Lara Enriquez, et al v. JP Morgan Chase Bank, N.A., et al

Filing 15

MEMORANDUM OPINION AND ORDER - Defendant did not breach its duty to Decedent as a licensee. Moreover, Plaintiff has not offered evidence to support her general negligence claim, and without a viable general negligence claim, Plaintiff's gross negligence claim fails. Defendant's 12 MOTION for Summary Judgment is therefore GRANTED, and this case will be dismissed with prejudice. (Signed by Judge Sim Lake) Parties notified. (sra4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MA DOLORES LARA ENRIQUEZ
a.n.f. of CESAR RAMIREZ,
Plaintiff,
v.

JP MORGAN CHASE BANK, N.A.,
Defendant.

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March 07, 2025
Nathan Ochsner, Clerk

CIVIL ACTION NO. H-23-3498

MEMORANDUM OPINION AND ORDER

MA Dolores Lara Enriquez ("Plaintiff ll ) brought this action as
next firiend of her son,

Cesar Ramirez

Morgan Chase Bank ("Defendant n ).1

("Decedent"), against JP

Plaintiff alleges that her son

was killed in the parking lot of Defendant's branch location and
asserts claims for premises liability,

negligence,

and gross

negligence under Texas law.2 Pending before the court

Defendant

Plaintiff's Original Petition ("Complaint"), Exhibit B to
Defendant's Notice of Removal, Docket Entry No. 1-3, p.• 1. For
purposes of identification all page numbers reference the
pagination imprinted at the top of the page by the court's
Electronic Case Filing system.
1

Plaintiff was represented in this case by legal counsel until
Plaintiff's qounsel moved to withdraw, notifying the court that
Plaintiff had become "unresponsive.n
(Plaintiff's Counsel's
Unoppo?ed Motion to Withdraw, Docket Entry No. 10, p. 1 ? 1) The
court granted Plaintiff's ,counsel's motion on June 28, 2024 (Order,
Docket Entry No. 11), and Plaintiff has since proceeded pro se.
Complaint, Docket Entry No. 1-3, pp. 2-5 ii 7-23. Plaintiff
styles her claim as "Premises Liability-Negligence and Gross
2

(continued...)

JP

Morgan

Chase

Bank,

N.A.'s

Motion

("Defendant's MSJ") (Docket Entry No. 12).

for

Summary

Judgment

For the reasons stated

below, the court will grant Defendant's MSJ and dismiss all claims
with prejudice.
I.

Background

On August 22, 2023, Plaintiff brought this action in the 152nd
District Court of Harris County, Texas.3 The Complaint alleges that
Decedent "arranged to meet with a buyer" of Decedent's PlayStation,
which ?ecedent sold through Facebook Marketplace, at the Chase Bank
branch"located at 6103 N. Fry Rd., Katy, Texas 77449.4
be buyer robbed and assaulted

"The would­

[Decedent], who suffered fatal

wounds."5 Plaintiff alleges claims for premises liability, general
negligence, and gross negligence.6
2( ... continued)
at 3. Defendant argues it is entitled to summary
Negligence."
judgme?t on Plaintiff's "claim for negligence" and, separately,
"claim of gross negligence," while arguing Defendant's duty is
based on Decedent's status as a trespasser. (Docket Entry No. 12,
The parties' formulations make it unclear whether
pp. 9?10)
Plaintiff is bringing a premises liability claim based on theories
of neg'ligence and gross negligence or three separate claims of
premises liability, negligence, and gross negligence. As the court
explains below, it will analyze Plaintiff's allegations under each
of these three separate claims. See infra § III.A.
3

Complaint, Docket Entry No. 1-3, p. 1.

4

:rd. at 2 ':l[<Jl 7, 10.

