Cruzata v. Wal-Mart Stores Texas, LLC et al

Filing 86

OPINION AND ORDER DENYING 81 Motion for Reconsideration Summary Judgment Signed by Judge Frank Montalvo. (st)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
GIOBEL CRUZATA,
Plaintiff,
v.
WAL-MART STORES TEXAS, LLC and
WAL-MART SUPERSTORES, INC.,
Defendants.

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EP-13-CV-00331-FM

OPINION AND ORDER DENYING DEFENDANTS’ MOTION TO RECONSIDER
SUMMARY JUDGMENT
On this day, the court considered Defendants Wal-Mart Stores Texas, LLC and Wal-Mart
Superstores, Inc.’s (collectively, “Defendants”) “Defendants’ Motion to Reconsider Summary
Judgment” (“Motion for Reconsideration”) [ECF No. 81], filed April 14, 2015; “Plaintiff’s
Response in Opposition to Defendants’ Motion to Reconsider Summary Judgment” (“Response”)
[ECF No. 82], filed April 21, 2015; and “Defendant Wal-Mart’s Reply to Plaintiff’s Response to
Motion to Reconsider Summary Judgment” (“Reply”) [ECF No. 83], filed April 28, 2015. After
considering the Motion for Reconsideration, Response, Reply, and applicable law, the Motion for
Reconsideration is DENIED.
The facts of this case have been discussed previously in the “Order Denying Defendants’
Motion for Summary Judgment” (“Summary Judgment Order”), and are incorporated by
reference into this order.1
I.

PARTIES’ ARGUMENTS
Defendants re-assert they are entitled to summary judgment on four issues. First, they
1

ECF No. 58, at 1–2, entered Nov. 7, 2015.

argue that the obviousness of the pooling water relieved them of their duty to provide a warning
to Plaintiff.2 Second, Defendants claim there is no evidence they failed to act reasonably to
eliminate the risk posed by the pooling water or make the condition reasonably safe.3 Third,
Defendants aver Plaintiff must submit expert testimony that his back injuries were caused by the
accident rather than his preexisting conditions, and Plaintiff’s failure to provide expert testimony
entitles them to summary judgment on causation.4 Fourth, Defendants contend there is no
competent evidence to prove Plaintiff’s reasonable and necessary medical expenses, thereby
entitling them to summary judgment on that category of damages.5
Plaintiff argues Defendants have been correctly denied summary judgment on each of the
contested issues, and furthermore, have failed to present arguments entitling them to summary
judgment.6
II.

APPLICABLE LAW
Defendants do not state which Federal Rule of Civil Procedure supports their Motion for

Reconsideration., which seeks reconsideration of the Summary Judgment Order. Because the
Motion for Reconsideration was filed more than 10 days after entry of the contested order, it will
be treated as a Rule 60(b) motion for relief from an order.7

2

Mot. Recons. 1–2 ¶¶ 2–6.

3

Id. at 2–4 ¶¶ 7–10.

4

Id. at 5–6 ¶¶ 11–16.

5

Id. at 6–7 ¶¶ 17–21.

6

See generally Pl.’s Resp.

7

Shepherd v. Int’l Paper Co., 372 F.3d 326, 328 n.1 (5th Cir. 2004).

2

A.

Rule 60(b) Motion for Relief from an Order

Rule 60(b) enumerates six reasons for which a court may relieve a party from an order:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively is no longer
equitable; or
(6) any other reason that justifies relief.
Defendants’ Motion for Reconsideration asserts the Summary Judgment Order contains
errors of law. Accordingly, it is governed by Rule 60(b)(1).8 When asserting errors of law, Rule
60(b)(1) motions are only proper “to rectify an obvious error of law, apparent on the record.”9
This encompasses situations where an order “obviously conflicts with a clear statutory mandate
or when the judicial error involves a fundamental misconception of the law.”10
B.

