Mouton v. Wal-Mart Stores Texas, LLC

Filing 33

MEMORANDUM AND ORDER granting Defendant's Motion for Summary Judgment. ECF No. 26. Plaintiffs claims are DISMISSED WITH PREJUDICE. (Signed by Judge Keith P Ellison) Parties notified. (dm4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BIANCA MOUTON,
Plaintiff,
vs.
WAL-MART STORES TEXAS, LLC,
Defendant.

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August 30, 2024
Nathan Ochsner, Clerk

CIVIL ACTION NO. 4:23-CV-1785

MEMORANDUM & ORDER
This is a slip-and-fall case brought by Plaintiff Bianca Mouton against Defendant WalMart Stores Texas, LLC (“Walmart”). Before the Court is Defendant Walmart's Motion for
Summary Judgment. ECF No. 26. For the reasons that follow, the Court finds that the Motion for
Summary Judgment should be GRANTED.
I.

BACKGROUND
On August 6, 2021, Plaintiff was shopping at Walmart. ECF No. 1-2 at ¶ 5. Plaintiff was

walking down the grocery action alley, one of the store’s main aisles, when she slipped on an
unknown liquid substance. ECF No. 26-2, 25:10-20. As she fell, her left hand, hip, knee, and leg
contacted the ground. Id. at 26:9-27:8. Plaintiff was seven months pregnant at the time, but her
stomach did not hit the ground. Id. Plaintiff alleged that she suffered “significant and extensive
injuries” from the fall. ECF No. 1-2 at ¶ 8.
Plaintiff filed suit against Defendant Walmart in Texas state court, asserting claims for
premises liability and negligence related to her fall and seeking over $1,000,000 in damages and
other monetary relief. ECF No. 1-2 at ¶¶ 9-17, 26. Defendant removed the suit to this Court on

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May 15, 2023. ECF No. 1. Discovery closed on May 31, 2024. ECF No. 25. Defendant filed a
Motion for Summary Judgment on July 1, 2024. ECF No. 26. Plaintiff responded to the motion,
ECF No. 29, and Defendant replied to Plaintiff’s response, ECF No. 31.
On August 20, 2024, this Court held a motion hearing on Defendant’s Motion for Summary
Judgment. At the hearing, the Court granted summary judgment for Defendant on Plaintiff’s
negligence claim and took the remaining issues under advisement. ECF No. 33.
II.

LEGAL 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).
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.

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at 718–19.
III.

ANALYSIS
Plaintiff’s Complaint asserts that Defendant is liable under the theory of premises liability

because she was an invitee in the Walmart store. ECF No. 1-2 at ¶ 10. To recover on a premises
liability claim, Plaintiff must prove (1) that the defendant had actual or constructive knowledge of
some condition on the premises; (2) that the condition posed an unreasonable risk of harm to the
plaintiff; (3) that the defendant did not exercise reasonable care to reduce or eliminate the risk; and
(4) that the defendant's failure to use such care proximately caused the plaintiff's personal injuries.
United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 471 (Tex. 2017).
Only the first element, Defendant’s actual or constructive knowledge, is in dispute on
summary judgment. Defendant argues that Plaintiff cannot provide evidence showing that it had
actual or constructive notice of a dangerous condition on the premises.
A slip-and-fall plaintiff satisfies the notice element of a premises liability claim by
establishing that “(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). “To prove any of these three propositions, plaintiffs
may rely upon either direct or circumstantial evidence.” Garcia v. Wal-Mart Stores Texas, L.L.C.,
893 F.3d 278, 279 (5th Cir. 2018) (cleaned up). While the elements of a claim can be proven using
circumstantial evidence, Plaintiff must show that the “circumstantial evidence is sufficiently nonspeculative to create a fact issue.” Garcia, 893 F.3d at 281.
Plaintiff contends that the circumstantial evidence supports her claim that a Walmart
employee either had actual knowledge of the condition because the employee put the substance on

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the floor or had constructive knowledge of the condition because the employee negligently failed
to eliminate the condition while working in the area. However, there is little to no evidence of how
or when the substance got on the floor. In support of her argument, Plaintiff offers the following
evidence: (i) surveillance video shows two Walmart stock carts and a dolly being pushed through
the area where Plaintiff slipped and fell within 10 minutes of her fall; (ii) surveillance video does
not appear to show any of the customers who walked through the area before her fall spilling
anything, (iii) photographs (taken after her fall) show two streaks in the substance that arguably
could be from dolly wheels. ECF No. 29 at ¶ ¶ 9-17. In addition, Plaintiff points to evidence in the
surveillance video and deposition of Walmart manager Abdelhadi Al-Hatabeh that no one from
Walmart checked if the carts were leaking before or after the fall. ECF No. 29 at ¶ 12; ECF No.
29-2 at 27:13-32:13-15.
While the circumstantial evidence demonstrates the lack of information about the
substance, it does not bolster Plaintiff’s version of the events or establish Walmart’s notice.
Plaintiff has not presented any evidence that Walmart was the source of the substance on the floor
or had actual knowledge of the substance. In her deposition, Plaintiff testified that she did not
know how the liquid substance on which she slipped came to be on the floor. ECF No. 26-2 at
29:3–5. She also testified that she did not see anybody—customer or Walmart employee—spill
anything. Id. at 29:16–18. The surveillance footage also does not show any Walmart employee
creating the condition or being aware of the condition, and the substance is not even visible on the
video. Finally, Plaintiff’s assertion that the photographs taken after the fall show tracks made by
Walmart dolly wheels is speculative; the streaks could have been made or altered by her fall. Even
if her speculation about the tracks is accepted, it does not establish that the Walmart dolly was
leaking or that Walmart employees were aware of the substance on the ground. Mere proximity of