6Id. at 2-3 i 11.
6

Id. at 3-5 <J[':I[ 12-23. See supra n.2.
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On September 18, 2023, Defendant removed the action to this
court.7

After the assigned judge recused himself, the case was

reassigned to the undersigned judge. 8
October 29, 2024.9

Defendant filed its MSJ on

Defendant argues that Plaintiff's claims fail

as a matter of law because Defendant owed no duty to Decedent and
did not proximately cause Decedent's injuries. 10
2024, Defendant moved to stay

On November 8,

case-management deadlines, and

the court granted that motion on November 12, 2024.n Plaintiff has
not filed a response to Defendant's MSJ.?
II.

Summary Judgment Standard

"The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
7

Notice of Removal, Docket Entry No. 1.

8

Order of Recusal, Docket Entry No. 2.

9

Defendant's MSJ, Docket Entry No. 12.

10

at 9.

Defendant JP Morgan Chase Bank, N .A.'s Motion to Stay Current
Deadlines, Docket Entry No. 13; Order, Docket Entry No. 14.
11

12

Pursuant to Local Rules 7.3 and 7.4, because Plaintiff has
not responded to Defendant's MSJ within 21 days, the motion is
Local Rules of the United States
treated as unopposed.
District Court for the Southern District of Texas, Rule 7.3
("Opposed motions will be submitted to the_ judge 21 days from
filing without notice from the clerk and without appearance by
counsel.") and Rule 7.4 ("Failure to respond to a motion will be
's
taken as a representation of no opposition."). But Plaint
lure to respond is not in itself grounds for granting the
motion. Servicios Azucareros de Venezuela, C.A. v. John Deere
Thibodeaux, Inc., 702 F.3d 794, 806 (5th Cir. 2012). The court
must assess the merits of the motion to determine whether summary
judgment is warranted. See id.
-3-

movant is entitled to judgment as a matter of law."
P. 56(a).

Fed. R. Civ.

A party asserting that a fact is or is not genuinely

disputed must support the assertion by "citing to particular parts
of materials in the record."

Id. 56(c)(1)(A). Summary judgment is

proper "against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party's
case." Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2552 (1986).
"[T]he burden on the moving party may be discharged by 'showing'
that is, pointing out to the district court

that there is an

absence of evidence to support the nonmoving party's case."

Id. at

2554.
III.

Analysis

The court considers Defendant's motion first as to Plaintiff's
premis?s

liability

claim

and

then as to

negligence and gross negligence claims.

Plaintiff's general

See supra n.2.

Finding

that Defendant did not breach its duty to Decedent, the court will
grant 0efendant's MSJ as to Plaintiff's premises liability claim.
Finding no evidence of contemporaneous activity by Defendant, the
court

will

grant

negligence claim.

Defendant's

MSJ

as

to

Plaintiff's

general

Finding no viable underlying claim for general

negligence, the court will also grant the motion as to Plaintiff's
gross negligence claim.
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A.

Premises Liability v. Negligent Activity
Plaintiff contends that as the owner and operator of the bank

branch

location

where

Decedent

was

killed,

"Defendant

owed

Plaintiff and their family the duty to warn and protect their
clients and her family from criminal acts of third parties,"
including

the

criminal

act

that

killed

Decedent,

and

that

Defendant's breach of this duty proximately caused Decedent's
death. 13
Parties in control of premises "may be liable for two types of
negligence in

ling to keep the premises safe:

that

sing from

an activity on the premises, and that arising from a premises
defect."

Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523,

527 (Tex. 1997).

Negligent activity and premises liability claims

"involve closely related but distinct duty analyses."

Western

Investments, Inc. v. Urena, 162 S.W.3d 547, 550 {Tex. 2005).
In a negligent-activity case, a property owner or
occupier must "do what a person of ordinary prudence in
the same or similar circumstances would have . . . done,"
whereas a property owner or occupier in a premises
liability case must "use ordinary care to reduce or
eliminate an unreasonable risk of harm created by a
premises condition which the owner or occupier [of land]
knows about or in the exercise of ordinary care should
know about."
United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 471 {Tex. 2017)
{quoting Tirnberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d
13

Complaint, Docket Entry No. 1-3, pp. 2-3 11 7, 13-16.
-5-

749,

753

(Tex.

