Cuellar v. The Gap, Inc.

Filing 48

OPINION ORDER re 37 Unopposed MOTION Motion to Allow Counsel to Conduct Voir Dire, 26 MOTION Strike Rule 26 expert designations, 47 MOTION for Carlos H. Cisneros to Appear as Attorney, 14 MOTION for Hearing re: 13 MOTION for Summary Judgment , 42 MOTION In Limine , 32 MOTION Suppress Expert Testimony Gonzalez, 35 MOTION Suppress Expert Testimony Winkfield, 30 MOTION Suppress Expert Testimony Farolan, 36 Opposed MOTION Motion to Appl y Texas Statute to Prove Up Medical Expenses, 28 MOTION to Bifurcate Trials, 34 MOTION Suppress Expert Testimony Legendre, 13 MOTION for Summary Judgment , 46 MOTION In Limine , Case terminated on 02/05/2019(Signed by Judge Micaela Alvarez) Parties notified.(klopez, 7)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION

February 05, 2019
David J. Bradley, Clerk

MARIA ALICIA CUELLAR,

§
§
Plaintiff,
§
VS.
§ CIVIL ACTION NO. 7:18-CV-85
§
THE GAP, INC.; aka OLD NAVY #5831, §
§
Defendants.
§
OPINION & ORDER
The Court now considers the motion1 for summary judgment filed by The Gap, Inc., d/b/a
Old Navy #58312 (“Defendant”), the response3 filed by Maria Alicia Cuellar (“Plaintiff”), and
Defendant’s reply.4 Also pending before the Court is Defendant’s motion5 requesting a hearing
on the motion for summary judgment; Defendant’s motion6 to strike Plaintiff’s first supplemental
Rule 26 disclosures; Defendant’s motion7 for separate (bifurcated) trials; Defendant’s motion8 to
suppress or limit the testimony of Dr. Lorenzo Farolan; Defendant’s motion9 to suppress or limit
the testimony of Dr. Fortino Gonzalez; Defendant’s motion10 to suppress or limit the testimony
of Dr. Kevin Legendre; Defendant’s motion11 to suppress or limit the expert testimony of Dr.
Letreise Winkfield; Plaintiff’s opposed motion12 to apply Texas status to prove up medical

1

Dkt. No. 13.
Defendant has previously informed the Court it is incorrectly named as “The Gap, d/b/a Old Navy #5831” instead
of “Old Navy, LLC.” See Dkt. No. 11.
3
Dkt. No. 16.
4
Dkt. No. 22.
5
Dkt. No. 14.
6
Dkt. No. 26.
7
Dkt. No. 28.
8
Dkt. No. 30.
9
Dkt. No. 32.
10
Dkt. No. 34.
11
Dkt. No. 35.
12
Dkt. No. 36.
2

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expenses; Plaintiff’s unopposed13 motion to allow counsel to conduct voir dire; Plaintiff’s
motion14 in limine; Defendant’s motion15 in limine; and Defendant’s unopposed Rule 1 motion16
to appear. After considering the motion and the relevant authorities, the Court GRANTS
Defendant’s motion for summary judgment and DENIES as moot the remaining motions.
I. BACKGROUND
On or about April 3, 2016, Plaintiff visited Defendant’s store, Old Navy #5831, at S. 10th
St. in McAllen, Texas, and walked to the dressing rooms to try on a pair of pants. 17 Plaintiff
walked into an individual dressing room and immediately “slipped and fell inside a dressing
room area on an unreasonably dangerous condition.”18 Plaintiff testified the dressing room floor
was “very shiny, like as if it had a chemical with which they cleaned the floor . . . [but] there was
no ice or water.”19 Plaintiff’s response indicates Plaintiff’s belief that the chemicals created a
slippery surface inside the dressing rooms for lack of high foot traffic typical of the rest of the
store.20 Plaintiff testified that after she fell, “the person that opens the doors to the dressing
rooms” swept the room.21 Further, Plaintiff stated after she fell she noticed lint when she rubbed
her hand on the floor.22 Notably, Plaintiff testified she did not see anything on the floor before
she fell.23