Premises Defect Claim

Under Texas law, a premises defect claim has four elements: “(1) Actual or constructive
knowledge of a condition on the premises by the owner or occupier; (2) [t]hat the condition
posed an unreasonable risk of harm; (3) [t]hat the owner or occupier did not exercise reasonable
care to reduce or eliminate the risk; and (4) [t]hat the owner or occupier’s failure to use such care

8

See Hill v. McDermott, Inc., 827 F.2d 1040, 1043 (5th Cir. 1987) (observing Rule 60(b)(1)
“may be invoked for the correction of judicial error”).
9

Id. (footnote omitted).

10

Id. (footnotes omitted).

3

proximately caused the plaintiff’s injury.”11 Defendants’ Motion for Reconsideration contests
only the elements of reasonable care and causation, as well as Plaintiff’s ability to prove
damages. When the property owner owes a duty to exercise reasonable care to mitigate a
dangerous condition, the owner is obligated to either provide an adequate warning of the
condition or make the condition reasonably safe.12 Fulfilling either criterion is sufficient to
satisfy the duty to exercise reasonable care.13
III.

DISCUSSION
A.

Failure to Exercise Reasonable Care
1.

Duty to Warn

Defendants assert the pooling water was sufficiently obvious that they had no duty to
warn Plaintiff of the water’s danger. The Summary Judgment Order cited the Texas Supreme
Court’s opinion in Parker v. Highland Park, Inc.14 for the proposition that property owners retain
a duty of reasonable care for obvious hazards.15 The cited section contains language which is
relevant for evaluating the narrower duty to warn:
A plaintiff’s knowledge, whether it is derived from a warning or from the facts,
even if the facts display the danger openly and obviously, is a matter that bears
upon his own negligence; it should not affect the defendant’s duty.16

11

CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000).

12

TXI Operations, L.P. v. Perry, 278 S.W.3d 763, 765 (Tex. 2009).

13

State v. Williams, 940 S.W.2d 583, 584 (Tex. 1996) (per curiam).

14

565 S.W.2d 512 (Tex. 1978).

15

Summ. J. Order 8 n.48.

16

Parker, 565 S.W.2d at 521 (emphases added). Although the quote does not specify what “the
defendant’s duty” is, the Parker Court’s earlier discussion indicates this refers to the duty to exercise

4

Even though Parker held that obviousness does not affect the duty to exercise reasonable care,
Defendants aver a condition’s obviousness nullifies the duty to warn, which is part of the duty of
reasonable care. This argument is inconsistent with Parker.
The Texas Supreme Court renewed Parker’s holding in Del Lago Partners, Inc. v.
Smith.17 In doing so, the Smith Court repeated the above-quoted passage in its entirety, and also
observed that “a plaintiff’s knowledge of a dangerous condition is relevant to determining his
comparative negligence but does not . . . reliev[e] the [property owner] of its duty to reduce or
eliminate the unreasonable risk of harm.”18 A property owner can reduce or eliminate risk of
harm either by warning of the condition, thereby keeping people away from the condition, or by
remedying the condition itself. Upholding Defendants’ argument would partially relieve them of
their duty to exercise reasonable care, contrary to the Court’s holdings in Parker and Smith.
Defendants point to three Texas cases for the proposition that property owners do not
have a duty to warn about obvious dangers.19 None of these cases persuade the court that the
Motion for Reconsideration should be granted.
In Timpte Industries, Inc. v. Gish, the Texas Supreme Court observed that there is no duty
to warn of a product’s open and obvious defects in some circumstances.20 As Gish is a products

reasonable care. See id. at 516 (describing the previous state of law where “[i]f there [were] dangers
which are not open and obvious, [the property owner was] under a duty to take such precautions as a
reasonably prudent person would take to protect his invitees therefrom or to warn them thereof”).
17

307 S.W.3d 762 (Tex. 2010).

18

Id. at 772–73 (footnotes omitted) (quoting Parker, 565 S.W.2d at 521).

19

Mot. Recons. 2 ¶ 5.

20

See 286 S.W.3d 306, 312–14 (Tex. 2009) (holding that the danger of falling from a 5 to 5.66
inch wide rail on a tractor trailer, nearly ten feet off the ground, was an obvious risk).

