Davis v. Home Depot USA, Inc. et al

Filing 35

REPORT AND RECOMMENDATIONS recommending to GRANT 23 Motion for Summary Judgment filed by The Home Depot, Home Depot USA, Inc.. Signed by Judge Nancy Stein Nowak. (mailed on 10/20/10, by certifed mail or forwarded electronically) (rf)

Davis v. Home Depot USA, Inc. et al

Doc. 35

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF TEXAS S A N ANTONIO DIVISION C A R L DWIGHT DAVIS, P la in tif f , v. H O M E DEPOT USA, INC. a n d THE HOME DEPOT, D efe n d a n ts . § § § § § § § § §

C I V I L ACTION NO. SA-09-CA-910-FB

R E P O R T AND RECOMMENDATION TO: H o n o r a b le Fred Biery C h ie f United States District Judge T h is report and recommendation addresses the pending motion for summary judgment.1 T h is case arose from plaintiff Carl Dwight Davis's complaint alleging negligence as a premises lia b ility claim against defendants Home Depot USA, Inc. and The Home Depot (together, The H o m e Depot). Davis maintains he was injured when a rolled-up area rug fell on him at the Home D e p o t store in New Braunfels. Davis was represented by an attorney when he filed this case, but th e attorney withdrew from representation2 after The Home Depot's attorney presented a video of D a v is performing work that contradicted his claim of disabling injury.3 Since that time, Davis w a s given the opportunity to retain counsel.4 Davis was unable to retain a new attorney. Davis

1

Docket entry # 23. Docket entry #s 19 & 20.
3

2

Docket entry # 25, exh. 1 (letter from Home Depot's attorney to Davis's former attorney d is c u s s in g the conflict in Davis's deposition testimony and the video footage showing Davis doing m a n u a l labor).
4

Docket entry # 22.

Dockets.Justia.com

asked the court to appoint an attorney to represent him,5 but the court has limited if any authority to appoint an attorney to represent a plaintiff in a negligence/premises liability case and the court d e n ie d the motion finding this case did not present exceptional circumstances. The court in s tru c te d Davis to review the pro se manual and advised him about the necessity of responding to the motion for summary judgment.6 Davis responded to the motion, but maintains that he c a n n o t prosecute his case pro se.7 The motion for summary judgment is ripe for resolution. T e x a s law requires the plaintiff to prove all elements of his premises liability claim. "Premises liability is a special form of negligence where the duty owed to the plaintiff depends u p o n the status of the plaintiff at the time the incident occurred."8 When the alleged rug-falling in c id e n t occurred, Davis was an invitee because he entered the store with the store's knowledge a n d for the mutual benefit of both--Davis to research stain for a customer9 and The Home Depot to sell home improvement products.10 As a plaintiff-invitee, Davis must prove the following:

5

Docket entry #s 26 & 30. Docket entry # 29. Docket entry #s 30 & 31. Western Investments v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). Docket entry # 24, exh. B, p. 26, lines 1-6.
10

6

7

8

9

Rosas v. Buddie's Food Store, 518 S.W.2d 534, 536 (Tex. 1975) ("An invitee has been d e s c rib e d as one who enters on another's land with the owner's knowledge and for the mutual benefit o f both."). "The test to determine whether a person is an invitee at the time and place of the injury is `whether the owner of the premises should have anticipated the presence of someone such as the p la in tiffs at that particular place on the premises.'" Peerenboom v. HSP Foods, 910 S.W.2d 156, 162 (T e x . App.--Waco 1995, no writ) (internal citation omitted). The parties do not dispute The Home D e p o t, by opening a store to sell home improvements products, should have anticipated the presence o f a customer such as Davis at the particular place on the premises where Davis maintains the rug fe ll on him.