1998)

(alteration in Timberwalk)).

"[N]egligent

activity encompasses a malfeasance theory based on affirmative,
contemporaneous conduct by the owner that_caused the injury, while
premises liability encompasses a nonfeasance theory based on the
owner's

failure

to

take

measures

to make

the

property

safe."

Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010).
"Recovery on a negligent activity theory requires that the
person have been injured by or as a contemporaneous result of the
activity
activity."

itself

rather

than

by

a

condition

created

by

the

Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992).

When a claim does not result from contemporaneous activity,
claimant has no negligent-activity claim, and [his]
exclusively in premises-defect."

the

claim sounds

City of Houston v.

Gonzales,

No. 14-20-00165-CV, 2021 WL 2154155, at *4 (Tex. App.-Houston [14th
Dist.] May 27, 2021, no pet.) .

B.

Premises Liability
"Premises liability is a special form of negligence where the

duty owed to the plaintiff depends upon the status of the plaintiff
at the time the incident occurred."

King v.

Bigler LP,

Civil

Action No. H-10-0580, 2011 WL 1542737, at *4

(S.D. Tex. Apr. 20,

2011)

162

(quoting

Western

Investments,

(internal quotation marks omitted).

Inc.,

at

550)

Under Texas law a plaintiff

can be an invitee, a licensee, or a trespasser.
-6-

S.W.3d

Holder v. Mellon

Mortgage Co., 954 S.W.2d 786, 795-96

(Tex. App.-Houston [14th

Dist.] 1997), rev'd on other grounds, 5 S.W.3d 654 (Tex. 1999)
(plurality op.).
possessor's

An invitee is a person who enters the owner's or

premises

in

response

to

an

express

or

implied

invitation from the owner or possessor for their mutual bene

t.

Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex. 1975).

A

licensee is a visitor to a business establishment who is on the
premises

"solely for the visitor's own purpose in which the

possessor of the property has no interest,

either business or

social, and to whom the privilege of entering is extended as a mere
favor by express consent or by general custom." Holder, 954 S.W.2d
at 798

(collecting cases).

A trespasser is "one who enters

property of another without any right, lawful authority or express
or

implied

invitation,

permission,

or

license,

and

not

in

perfor?ance of any duties for the owner, but merely for his own
at 796.

purposes, pleasure or convenience."
Plaintiff

contends

that

Decedent

was

an

invitee.?

By

contra9t, Defendant asserts that Decedent was a trespasser.? Based
on the circumstances of this case, the court finds neither is
correct; rather, Decedent was a licensee.
recognize

individuals

injured

in

Texas courts routinely

parking

lots,

14

Complaint, Docket Entry No. 1-3, p. 3 qi: 12.

16

Defendant's MSJ, Docket Entry No. 12, pp. 10-12.
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including

pedestrians taking short cuts through parking lots, as licensees.
See Holder,

954 S.W.2d at 798-99

(collecting cases)

Decedent's

presence in Defendant's parking lot was solely for Decedent's own
purpose of meeting a potential buyer of Decedent's PlayStation. 16
Defendant had no interest in Decedent's arranged meeting with a
buyer, and Plaintiff offers no evidence of any connection between
Defendant and Decedent other than the fact that Decedent "arranged
to meet with a buyer at

[Defendant's]

location. " 17

Decedent was

lawfully present in Defendant's parking lot based on the general
custom of public use of businesses' open parking lots for personal
purposes.
(Tex.

See Boss v.

App .-Waco

1996,

Prince's Drive-Ins,

401 S.W.2d 140,

writ

(finding

ref' d

n. r. e.)

the

142

injured

indi victual a licensee when he was threatened with assault in a
restaurant parking lot). As a result, Decedent was a licensee when
he was fatally injured.
A premises owner does not owe a licensee a duty of reasonable
care, but a premises owner has a duty not to injure the licensee
"willfully, wantonly, or through gross negligence."
S.W.2d

at 796.