5

liability case rather than a premises liability case, it is not clear how the case is relevant to
Defendants’ Motion for Reconsideration. Defendants assert the Texas Supreme Court held in
Sauder Custom Fabrication, Inc. v. Boyd21 that the same standard applies to negligence claims
and products liability claims.22 However, Boyd’s analysis was confined to product defects, not
premises defects.23 Boyd had nothing to say about a duty to warn in the context of premises
defects. As Defendants have failed to explain how products liability analysis applies to
Plaintiff’s premises defect claim, Gish is not persuasive.
In Wilson v. Agri-Empressa, Inc., the Second Court of Appeals quoted the Texas Supreme
Court’s opinion in Coastal Marine Service of Texas, Inc. v. Lawrence in noting that a property
owner “has a duty to inspect the premises and warn the independent contractor/invitee of
dangerous conditions that are not open and obvious and that the owner knows or should have
known exist.”24 However, both the appeals court and Texas Supreme Court cases pre-dated
Smith. Accordingly, Smith’s language, which disclaims any effect of obviousness on the duty to
exercise reasonable care, is more persuasive. Furthermore, Lawrence’s discussion of “open and
obvious” dangers applied to a subcategory of premises defects that were irrelevant to the

21

967 S.W.2d 349 (Tex. 1998).

22

Mot. Recons. 2 ¶ 4.

23

See 967 S.W.2d at 349 (“The principal issue in this case is whether the obviousness of a risk is
to be determined from the perspective of an average person or an average user of the product.”)
(emphasis added).
24

No. 2-07-143-CV, 2008 WL 467379, at *3 (Tex. App.—Fort Worth Feb. 21, 2008, no pet.)
(emphasis removed) (quoting Coastal Marine Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 223, 225 (Tex.
1999) (per curiam))

6

Lawrence Court’s holdings.25 Therefore, because Wilson relied on dicta, it is even less
persuasive in light of the Court’s subsequent holding in Smith.
The final case Defendants point to is Zavala v. Burlington Northern Santa Fe Corp.26 In
Zavala, the Eighth Court of Appeals quoted Kansas City Southern Railroad Co. v. Guillory27 for
the proposition that a property owner “has no duty to warn a business invitee of dangerous
condition [sic] that are obvious.”28 The Guillory court’s observation relied on the rule that
property owners have no duty of reasonable care towards invitees for obvious premises defects.29
Fourteen years after Guillory, the Parker Court repudiated that rule and, consequently, the
section quoted in Zavala. For these reasons, Defendants’ use of Zavala is entirely unpersuasive.
In light of Parker and Smith, and Defendants’ failure to present any persuasive
countervailing authority, Defendants’ duty to warn Plaintiff continued to exist even if the “facts
display[ed] the danger openly and obviously.”30 Defendants’ Motion for Reconsideration is
denied regarding the duty to warn.

25

See Lawrence, 988 S.W.2d at 225 (“Under the first subcategory, the premises owner has a duty
to inspect the premises and warn the independent contractor/invitee of dangerous conditions that are not
open and obvious . . . . [However,] this case must be considered under the second premises defect
subcategory.”).
26

355 S.W.3d 359 (Tex. App.—El Paso 2011, no pet.).

27

376 S.W.2d 72 (Tex. Civ. App.—Beaumont 1964, writ ref’d n.r.e.).

28

Zavala, 355 S.W.3d at 366 (quoting Guillory, 376 S.W.2d at 75).

29

See Guillory, 376 S.W.2d at 75–76 (quoting a previous edition of Corpus Juris Secundum for
the rule that “[t]he duty to keep premises safe for invitees applies only to defects which are in the nature
of hidden dangers, and the invitee assumes all normal or obvious risks attendant on the use of the
premises.”
30

Parker, 565 S.W.2d at 521. For purposes of Defendants’ Motion for Reconsideration, it is
unnecessary to determine whether the pooling water was an obvious premises defect.

7

2.

