1955060, at *5 (S.D. Tex. April 29, 2015). Banks' claim is for
premises liability. See id. ("Although [plaintiff] identifies his
cause of action as one for negligence, it actually is for premises
liability because it is the result of [defendant'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.");
see also
Henderson v. Wal-Mart Stores, Inc., Civ. Action No. 1:14-cv-224,
2015 WL 970673, at *5 (E.D. Tex. March 2, 2015).
7
-4-
(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)).
Without conceding liability as to elements three and four, Wal-Mart
argues that there is no genuine issue of material fact as to the
first
two
elements
because
Wal-Mart
did
not
have
actual
or
constructive knowledge of the condition, and because the condition
was open and obvious, such that it did not present an unreasonable
risk of harm. 8
C.
Knowledge of the Condition
A plaintiff asserting a premises liability claim satisfies the
notice element by establishing that:
condition;
(3)
(2)
(1) the defendant created the
the defendant actually knew of the condition; or
it is more likely than not that the condition existed long
enough to give
discover it. 9
the premises owner a
reasonable opportunity to
See Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812,
8
See Motion for Summary Judgment, Docket Entry No. 27, p. 3.
Because the court will grant summary judgment to Wal-Mart based on
the first element, the court will not address the second element.
9
Discussing the "more likely than not" standard in Sturdivant
v. Target Corp., 464 F. Supp. 2d 596, 599-600 (N.D. Tex. 2006), the
(continued ... )
-5-
814
(Tex.
S.W.2d 934,
2002)
936
(citing Wal-Mart Stores,
(Tex. 1998); Keetch,
Inc.
v.
Gonzalez,
845 S.W.2d at 265) . 10
968
Banks
argues that there is evidence that Wal-Mart should have known about
the bar. 11
9
Constructive knowledge can be established by showing
continued)
court considered whether "the Court should weigh the Plaintiff's
evidence on constructive notice, as a [Texas] state court would, or
whether the Court should merely evaluate the evidence to determine
whether there is sufficient evidence to create a genuine issue of
material fact." The court held "[i]n federal court, it is beyond
questioning that disputed issues of fact are to be decided by the
jury.
For this reason, the Court is not to weigh evidence when
considering a motion for summary judgment." Id. at 600 (citations
omitted); see also Reeves, 120 S. Ct. at 2110; Miller v. Wal-Mart
Stores Texas, LLC, Civ. Action No. G-12-057, 2013 WL 620469, at *4
(S.D. Tex. Jan. 4, 2013); Yin v. Wal-Mart Stores, Texas, LP, Civ.
Action No. B- 09-26, 2009 WL 3753491, at *3 (S.D. Tex. Nov. 6,
2009) . This court will likewise follow the federal standard. See
Murray v. Chick-Fil-A, Inc., 626 F. App'x 515, 518 (5th Cir. 2015)
("[W]e reject the argument that constructive notice is a question
of fact solely for the jury because it concerns state of mind. To
survive summary judgment on this question, Murray must show some
evidence that would enable a reasonable jury to find it was more
likely than not that the condition existed long enough that
Chick-fil-A should have discovered it.") (citing Sturdivant, 464
F. Supp. 2d at 600-01}.
( •••
10
Reece involved a "slip-and- fall" plaintiff, but courts
recognize that these are the three general methods of establishing
notice in any premises liability case. See, e.g., Garcia v. Ross
Stores, Inc., 896 F. Supp. 2d 575, 580 (S.D. Tex. 2012) (plaintiff
tripped over a hanger) (citing Keetch, 845 S.W.2d at 264); Harvey
v. Racetrac Petroleum, Inc., Civ. Action No. 3:07-CV-1828-D, 2009
WL 577605, at *1 (N.D. Tex. March 6, 2009)
(child's finger
partially amputated by a door in the restroom) .
See also CMH
Homes, Inc. v. Daenen, 15 S.W.3d 97, 102-03 (Tex. 2000) (rejecting
the court of appeals' holding that the temporal element in premises
cases should be limited to "slip and fall" and holding that "[i]n
premises cases constructive knowledge can be established by showing
that the condition had existed long enough for the owner or
occupier to have discovered it upon reasonable inspection").
11
See Plaintiff's Response to Defendant Wal-Mart Stores, Texas,
LLC's Traditional Motion for Summary Judgment
("Plaintiff's
(continued ... )
-6-
"that the condition had existed long enough for the owner .
to
have discovered it upon reasonable inspection."