2

(1) The Home Depot had actual or constructive knowledge of complained-about c o n d itio n ; (2 ) The complained-about condition posed an unreasonable risk of harm; (3 ) The Home Depot as the owner or occupier did not exercise reasonable care to re d u c e or eliminate the risk; and (4 ) The Home Depot's failure to use such care proximately caused Davis's i n j u r y. 11 T h e Home Depot argued that it is entitled to summary judgment because no evidence e x is ts that The Home Depot had actual or constructive knowledge that a rug was leaning against a d is p la y so as to fall and injure Davis.12 The Home Depot relied in part on Davis's deposition w h e re in Davis testified that he did not know "how the rug got to be placed where it was." 13 B e c a u s e The Home Depot made a proper summary-judgment argument, the burden shifted to D a v is to "set out specific facts [by documentary evidence] showing a genuine issue for trial." 14 D a v is did not present summary-judgment evidence raising a fact question about whether T h e Home Depot had actual or constructive knowledge that a rug was leaning against a display so a s to fall and injure Davis. Instead, Davis stated that he cannot produce evidence to prove that T h e Home Depot did or did not know that the rug was placed where a customer could be

Star Enterprise v. Marze, 61 S.W.3d 449, 461 (Tex. App.--San Antonio 2001, pet. denied). See a ls o CMH Homes v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000) (listing same elements and explaining th a t the "duty owed by an owner or occupier of premises to an invitee is not that of an insurer," but in s te a d the "duty owed is to exercise reasonable care to protect against danger from a condition . . . that creates an unreasonable risk of harm of which the owner or occupier knew or by the exercise o f reasonable care would discover."). Docket entry # 23. The Home Depot also maintains that it is entitled to summary judgment b e c a u s e Davis adduced no evidence that The Home Depot was a possessor of the premises. Docket e n try # 23, p. 7. Although a plaintiff must prove "the defendant possessed--that is, owned, o c c u p ie d , or controlled--the premises where injury occurred," Braudrick v. Wal-Mart Stores, 250 S .W .3 d 471, 476 (Tex. App.--El Paso 2008, no pet.), the court need not reach this argument if it a c c e p ts the recommendation presented in this report.
13 12

11

Docket entry # 24, exh. B, p. 36, lines 4-5. Fed. R. Civ. P. 56(e)(2).

14

3

injured.15 Davis further stated that "[s]omeone had to put the rug there; a vendor, a customer, or a n employee."16 While that much is obvious, the fact that someone placed the rug where it was d o e s not relieve Davis of his burden to prove all elements of his claim. If a party sues someone, h e must prove his case. Although Davis complains that he cannot present summary-judgment e v id e n c e to raise a fact question because he is not a lawyer, pro se litigants often survive s u m m a ry judgment. This case is not novel. The Home Depot is entitled to summary judgment b e c a u s e Davis failed to present summary-judgment evidence raising a fact question about w h e th e r The Home Depot had actual or constructive knowledge of the complained-about c o n d itio n . R e c o m m e n d a tio n . Because Davis failed to present summary-judgment evidence p re c lu d in g summary judgment, I recommend granting the motion for summary judgment (docket e n try # 23) and entering summary judgment in favor of The Home Depot. I n s tr u c tio n s for Service and Notice of Right to Object/Appeal. The United States D is tric t Clerk shall serve a copy of this report and recommendation on all parties by either (1) e le c tro n ic transmittal to all parties represented by attorneys registered as a "filing user" with the c le rk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt re q u e s te d . Written objections to this report and recommendation must be filed within 14 days a fte r being served with a copy of same, unless this time period is modified by the district court.17 S u c h party shall file the objections with the clerk of the court, and serve the objections on all o th e r parties and the magistrate judge. A party filing objections must specifically identify those fin d in gs , conclusions or recommendations to which objections are being made and the basis for

15

Docket entry # 13, p. 2. Id. 28 U.S.C. §636(b)(1); Fed. R. Civ. P. 72(b).

16

17

4

such objections; the district court need not consider frivolous, conclusive or general objections. A party's failure to file written objections to the proposed findings, conclusions and re c o m m e n d a tio n s contained in this report shall bar the party from a de novo determination by the d is tric t court.18 Additionally, failure to file timely written objections to the proposed findings, c o n c lu s io n s and recommendations contained in this report and recommendation shall bar the a ggrie v e d party, except upon grounds of plain error, from attacking on appeal the unobjected-to p ro p o s e d factual findings and legal conclusions accepted by the district court.19 S I G N E D on October 20, 2010.

_____________________________________ N A N C Y STEIN NOWAK U N IT E D STATES MAGISTRATE JUDGE

Thomas v. Arn, 474 U.S. 140, 149-152 (1985); Acuņa v. Brown & Root, 200 F.3d 335, 340 (5th C ir. 2000).
19

18

Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).

5