Henningan v. Schindler Elevator Corporation et al

Filing 80

MEMORANDUM AND ORDER granting 32 MOTION for Summary Judgment Dismissing Plaintiff's Claims (Signed by Judge Keith P Ellison) Parties notified. (aar4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
UFALLER HENNINGAN,

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Plaintiff,
VS.
SCHINDLER ELEVATOR
CORPORATION, et al.,
Defendants.

September 25, 2024
Nathan Ochsner, Clerk

CIVIL ACTION NO. 4:23-CV-00366

MEMORANDUM & ORDER
This is a premises liability case resulting from Plaintiff Ufaller Henningan’s injury in an
elevator maintained by Defendant Schindler Elevator Corporation (“Schindler”). Before the Court
is Schindler’s Motion for Summary Judgment. ECF No. 32. For the reasons that follow, the Court
finds that the Motion should be GRANTED.
I.

BACKGROUND
On May 3, 2021, Plaintiff Ufaller Henningan was delivering packages at the Nordstrom in

the Galleria Mall. ECF No. 1-1 at ¶ 9. She was taking East Elevator 4 to the first floor when the
power went out. The elevator then dropped approximately two floors before it stopped between
the first and second floors, injuring Henningan. Id. The parties agree that the power outage
triggered the incident.
Henningan subsequently brought the present premises liability case against Schindler as
well as Simon Property Group and HG Galleria in Texas state court. ECF No. 1-1. Defendant
Schindler removed the suit to this Court. ECF No. 1. The claims against Simon Property Group

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and HG Galleria were dismissed on January 4, 2024, after the parties submitted an Agreed Motion
to Dismiss. ECF No. 43.
Schindler, the only remaining defendant, moved for summary judgment in October 2024.
ECF No. 32. Henningan moved for a continuance of its response deadline in order to obtain
additional summary judgment evidence through discovery. ECF No. 33. The Court granted the
continuance. Minute Entry 10/30/2023. The Court also granted a subsequent unopposed
continuance so that Henningan could continue to gather summary judgment evidence. ECF No.
53. Henningan now responded to the pending Motion, ECF No. 67, and Schindler replied, ECF
No. 68.
Henningan then filed a supplemental response to the pending Motion requesting that the
Court continue its consideration of the Motion until the parties could depose Plaintiff’s expert
witness. ECF No. 72. Defendant agreed to the brief continuance, and the Court granted the
continuance and allowed the parties to submit supplemental briefing on the impact of the
deposition on the pending Motion. ECF No. 73, 74. The parties conducted the deposition on
September 4, 2024 and filed supplemental briefing. ECF No. 77, 79. Defendant’s Motion for
Summary Judgment is now ripe for consideration.
II.

SUMMARY JUDGMENT STANDARD
Summary judgment under Rule 56 “is proper ‘if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law.’” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). A
genuine issue as to a material fact arises “if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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The Court must draw all “reasonable inferences . . . in favor of the nonmoving party, but the
nonmoving party ‘cannot defeat summary judgment with conclusory allegations, unsubstantiated
assertions, or only a scintilla of evidence.’” Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)
(quoting Turner v. Baylor Richardson Medical Center, 476 F.3d 337, 343 (5th Cir. 2007)).
“[T]he movant bears the initial responsibility of demonstrating the absence of a genuine
issue of material fact with respect to those issues on which the movant bears the burden of proof
at trial.” Transamerica Ins. Co. v. Avenell, 66 F.3d 715, 718 (5th Cir. 1995). “For any matter on
which the non-movant would bear the burden of proof at trial, however, the movant may merely
point to the absence of evidence and thereby shift to the non-movant the burden of demonstrating
by competent summary judgment proof that there is an issue of material fact warranting trial.” Id.
at 718-19.
III.

ANALYSIS
Henningan brings a premises liability claim in which she asserts she was an invitee. For an

invitee to prevail on such a claim, they must prove “(1) a condition of the premises created an
unreasonable risk of harm to the invitee; (2) the owner knew or reasonably should have known of
the condition; (3) the owner failed to exercise ordinary care to protect the invitee from danger; and
(4) the owner's failure was a proximate cause of injury to the invitee.” Fort Brown Villas III Condo.
Ass'n, Inc. v. Gillenwater, 285 S.W.3d 879, 883 (Tex. 2009); State Dep't of Highways & Pub.
Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992) (same).
Schindler moves for summary judgment on two grounds: (1) Henningan cannot show that
any action or inaction of Schindler’s was a proximate cause of her injuries and (2) Henningan
cannot show that Schindler had a duty to make the premises safe or a duty to warn. ECF No. 32 at
10. Schindler also objects to Henningan’s expert report as inadmissible hearsay. ECF No. 68 at 3.

