Latham v. Wal-Mart Stores Texas, L.L.C.
MEMORANDUM OPINION AND ORDER Granting in Part and Denying in Part 17 MOTION for Summary Judgment Granting 18 Request for a continuance.(Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
WAL-MART STORES TEXAS, L.L.C.,
July 06, 2017
David J. Bradley, Clerk
CIVIL ACTION H-16-2821
MEMORANDUM OPINION & ORDER
Pending before the court is defendant Wal-Mart Stores Texas, L.L.C.’s (“Wal-Mart”) motion
for summary judgment (Dkt. 17) and Plaintiff Saundra Latham’s motion for continuance of summary
judgment (Dkt. 18). Having considered the motions, record evidence, and applicable law, the court
is of the opinion that Wal-Mart’s motion should be GRANTED IN PART AND DENIED IN PART.
Latham’s motion should be GRANTED.
Latham brings this action against defendant Wal-Mart Stores Texas, L.L.C. (“Wal-Mart”),
alleging gross negligence and premises liability. Dkt. 1-2. Latham claims that on June 15, 2016, she
slipped in a “transparent liquid that appeared to be water” on the floor inside a Wal-Mart store
located at 2700 S. Kirkwood Rd., Houston, Texas 77077. Dkt. 18. Latham contends that after she
fell, she noticed the puddle looked “like a glaze” or “a thin sheet.” Id. This suggested to her the
puddle had been there “for some time.” Id. Latham asserts that as a result of the fall, she fractured
her patella and suffered injuries to other parts of her body. Dkt. 1-2.
Latham’s spouse, Christopher Starks, was with Latham at the time of her fall. Dkt. 18-2.
Starks also saw the puddle, but only after Latham’s fall. Id. He describes the liquid as “thin to the
floor like it had been sitting.” Id. at 6. Both Latham and Starks claim they passed a Wal-Mart
associate exiting the aisle of the incident shortly before Latham’s fall. Id. at 12; Dkt. 18-1 at 10.
Latham alleges her husband and three Wal-Mart managers attended to her after her fall. Dkt. 18-1
at 9. According to Latham, the managers had Latham fill out a form, took pictures of the scene, and
wiped up the spill. Id.
On August 19, 2016, Latham filed this lawsuit against Wal-Mart. Dkt. 1-2. Latham alleges
that Wal-Mart is liable for gross negligence and premises liability. Id. Latham claims that as a result
of the incident she sustained substantial injuries and is entitled to loss of past and future earnings,
medical expenses, pain and mental anguish, and other damages. Dkt. 1-2. Latham seeks all legally
recoverable damages, including pre- and post-judgment interest, as a result of these injuries. Id. at 6.
Wal-Mart removed the lawsuit to this court based on diversity jurisdiction. Dkt. 8. On April
19, 2017, the court granted an agreed motion to amend that extended the discovery deadline to
August 14, 2017. Dkt. 16. On April 28, 2017, Wal-Mart moved for summary judgment. Dkt. 17.
On May 18, 2017, Latham filed a response to the motion for summary judgment, in which she
requested a continuance for further discovery. Dkt. 18. The motion for summary judgment and
Latham’s request for a continuance are now ripe for disposition.
II. LEGAL STANDARD
A court shall grant summary judgment when a “movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). “[A] fact is genuinely in dispute only if a reasonable jury could return a verdict for
the non-moving party.” Fordoche, Inc. v. Texaco, Inc., 463 F.3d 388, 392 (5th Cir. 2006). The
moving party bears the initial burden of demonstrating the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548 (1986). If the moving party meets
its burden, the burden shifts to the non-moving party to set forth specific facts showing a genuine
issue for trial. Fed. R. Civ. P. 56(e). The court must view the evidence in the light most favorable
to the non-movant and draw all justifiable inferences in favor of the non-movant.
Conservation Org. v. City of Dall., Tex., 529 F.3d 519, 524 (5th Cir. 2008).
Wal-Mart seeks summary judgment on all of Latham’s claims, asserting that Latham lacks
sufficient evidence to demonstrate genuine issues of material fact. Dkt. 17. Latham responded to
this argument and also requested a continuance for further discovery. Dkt. 18. The court will first
discuss whether Wal-Mart is entitled to summary judgment under the current record. The court will
then address Latham’s request for a continuance.
Latham acknowledges in her response to Wal-Mart’s motion for summary judgment that
there is no evidence to support a finding of gross negligence and agrees to amend her complaint to
drop this claim. Dkt-18. Accordingly, the court GRANTS Wal-Mart’s motion for summary
judgment on Latham’s gross negligence claim.
Latham raises a premises liability claim under Texas law. Dkt. 1-2. Because Latham was in
the Wal-Mart store to buy goods with Wal-Mart’s permission, Texas law defines Latham as an
invitee. See Rosas v Buddie’s Food Store, 518 S.W.2d 534, 536 (Tex. 1975). Wal-Mart owes
invitees “a duty to exercise reasonable care to protect [them] from dangerous conditions in the store
known or discoverable to it.” Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998).
