Kasparek v. United States of America

Filing 28

ORDER GRANTING 19 Motion for Summary Judgment. Signed by Judge Sam Sparks. (dl)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

2918

MAY 25

PH 2:05

KATHRYN KASPAREK,
Plaintiff,
CAUSE NO.:
A-16-CV-01324-SS

-vs-

UNITED STATES OF AMERICA,
Defendant.

ii p pj
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause,
and specifically Defendant United States of America's Motion for Summary Judgment [#19],
and Plaintiff Kathryn Kasparek's Response [#23] in opposition. Having considered the case file

and the applicable law, the Court enters the following opinion and orders.

Background
This is a premises liability case. On a rainy May 8, 2014, Kasparek slipped and fell while

walking over a metal grate in front of the United States Post Office located 1212 US Highway
281, Marble Falls, Texas 78654. Compi. [#1] at ¶ 7. As a result of her fall, Kasperek suffered

numerous injuries, including a broken femur, torn rotator cup, laceration, puncture wound, and
abrasions. Id. Kasperek alleges postmaster Alan Smith told her after her accident that "the post
office had been having trouble with that drainage area and had been trying to figure out how to
fix it." Id.

atJ8;Resp.[#23]at2.

Kasparek filed this lawsuit on December 20, 2016, asserting one claim for premises
liability. Compl. [#1] at ¶ 9. Defendant moves for summary judgment.

See

Mot. Summ. J.

[#19]. The motion is ripe for consideration.

J

Analysis
I.

Legal StandardSummary Judgment
Summary judgment shall be rendered when the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine dispute as to any material fact

and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Celotex Corp.

v.

Catrett, 477 U.S. 317, 323-25 (1986); Washburn

v.

Harvey, 504 F.3d 505, 508

(5th Cir. 2007). A dispute regarding a material fact is "genuine" if the evidence is such that a

reasonable jury could return a verdict in favor of the nonmoving party. Anderson

v.

Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the

court is required to view all inferences drawn from the factual record in the light most favorable
to the nonmoving party. Matsushita Elec. Indus. Co.

v.

Zenith Radio, 475 U.S. 574, 587 (1986);

Washburn, 504 F.3d at 508. Further, a court "may not make credibility determinations or weigh

the evidence" in ruling on a motion for summary judgment.

Reeves

v.

Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.
Once the moving party has made an initial showing that there is no evidence to support
the nonmoving party's case, the party opposing the motion must come forward with competent

summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at
586. Mere conclusory allegations are not competent summary judgment evidence, and thus are

insufficient to defeat a motion for summary judgment. Turner
476 F.3d 337, 343 (5th Cir. 2007).

v.

Baylor Richardson Med. Ctr.,

Unsubstantiated assertions, improbable inferences, and

unsupported speculation are not competent summary judgment evidence.

The party

Id.

opposing summary judgment is required to identify specific evidence in the record and to
articulate the precise manner in which that evidence supports his claim. Adams

v.

Travelers

Indem. Co.

of Conn., 465 F.3d

156, 164 (5th Cir. 2006). Rule 56 does not impose a duty on the

court to "sift through the record in search of evidence" to support the nonmovant's opposition to
the motion for summary judgment. Id.

"Only disputes over facts that might affect the outcome of the suit under the governing
laws will properly preclude the entry of summary judgment."

Anderson, 477 U.S. at 248.

Disputed fact issues that are "irrelevant and unnecessary" will not be considered by a court in
ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing
sufficient to establish the existence of an element essential to its case and on which it will bear
the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.

II.

Application
The parties agree Texas law applies in this case. Under Texas law, a landowner has a

"duty to make safe or warn against any concealed, unreasonably dangerous conditions of which
the landowner is, or reasonably should be, aware but the invitee is not." Austin

v.

Kroger Texas,

L.P., 465 S.W.3d 193, 203 (Tex. 2015). As a general rule, however, a landowner is not required
to make safe or warn of hazards that are open and obvious or known to the invitee. Id. at 204.

The elements of a claim for premises liability under Texas law are: (1) defendant had
actual or constructive knowledge of a condition on the premises; (2) the condition posed an

unreasonable risk of harm to plaintiff; (3) the defendant did not exercise reasonable care to
reduce or to eliminate the risk; and (4) defendant's failure to use such care proximately caused

plaintiff's injuries. United Scaffolding, Inc.

v.

Levine, 537 S.W.3d 463, 472 (Tex. 2017), reh 'g

denied (Jan. 26, 2018). Naturally occurring or accumulating conditions such as rain, mud, and
ice do not create conditions posing an unreasonable risk of harm as a matter of law, and therefore
do not give rise to premises liability.

