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

Filing 36

MEMORANDUM OPINION and ORDER, GRANTING 19 Motion for Summary Judgment; Plaintiff Patricia Medina's claim asserted against Defendant is DISMISSED WITH PREJUDICE; pending motions are denied as moot, and closing Civil Case. Signed by Judge David C Guaderrama. (em)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
PATRICIA MEDINA,

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Plaintiff,

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v.
WAL-MART STORES TEXAS, L.L.C.,

EP-17-CV-00320-DCG

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Defendant.

MEMORANDUM OPINION AND ORDER
Before the Court are Defendant Wal-Mart Stores Texas, LLC's ("Wal-Mart") "Motion
for Summary Judgment" (ECF No. 19) and Magistrate Judge Anne T. Berton's "Report and
Recommendation" (ECF No. 30) ("R&R"). Judge Berton recommends that Wal-Mart's motion
should be granted. Also, before the Court are Plaintiff Patricia Medina's "Objections to the
Magistrate Judge's R&R" (ECF No. 32). For the reasons that follow, the Court accepts Judge
Berton's recommendation and grants Wal-Mart's motion.
I.

BACKGROUND

This is a slip-and-fall case. In August 2015, while shopping at a Wal-Mart grocery store,
Medina allegedly slipped on a wet restroom floor and suffered serious bodily injuries. In
September 2017, she sued Wal-Mart in state court, asserting a claim for premises liability. 1 In
October 2017, Wal-Mart removed the case to this Court on the basis of diversity jurisdiction.

See Pl.'s Orig. Pet.~~ 9-10, ECF No. 1-1. The Court understands Medina as asserting only one
claim, and that is for premises liability. See id. ~ 3 ("Plaintiff has brought this action against Defendant to
recover personal injury damages she suffered while she was shopping in one of Defendant's retail
stores."); Pl.'s Objs. to Magistrate Judge's R&R at I [hereinafter, cited as Pl.'s Objs. to R&R] ("Plaintifrs
claim for personal injury damages against Defendant stems in premises liability."), ECF No. 32; see also
Sampson v. Univ. ofTexas at Austin, 500 S.W.3d 380,386 {Tex. 2016) ("[T]his Court ... has consistently
treated slip/trip-and-fall cases as presenting claims for premises defects .... Creative pleading does not
change the nature of a claim.").
1

In October 2018, Wal-Mart filed the instant motion, see Mot. for Summ. J., ECF No. 19,
and the parties briefing on the motion was completed by December 10,2018, see Pl.'s Resp. to
Def.'s Mot. Summ. J., ECF No. 23; Wal-Mart's Reply to Pl.'s Resp., ECF No. 24. On December
I 1, 2018, pursuant to 28 U.S.C. § 636(b)(l)(B), the Court referred the motion to Judge Berton for
a report and recommendation. Order Referring Mot., ECF No. 25. After Judge Berton issued
her R&R on January 28, 2019, see R&R, ECF No. 30, Medina filed her written objections to the
R&R, see Pl.'s Objs. to R&R. Wal-Mart did not file any objection to the R&R, though it filed
its Response to Medina's objections (ECF No. 33). Currently, the case is set for a final pretrial
conference and jury trial, respectively, on May 16, and May 20,2019.

II. STANDARD
A. Standard for Reviewing Report and Recommendations
A district court must review a magistrate judge's report and recommendation in light of
any objection thereto filed. See 28 U.S. C.§ 636(b)(l). The Court must conduct a de novo
review of any portion to which any party files an objection. See 28 U.S.C. § 636(b)(1); Fed. R.
Civ. P. 72(b)(3); Warren v. Miles, 230 F.3d 688, 694 (5th Cir. 2000). As to any portion for
which no objection is filed, the Court reviews for clearly erroneous factual findings and
conclusions of law. See United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989). "A
finding is clearly erroneous only if it is implausible in the light of the record considered as a
whole." St. Aubin v. Quarterman, 470 F.3d 1096, 1101 (5th Cir. 2006).