To recover damages on a premises liability claim, an invitee plaintiff must prove four elements:
Actual or constructive knowledge of some condition on the premises by the
That the condition posed an unreasonable risk of harm;
That the owner/operator did not exercise reasonable care to reduce or eliminate the
That the owner/operator’s failure to use such care proximately caused the plaintiff’s
Granados v. Wal-Mart Stores, Inc., 653 F.App’x. 366, 367 (5th Cir. 2016) (citing Gonzalez, 968
S.W.2d at 936). Wal-Mart moves for summary judgment on the premises liability claim, asserting
that Latham has not established the knowledge element. Dkt. 17. A slip-and-fall plaintiff can satisfy
the knowledge element of a premises liability claim in three ways. The plaintiff can prove that the
Put the foreign substance on the floor; or
Knew that the foreign substance was on the floor and negligently failed to remove it;
That the foreign substance was on the floor so long that it should have been
discovered and removed in the exercise of ordinary care.
Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992). The first two ways of proving a defendant’s
knowledge address actual knowledge. Id. The third way requires the plaintiff to demonstrate the
defendant’s constructive knowledge. Id.
1. Actual Knowledge
Wal-Mart asserts that Latham has provided no evidence that Wal-Mart actually knew of the
substance on the floor prior to Latham’s fall. Dkt. 17. Latham does not challenge this claim in her
response to Wal-Mart’s motion for summary judgment. Dkt. 18. Because Latham has not produced
any evidence that Wal-Mart had actual knowledge of the dangerous condition at the time of her
injury, her claim must rely on showing Wal-Mart had constructive knowledge of the hazard.
2. Constructive Knowledge
When determining whether a defendant had constructive knowledge of a hazardous
condition, the court must consider evidence of (1) longevity, (2) proximity, and (3) conspicuousness.
Pena v. Home Depot U.S.A., Inc., 32 F. Supp. 3d 792, 798 (S.D. Tex. 2013) (Hanen, J.) (applying
Texas law). To demonstrate constructive knowledge, the plaintiff has to show that it is more likely
than not that the substance was present on the floor long enough to give Wal-Mart a reasonable
opportunity to discover and remove the substance in the exercise of ordinary care. Keetch, 845
S.W.2d at 265.
To determine whether a defendant had a reasonable opportunity to discover and remove a
substance, courts use the time-notice rule. Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 816 (Tex.
2002). The time-notice rule states that temporal evidence is the best indicator for whether a premises
owner had a reasonable opportunity to discover and remove a dangerous condition. Id.
Temporal evidence demonstrates a hazardous condition existed for some definite length of
time before an incident occurred. See Yin v. Wal-Mart Stores Tex., LP, No. B–09–26, 2009 WL
3753491 (S.D. Tex. Nov. 6, 2009) (Tagle, J.) (applying Texas law). Without temporal evidence,
there is no basis upon which the fact finder can reasonably assess the liability of the premises owner
for failing to discover and remedy a dangerous condition. Reece, 81 S.W.3d at 816. The wellestablished rule is that a plaintiff’s opinion as to the length of time the dangerous condition existed
amounts to nothing more than conjecture. See id.
Similarly, mere proximity of an employee, without proof of how long a substance was on the
floor, is insufficient to support constructive notice. See id. Employee proximity merely indicates
that it was possible for the premises owner to discover the condition, not that the premises owner
reasonably should have discovered it. Id. The Texas Supreme Court has recognized that the
constructive knowledge standard is harsh and demanding on plaintiffs. Gonzalez, 968 S.W.2d at
Latham claims the puddle had been there for a while because of its glaze-like appearance.
See Dkt. 18-1 at 12. The plaintiff’s husband also testified the puddled substance was thin, which
suggested to him the puddle had been there an extended length of time. Dkt. 18-2 at 6. Wal-Mart
argues that the plaintiff’s subjective belief has no evidentiary value. Dkt. 17. Wal-Mart is correct.
Texas courts have determined a plaintiff’s opinion about the length of time a substance has been on
the floor is not sufficient temporal evidence. See Gonzalez, 968 S.W.2d at 938; Kimbell, Inc. v.
Roberson, 570 S.W.2d 587, 590 (Tex. Civ. App.—Tyler 1978, no writ).
Latham’s claim that a Wal-Mart employee was near the substance before the incident
occurred also does not add any substantive support to overcome her lack of temporal evidence. See
Del Toro v. Pay & Save, Inc., 444 S.W.3d 293, 297 (Tex. App.—El Paso 2014, pet denied). In Del
Toro, the court held that neither an employee “within mere feet of a puddle” nor six different
employees “within the [puddle’s] direct vicinity” were enough to satisfy the constructive-notice
requirement. Id. Like the plaintiff’s claims in Del Toro, Latham’s claim of a Wal-Mart employee
near the puddle before the incident is insufficient to prove constructive notice because Latham still
lacks temporal evidence that would give import to the associate’s proximity.