15
CMH Homes,
S.W.3d at 102-03; Gonzalez, 968 S.W.2d at 936 (evidence supporting
only the possibility that the condition existed long enough to be
discovered is insufficient) .
This
"time-notice"
rule
is
based
on
the
assumption
that
temporal evidence best indicates whether the premises owner had a
reasonable
opportunity
condition.
See Reece, 81 S.W.3d at 816.
was
in close
proximity
to
to
discover
the
and
remedy
a
dangerous
Evidence that an employee
dangerous
condition before
the
plaintiff fell, without more, is not legally sufficient to charge
the premises owner with constructive notice.
must
be
some
proof
of
how
long
the
Id. at 813.
hazard
was
"[T]here
there
liability can be imposed on the premises owner for
failing to
discover and rectify, or warn of, the dangerous condition."
816.
before
Id. at
What constitutes a reasonable time for a premises owner to
discover a dangerous condition varies depending upon the facts and
circumstances.
Id.
11
( • • • continued)
Response"), Docket Entry No. 29, p. 1.
Although Banks' Amended
Complaint, Docket Entry No. 21, p. 3 ~ 9, alleges that "The
Defendants were negligent in the following ways:
a. In creating
the dangerous condition . . . . ", Banks does not argue that Wal-Mart
created the dangerous condition in her Response and points to no
evidence in the record that would support that argument.
See
Reece, 81 S.W.3d at 814 ("Because Reece presented no evidence that
Wal-Mart placed the foreign substance on the floor or actually knew
it was there, she had to prove that the spill had been on the floor
for a sufficient period of time that Wal-Mart had a reasonable
opportunity to discover it.").
-7-
Banks was
in the Wal-Mart
store
for
about
thirty minutes
before the incident, which occurred at 7:40a.m. on June 11, 2014. 12
Banks tripped and fell over a bar 13 "sticking out" from the bottom
of a
stand-alone freezer
located in the middle of
the aisle. 14
Banks walked by the end of the freezer adjacent to the side with
the bar twice in the minute before she turned and hit her right
ankle on the bar and fell.
15
The bar is visible in the video of the incident, which begins
approximately four minutes before her fall.
16
Banks testified:
"I
was looking at something and I went around the corner and when I
went
around the
sticking out.
corner that's
when
I fell over it." 17
I
tripped.
It
was
a
bar
Banks did not see the bar before
12
See Oral Deposition of Sandra Banks ("Banks Deposition"),
Exhibit C to Motion for Summary Judgment, Docket Entry No. 27-3,
p. 7:26; Video Footage, Exhibit D to Motion for Summary Judgment,
Docket Entry No. 27-4.
13
Wal-Mart asserts that it was a "floor-mounted bumper rail,"
but refers to it as a "bar" for consistency with Banks' pleadings.
See Motion for Summary Judgment, Docket Entry No. 27, p. 4.
14
See Video Footage, Exhibit D to Motion for Summary Judgment,
Docket Entry No. 27-4; Banks Deposition, Exhibit C to Motion for
Summary Judgment, Docket Entry No. 27-3, pp. 6:24-9:35.
15
See also Banks Deposition, Exhibit C to Motion for Summary
Judgment, Docket Entry No. 27-3, p. 7:26-27; p. 9:33.
Video
Footage, Exhibit D to Motion for Summary Judgment, Docket Entry
No. 27-4. Banks is fully visible at approximately 7:39:45 AM and
falls at approximately 7:40:34 AM.
16
Video Footage, Exhibit D to Motion for Summary Judgment,
Docket Entry No. 27-4.
The video time stamp shows 7:36:12 AM at
the beginning and 7:58:35 AM at the end of the footage.
17
Banks Deposition, Exhibit C to Motion for Summary Judgment,
Docket Entry No. 27-3, p. 7:26-27.
-8-
she
tripped
position. 18
and
does
not
know how
long
it
had been
in
that
She remembers hearing the voices of two employees who
helped her up after she fell,
but does not remember seeing the
employees before the fall and did not have a conversation with them
afterwards. 19
She does not know if anyone from Wal-Mart was aware
of the bar's location before the incident,
no one from Wal-Mart
told her they were aware of it before the incident, and no one else
told her that they or Wal-Mart knew of the location of the bar
before the incident. 20
Relying
manager,
on
the
deposition
Eric Williams,
testimony
Banks argues
that
of
a
Wal-Mart
"fact
questions
meat
are
created by Mr. Williams' testimony and the video surveillance tape
on
the
issues
unreasonably
Plaintiff
of
dangerous
Sandra
condition. " 21
whether
Wal-Mart
condition
Banks
and
and
failed
should
that
to
have
it
correct
known
failed
the
of
to
the
warn
dangerous
Banks does not cite any authority in her Response and
18
See id. at 8:29-32.