Duty to Make the Pooling Water Reasonably Safe

Defendants claim there is no evidence they failed to make the pooling water reasonably
safe. The record indicates an employee of Defendants, Jose Martinez (“Martinez”), entered a
store bathroom, saw Plaintiff and the pooling water, shouted something,31 and went to seek
assistance.32 A short time afterward, Plaintiff slipped and fell on the pooling water.33
Defendants do not dispute that an employee noticed the pooling water before Plaintiff’s
fall. However, Defendants aver their employees’ prompt reactions entitle Defendants to
summary judgment on the issue of failing to make the pooling water reasonably safe.34
Defendants cite multiple cases indicating that a prompt response to a premises defect, in the
absence of other evidence indicating a lack of reasonable care, is enough to obtain summary
judgment.35 The relevant events in those cases follow the same pattern: an employee is provided
notice of a spill, the employee promptly proceeds towards the site of the spill, a customer slips
and falls, the employee arrives at the spill and takes remedial action.36 Based on the facts of

31

It is unclear whether the exclamation was intended to warn Plaintiff.

32

“Defendants’ Motion for Summary Judgment,” Ex. 3 (“Martinez’s Testimony”), at
35:19–36:17, 45:3–4, ECF No. 39-1, filed Sept. 8, 2014.
33

It is unclear whether Martinez returned to the bathroom before Cruzata fell. Compare Defs.’
Mot. Summary Judgment, Ex. 2 (“Plaintiff’s Testimony”), at 25:10–14, ECF No. 39-1 (Plaintiff
testifying the same employee who entered the restroom, shouted something, and left returned shortly
after he fell), with Martinez’s Test. 51:16–52:8 (Martinez testifying he returned to the bathroom before
Cruzata fell to look for cones).
34

Mot. Recons. 3–4 ¶ 9.

35

Id.

36

Loberg v. HEB Grocery Co., L.P., No. 04-10-00877-CV, 2011 WL 4828198, at *1 (Tex.
App.—San Antonio Oct. 12, 2011, pet. denied); Wal–Mart Stores, Inc. v. Chavez, 81 S.W.3d 862, 863
(Tex. App.—San Antonio 2002, no pet.).

8

those cases, courts found there was no evidence of a failure to make a condition reasonably
safe.37
In the instant case, the evidence is ambiguous. The record indicates that before Plaintiff
fell, Martinez was at the site of the accident and observed both Plaintiff and pooling water.38
There is one significant difference between this case and Defendants’ cited cases: Martinez had
an opportunity to reduce the risk to Plaintiff before the accident. Even though the facts indicate
Martinez responded promptly to the premises defect, it is for the fact finder whether Martinez
acted with reasonable care with regard to Plaintiff by yelling something and leaving the
bathroom.39
Because there is a question of fact about Martinez’s opportunity to reduce the danger to
Plaintiff before the accident, Defendants’ Motion for Reconsideration is denied on the issue of
failing to make the pooling water reasonably safe.
B.

Causation

Defendants argue Plaintiff is required to submit expert testimony as to what caused his
back injuries, because there is evidence Plaintiff had back problems which pre-dated his accident.
Because Plaintiff has failed to submit such testimony, Defendants propound, they are entitled to
summary judgment on causation.
In diversity jurisdiction cases, the court must look to Texas law to determine what

37

Loberg, 2011 WL 4828198, at *1; Chavez, 81 S.W.3d at 865.

38

Martinez’s Test. 35:19–36:17.

39

Although a warning may have sufficed, no opinion is expressed as to whether Martinez
provided an adequate warning.