Walker

3

v.

UME, Inc., 03-15-00271-CV, 2016 WL

3136878, at *2 (Tex.

App.Austin June

3, 2016, pet. denied); see also MO. Dental Lab

v.

Rape, 139 S.W.3d 671, 676 (Tex. 2004).

Defendant contends it is entitled to summary judgment because the metal grate at issue in
this case was an open and obvious condition for which it had no duty to warn or protect against.
See Mot. Summ. J. [#19] at 3-5. Defendant also argues rainwater cannot create an unreasonable

risk of harm to invitees as a matter of law. See id. at 5-10. Kasperek responds Defendant did
not plead the affirmative defense of open and obvious, and Defendant's rainwater defense does

not apply because the only path for ingress and egress to the building was over the metal grate.
See Resp. [#23] at 1-4.

Defendant is entitled to summary judgment under the natural accumulation rule
recognized by Texas Courts. It was raining at the United State Post Office when Kaspereck
slipped and fell. See Mot. Summ. J. [#19] at Ex.

1

(Kasperek Dep. Tr.), 14:6-16:5. The rain

caused the metal grate to become slippery.' See Resp. [#23] at

3

(referring to "rain covered

slippery grate"). Rain is a naturally occurring or accumulating condition that, as a matter of law,
cannot be an unreasonable risk of harm. See Walker, 2016 WL 3136878, at *2; see also Bufler v.
Apeck Constr., LLC, 03-14-00323-CV, 2016 WL 3521877, at *2 (Tex.

App.Austin June

21,

2016, no pet.) (affirming summary judgment for landowner in slip-and-fall case where plaintiff

"stepped on a smooth part of the sidewalk wet from the rain," noting "[r]ain on a sidewalk can
and often does form a condition posing a risk of harm, but not an 'unreasonable' risk of harm.");

Estes v. Wal-Mart Stores Texas, L.L.C., 3:16-CV-02057-M, 2017 WL 2778108, at *2 (N.D. Tex.
June 27, 2017) ("Because rainwater falls under the general rule that naturally accumulating

There is no evidence any other liquid or substance was on the metal grate when Kasperek fell.

4

conditions do not create an unreasonable risk of harm, Plaintiff fails to establish facts which

could support a claim for premises liability under Texas law.").
Kasperek has not presented a recognized exception to the natural accumulation rule.
Without support or explanation, Kasperek asserts "Defendant's 'rainwater' defense does not
apply when the only path for ingress and egress is the slippery grate encountered by Plaintiff."
Resp. [#23] at 1. It appears Kasperek is referencing the necessary-use exception to the "open

and obvious" defense. See Austin, 465 S.W.3d at 208 (discussing necessary-use exception to the
general rule that a "landowner has no duty to protect or warn an invitee against unreasonable

dangers that are open and obvious or otherwise known to the invitee."). However, the open and

obvious defense is distinct from the natural accumulation rule applied above. See Scott & White

Mem'l Hosp.

v.

Fair, 310 S.W.3d 411, 416 (Tex. 2010) (distinguishing the two issues); see also

Estes v. Wal-Mart Stores Texas, L.L.C., 3:16-CV-02057-M, 2017 WL 2778108, at *3 (N.D. Tex.
June 27, 2017) (same). Neither of the two exceptions to the natural accumulation rule the Texas

Supreme Court has considered is applicable here.2
In sum, the Court concludes the rainwater on the metal grate cannot be an unreasonable

risk of harm because of the natural accumulation rule.

Defendant is therefore entitled to

summary judgment, and the Court does not address the other arguments raised by the parties.

2

In Fair, the Texas Supreme Court considered naturally accumulated ice could rise to an unreasonable risk

of harm when (1) "accumulated snow or ice covers a normally open and obvious danger, such as a deep hole in a
parking lot or an eight-inch raised concrete bumper," or (2) when a landowner is "actively negligent in permitting or
creating an unnatural accumulation of ice or snow." Fair, 310 S.W.3d at 416. There is no allegation the rain here
covered a normally open and obvious danger at the Post Office or that Defendant was negligent in permitting or
creating an unnatural accumulation of water. More importantly, it is unclear above exceptions apply to Texas cases
as the court expressly stated it was "[a}ssuming, without deciding, that these exceptions are cognizable under Texas
law." Id.
5

Conclusion
Accordingly,
IT IS ORDERED that Defendant United States of America's Motion for

Summary Judgment [#19] is GRANTED.

SIGNED this the

4

.5day of May 2018.

/a442

SAM SPARKS
SENIOR UNITED STATES DISTRICT JUDGE