Hall v. Wal-Mart Stores, Inc.
Filing
15
MEMORANDUM OPINION AND ORDER granting 10 MOTION for Summary Judgment (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DOROTHY HALL,
Plaintiff,
v.
WAL-MART STORES, INC.,
Defendant.
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ENTERED
February 01, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. H-15-3523
MEMORANDUM OPINION AND ORDER
Pending before the court is Defendant, Wal-Mart Stores, Inc.'s
( "Wal-Mart")
Motion
for
(Docket Entry No. 10).
Summary
Judgment
("Defendant's
MSJ")
For the reasons stated below, the motion
will be granted.
I.
Factual and Procedural Background
This case arises from an alleged encounter between plaintiff,
Dorothy Hall,
September 1,
and an unnamed Wal-Mart employee . 1
2013;
On or about
Hall had her vehicle serviced at a Wal-Mart
store located at 10505 W. Broadway St. in Pearland, Texas.
That
evening she began receiving text messages "of a sexual nature from
an unknown number." 2
The next day Hall noticed that her vehicle
1
The facts
presented are uncontested allegations
from
Plaintiff's Original Petition ("Plaintiff's Petition") (Exhibit A
to Defendant's Notice of Removal of Action Under 28 U.S.C. § 1441
("Notice of Removal"), Docket Entry No. 1-2) or other undisputed
evidence in the record unless otherwise noted.
2
Plaintiff's Petition, Exhibit A to Notice of Removal, Docket
Entry No. 1-2, p. 3 ~ 9.
was not functioning properly and scheduled an appointment to return
to the Wal-Mart store on September 10,
2013.
During her return
visit, Hall spoke with the store manager, Raynell Durio, about the
text messages.
the
texts
September
were
10
addressed. 3
Durio investigated the matter and discovered that
sent
Durio
by
a
Wal-Mart
notified
Hall
employee.
that
the
On
situation
or
about
had
been
After the conversation with Durio, Hall became afraid
that the employee might retaliate against her.
As a result of the
incident Hall suffered from depression and sought medical treatment.
Hall filed suit against Wal-Mart on September 10, 2015, in the
80th Judicial District Court of Harris County, Texas, alleging that
Wal-Mart was liable for negligent hiring,
and retention of
its employees and for
training,
failing
alleged conduct from occurring on its premises.
removed the action to this court.
judgment
pursuant
to
Rule
56
of
supervising,
to prevent the
Wal-Mart timely
Wal-Mart now moves for summary
the
Federal
Rules
of
Civil
Procedure.
II.
Standard of Review
Summary judgment is appropriate if the movant establishes that
there is no genuine dispute about any material fact and the law
entitles it to judgment.
material
facts
are
Fed. R. Civ. P. 56(c)
"genuine"
if
3
the
evidence
Disputes about
is
such
that
a
The parties dispute whether Durio also told Hall that the
employee had been fired.
See Plaintiff's Response to Defendant's
Motion for Summary Judgment ("Plaintiff's Response") , Docket Entry
No. 13, p. 2.
-2-
reasonable jury could return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2511 (1986).
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.
Little v.
11
1069, 1075 (5th Cir. 1994)
(en bane)
Liquid Air Corp.,
37 F.3d
(quoting Celotex v. Catrett,
106 S. Ct. 2548, 2553-2554 (1986)).
If the moving party meets this
burden,
nonmovant
Rule
56(c)
requires
the
to
go
beyond
the
pleadings and show by admissible evidence that specific facts exist
over which there is a genuine issue for trial.
the evidence
Id.
In reviewing
"the court must draw all reasonable inferences in
favor of the nonmoving party,
determinations
or
weigh
the
and it may not make credibility
evidence.
II
Reeves
v.
Sanderson
Plumbing Products, Inc., 120 S. Ct. 2097, 2110 (2000).
III.
Wal-Mart
moves
for
Analysis
summary
judgment,
arguing
that
Hall's
negligence claim is barred by limitations, that her claim fails as
a
matter
of
law,
and
that
she
has
submitted
no
evidence
of
Wal-Mart's liability. 4
A.
Claims Accruing
Limitations
Before
September
101
20131
Are
Barred by
Hall's negligence claim is subject to Texas' two-year statute
of limitations.
4
Tex.
Civ.
Prac.
& Rem Code
§
16.003.
Defendant's MSJ, Docket Entry No. 10, pp. 3-5.