B. Standard for Summary Judgment
Summary judgment is appropriate when "the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.
R. Civ. P. 56(a). "A genuine dispute of fact exists when evidence is sufficient for a reasonable

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jury to return a verdict for the non-moving party, and a fact is material if it 'might affect the
outcome of the suit."' Willis v. Cleco Corp., 749 F.3d 314; 317 (5th Cir. 2014) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986)). In deciding-whether a genuine
dispute as to material fact exists, a trial court considers all of the evidence in the record and
"draw[s] all reasonable inferences in favor of the nonmoving party," but "refrain[s] from making
credibility determinations or weighing the evidence." Turner v. Baylor Richardson Me d. Ctr.,
476 F.3d 337, 343 (5th Cir. 2007) (internal quotes and citation omitted).
Procedurally, the party moving for summary judgment "'bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions of the
record which it believes demonstrate the absence of a genuine issue of material fact."' EEOC v.
LHC Grp., 773 F.3d 688, 694 (5th Cir. 2014) (brackets omitted) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317,323 (1986)). When the nonmoving party will bear the burden of proof at
trial, the moving party may satisfy this responsibility by "point[ing] out the absence of evidence
supporting the nonmoving party's case." Latimer v. Smithkline & French Lab., 919 F.2d 301,
303 (5th Cir. 1990); see also Boudreaux v. Swift Transp. Co., 402 F.3d 536, 544 (5th Cir. 2005)
("[T]he moving party is not required to present evidence proving the absence of a material fact
issue; rather, the moving party may meet its burden by simply pointing to an absence of evidence
to support the nonmoving party's case." (internal quotes and citation omitted)).
If the moving party succeeds, "the onus shifts to the nonmoving party to go beyond the
pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that there is a genuine issue for trial."
EEOC, 773 F.3d at 694 (internal quotation marks omitted) (citing Celotex Corp., 477 U.S. at
324). However, the nonmoving party "cannot defeat summary judgment with conclusory

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allegations, unsubstantiated assertions, or only a scintilla of evidence." Davis v. Fort Bend Cty.,
765 F.3d 480,484 (5th Cir. 2014) (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir.l994) (en bane) (per curiam)).

III.

DISCUSSION

For a premises liability defendant to be liable for a plaintiffs injury, the plaintiff must
prove that: (1) the defendant had actual or constructive knowledge of some condition on the
premises; (2) the condition posed an unreasonable risk of harm to the plaintiff; (3) the defendant
did not exercise reasonable care to reduce or to eliminate the risk; and {4) the defendant's failure
to use such care proximately caused the plaintiffs personal injuries. United Scaffolding, Inc. v.
Levine, 537 S.W.3d 463, 471-72 (Tex. 2017) (brackets, internal quotes, and citation omitted).
"Constructive knowledge is a substitute in the law for actual knowledge," CMH Homes,
Inc. v. Daenen, 15 S.W.3d 97, 102-03 {Tex. 2000), and it can be established by showing that "it
is more likely than not that the condition existed long enough to give the premises owner a
reasonable opportunity to discover it," Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex.
2002). The "rule in Texas is that temporal evidence, not proximity evidence, is the sine qua non
of a premises owner's constructive knowledge." Dixon v. Wal-Mart Stores, Inc., 330 F.3d 311,
315 (5th Cir. 2003) (citing Reece, 81 S. W .3d at 816)); see also id. at 316 ("Under Texas law, a
premises owner's constructive knowledge is predicated on temporal evidence because a premises
owner is not an insurer of an invitee's safety, and therefore a premises owner must have the
opportunity-sufficient time-to 'exercise reasonable care to reduce or eliminate the risk."'
(quoting Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992))).
In recommending that Wal-Mart's motion should be granted, the magistrate judge made
three findings as to the knowledge element. First, there is no genuine dispute of material fact

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regarding Wal-Mart's lack of actual knowledge. R&R at 6 (reasoning that Medina conceded that
Wal-Mart did not have actual knowledge and failed to advance any argument or evidence to the
contrary). Second, Medina's evidence is insufficient to create a genuine dispute of material fact
as to whether it is more likely than not that the dangerous condition existed long enough for WalMart to be charged with constructive knowledge. !d. at 8-10 (explaining, inter alia, that there
was no evidence indicating when the water came to be on the floor and therefore, no temporal
evidence). Third, and finally, the Texas Supreme Court's holding in Corbin v. Safeway Stores,