19
See id. at 7:26-8:29.
20
See id. at 8:29-32.
21
Plaintiff' s Response, Docket Entry No. 29, p. 3.
Banks'
exhibits are seven excerpts from the Oral Deposition of Eric Wayne
Williams ("Williams Deposition"). Williams Deposition is attached
in its entirety to Defendant Wal-Mart Stores Texas, LLC's Reply to
Plaintiff's Response to Defendant's Traditional Motion for Summary
Judgment ("Defendant's Reply") , Docket Entry No. 3 0.
To avoid
confusion, citations will be to the full deposition document. See
Williams Deposition, Exhibit A to Defendant's Reply, Docket Entry
No. 30-1.
-9-
does not address Wal-Mart's arguments regarding Texas case law and
the time-notice rule.
Williams was one of two employees working in front of nearby
wall-mounted freezers
stated
that
he
at
inspected
the
the
time of
area
the
around
incident. 22
the
freezer
Williams
when he
arrived for the beginning of his shift, probably at 7:00 a.m.
23
Q.
Okay. Did you see anything unusual when you walked
through that area where the bunker freezer was?
A.
No.
Q. Did you -- and you looked at the bunker freezer, did
you not?
A.
Yes.
and -- and that -- that bar area.
And
at that area, did you not?
Q.
A.
Yes.
Q.
And did you see it sticking out?
A.
No.
You looked
I -- 24
22
See Video Footage, Exhibit D to Motion for Summary Judgment,
Docket Entry No. 27-4; see Williams Deposition, Exhibit A to
Defendant's Reply, Docket Entry No. 30-1, p. 14:2-17.
Williams
testified that he was within about fifteen yards of Banks when she
fell.
Id. at 21:12-18.
23
See Williams Deposition, Exhibit A to Defendant's Reply,
Docket Entry No. 30-1, p. 12:2-16; pp. 16:15-18:7; p. 24:18-23;
pp. 34: 22-35: 9.
Williams explained that the shift times have
changed now so he does not remember when he arrived for his shift
that day, but agreed that if he was working at 7: 4 0 when the
accident occurred, he probably arrived at 7:00.
See id. at
11:24-12:16.
24
See id. at 17:22-18:7. The attorney then asked a series of
questions about whether Williams agreed that it was an unreasonably
(continued ... )
-10-
Q.
[Y]ou went by and you looked at it. Now-- and
you looked right at -- at the bunker freezer, and you
checked where the -- the immediate area where the bar was
sticking in. You did not notice the bar sticking out -A.
No.
Q.
-- that morning before she fell?
A.
No.
25
Later in his deposition, Williams testified:
Q.
[Y]ou noticed the bar being-- sticking out a little
bit after she fell.
That is the first time you noticed
it, correct?
A.
Yes.
Q.
All right. And then you immediately corrected it and
put it back in place?
A.
Yes. 26
Q.
If the bar is sticking out on the video before she
fell in exactly the same position that it was after she
fell. Obviously the bar is sticking out before she fell,
correct?
A.
Yes.
24
( • • • continued)
dangerous situation to have the bar sticking out.
Id. at
18: 8-2 0: 6.
At one point, Williams answered "because it wasn't
noticeable at the time."
Id. at 18:23.
25
Id. at 20:7-14.
Williams was then asked about Mr. Guyton,
the other employee who was in the area that day.
He stated that
non-managerial employees were also trained to inspect the store,
but "more like for stuff being on the floor.
Spills, you know,
water spills."
Id. at 20:15-21:5.
26
Id. at 26:22-27:4.
-11-
Q.
Okay. And in your inspection that morning, you did
not notice that, did you?
A.
No. 27
Later, Williams explained as follows:
Q.
. . . Earlier, you gave some testimony that when you
went to the store on the day in question, you did an
inspection of
[the]
area where the incident later
occurred, is that correct?
A.
Yes.