9

evidence is required.40 The Texas Supreme Court expressed the general rule on when lay
testimony is sufficient to prove causation in Guevara v. Ferrer:
[Lay] evidence establishing a sequence of events which provides a strong, logically
traceable connection between the event and the condition could suffice to support a
causation finding between the . . . accident and basic physical conditions which (1)
are within the common knowledge and experience of laypersons, (2) did not exist
before the accident, (3) appeared after and close in time to the accident, and (4) are
within the common knowledge and experience of laypersons, caused by [such]
accidents.41
Defendants assert Plaintiff’s back conditions existed before his accident. Though there is some
evidence Plaintiff had preexisting back conditions,42 Plaintiff’s testimony indicates the accident,
at minimum, aggravated existing conditions. Plaintiff testified that immediately after the
accident, his back was in “a great deal of pain” and he was unable to walk.43 Furthermore,
Plaintiff stated that he was employed as a truck driver before his accident, but he was never able
to return to work because of his injuries.44 Based on Plaintiff’s testimony, there is evidence the
accident at minimum aggravated existing back conditions, leaving him, at least temporarily, in
great pain, unable to walk, and unable to drive a truck. Although it may be difficult to separate
the effect of the accident from the effects of preexisting conditions, it is for the jury to sort out
the source and extent of Plaintiff’s back injuries resulting from this incident, if any.

40

Hamburger v. State Farm Mut. Auto. Ins. Co., 361 F.3d 875, 884 (5th Cir. 2004).

41

247 S.W.3d 662, 667 (Tex. 2007).

42

See, e.g., Defs.’ Mot. Summ. J., Ex. 6, at 1, ECF No. 39-1 (noting “a pattern of moderate
multilevel long-standing degenerative discopathic changes and degenerative facet changes” in Plaintiff’s
back”).
43

Pl.’s Test. 23:24–24:2, 37:24–38:3.

44

Id. at 9:6–9; 43:18–44:7.

10

The two cases cited in support of Defendants’ argument do not change this conclusion.
In Guevara, the Texas Supreme Court analyzed causation evidence regarding an automobile
accident. The Court observed that a causal link for some medical expenses did not require proof
by expert testimony, as “it would be within the general experience and common knowledge of
laypersons that the accident caused [the decedent] to be transported to a medical care facility and
to be cared for medically to some degree.”45 On the other hand, the Court found expert testimony
necessary for a diverse set of medical services:
[The decedent]’s treatments . . . included, among other expenses, the cost of (1) at
least two abdominal surgeries; (2) three separate confinements in health care
facilities, one of which was for over three months; (3) a great variety and quantity of
various pharmaceutical supplies, medicines, and drugs; (4) numerous varied
laboratory procedures; (5) extensive treatments for respiratory failure and therapy;
(6) physical therapy of various kinds; (7) treatments for kidney failure; and (8) a great
assortment and quantity of ‘central supply’ and miscellaneous medical charges.46
Because no expert testimony was presented to link any of these services to the automobile
accident, the Court held the plaintiff had failed to adequately prove this part of his case.47
By contrast to Guevara, lay evidence has been presented to link Plaintiff’s back injuries
to his accident, and a reasonable jury could ascertain if Plaintiff’s back injuries were caused by
his back hitting the ground during the accident. As Plaintiff’s injuries are less complicated than
those evinced in Guevara,48 the Guevara Court’s conclusion is not applicable.
In Coastal Tankships, U.S.A., Inc. v. Anderson, the First Court of Appeals held that
45

Guevara, 247 S.W.3d at 667.

46

Id. at 669.

47

Id. at 669–70.

48

In evaluating the decedent’s injuries in Guevara, the Court observed that his “medical course
clearly was not smooth or simple.” Id. at 669.

11

expert testimony was required to prove naphtha inhalation causes bronchiolitis obliterans
organizing pneumonia (“BOOP”).49 However, not only was the Anderson court dealing with a
less common condition (BOOP) than the one Plaintiff is asserting (back injuries), there was no
evidence in the record indicating a causal link between naphtha and BOOP:
Dr. Miller was not aware of any literature associating BOOP with exposure to
chemicals other than oxides of nitrogen, which he conceded are found ‘everywhere.’
Similarly, Dr. Wilson testified that he was unable to find any literature connecting
BOOP to naphtha exposure. Dr. Wilson also testified without dispute that the
medical literature associates BOOP with only limited chemical agents, such as
nitrogens of oxide, which naphtha does not contain.50
In contrast to the linkage between naphtha and BOOP in Anderson, common sense indicates
blunt force trauma to the back can cause back injuries. Plaintiff has provided evidence his back
was injured after it hit the ground, and thus, there is no need for expert testimony to establish a
common-sense causal mechanism.
As Plaintiff has submitted evidence he suffered back injuries contemporaneous with his
accident, he was not required to submit expert testimony on causation in response to evidence of
preexisting conditions.51 For these reasons, Defendants’ Motion for Reconsideration is denied on
the issue of causation.
C.