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an employee to a spill, without evidence of when or how it was created, is legally insufficient to
establish actual or constructive knowledge for a premises liability claim. Reece, 81 S.W.3d at 816–
17. Therefore, the circumstantial evidence does not establish a genuine issue of material fact as to
Defendant’s actual notice of the substance.
Further, Plaintiff has not shown that Walmart had constructive knowledge that the
substance was on the floor. To establish constructive knowledge, Texas courts have required
plaintiffs to present evidence of the length of time the substance or object was on the floor prior to
the slip-and-fall incident. Richardson v. Wal-Mart Stores, Inc., 963 S.W.2d 162, 166 (Tex. App.
1998) (“Absent evidence of the length of time that the substance had been on the floor, there can
be no inference that any increased level of inspecting or cleaning by [defendant] would have
discovered and remedied the condition.”); Reece, 81 S.W.3d at 816 (“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.”). This well-established rule stems from
Texas courts’ “reluctance to impose liability on a storekeeper for the carelessness of another over
whom it had no control or for ‘the fortuitous act of a single customer’ that could instantly create a
dangerous condition.” Reece, 81 S.W.3d at 816 (quoting Coffee v. F. W. Woolworth Co., 536
S.W.2d 539, 541 (Tex. 1976)).
Here, Plaintiff has put forth no evidence of how long the substance was on the floor prior
to her fall. Without this evidence, she cannot establish constructive notice. See Coburn v. Toys R
Us-Delaware, Inc., No. 01-09-00871-CV, 2011 WL 345936, at *5 (Tex. App. Feb. 3, 2011)
(“Because [plaintiff] presented no evidence regarding how long the substance had been on the
floor before her fall we conclude that she failed to raise a fact issue regarding whether [defendant]
had constructive notice of the allegedly dangerous condition.”); Cooper v. Brookshire Grocery

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Co., 551 S.W.2d 175, 175–76 (Tex. Civ. App.—Texarkana 1977, no writ) (no constructive notice
where plaintiff did not put forth evidence that the strawberries she slipped on had been on the floor
long enough to be discovered had the defendant exercised ordinary care). Without any facts in the
record indicating how long the substance had been on the ground, Plaintiff cannot establish that
Defendant had constructive notice of the condition.
In conclusion, Plaintiff’s circumstantial evidence is not sufficient to create a genuine
dispute of material fact. “[M]eager circumstantial evidence from which equally plausible but
opposite inferences may be drawn is speculative and thus legally insufficient to support a finding.”
Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). Plaintiff offers
circumstantial evidence and asks the Court to extrapolate that Walmart employees created the
condition at issue or negligently responded to it, but it is “equally plausible” that a customer created
the condition at issue without any Walmart employee ever being aware of it prior to Plaintiff’s fall.
By contrast to the lack of evidence here, the Fifth Circuit found that circumstantial evidence was
enough to create a genuine dispute of material fact on a premises liability claim where the plaintiff
presented evidence that “(1) produce boxes and, consequently, the store's produce carts, had been
susceptible to leakage in the past; (2) the cart in question was stationed ‘a foot or 2’ away from
where Rockwell slipped for seven minutes; (3) the employee stocking produce carried a box
directly over the spot where Rockwell fell; (4) and the cart appeared to be leaking after having
been ‘parked’ for about seven minutes following Rockwell's fall just down the wet rack from where
the accident occurred.” Rockwell v. Sprouts Farmers Mkt. Texas, L.P., No. 21-20354, 2022 WL
1532639, at *4 (5th Cir. May 16, 2022). Here, Plaintiff’s circumstantial evidence is not nearly as
robust and is not sufficient for a reasonable jury to conclude that Walmart had actual or
constructive knowledge of the substance.

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Without any facts in the record indicating that Defendant had actual or constructive notice
of the condition, Plaintiff cannot satisfy the first element of her premises liability claim. Her claim
therefore fails as a matter of law. Because summary judgment has been granted on both the
premises liability and negligence claims, the Court need not reach Defendant’s remaining
arguments.
IV.

CONCLUSION
Ultimately, the Court finds that there is no genuine issue of material fact and that Defendant

is entitled to judgment as a matter of law. Accordingly, the Court GRANTS Defendant’s Motion
for Summary Judgment. (&)1RPlaintiff’s claims are DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
SIGNED at Houston, Texas on this the 2th day of August, 2024.

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KEITH
KEIT
IT
TH P
P. ELLISON
UNITED STATES DISTRICT JUDGE

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