Q. And at the time that you inspected the area where the
incident occurred, was the bar correctly in place or
incorrectly in place?
A. When I -- when I noticed it, it was in place, because
it was in the floor.
Q. All right. And at that time and during your morning
inspection the bar was nor protruding in any way into the
walkway, is that correct?
[Plaintiff's attorney]
Objection.
Leading.
Q.
Was the bar protruding into the walkway at the time
of your inspection?
A.
No.
Not that I can notice.
Q.
And the first time -- when was the first time that
you had any knowledge that the bar in question was
positioned incorrectly or extending into the walkway?
27
See id. at 27:5-21.
Banks attempts to characterize this as
an admission that the bar was sticking out when Williams conducted
his inspection.
See Plaintiff's Response, Docket Entry No. 29,
p. 2 , 1 ("Williams agrees that if the video shows the bar sticking
out before the accident, and the bar is in the exact same position
after the accident, then he did not notice the bar sticking out in
his inspection the morning of the accident.")
-12-
A. After she -- she fell.
fall.
Q.
All right.
A.
All I
Like I say, I didn't see her
And --
saw was --
Q.
after she fell, you approached the area, is that
right?
A.
Right.
Q.
And at that time were you able to see the bar?
A.
Yes.
And, at that time,
sticking into the aisle?
Q.
A.
the
bar was
--
was
the
bar
Some.
Q.
All right.
And, at that time, the first time that
you saw the bar after the plaintiff had her incident, was
it easy to tell that the bar was protruding into the
aisle?
Objection.
[Plaintiff's attorney]
Q.
You can answer.
A.
Leading.
No.
Q. Was the bar concealed or hidden by any obstructions
at that time?
A.
No. 28
Williams
explained
that
he
was
checking
stock
in
his
department at the time of the incident, but had no recollection of
how long he had been doing so,
or what he did before that on the
28
See Williams Deposition, Exhibit A to Defendant's Reply,
Docket Entry No. 30-1, pp. 32:24-34:19.
-13-
morning of Banks'
29
fall.
He testified that
there are regular
inspections of the freezers and the rest of the store and that all
employees are responsible for the safety of the store. 30
Although
the mid-aisle freezer where Banks tripped is not part of the meat
department that Williams' manages, he stated that he would conduct
walk-through inspections of the area on a regular basis, including
when he first arrived for a shift. 31
Banks relies on the above testimony from Williams to support
her argument that "Wal-Mart should have known of an unreasonably
dangerous condition. " 32
Apparently, Banks' argument is based on an
assumption that the bar was out of place before Williams inspected
the area,
but she does not point to anything in the record to
support this assumption, and does not explain it.
impose
strict
liability
on
condition on their premises.
CMH Homes,
premises
owners
Texas refuses to
for
any
dangerous
See Reece, 81 S.W.3d at 816 (citing
15 S.W.3d at 102; Gonzalez,
968 S.W.2d at 936).
The
fact that the bar was in the same position immediately before and
after Banks' fall does not show that the bar was in that position
"long enough for the owner or occupier to have discovered it upon
reasonable inspection."
CMH Homes, 15 S. W. 3d at 102-03.
Williams'
testimony that he did not "notice" the bar equally supports the
29
See id. at 12:17-14:24.
30
See id. at 15:7-18.
31
See id. at 15:20-17:21.
32
See Plaintiff's Response, Docket Entry No. 29, pp. 1-2,
-14-
~
1.
inference that
inspection.
it was properly in place when he conducted his
See Gonzalez, 968 S.W.2d at 937 (holding that dirt in
macaroni cannot be evidence of the length of time the macaroni had
been on the floor because the evidence could "no more support the
inference that it accumulated dirt over a long period of time than
it
[could]
support the opposite inference that the macaroni had
just been dropped .
and
carts
and was quickly contaminated by customers
traversing
the
aisle") ;
see
also
Kimbell,
Inc.
v.
Roberson, 570 S.W.2d 587, 590 (Tex. Civ. App.-Tyler 1978, no writ);
Robledo
v.
Kroger
Co.,
597
S.W.2d
560,
560-61
(Tex.
Civ.
App.-Eastland 1980, writ ref'd n.r.e.); Wilson v. CBL/Parkdale Mall
GP, Civ. Action No.
App .-Beaumont May 9,
09-12-00566-CV,
2013,
no pet.)
2013 WL 1932834, at *3
(Tex.