The facts of Latham’s case are distinguishable from the facts of Texas cases in which courts
have held that there was sufficient evidence of constructive knowledge. See, e.g, H. E. Butt Grocery
Co. v. Hawkins, 594 S.W.2d 187, 189 (Tex. App.—Corpus Christi 1980, no writ); J. Weingarten,
Inc. v. Tripplett, 530 S.W.2d 653, 654 (Tex. App.—Beaumont 1975, writ ref’d n.r.e.). In H. E. Butt
Grocery Co., the court held the defendant had constructive knowledge in a slip-and-fall case because
the defendant knew that puddles of water accumulated on the premises on rainy days. 594 S.W.2d
at 189. Latham has produced no similar circumstantial evidence of Wal-Mart’s constructive
The plaintiff in J. Weingarten, Inc. produced a “water evaporation specialist,” who testified
that a foreign substance the plaintiff slipped on was on the floor for 28.8 minutes. 530 S.W.2d at
654. The court held the expert’s testimony was sufficient temporal evidence to raise a fact issue as
to the defendant’s constructive knowledge. Id. Because neither Latham nor her husband are experts
on puddles, their testimony does not carry the same weight as the expert’s opinion in J. Weingarten,
Inc. At this point in time, Latham has failed to produce any evidence establishing Wal-Mart’s
constructive knowledge of the dangerous condition as a matter of law.
Rule 56(d) Motion
Latham moves for a continuance under Federal Rule of Civil Procedure 56(d). Dkt 18. Rule
56 requires the court to grant summary judgment, “after adequate time for discovery, and upon
motion, against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and which that party will bear the burden of proof at trial.”
Celotex, 477 U.S. at 322. When facts are unavailable to the nonmovant, the nonmovant can submit
an affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its
opposition to the motion for summary judgment. Fed. R. Civ. P. 56(d).
Rule 56 does not define an adequate time for discovery, but Rule 56(d) supports continuance
of a motion for summary judgment for purposes of discovery almost as a matter of course, unless
the non-moving party has not diligently pursued discovery. Wichita Falls Off. Assocs. v. Banc One
Corp., 978 F.2d 915, 918 (5th Cir. 1992). The law broadly favors motions for continuance of
summary judgment to conduct additional discovery, and judges should liberally grant these motions
to safeguard non-moving parties from summary judgment motions that they cannot adequately
oppose. Am. Fam. Life Assur. Co. of Columbus v. Biles, 714 F.3d 887, 894 (5th Cir. 2013) (per
General requirements that the nonmovant must establish to receive continuance for discovery
purposes are: requesting extended discovery prior to the court’s ruling on summary judgment;
putting the trial court on notice that the party is seeking further discovery pertinent to the summary
judgment motion; and demonstrating to the trial court specifically how the requested discovery
pertains to the pending motion. Wichita Falls, 978 F.2d at 918. Non-moving parties requesting
continuance of summary judgment may not simply rely on vague assertions that additional discovery
will produce needed, but unspecified facts. Am. Fam. Life, 714 F.3d at 894. The party seeking
additional time must set forth a plausible basis for believing that specified facts, susceptible of
collection within a reasonable time frame, probably exist. Id. Further, the party must indicate how
the emergent facts will influence the outcome of the pending summary judgment motion. Id.
On April 12, 2017, both parties submitted an agreed motion to amend to extend the discovery
deadline to August 14, 2017. Dkt. 13. The court granted this amended discovery deadline on April
19, 2017. Dkt. 16. Wal-Mart then submitted its no-evidence motion for summary judgment on April
28, 2017. Dkt. 17. Latham responded to Wal-Mart’s motion on May 18, 2017. Dkt. 18. Latham
contends that she has not had enough time to pursue discovery, and the deadline for discovery has
not passed. Id. Latham specifically mentions that she has not had adequate time to take a deposition
of the alleged employee in the area before the incident occurred. Id. Additionally, Latham claims
that the video footage of the incident she received from Wal-Mart is corrupted and unusable. Id.
Latham has put the court on notice that she requires more discovery to adequately oppose
Wal-Mart’s motion for summary judgment. She has cited two specific sources of information that
could play a vital role in demonstrating Wal-Mart’s constructive or actual knowledge of the puddled
substance. The deposition or video footage may provide Latham with adequate evidence to
overcome the summary judgment motion. Because Latham has not had adequate time to conduct
discovery, and has complied with the necessities of rule 56(d), the court GRANTS Latham’s Rule
Wal-Mart’s motion for summary judgment (Dkt. 17) is GRANTED IN PART AND DENIED
IN PART. It is GRANTED with respect to Latham’s gross negligence claim, which is DISMISSED
WITH PREJUDICE. It is DENIED WITHOUT PREJUDICE with respect to Latham’s premises
liability claim. Latham’s request for a continuance (Dkt. 18) is GRANTED; the court will consider
no further motions for summary judgment until the close of discovery.
Signed at Houston, Texas on July 6, 2017.
Gray H. Miller
United States District Judge
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