Additionally,

Holder,

954

when a premises owner "has actual

knowledge of a dangerous condition and the licensee does not," the
premises owner owes a licensee "a duty either to warn the licensee

16

Complaint, Docket Entry No. 1-3, p. 2

17

Id.
-8-

'.JI

10.

of

the·

known

dangerous

reasonably safe."

Id.

condition

or

to

make

the

condition

"A licensee is imputed with knowledge of

those conditions perceptible to him, or the existence of which can
be inferred from facts within his present or past knowledge."

Id.

Defendant argues that it owed no duty to Decedent as a
trespasser and no common-law duty to Decedent under the risk­
utility test.18

Neither argument prevails because the proper duty

analysis is that owed to a licensee.

But Plaintiff provides no

evidence that Defendant had actual knowledge of criminal activity
on or around Defendant's property.

Instead, Plaintiff asserts in

a conclusory fashion that "[t] here has been a well-known and
longstanding pattern of criminal activity at this particular
branch" and that "Defendant certainly knew of these

sks in this

specific banking location, reflected in the number of crimes including

burglaries,

assaults and

rapes

occurring in

the

immediate vicinity of the bank in the three years preceding"
Decedent's death.?
allegations.

Plaintiff provides no evidence to support these

Without more,

Plaintiff fails to demonstrate how

Defendant injured Decedent "willfully, wantonly, or through gross
negligence" and fails to establish Defendant's actual knowledge of
a dangerous condition on the premises.
18

See Holder, 954 S.W.2d at

Defendant's MSJ, Docket Entry No. 12, pp. 15-17.

19

Complaint, Docket Entry No. 1-3, pp. 2-3 11 8, 13.
-9-

796.

Accordingly, the court finds Defendant did not breach its

duty to Decedent and therefore will grant Defendant's MSJ on
Plaintiff's premises liability claim.
C.

Negligence
To the extent Plaintiff brings a general negligence claim

separate from her premises liability claim,
negligence claim also fails.
claim,

Plaintiff's general

To prevail on a general negligence

"the claimant's injury must result from the defendant's

contemporaneous activity."

Vasguez v. Fiesta Mart,

LLC,

Civil

Action No. H-22-2546, 2024 WL 495269, at *2 n.12 (S.D. Tex. Feb. 8,
2024) (quoting Mangham v. YMCA of Austin, Texas-Hays Communities,
408 S.W.3d 923, 929 (Tex. App.-Austin 2013, no pet.)).

"Essential

to any recovery on a negligent-activity theory is a showing that
the person has been injured by or as a contemporaneous result of
the activity itself rather than by a condition created by the
(quoting Keetch,

activity."

845 S.W.2d at 264)

(internal

quotation marks omitted). Plaintiff does not offer any evidence of
contemporaneous
injuries.

activity

by

Defendant

that caused

Decedent's

As a result, summary judgment on Plaintiff's general

negligence claim is warranted.
D.

Gross Negligence
"A

plaintiff

who

cannot

support a

cause

of

action

for

negligence cannot recover for gross negligence because a finding of
-10-

ordinar.y neglj,.gence is a prerequisite to a finding of gross
negligence."

Dekelaita v. BP Amoco Chemical Co., Civil Action

No. G-07-0131, 2008 WL 2964376, at *15 (S.D. Tex? July 30, 2008)
{collecting cases).

Because Plaintiff has not shown any legal

basis for her negligence claim, her gross negligence claim fails as
a matter of law.
IV.

Conclusion

Defendant did not breach its duty to Decedent as a licensee.
Moreover, Plaintiff has not offered evidence to support her general
negligence claim, and without a viable general negligence claim,
Plaintiff's gross negligence claim fails.

Defendant's Motion for

Summary Judgment (Docket Entry No. 12) is therefore GRANTED, and
this case will be dismissed with prejudice.
SIGNED at Houston, Texas, on this the 6th day of March, 2025.

SIM LAKE
SENIOR UNITED STATES DISTRICT JUDGE

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