("The custodian's statement
that the spill was not in her assigned area could mean that she was
aware of the spilled substance, but did not clean up the substance
because she was not assigned to that area.
The statement could
also give rise to the equal inference that she was unaware of the
spilled substance because she was not assigned to that area.");
Corbin, 648 S.W.2d at 296.
There is no evidence that the bar was protruding when Williams
conducted his inspection approximately 40 minutes before Banks'
fall, and Banks does not point to any evidence that would indicate
how long the bar was out of place. 33
33
In Garcia, 896 F. Supp. 2d at
Williams testified that the purpose of the bar was to keep
the lower parts of the freezers from being damaged and that carts,
(continued ... )
-15-
577, the plaintiff slipped on a clear clothes hanger on the floor
The plaintiff did not have evidence that Ross
of a Ross store.
employees placed the hanger on the floor or actually knew about it,
so the plaintiff relied on constructive notice.
court noted that
forty-five
"[a]
minutes
insufficient
to
or
show
Id. at 580.
The
dangerous condition that has existed for
less
has
been
constructive
considered
knowledge."
to
Id.
be
legally
at
580-81
(citing Threlkeld v. Total Petroleum, Inc., 211 F.3d 887, 887 (5th
Cir. 2000); Brookshire Food Stores, L.L.C. v. Allen, 93 S.W.3d 897,
900-01 (Tex. App.-Texarkana 2002, no pet.); Wal-Mart Stores, Inc.
v.
Lopez,
Civ.
Action No.
04-98-00676-CV,
App.-San Antonio 2000, no pet.); Kimbell,
2000 WL 31971
(Tex.
570 S.W.2d at 590).
A
Ross employee's deposition indicated that a number of people were
tasked with "recovery" every thirty minutes, and that she walked
through the women's clothing section thirty minutes before the
incident and did not see a hanger on the ground.
Id.
at 581.
Because the plaintiff did not provide contradictory evidence to
33
continued)
pallets, and cleaning machines could bump up against it. Williams
Deposition, Exhibit A to Defendant's Reply, Docket Entry No. 30-1,
pp. 23: 19-24: 9.
Williams agreed to the proposition that "it is
very important . . . when you first come in in the morning to look
at that bunker bar .
[because] it could have been knocked out
of place in cleaning if nothing else?" Id. at 24:18-23. However,
there is no evidence that this happened on the day of Banks' fall
or had ever happened before.
Williams testified that having the
bunker knocked out of place was not something that happened on a
regular basis and that this was the first time he had noticed it.
Id. at 25:17-23. Williams could not recall seeing anything hitting
up against the freezer in the time that he was at Wal-Mart the
morning of the incident.
Id. at 35:5-9.
( •••
-16-
indicate how long the hanger was on the ground before she fell, the
court granted Ross's motion for summary judgment.
Id. at 581-82.
See also Caballero v. Wal-Mart Stores Texas,
L.L.C.,
No. H-06-1679,
Tex. Oct.
2007 WL 2964747,
at *3
(S.D.
Civ. Action
10,
2007)
("The record is insufficient to raise a fact issue as to Wal-Mart's
Caballero testified that
constructive notice of the water.
the water was clear and transparent.
Caballero had no information
as to how the water came to be on the floor or how long it had been
there.
Caballero testified that she was in line for ten seconds
before she fell.
Although [] employees were in the area, given the
low visibility of the water and the evidence that the water had
been on the floor for at least ten seconds,
no reasonable jury
could conclude that Wal-Mart failed to exercise reasonable care by
failing to discover and clean up the water.") ; Knox v. Fiesta Mart,
Inc., Civ. Action No. 01-09-01060-CV, 2011 WL 1587362, at *6 (Tex.
App .-Houston [1st Dist.] April 21, 2011, no pet.)
("Knox presented
no evidence of how long the watermelon pallet was at the particular
location by the entrance door before Knox fell.
The plaintiff must
present some evidence of how long the hazard had existed in order
to charge the premises owner with constructive knowledge and impose
liability . .
[Thus] , we conclude that Knox failed to raise a
fact issue regarding whether Fiesta Mart had constructive knowledge
of the condition.")
(citations omitted).
The Fifth Circuit recently rejected a plaintiff's argument
that the district court erred by applying a
-17-
"hardline temporal
requirement" for evidence of constructive notice and affirmed the
district
court's
grant
F. App'x at 516-17.
of
summary
j udgrnent.