-3-
Wal-Mart
argues
that Hall's claim accrued on the date
messages were received, September 1, 2013
before
Hall
filed
in
state
court. 5
the alleged text
more than two years
Hall
responds
that
the
"discovery rule" applies to her claim and that her "knowledge of a
right or claim against
[Wal-Mart)
did not become apparent until
September 10, 2013, or later, due to her inability to discern the
unknown perpetrator." 6
1.
Applicable Law
"A cause of action generally accrues,
limitations begins to run,
and the
statute of
when facts come into existence that
authorize a claimant to seek a judicial remedy."
Johnson
Higgins
&
of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 514 (Tex.
1998)
(citations omitted).
"The discovery rule exception operates
to defer accrual of a cause of action until the plaintiff knows or,
by exercising reasonable diligence, should know of the facts giving
rise to the claim."
Wagner & Brown,
732, 734-35 (Tex. 2001)
Inc. v. Altai,
seeking
Inc.,
to benefit
Ltd. v. Horwood,
58 S.W.3d
(citing Computer Associates International,
918 S.W.2d 453, 455
from
the
(Tex. 1996)).
discovery rule
obtaining findings to support its application."
213 S.W.3d 306, 312 (Tex. 2006)
has
the
"A party
burden of
Barker v. Eckman,
(citing Woods v. William M. Mercer,
Inc., 769 S.W.2d 515, 518 (Tex. 1988)).
The discovery rule is "a
5
Id. at 3.
6
Plaintiff's Response, Docket Entry No. 13, pp. 3, 5.
-4-
very limited exception to statutes of limitations" used only "when
the
nature
of
the
plaintiff's
injury
is
undiscoverable and objectively verifiable."
734
both
inherently
Wagner, 58 S.W.3d at
(internal quotation marks and citations omitted) .
"Once a
claimant learns of a wrongful injury, the statute of limitations
begins to run even if the claimant does not yet know 'the specific
cause of the injury; the party responsible for it; the full extent
of it; or the chances of avoiding it.'"
Exxon Corp. v. Emerald
Oil
(Tex.
&
Gas Co., L.C.,
348 S.W.3d 194,
207
2011)
(citations
omitted) .
2.
Application of the Law to the Facts
To the extent that Hall's claim arises out of the actions that
occurred on September 1, 2013, they are barred by the statute of
limitations.
In response to Wal-Mart's arguments, Hall responds
that she "could not have known of the wrongful act and resulting
injury perpetrated by Defendant"
source of the text messages. 7
because she did not know the
Hall contends that her "knowledge of
a right or claim against Defendant did not become apparent until
September 10, 2013, or later, due to her inability to discern the
unknown perpetrator." 8
Hall mischaracterizes the discovery rule.
that her injury was
7
Id. at 4.
8
inherently undiscoverable,
Id. at 5.
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Far from alleging
Hall explicitly
alleges that she began receiving texts of a "sexual nature" on the
evening of September 1, 2013. 9
Hall does not allege that she did
not know of the text messages or their nature, only that she did
not know who sent them. 10
But ignorance of the identity of the
party responsible for an injury does not affect the running of the
limitations period.
Hall cites no authority,
and the court can
find none, for the proposition that the discovery rule applies due
to Hall's lack of knowledge as to the details of the texts she
received on September 1, 2013.
B.
Hall Cannot
Actions
Sustain
a
Negligence
Claim
Based
on
Durio's
Hall argues in her Response that her negligence claim does not
rest
solely on Wal-Mart' s
liability for
employee who sent the text messages. 11
subsequent
firing
of
the
employee
the misconduct of
the
She alleges that Durio's
and
accompanying
warning
"presented a frightening situation for Plaintiff, aware that her
information was
in the hands of a
nefarious
individual with a
motive to seek retribution against Plaintiff. " 12
The resultant
emotional and mental effects are the only injury alleged by Hall
resulting from Durio's actions.
For the reasons stated below, the
9
Plaintiff's Petition, Exhibit A to Notice of Removal, Docket
Entry No. 1-2, p. 3 ~ 9.
10
Plaintiff's Response, Docket Entry No. 13, p. 4.
11
Id.
-6-
court concludes that Hall cannot sustain a negligence claim based
only on Durio's actions on or after September 10, 2013.
1.
Applicable Law
"A negligence finding requires a duty,
proximately caused by that breach."
246, 248 (Tex. 2012)
Inc.,
907
breach,
Wansey v.
and damages
Hole,
379 S.W.3d
(citing Doe v. Boys Clubs of Greater Dallas,
S.W.2d 472,
477
(Tex.
1995)).
Texas
courts do not
recognize an independent right to recover for negligently inflicted
emotional distress.
1993).