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a. Proximate Cause
To prevail, Henningan must show that Schindler engaged in an act or omission that was
the proximate cause of her injuries. “Breach of a duty proximately causes an injury if the breach
is a cause in fact of the harm and the injury was foreseeable.” Stanfield v. Neubaum, 494 S.W.3d
90, 97 (Tex. 2016). “Cause in fact requires ‘proof that (1) the negligent act or omission was a
substantial factor in bringing about the harm at issue, and (2) absent the negligent act or omission
(‘but for’ the act or omission), the harm would not have occurred.’” Id. (quoting Akin, Gump,
Strauss, Hauer & Feld, L.L.P. v. Nat'l Dev. & Rsch. Corp., 299 S.W.3d 106, 122 (Tex. 2009)).
“Conjecture, guess, and speculation are insufficient to prove cause in fact and foreseeability.” Id.
Henningan carries the burden of proof on causation. Id.; Fort Brown, 285 S.W.3d at 883.
The parties agree that the power outage caused the elevator to fall. ECF No. 32 at 6, No.
67 at 5-6. However, Henningan contends that “[t]he power outage was simply the catalyst that
ignited the hazardous condition that was East Elevator 4 and its improper maintenance.” ECF No.
67 at 11.
Unfortunately, Henningan fails to put forth a cogent theory for how any specific act or
omission of Schindler’s caused the elevator to fall after the power outage. Although she gestures
broadly to alleged inadequate maintenance, her briefing does not identify any specific way in
which Schindler failed to properly maintain the elevator or how such maintenance failures caused
this incident.
Henningan primarily relies on her expert, Joseph Stabler, to prove causation. However,
Stabler’s report likewise fails to put forth any specific theory that a reasonable jury could find
satisfies Henningan’s burden to prove causation. Stabler notes that in the year leading up to the
power outage, the elevator had five “Control Battery Charge Time Expired events” and four

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“Overtemp Motor events.” ECF No. 72-1 at 5. He states that Schindler failed to conduct any root
cause analysis of these issues after receiving notice of them. Id. at 11. However, he fails to provide
any explanation for how these failures could relate to the elevator falling on the date of the incident.
Looking first at the control battery errors, Stabler’s report indicates that a “Control Battery
Charge Time Expired” error message refers to a battery inside the controller that is constantly
being recharged so that if power is lost it will keep an “SMLCD screen” energized. ECF No. 72-1
at 6. It appears that the SMLCD screen allows one to look at error logs for the purpose of
troubleshooting issues with the elevator. Id. Thus, it seems that this battery’s only purpose is to
power a screen system that would allow a technician to troubleshoot issues with the elevator.
As for the “Overtemp Motor” error message, Stabler’s report does not indicate what this
message means or how it is in any way related to the incident. Based on other evidence in the
record, it appears this message indicates that the elevator’s motor was too hot and shut down. ECF
No. 67-1, Galer Dep. 64:19-24.
While Stabler claims that Schindler should have performed maintenance on the elevator
after it was notified of these errors, neither Stabler’s report nor any other evidence identified by
Henningan indicates how these errors could have possibly caused the incident. In fact, the elevator
components at issue appear to be wholly unrelated to any mechanism in the elevator that would
have prevented it from falling or that would stopped the fall more quickly after the power went
out. There is no evidence in the record that the control battery failed during the power outage or
that it powers anything besides a screen in the elevator that can be used to troubleshoot other
mechanical failures. Henningan even admitted in the deposition that the control battery did not
cause the elevator to stop. ECF No. 79-1, Stabler Dep. at 44:15-19, 45:1-4. The same is true for
the motor, as nothing in the record indicates it was overheated during the incident or that such

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overheating could have contributed to the incident. Id. at 49:6-11 (admitting there is no record of
an overtemp motor event on May 3, 2021). In sum, Henningan fails to proffer any theory for how
lack of maintenance of these two components could have led to the elevator falling after the power
outage.
Nor do the many conclusory opinions contained in Stabler’s report and deposition suffice
to save Henningan’s claim. Stabler states that “the incident in which Plaintiff, Ufaller Henningan
was injured would not normally occur absent the failure of those persons responsible to care for,
examine, adjust, maintain, repair, service and troubleshoot the elevator to ensure proper operating
conditions.” ECF No. 72-1 at 23. He also states, “failure to maintain, service and repair the elevator
in accordance with the aforementioned maintenance agreement, adopted codes, laws and
standards, may cause or contribute to abnormal movements of the elevator including rapid
acceleration and deceleration rates and abrupt stops, as mentioned herein.” Id. at 22. Stabler
reiterated this analysis at his deposition and stated that, in the absence of proper maintenance, an
elevator can experience unusual issues during a power outage. ECF No. 79-1, Stabler Dep. at 16:710. Stabler went on to describe some of the elevator mechanisms that can malfunction during a
power outage, such as control components and operating systems. Id. at 16:17-17:7. Noticeably
absent from Stabler’s findings is any conclusion as to what specific maintenance failures could
have caused this incident. As Hennigan has not provided any evidence that Schindler failed to
maintain a component of the elevator that could have led to the May 3, 2021 incident, there is
insufficient evidence for a reasonable jury to find she has met her burden of proving causation.
Because summary judgment is appropriate on these grounds, the Court need not reach Schindler’s
remaining arguments.

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IV.

CONCLUSION
For the foregoing reasons, Schindler’s Motion for Summary Judgment is GRANTED.

Henningan’s premises liability claim against Schindler is DISMISSED.
IT IS SO ORDERED.
SIGNED at Houston, Texas on this the 25th day of September, 2024.

_______________________________
Keith P. Ellison
United States District Judge

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