XAVIER RODRIGUEZ, District Judge.
On this date, the Court considered Defendant's motion for summary judgment in the above captioned case. Doc No. 38. For the following reasons, the motion is GRANTED.
On August 19, 2010, Plaintiff Kurtis Adkisson visited a San Antonio Wal-Mart store. After purchasing several items, Mr. Adkisson slipped and fell on a puddle of clear liquid. Mr. Adkisson suffered severe injuries to his shoulder and back. On August 9, 2012, Mr. Adkisson filed his original petition in the 224th Judicial District Court of Bexar County, Texas. Plaintiff asserts a cause of action for premises liability. On September 25, 2012, Defendant Wal-Mart removed the case to this Court on the basis of diversity jurisdiction. On August 30, 2013, this Court ordered Wal-Mart to show cause that the amount in controversy requirement had been satisfied. Doc. No. 33. The Court reviewed Wal-Mart's response and determined that it had subject matter jurisdiction over the case. Doc. No. 39. On August 30, 2013, Defendant filed this motion for summary judgment. Doc No. 38.
Summary judgment is proper when the evidence 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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-252 (1986). Rule 56 "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails... to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Curtis v. Anthony, 710 F.3d 587, 594 (5th Cir. 2013) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
The court must draw reasonable inferences and construe evidence in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Although the evidence is viewed in the light most favorable to the nonmoving party, a nonmovant may not rely on "conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence" to create a genuine issue of material fact sufficient to survive summary judgment. Freeman v. Tex. Dep't of Criminal Justice, 369 F.3d 854, 860 (5th Cir. 2004).
To recover on a premises liability theory under Texas law, a plaintiff must establish that: (1) the owner/operator of the premises had actual or constructive knowledge of some dangerous condition, (2) the condition posed an unreasonable risk of harm, (3) the owner/operator did not exercise reasonable care to reduce or eliminate the risk and; 4) the owner/operator's failure to use such care proximately caused the plaintiff's injuries. Keetch v. Kroger Co., 845 S.W.2d 262 (Tex. 1992). Wal-Mart moves for summary judgment on the basis that Mr. Adkisson is unable to show that Wal-Mart had either actual or constructive knowledge of the liquid which caused his accident. Doc. No. 38. To establish actual or constructive knowledge, a plaintiff must demonstrate either that: 1) Defendant placed the liquid on the floor, 2) Defendant actually knew the liquid was on the floor and negligently failed to remove the liquid; or 3) It was more likely than not that the liquid was on the floor long enough to give Defendant a reasonable opportunity to discover the liquid (i.e. constructive notice). Id. at 265.
1. Actual Notice:
Mr. Adkisson argues that two pieces of evidence establish a genuine fact issue as to Wal-Mart's actual knowledge of the liquid that caused the accident. First, Mr. Adkisson offers the uncontested fact that there was a floor mat on the ground near the site of the accident. The parties vigorously dispute whether this creates a factual question as to whether Wal-Mart was actually aware of the spill. Mr. Adkisson's theory is that the mat would not normally have been there absent some dangerous condition, and therefore its placement is evidence that Wal-Mart was aware of such a condition. Doc. No. 40 at ¶ 21. Since it is possible that Wal-Mart placed the mat there to address the liquid upon which he fell, Mr. Adkisson asks the Court to infer that it must have known of the dangerous condition. Although the Court resolves all inferences in favor of Mr. Adkisson as the non-movant, the Court cannot infer, without further evidence, that the mat was placed to address the liquid in question simply because that is within the realm of possibility.
Plaintiff is actually asking the Court to draw several unsubstantiated inferences in his favor. Mr. Adkisson argues that Wal-Mart placed the mat to "cover up" the condition which caused his injury. Doc. No. 40. The evidence shows the mat was there for at least an hour, if not more, before Mr. Adkisson fell. The liquid that Mr. Adkisson fell on either came from a spill or from some sort of leak. If the liquid came from a spill and Wal-Mart placed the mat there to address it, then they must have known about it for at least an hour before the accident occurred. Plaintiff therefore asks the Court to infer that: (1) Wal-Mart chose not to clean up the liquid, 2) Wal-Mart chose instead to address the spill by placing a mat over it, and 3) the mat did not dry up the liquid over the course of an hour. Moreover, there is no evidence that the liquid was caused by a leak. Wal-Mart's employees testified that they were unaware of any leak in the store. Doc. No. 30. Exs. C & D. The placement of the mat near the site of the accident does not create a reasonable inference that Wal-Mart had actual knowledge.
Mr. Adkisson offers no evidence that the mat was placed where it was to address the dangerous condition. At the depositions of the store manager and the assistant store manager, Plaintiff obtained the unsurprising concession that Wal-Mart sometimes uses mats to address slip and fall hazards. Doc. No. 38. Exs. C & D. The relevant question here is whether this mat was put down to address the liquid that caused Mr. Adkisson's fall. On that issue, Plaintiff has no evidence. In Pipkin, a Texas Court of Appeals overturned summary judgment for defendant where its employee testified that she had cleaned up ice that had fallen on the floor and then placed a caution sign to warn others of the potential hazard before plaintiff's fall occurred. Pipkin v. Kroger Texas, L.P., 383 S.W.3d 655, 670 (Tex. App.-Houston [14th Dist.] 2012, pet. denied) (internal quotations omitted). Therefore, testimony showing that an employee knew of a dangerous condition and took action to fix it is sufficient to establish a fact issue as to actual knowledge. In this case, however, Mr. Adkisson does not offer any testimony from Defendant's employees indicating that they were ever aware of the liquid or had placed the mat to address the spill. To the contrary, the store manager testified at deposition that the mat in question "may" have been placed there to smooth out an uneven portion of the floor. Pls's Ex. E. Therefore, the claim that the mat was there to address the liquid which caused the fall is speculation.
Second, Mr. Adkisson argues that screen-shots of video surveillance footage establish that Defendant created the condition and thus has actual knowledge. The screen-shots submitted to the Court show an individual standing over a mat in the corridor between the check-out aisles and the store's entrances and exits. Doc. No. 40. Ex. E. Mr. Adkisson claims that the individual in the screen shot is a maintenance employee who is pushing a cart with a mop bucket through the area where the fall later occurred. Although this is not entirely clear from the screen-shots provided, the ...