See
Murray,
626
The court noted that under Reece an employee's
proximity or a condition's conspicuity would often be "relevant" to
the analysis of how long a condition could exist before a premises
owner
should
reasonably
have
discovered
it,
but
proximity or
conspicuity on their own are insufficient to show constructive
notice.
Id.
The court held that "[plaintiff's] evidence at most
allows an inference that the liquid on the floor existed for a few
minutes.
Such a short amount of time is insufficient to
impart constructive notice on Chick-fil-A."
Id. 34
It is well established that mere proximity by employees is not
enough to raise a
fact issue on whether the premises owner had
constructive knowledge of the condition.
816 n.1
See Reece, 81 S.W.3d at
(disapproving cases to the extent they suggest proximity
alone is enough to establish constructive notice) .
The "time-
notice" rule applies even if employees are in the area and conduct
regular store inspections.
For example,
34
in Pena v.
Horne Depot
"Murray also offered the testimony of former Chick-fil-A
employees who said they check the restroorns every ten minutes
during peak hours and every ten to thirty minutes otherwise.
Murray's evidence would not enable a reasonable jury to find the
liquid on the floor had existed long enough that Chick-fil-A
employees would have discovered it in a regular restroom check.
Murray also offers no evidence that this policy was not followed in
her case.
Murray' s evidence does not support a reasonable
inference that it was more likely than not that the liquid existed
long enough that Chick-fil-A should have discovered it.
Murray,
626 F. App'x at 518.
-18-
U.S.A.,
Inc.,
32 F.
Supp.
3d 792,
800-02
(S.D.
Tex.
2013),
the
manager of Home Depot testified that it is Home Depot's policy to
have employees "'walk the aisles in the store for safety'
morning .
and throughout their day.'"
'in the
There was no written
evidence of whether or not an inspection occurred before Plaintiff
fell.
However, the court held that "[w]ithout evidence indicating
the length of time the substance had been on the floor,
or even
evidence indicating where the substance came from in order to make
a potential inference of the length of time it was on the floor,
the fact that Home Depot does not have documentation regarding the
condition of the aisle before Plaintiff fell is inconsequential."
Id. at 802.
See also Yin, 2009 WL 3753491, at *3 ("Plaintiff has
failed to present any evidence that the hazardous condition existed
for some definite length of time.
The existence of guidelines for
Wal-Mart employees for dealing with hazardous substances does not
indicate the length of [time] that a hazardous condition existed.
There
is
no
reasonable
evidence
in
opportunity
the
to
record
discover
that
and
the
Defendant
remedy
the
had a
dangerous
condition created by the slippery substance."); Wal-Mart Stores,
Inc. v. Diaz, 109 S.W.3d 584, 589
pet.) .
In
the present
case,
(Tex. App.-Fort Worth 2003, no
although
there
is
evidence
that
Williams inspected the area sometime approximately forty minutes
before Banks fell,
there is no evidence that the bar was out of
place at the time of inspection, or the amount of time the bar may
-19-
have been out of place.
The fact that employees were working in
the area does not raise a fact issue of constructive notice to WalMart, and Banks does not argue that it does.
It
is
also
well
established
that
Texas
law
requires
the
plaintiff to demonstrate some evidence of the amount of time a
condition has existed to support a constructive notice argument, or
summary judgment for the defendant is appropriate.
See Reece, 81
S. W. 3d at 815 ("The rule requiring proof that a dangerous condition
existed for some length of time before a premises owner may be
charged
with
constructive
jurisprudence.").
notice
is
firmly
rooted
in
our
Banks has presented no evidence of how the bar
came to be out of place or how long it had been out of place when
she fell.
Many courts have granted summary judgment to premises
owners when faced with a similar lack of temporal evidence.
v.
Bill
Miller
No.
03-04-00679-CV,
Enterprises,
Bar-B-O
2006 WL 1788231,
Ltd.
at *3-4
Civ.
I
(Tex.
Sova
Action
App.-Austin
June 30, 2006, no pet.); Taylor v. Good Shepherd Hospital,
Inc.,
Civ.
(Tex.
Action No.
App .-Tyler Aug.
12-04-00159-CV,
24,
2005,
2005
no pet.) ;
WL
2035836,
Hambrick v.
at
*3
Kidd Jones of
Henderson County, Civ. Action No. 12-02-00379-CV, 2003 WL 21688117,
at *5-6 (Tex. App.-Tyler July 16, 2003, pet. denied); Robinson v.