Inc., 648 S.W.2d 292 (Tex. 1983), that temporal evidence is not required, is not applicable in this
case. ld at 10 n.8.
In Corbin, under the specific facts of the case, the Texas Supreme Court held that the
slip-and-fall plaintiff had "a right to have a jury determine the storeowner's liability, even in the
absence of evidence showing the storeowner' s actual or constructive knowledge of the presence
on the floor of the specific object causing the fall." Corbin, 648 S.W.2d at 295. The plaintiff's
right to recover, the court added, "depends on his showing [the storeowner's] knowledge of the
foreseeable harm of some course of conduct or method of operation," but "[h]e is not required to
prove ... knowledge of one specific hazard[.]" !d. at 296. In a recent unpublished opinion, the
Fifth Circuit held that "Corbin applies only to conditions that are dangerous from the inception
of their use in contrast to conditions that become dangerous over time, even if they frequently do
become dangerous." Murrayv. Chick-Fil-A, Inc., 626 F. App'x 515,517 (5th Cir. 2015) (citing

Daenen, 15 S.W.3d at 101). The magistrate judge relied on Murray to reason that Wal-Mart's
"'restroom is not a dangerous condition from the inception of its use; it only becomes dangerous
over time if not properly maintained,"' R&R at 10 n.8 (quoting Murray, 626 F. App'x at 517),
and concluded that there is no basis to dispense with the temporal requirement here, id.

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In her objections to the R&R, Medina does not address the magistrate judge's first and
second findings. Because these findings are not clearly erroneous, the Court adopts them. See

Wilson, 864 F.2d at 1221, supra. However, Medina does object to the magistrate judge's third
finding. Specifically, she faults the magistrate judge for "not fully analyz[ing]'' the facts in the
instant case with the holdings of Corbin and its progeny. Pl.'s Objs. at 4. The judge erred,
Medina continues, by finding that temporal evidence was required to impute knowledge to WalMart. !d. In this Court's view, it need only look to Corbin to rule on this objection, and as
discussed infra, it reaches the same conclusion as did the magistrate judge: The Corbin holding
dispensing with the temporal requirement is inapplicable here.
The Texas Supreme Court has characterized Corbin as "[a]n exceptional case,"

Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406,408 (Tex. 2006), and in deciding whether
Corbin is applicable in a given case, has examined whether the facts of the case are closely
analogous to those in Corbin, see Daenen, 15 S.W.3d at 101 ("[T]he facts of this case are not
congruent with those in Corbin."). A threshold inquiry in deciding Corbin's applicability is:
what is the alleged "dangerous condition"? See Taylor, 222 S.W.3d at 407 ("Taylor argues that
the dispenser itself, not just the particular piece of ice on which Taylor slipped, was an
unreasonably dangerous condition .... Brookshire argues that the ice on which Taylor slipped
was the only unreasonably dangerous condition."); Nat 'l Convenience Stores, Inc. v. Erevia, 73
S.W.3d 518, 521 (Tex. App.-Houston [1st Dist.] 2002, pet. denied) ("This case turns on
whether the dangerous condition was the water on the floor or the iced barrel itself, without any
protective mats placed around it.").
That inquiry is critical, as illustrated in Corbin. There the plaintiff alleged three
dangerous conditions in the defendant's store. Among them were: (1) the "specific grape" on

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which he slipped and (2) the self-service display of grapes, in an open, slanted bin above a green
linoleum floor, from which the grape may have fallen or been knocked to the floor. Corbin, 648
S.W.2d at 296. As to the specific grape, the court held that temporal evidence and therefore, a
showing of constructive knowledge were required to hold the store liable. Id ("Safeway does
not deny the unreasonableness of that risk, but contends Corbin produced no proof of the
requisite constructive knowledge. We agree."). As to the self-service display, on the other hand,
the court held that the plaintiff could recover without showing constructive knowledge, because
there was evidence that the store knew of an unusually high risk associated with its grape
display. !d. In so holding the court elucidated the difference between the "typical" slip-and-fall
case and the case at hand: "In the typical case, the only dangerous condition that is alleged is the
specific food item on the floor; that is, there is usually no basis for a claim that the storeowner
maintained an unreasonably dangerous method of display that frequently caused such food items
to become floor hazards." Id at 297.
Here, Medina alleges that the dangerous condition is the water on the restroom floor on
which she slipped. See Pl.'s Objs. to R&R at 2 ("When Plaintiff was in the restroom, she
slipped and fell on water near the sinks of the restroom."); id at 6 ("Defendant also does not
dispute that water on the restroom floor presents a dangerous condition to customers." (emphasis
added)); Orig.