Boyles v. Kerr, 855 S.W.2d 593, 595-97 (Tex.
Whether negligently inflicted anguish may be recoverable
when the
defendant
violates
some
other duty
to
the
plaintiff
depends on both the nature of the duty breached and the proof
offered by the plaintiff.
494
(Tex.
1997)
City of Tyler v. Likes, 962 S.W.2d 489,
(citing Boyles,
855 S.W.2d at 598).
breaches of legal duties, even tortious ones,
right to recover for resulting mental anguish."
"For many
the law affords no
Id.
Moreover, it
has been established Texas law "for over a century that ' [a] person
who is placed in peril by the negligence of another,
but who
escapes without injury, may not recover damages simply because he
has been placed in a perilous position.
subject
of
damages.'"
Id.
at
500
Nor is mere fright the
(quoting
Gulf,
Santa Fe Railway Company v. Trott, 25 S.W. 419, 420
accord Restatement (Second) of Torts
defendant's
negligence
causes
a
-7-
§
436A (1965)).
mental
Colorado
&
(Tex. 1894);
But "when the
shock which produces
a
serious bodily injury,
the defendant is liable for that injury
provided it was foreseeable."
symptoms
Id. at 495-96.
"[M]inor physical
such as difficulty sleeping, are not serious bodily
injuries that can form the basis for recovering mental anguish
damages."
2.
Hall
Id. at 496.
Application of the Law to the Facts
alleges
in
her
Petition
that
she
"suffered
bodily
injuries" and that her injuries "have had serious effects" on her
"health and well-being." 13
However,
this non-specific allegation
is contradicted by the summary judgment evidence.
she did not
see a
doctor. 14
Hall admits that
Hall's counseling records do not
indicate that bodily injuries or other medical concerns were ever
addressed in therapy. 15
sessions
allegedly
The fact that her therapy and counseling
"mitigated
the
severity
of
physical
manifestations by dealing with the underlying emotional injury" 16
does not alter the court's analysis.
If Hall in fact suffered
minor physical symptoms too insignificant to prompt discussion with
13
Plaintiff's Petition, Docket Entry No. 1-2, p. 6.
14
0ral and Videotaped Deposition of Dorothy Hall, Exhibit A to
Defendant's MSJ, Docket Entry No. 10-1, p. 16:25 - p. 17:1 {"Q: You
haven't been to a doctor? A: No, sir.").
15
See Progress Notes, Exhibit B to Defendant's MSJ, Docket
Entry No. 10-2, pp. 3-7 (under heading titled "Issues Addressed"
the box for "Health/Medical Concerns" is unchecked on every
report).
16
Plaintiff's Response, Docket Entry No. 13, p. 5.
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her therapist, much less a visit to a physician,
those symptoms
could not form the basis for recovering mental anguish damages.
At
any rate, Hall's nonspecific allegations fail to meet her summary
judgment burden to respond to Wal-Mart' s motion by showing specific
facts exist over which there is a genuine issue for trial.
The only alleged consequence of Durio's actions on or after
September 10,
situation.
2013,
is
that Hall
was
placed in a
frightening
The evidence before the court indicates that Hall's
only damages
from that date
forward were mental or emotional.
Moreover, Hall does not argue that any duty allegedly breached by
Wal-Mart
or
its
employee,
Durio,
was
one
for
affords a right to recover for mental anguish.
which Texas
law
Even drawing all
reasonable inferences in favor of Hall and assuming that Durio's
actions
placed Hall
in peril,
the
fact
that Hall
suffered no
compensable damages leaves her without a viable claim.
Summary
judgment will therefore be granted in favor of Wal-Mart as to the
portion of Hall's claim not barred by limitations.
IV.
Conclusions and Order
Because the court concludes that plaintiff lacks a viable
cause of action,
the court does not reach defendant's arguments
regarding evidence of liability.
For the reasons explained above,
the court concludes that there is no genuine issue of material fact
that would permit a reasonable jury to find in favor of plaintiff.
Defendant,
Wal-Mart Stores,
Inc. 's Motion for Summary Judgment
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(Docket Entry No. 10) is therefore GRANTED, 17 and this action will
be dismissed with prejudice.
SIGNED at Houston, Texas, on this 1st day of February, 2017.
LAKE
UNITED STATES DISTRICT JUDGE
17
Because Hall has had ample opportunity to present evidence
of her injuries and the court has given her the benefit of the
doubt in liberally construing her claims, the court concurrently
DENIES Hall's perfunctory request to amend (See Plaintiff's
Response, Docket Entry No. 13, p. 7.).
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