Miller v. Wal-Mart Stores Texas, L.L.C.

Filing 15

ORDER re: 14 MOTION for Summary Judgment and Memorandum In Support thereof. Case terminated on 4/17/2017.(Signed by Judge Micaela Alvarez) Parties notified.(jengonzalez, 7)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION
ESTER MILLER,
Plaintiff,
VS.
WAL-MART STORES TEXAS, L.L.C.,
Defendant.

April 17, 2017
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 7:16-CV-00513
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OPINION
The Court now considers Wal-Mart Stores Texas, L.L.C.’s (“Defendant”) motion for
summary judgment.1 After duly considering the record and authorities, the Court GRANTS the
motion.
I.

BACKGROUND

This is a slip and fall case. Ester Miller (“Plaintiff”) allegedly slipped on a brochure, fell
to the ground, and injured herself on Defendant’s premises in Weslaco, Texas.2 Plaintiff sued
Defendant in state court on July 28, 2016,3 alleging negligence4 in the form of premises liability.5
Defendant subsequently removed the case to federal court,6 and eventually filed a motion for
summary judgment,7 to which Plaintiff never responded .8 The Court now turns to its analysis of
the motion for summary judgment.

1

Dkt. No. 14.
Dkt. No. 1-1 p. 2.
3
Id. p. 1.
4
Id. p. 3.
5
Id. p. 2.
6
Dkt. No. 1.
7
Dkt. No. 14.
8
See LR 7.2–7.4 of the Local Rules of the United States District Court for the Southern District of Texas.
2

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II.

SUMMARY JUDGEMENT STANDARD

Under Federal Rule of Civil Procedure 56, summary judgment is proper when there is
“no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.”9 “A fact is ‘material’ if its resolution could affect the outcome of the action,”10 while a
“genuine” dispute is present “only if a reasonable jury could return a verdict for the nonmovant.”11 As a result, “[o]nly disputes over facts that might affect the outcome of the suit under
the governing law will properly preclude the entry of summary judgment.”12
In a motion for summary judgment, the movant bears the initial burden of showing the
absence of a genuine issue of material fact.13 The movant is freed from this initial burden on
matters for which the non-movant would bear the burden of proof at trial; in that event, the
movant’s burden is reduced to merely pointing to the absence of evidence. 14 If the movant meets
its initial burden, the non-movant must then demonstrate the existence of a genuine issue of
material fact.15 In conducting its analysis, the Court considers evidence from the entire record
and views that evidence in the light most favorable to the non-movant.16
III.

ANALYSIS

Plaintiff’s only claim is premises liability, a form of negligence. To recover damages in a
slip and fall case, the plaintiff must prove the following:
(1) Actual or constructive knowledge of some condition on the premises by the
owner/operator;
(2) That the condition posed an unreasonable risk of harm;
9

FED. R. CIV. P. 56(a).

10

Burrell v. Dr. Pepper/Seven UP Bottling Grp., Inc., 482 F.3d 408, 411 (5th Cir. 2007) (internal quotation marks
and citation omitted).
11
Fordoche, Inc. v. Texaco, Inc., 463 F.3d 388, 392 (5th Cir. 2006) (citation omitted).
12
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
13
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
14
See id. at 323–25; see also Transamerica Ins. Co. v. Avenell, 66 F.3d 715, 718–19 (5th Cir. 1995).
15
See Celotex Corp., 477 U.S. at 323.
16
See Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 874 (5th Cir. 2000) (citations omitted).

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(3) That the owner/operator did not exercise reasonable care to reduce or
eliminate the risk; and
(4) That the owner/operator's failure to use such care proximately caused the
plaintiff's injuries.17
Defendant argues that summary judgment in its favor is appropriate because Plaintiff has
no evidence to support the first essential element of premises liability—actual or constructive
knowledge of the alleged dangerous condition.18 Defendant presents summary judgment
evidence to support its position. Because Plaintiff has the burden at trial to prove that Defendant
had actual or constructive knowledge of the alleged dangerous condition, Defendant’s mere
pointing to a lack of evidence on this point is sufficient to shift the burden of proof to Plaintiff.
Plaintiff has not responded to the instant motion, and thus has not presented any additional
evidence to carry her burden. Additionally, none of Defendant’s proffered evidence suggests that
Defendant knew or should have known about the presence of a brochure on the ground.19
Consequently, there is no genuine issue concerning the first essential element of Plaintiff’s
premised liability claim, and Defendant is entitled to judgment as a matter of law.

17

Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998).
See Dkt. No. 14 pp. 5–6.
19
The Court notes that Defendant presented Plaintiff’s entire deposition rather than relevant excerpts. The wise
course would be to present only what is necessary to dispose of the issue rather than wasting the Court’s time with
the entire deposition. Additionally, the video should be presented in a format that the Court can review. Such was
not the case here.
18

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IV.

HOLDING

Defendant’s motion is GRANTED.
IT IS SO ORDERED.
DONE at McAllen, Texas, this 17th day of April, 2017.

___________________________________
Micaela Alvarez
United States District Judge

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