13

Dkt. No. 37.
Dkt. No. 42.
15
Dkt. No. 46.
16
Dkt. No. 47.
17
Dkt. No. 16 p. 2, ¶ 6; Dkt. No. 1-1 p. 7, ¶ 4.2.
18
Dkt. No. 16 p. 2, ¶ 6; Dkt. No. 1-1 p. 7, ¶ 4.2.
19
Dkt. No. 13-2 pp. 5–6 (“Cuellar Dep.” 19:1–7, 16–17; 20:1–3).
20
Dkt. No. 16 p. 2, ¶ 7.
21
Dkt. No. 13-2 p. 8 (Cuellar Dep. 28:5–8).
22
Id. at pp. 8–9 (Cuellar Dep. 28:21-25; 29:1–19).
23
Id. at p. 4 (Cuellar Dep. 18:7–15).
14

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On these facts, Plaintiff filed suit in state court,24 and Defendant subsequently
removed.25 Plaintiff’s sole cause of action is premises liability. 26 Plaintiff seeks damages and any
other relief to which Plaintiff may be entitled.27
On October 4, 2018, Defendant filed a motion for summary judgment pursuant to Federal
Rule of Civil Procedure (“Rule”) 56.28 Plaintiff responded29 and Defendant replied.30 The Court
now turns to its analysis.
I. LEGAL STANDARD
a. Motion for Summary Judgment
Under Federal Rule of Civil Procedure (“Rule”) 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.”31 “A fact is ‘material’ if its resolution could affect the outcome of the action,”32
while a “genuine” dispute is present “only if a reasonable jury could return a verdict for the nonmovant.”33 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.”34 “Although this is an
exacting standard, summary judgment is appropriate where the only issue before the court is a
pure question of law.”35 As to the question of law, because federal jurisdiction is invoked on the
basis of diversity of citizenship,36 this Court, Erie-bound, must adhere to grounds of relief

24

See Dkt. Nos. 1-1 pp. 5–10 (Plaintiff’s Original Petition), 2-1 (Plaintiff’s First Amended Petition).
See Dkt. No. 1.
26
Dkt. No. 1-1 pp. 7–8.
27
Id. at pp. 9–10.
28
Dkt. No. 13.
29
Dkt. No. 16.
30
Dkt. No. 22.
31
Fed. R. Civ. P. 56(a).
32
Burrell v. Dr. Pepper/Seven UP Bottling Grp., Inc., 482 F.3d 408, 411 (5th Cir. 2007) (internal quotation marks
and citation omitted).
33
Fordoche, Inc. v. Texaco, Inc., 463 F.3d 388, 392 (5th Cir. 2006) (citation omitted).
34
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
35
Sheline v. Dun & Bradstreet Corp., 948 F.2d 174, 176 (5th Cir. 1991).
36
See Dkt. No. 1 p. 2.
25

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authorized by the state law of Texas.37 Absent a decision by Texas’s highest tribunal, the
decisions by Texas courts of appeals control “unless [the Court] is convinced by other persuasive
data that the highest court of the state would decide otherwise.”38
The movant bears the initial burden of showing the absence of a genuine issue of material
fact,39 but 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.40 If the movant meets its initial burden, the non-movant must then
demonstrate the existence of a genuine issue of material fact.41 This demonstration must
specifically indicate facts and their significance,42 and cannot consist solely of “[c]onclusional
allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and
legalistic argumentation.”43
In conducting its analysis, the Court may consider evidence from the entire record,
viewing that evidence in the light most favorable to the non-movant.44 Rather than combing
through the record on its own, however, the Court looks to the motion for summary judgment
and response to present the evidence for consideration.45 Parties may cite to any part of the
record, or bring evidence in the motion and response.46 By either method, parties need not

37

See Homoki v. Conversion Servs., Inc., 717 F.3d 388, 396 (5th Cir. 2013); Exxon Co. U.S.A, Div. of Exxon Corp.
v. Banque De Paris Et Des Pays-Bas, 889 F.2d 674, 675 (5th Cir. 1989); Erie R.R. Co. v. Tompkins, 304 U.S. 64
(1938).
38
Exxon Co. U.S.A, Div. of Exxon Corp., 889 F.2d at 675 (quoting West v. AT&T, 311 U.S. 223, 237 (1940)).
39
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
40
See id. at 323–25; see also Transamerica Ins. Co. v. Avenell, 66 F.3d 715, 718–19 (5th Cir. 1995).
41
See Celotex Corp., 477 U.S. at 323.
42
See Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
43
U.S. ex rel. Farmer v. City of Hous., 523 F.3d 333, 337 (5th Cir. 2008) (citing TIG Ins. Co. v. Sedgwick James of
Wash., 276 F.3d 754, 759 (5th Cir. 2002)).
44
See Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 874 (5th Cir. 2000) (citations omitted).
45
See Fed. R. Civ. P. 56(e).
46
See Fed. R. Civ. P. 56(c).