Evidence of Damages

Defendants argue the record does not contain competent evidence of medical expenses,

49

87 S.W.3d 591, 603 (Tex. App.—Houston [1st Dist.] 2002, pet. denied).

50

Id. at 597.

51

Defendants have not submitted expert testimony stating that Plaintiff’s back injuries were
caused by preexisting conditions rather than the accident. No opinion is expressed as to whether Plaintiff
must submit expert testimony in response to expert testimony on alternative causation.

12

thereby making summary judgment proper for failure to prove those expenses.
When the Summary Judgment Order denied summary judgment on this issue, it noted
affidavits had been submitted as to the existence of medical expenses, as well as their
reasonableness and necessity.52 Defendants’ Motion asserts the affidavits are not competent
evidence as they were written by business records custodians rather than physician doctors.53
However, Tex. Civ. Prac. & Rem. Code § 18.001 (“section 18.001”) authorizes such affidavits to
prove the reasonableness and necessity of medical expenses, even if they are made by business
records custodians rather than physicians.54
Although Defendants concede the affidavits were written pursuant to Texas law, they
assert Texas’s procedure is not applicable in federal court.55 As previously discussed, the court
must look to Texas law to determine what evidence is required to prove an issue.56 Defendants
cite no authority indicating that section 18.001 is not applicable to evaluate their motion, and at
least one federal court has found that section 18.001 applies in federal courts.57 Accordingly, the
court holds section 18.001 applies to this case, thereby making the contested affidavits competent
to create a fact issue on medical expenses.

52

Summ. J. Order 13.

53

Mot. Recons. 6 ¶ 18.

54

Tex. Civ. Prac & Rem. Code § 18.001(c)(2)(B); Castillo v. Am. Garment Finishers Corp., 965
S.W.2d 646, 654 (Tex. App.—El Paso 1998, no pet.).
55

Mot. Recons. 6 ¶ 18.

56

Hamburger, 361 F.3d at 884.

57

See Rahimi v. United States, 474 F. Supp. 2d 825, 829 (N.D. Tex. 2006) (holding that a
plaintiff “may make a prima facie showing of the necessity and reasonableness of sums incurred for past
medical expenses by an affidavit executed in conformity with the requirements of section 18.001(c)”).
13

Alternatively, Defendants contend the affidavits were untimely submitted after the
discovery deadline, thus leaving no admissible evidence of reasonableness and necessity of
medical expenses.58 Defendants’ Motion for Reconsideration does not contain authority
mandating exclusion of untimely submitted evidence. Therefore, Defendants have failed to show
why excluding the affidavits is proper.59
Because there is competent evidence as to reasonable and necessary medical expenses,
summary judgment is not proper regarding evidence of medical expenses.60
IV.

CONCLUSION
For the above-discussed reasons, “Defendants’ Motion to Reconsider Summary

Judgment” [ECF No. 81] is DENIED.
SO ORDERED.
SIGNED this 1st day of May, 2015.

______________________________________
FRANK MONTALVO
UNITED STATES DISTRICT JUDGE

58

Mot. Recons. 6–7 ¶ 18.

59

No opinion is expressed as to whether other sanctions may be appropriate if Plaintiff failed to
comply with the discovery deadline.
60

In light of the affidavits, there is no need to consider whether other filings create fact issues
regarding medical expenses. See id. ¶¶ 17, 19–20 (disputing whether a table of balances and payments
and allegations of ongoing medical treatment create fact issues concerning medical expenses).
14