CBOCS,
Inc.,
Civ.
Action No.
(S.D. Tex. April 21,
H-14-1332,
2015); Henderson,
2015 WL 1823101,
2015 WL 970673,
at *1
at *2-4;
Adkisson v. Wal-Mart Stores Inc., Civ. Action No. SA-12-CV-893-XR,
-20-
2013 WL 5574895, at *3-4 (W.D. Tex. Oct. 9, 2013); Cook v. Jaymor
Management Group, LLC, Civ. Action No. H-12-2358, 2013 WL 2338225,
at *2 (S.D. Tex. May 24, 2013); Miller, 2013 WL 620469, at *4. 35
The only evidence showing how long the bar had been out of
place before the incident is the video footage, which shows the bar
out of place for approximately four minutes before the incident. 36
Williams testified that it was difficult to tell that the bar was
protruding after Banks' fall.
37
any authority from which the
Banks has not argued or provided
court can conclude
that Wal-Mart
should have known of the condition within that time.
Murray,
626 F. App'x at 518; Garcia,
896 F. Supp.
See, e. g.,
2d at 580
("A
dangerous condition that has existed for forty-five minutes or less
has been considered to be legally insufficient to show constructive
knowledge."
603
(citations omitted)); Sturdivant, 464 F. Supp. 2d at
(evidence that a puddle of clear water had been on the floor
for five minutes led to conclusion that as a matter of law, Target
had no reasonable opportunity to discover the water); Lopez, 2000
35
See also Thornton v. Racetrac Petroleum, Inc., Civ. Action
No. 3:13-CV-1658-P, 2014 WL 11460873, at *3 (N.D. Tex. July 31,
2014) (distinguishing Gonzalez and holding that "it is unlikely
that [an oil stain on concrete] could appear in the same quick
amount of time that dirt could appear in macaroni salad dropped on
a heavily-traveled aisle").
36
See Video Footage, Exhibit D to Motion for Summary Judgment,
Docket Entry No. 27-4.
37
See Williams Deposition, Exhibit A to Defendant's Reply,
Docket Entry No. 30-1, pp. 33:20-34:19.
-21-
WL 31971, at *1-2 (evidence that a substance had been on the floor
for five minutes or less and that employees checked the area twenty
minutes before incident and did not see anything on the floor was
insufficient to show that Wal-Mart should have known of a dangerous
condition);
Granados
v.
Wal-Mart
Stores,
Inc.,
No. 3:14-CV-3860-G, 2015 WL 4588158, at *2-4
2015)
Civ.
Action
(N.D. Tex. July 30,
(granting summary judgment where plaintiff "presented some
evidence to support the inference that the water was on the ground
for at least five minutes,
[but]
failed to demonstrate that this
was a reasonable amount of time to allow Wal-Mart to discover the
puddle"
and
evidence
of
the
puddle
Wal-Mart's
was
difficult
actual
or
to
see) .
constructive
Without
notice
some
of
the
condition, Banks cannot maintain a premises liability claim.
See
Keetch, 845 S.W.2d at 264.
III.
Conclusions and Order
Viewing the evidence submitted in the light most favorable to
Banks and drawing reasonable inferences in her favor,
concludes
that
Banks
has
failed
to
raise
a
genuine
the court
issue
of
material fact as to Wal-Mart's actual or constructive notice of the
allegedly unreasonably dangerous condition.
See Reeves, 120 S. Ct.
at 2110; Little, 37 F.3d at 1075; Celotex, 106 S. Ct. at 2552 ("The
moving party is 'entitled to a judgment as a matter of law' because
the nonmoving party has failed to make a sufficient showing on an
essential element of her case with respect to which she has the
-22-
burden of proof.").
fact as
to the
Because there is no genuine issue of material
first
element of her premises liability claim,
Wal-Mart
Stores
Texas,
LLC's
Judgment
(Docket Entry No.
27)
Traditional
is GRANTED,
Motion
for
Summary
and a final judgment
will be entered dismissing this action with prejudice.
Defendant's
Motion to Compel (Docket Entry No. 31) is DENIED as moot.
SIGNED at Houston, Texas, on this the 8th day of July, 2016.
SIM LAKE
UNITED STATES DISTRICT JUDGE
-23-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?