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proffer evidence in a form admissible at trial,47 but must proffer evidence substantively
admissible at trial.48
b. Summary Judgment Evidence
In support of its motion for summary judgment, Defendant attaches: (1) Plaintiff’s first
amended petition49; (2) excerpts from Plaintiff’s August 17, 2018 deposition;50 and (3) excerpts
from an August 17, 2018 deposition51 of Ubaldo Martinez, Defendant’s store manager.52 In
response, Plaintiff attaches: (1) her entire August 17, 2018 deposition;53 (2) Defendant’s
motion54 for summary judgment; (3) her first amended petition;55 and (4) an affidavit56 of
Leticia Garza, attesting the exhibits are true and correct copies. The Court briefly examines the
competency of the evidentiary sources presented before considering how the evidence bears on
the Court’s analysis.
Under Federal Rule of Civil Procedure (“Rule”) 56, “a party asserting that a fact cannot
be or is genuinely disputed must support the assertion by citing to particular parts of materials in
the record, including depositions . . . or other materials; or showing that the materials cited do
not establish the absence or presence of a genuine dispute.”57 “[U]nsubstantiated assertions are
not competent summary judgment evidence.”58 “The party opposing summary judgment is
required to identify specific evidence in the record and to articulate the precise manner in which

47

See Celotex Corp., 477 U.S. at 324 (“We do not mean that the nonmoving party must produce evidence in a form
that would be admissible at trial in order to avoid summary judgment.”).
48
See Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012) (“[T]he evidence proffered by the plaintiff to satisfy
his burden of proof must be competent and admissible at trial.”).
49
Dkt. No. 13-1.
50
Dkt. Nos. 13-2.
51
Dkt. No. 13-3 (“Martinez Dep.”).
52
Dkt. No. 13 p. 6.
53
Dkt. No. 16-1.
54
Dkt. No. 16-2.
55
Dkt. No. 16-3.
56
Dkt. No. 16-4.
57
Fed. R. Civ. P. 56(c)(1).
58
Ragas, 136 F.3d at 458 (citing Celotex Corp., 477 U.S. at 324).

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that evidence supports his or her claim.”59 Finally, the Court has no duty “to sift through the
record in search of evidence to support a party’s opposition to summary judgment.”60
Here, Plaintiff includes in her response her own deposition testimony, some of which
recounts statements allegedly made to her by Defendant’s employee. Defendant, in its reply,
objects to such testimony as hearsay. While Plaintiff’s own deposition testimony is proper
summary judgment evidence, to the extent Plaintiff is recounting statements made by others,
such testimony is hearsay unless an exception applies. The record before the Court does not
support an exception. Thus, the Court disregards from its analysis the statements allegedly made
to Plaintiff by a store employee.
The Court also notes Plaintiff proffers Defendant’s motion for summary judgment but
does nothing more than reference an argument made therein. Arguments do not constitute
summary judgment evidence. Additionally, Plaintiff proffers Plaintiff’s first amended petition as
evidence of her claims. While ordinarily a party’s own pleadings would constitute hearsay, the
Court obviously looks to a party’s pleadings in determining what claims are asserted. Thus,
while both Defendant’s motion for summary judgment and Plaintiff’s complaint may be
considered in deciding whether summary judgment should be granted, neither should be attached
to Plaintiff’s response as both are part of the docket in this case.
The Court now turns to its consideration of Defendant’s motion and Plaintiff’s response.
II.

ANALYSIS
Defendant argues that summary judgment is warranted because “Plaintiff’s claim of

negligence is not a proper theory of recovery under the facts alleged.”61 Defendant obviously

59

Ragas, 136 F.3d at 458 (citing Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871
(1994)).
60
Ragas, 136 F.3d at 458 (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915–16 & n. 7 (5th Cir. 1992),
cert. denied, 506 U.S. 832 (1992)).