Pet.~

9(a) ("Defendant had a duty to ... [i]nspect their restroom floors for water

or other foreign substances that might be spilled or dropped onto the restroom floors, thereby
creating an unreasonably dangerous condition[.]"); id.

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9(b) ("Having actual or constructive

knowledge of the dropped or spilled foreign substance, .... "); id.

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10 ("Defendant's managers

and/or employees had actual or constructive [knowledge] of the puddle and the danger that it
posed to customers[.]"). The water on the floor is like the specific grape in Corbin.

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Consequently, to prevail against Wal-Mart, Medina must adduce temporal evidence-that it is
more likely than not that the water on which she slipped existed on the restroom floor long
enough to give Wal-Mart a reasonable opportunity to discover it. See Reece, 81 S.W.3d at 814.
As discussed supra, the Court has adopted the magistrate judge's finding that there is no
temporal evidence and therefore, there is not a genuine dispute of material fact necessary to
satisfy the temporal element. R&R at 10.
Moreover, in her objections to R&R, Medina, for the first time, says that Wal-Mart "was
aware that the way the restroom was set up was a problem that created a frequent risk of injury,"
Pl.'s Objs. at 7 (emphasis added), but she has failed to adduce any evidence to show "how" and
"in what way" the restroom was set up-so that the restroom may be analogous to the selfservice display in Corbin. See Liquid Air Corp., 37 F.3d at 1075 (The non-movant's "burden is
not satisfied ... by conclusory allegations ... [or] by unsubstantiated assertions[.]"); cf Taylor,
222 S.W.3d at 408 ("No evidence suggests that the soft drink dispenser was set up in such a way
that ice on the floor was a greater danger than one would ordinarily encounter with such
dispensers, or that customers, though prone to spills, were any more prone around this
dispenser.").
Consequently, the Court accepts the magistrate judge's R&R2 and grants Wal-Mart's
motion. See Bendigo v. City ofHouston, 178 S.W.3d 112, 116 (Tex. App.-Houston [1st Dist.]
2005, no pet.) ("Bendigo's reliance on Corbin is misplaced. First, Bendigo's failure to provide
evidence of Bums Management's actual or constructive knowledge of the cup is similar to the
customer in Corbin failing to provide evidence of the store's knowledge of the grape-in both
instances, the lack of knowledge is fatal. Moreover, unlike the customer in Corbin, Bendigo did
2

The magistrate judge also made additional findings as to the causation element of premises
liability cause of action. R&R 11-12. Because the Court's ruling on the knowledge element is
dispositive in this case, it expresses no opinion as to those additional findings.

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not provide evidence that Burns Management caused the cup to be on the floor or that the
stairwell itself was a dangerous condition.").

IV.

CONCLUSION

Accordingly, IT IS ORDERED that Magistrate Judge Anne T. Berton's "Report and
Recommendation" (ECF No. 30) is ACCEPTED.

IT IS FURTHER ORDERED that Defendant Wal-Mart Stores Texas, LLC's "Motion
for Summary Judgment" (ECF No. 19) is GRANTED and therefore, that Plaintiff Patricia
Medina's claim asserted against Defendant is DISMISSED WITH PREJUDICE. Final
Judgment will issue on this date in accordance with this Memorandum Opinion and Order.

IT IS MOREOVER ORDERED that all pending motions, if any, are DENIED AS
MOOT.
IT IS FINALLY ORDERED that the District Clerk SHALL CLOSE this case after
docketing the Final Judgment.

So ORDERED and SIGNED this

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Z'f day of March 2019.

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