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fails to comprehend that a premises liability claim is in fact a negligence claim. While Defendant
references a negligent activity claim, Plaintiff does not. As Plaintiff correctly points out, she is
only asserting a premises liability negligence claim. Thus, Defendant’s first argument has no
merit.
Defendant next argues it is entitled to summary judgment because there is no evidence
Defendant had actual or constructive knowledge of any unreasonably dangerous condition and
no evidence establishes the existence of an unreasonably dangerous condition.62 Plaintiff alleges
“actual knowledge can be imputed to [] Defendant through its employee’s knowledge,” 63 and
that Defendant’s employee knew the floor was slippery before Plaintiff fell. 64 The Court
ultimately finds Plaintiff fails to meet her burden on her premises liability negligence claim and
sets out the reasoning below.
a.

Premises Liability Negligence

The elements of a Texas premise liability claim when the injured party is an invitee, as is
the case here, are:
(1) Actual or constructive knowledge of a condition on the premises by the owner
or occupier;
(2) That the condition posed an unreasonable risk of harm;
(3) That the owner or occupier did not exercise reasonable care to reduce or
eliminate the risk; and
(4) That the owner or occupier’s failure to use such care proximately caused the
plaintiff's injury.65
Defendant maintains it had no actual or constructive knowledge of the condition and that
there is no evidence establishing an unreasonably dangerous condition on the premises at the

61

Dkt. No. 13 p. 4, ¶ 8.
Id. at p. 2.
63
Dkt. No. 16 p. 5, ¶ B.
64
Id. at p. 6, ¶ C.
65
CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000).
62

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time of Plaintiff’s fall.66 Plaintiff responds that Defendant “knew or should have known of the
condition before Plaintiff’s fall, the statements by Defendant’s employee show that she, and
therefore Defendant, had actual knowledge of the dangerous condition that caused [Plaintiff’s]
fall before [Plaintiff] fell.”67 Although, Defendant does not address any of the other elements and
the Court finds the first prong dispositive of Plaintiff’s claim, the Court notes Plaintiff also
makes no showing as to any of the remaining elements.68
“Actual knowledge requires knowledge that the dangerous condition existed at the time
of the accident, as opposed to constructive knowledge which can be established by facts or
inferences that a dangerous condition could develop over time.”69 “Circumstantial evidence
establishes actual knowledge only when it ‘either directly or by reasonable inference’ supports
that conclusion.”70
Constructive knowledge can be inferred because of the length of time that a condition
existed.71 Plaintiff may satisfy the time notice element by establishing that “it is more likely than
not that the condition existed long enough to give the premises owner a reasonable opportunity
to discover” the condition.72 To demonstrate a condition has existed for a sufficient length of
time, “there must be some proof of how long the hazard was there before liability can be
imposed on the premises owner for failing to discover and rectify, or warn of, the dangerous
condition.”73

66

Dkt. No. 13 pp. 4–6, ¶¶ 10–13.
Dkt. No. 16 p. 8.
68
The Court notes Plaintiff mentions the second prong as a condition but presents no arguments for it. Dkt. No. 16
p. 5, ¶ 12.
69
City of Corsicana v. Stewart, 249 S.W.3d 412, 414-15 (Tex. 2008).
70
Id. at 415 (quoting State v. Gonzalez, 82 S.W.3d 322, 330 (Tex. 2002)).
71
Keetch, 845 S.W.2d at 266.
72
Wal-Mart Stores v. Reece, 81 S.W.3d 812, 814 (Tex. 2002).
73
Reece, 81 S.W.3d at 814.
67

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Here, Defendant argues the evidence in the record provides no indication Defendant had
actual knowledge of the condition, whether Plaintiff considers said condition to be a cleaning
substance or lint.74 The Court notes Plaintiff’s arguments center on actual notice but fail to
definitively characterize the condition at issue––Plaintiff testifies the floor was shiny but not wet,
alleges cleaning chemicals and foot traffic distinguished the dressing room floor from the main
store floor, and mentions feeling lint on the floor after her fall. Regardless of which condition
Plaintiff alleges is dangerous, Plaintiff fails to meet her burden of demonstrating Defendant had
knowledge of any dangerous condition.
Plaintiff acknowledges she did not notice any condition before walking into the dressing
room and could not attribute the condition to anything before speaking with Defendant’s
employee after her fall.75 Thus, Plaintiff’s present belief is only founded on “just hear[ing] what
[Defendant’s employee] told [Plaintiff].”76 Yet, Plaintiff does not show Defendant had prior
knowledge. As already noted, Plaintiff’s alleged conversation, which is only testified to by
Plaintiff, is not competent summary judgment evidence. Moreover, even if it was admissible
evidence––which it is not––Plaintiff’s testimony about Defendant’s employee, without more,
would not be sufficient to defeat summary judgment.
The only other summary judgment evidence, the deposition testimony of Ubaldo
Martinez, contains no indication of Defendant creating the alleged dangerous condition, knowing
about the existence of the alleged dangerous condition before Plaintiff’s fall, or even receiving
reports or prior complaints involving the alleged dangerous condition. Ubaldo Martinez only
recounts the store’s cleaning procedure to sweep and mop the dressing rooms in the morning,

74

Dkt. No. 13 p. 5, ¶ 11.
Dkt No. 16 pp. 6–7; Dkt. No. 16-1 p. 10 (Cuellar Dep. 20:9–22).
76
Dkt. No. 16-1 p. 11 (Cuellar Dep. 22:4–8).
75

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and to occasionally dry sweep during the day. Thus, there is no evidence that Defendant had
actual knowledge of the alleged condition.
Plaintiff’s logic is simply that because the floor was shiny, and because she fell, a
dangerous condition existed that caused Plaintiff to slip and fall. Such logic presents nothing
more than a res ipsa loquitor argument. Ultimately, Plaintiff must present some evidence beyond
the fall itself. Plaintiff fails to do so.
As to constructive notice, Defendant argues Plaintiff can point to no evidence that the
alleged dangerous condition existed for a sufficient period of time to support an inference that
Defendant had constructive knowledge of the condition.77 No evidence in the record supports
such a finding.
Importantly, Plaintiff provides no argument as to the length of time the condition existed
before Defendant had a reasonable opportunity to discover the condition. Nevertheless, Ubaldo
Martinez’s deposition sets out the store’s procedure of mopping and sweeping the day of the
incident.78 Based on the store’s procedure, the condition would not have existed for a sufficient
amount of time for Defendant to have constructive notice of the condition, whether that be the
alleged cleaning chemicals or lint, thereby defeating Plaintiff’s constructive knowledge burden.
Thus, the Court finds there is no proof as to how long the condition existed, and
therefore, no indication Defendant had constructive knowledge of the condition.79 Defendant,
therefore, meets its burden by showing an absence of evidence and Plaintiff’s claim fails.
Accordingly, Defendant’s motion for summary judgment is GRANTED. As Plaintiff’s premises
liability claim is Plaintiff’s only cause of action, Plaintiff’s action must be DISMISSED WITH
PREJUDICE.
77

Dkt. No. 13 pp. 4–6.
Martinez Dep.
79
See Reece, 81 S.W.3d at 814.
78

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III.

HOLDING
For the foregoing reasons, Defendant’s motion80 for summary judgment is GRANTED.

Therefore, Defendant’s motion81 to request a hearing on the motion for summary judgment;
Defendant’s motion82 to strike Plaintiff’s first supplemental Rule 26 disclosures; Defendant’s
motion83 for separate (bifurcated) trials; Defendant’s motion84 to suppress or limit the testimony
of Dr. Lorenzo Farolan; Defendant’s motion85 to suppress or limit the testimony of Dr. Fortino
Gonzalez; Defendant’s motion86 to suppress or limit the testimony of Dr. Kevin Legendre;
Defendant’s motion87 to suppress or limit the expert testimony of Dr. Letreise Winkfield;
Plaintiff’s opposed motion88 to apply Texas status to prove up medical expenses; Plaintiff’s
unopposed89 motion to allow counsel to conduct voir dire; Plaintiff’s motion90 in limine;
Defendant’s motion91 in limine; and Defendant’s unopposed Rule 1 motion92 to appear are
DENIED as moot. Plaintiff’s premises liability claim and Plaintiff’s entire action are hereby
DISMISSED WITH PREJUDICE. A final judgment will issue separately.
IT IS SO ORDERED.
DONE at McAllen, Texas, this 5th day of February, 2019.
___________________________________
Micaela Alvarez
United States District Judge
80

Dkt. No. 13.
Dkt. No. 14.
82
Dkt. No. 26.
83
Dkt. No. 28.
84
Dkt. No. 30.
85
Dkt. No. 32.
86
Dkt. No. 34.
87
Dkt. No. 35.
88
Dkt. No. 36.
89
Dkt. No. 37.
90
Dkt. No. 42.
91
Dkt. No. 46.
92
Dkt. No. 47.
81

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