United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT
RICHARD A. SCHELL UNITED STATES DISTRICT JUDGE
following are pending before the court:
1. Defendant's motion for summary judgment and brief in
support (docket entry #14);
2. Plaintiff Toni Hollinger's response to Defendant's
motion for summary judgment (docket entry #17); and
3. Defendant's reply in support of its motion for summary
judgment (docket entry #18). Having considered the motion and
the responsive briefing thereto, the court finds that the
motion should be GRANTED.
AND FACTUAL BACKGROUND
following facts are largely undisputed:
On December 21, 2013 at around 11:30 a.m., Plaintiff entered
the Hobby Lobby store in Allen, Texas to shop for some
Christmas decorations. The weather conditions that day were
light snow and rain. (“It had [been] … raining
… all day.”). After purchasing a few items,
Plaintiff left the premises and returned to her car that was
parked in the lot outside the store. Plaintiff subsequently
realized that the debit card she had used to purchase the
merchandise a few minutes earlier was missing. Approximately
15-20 minutes later, after searching for the card in her
vehicle, Plaintiff walked back into the Hobby Lobby store to
look for the debit card.
According to Plaintiff, when she returned to the store for
the second time, it was still raining outside and she was
without an umbrella. Plaintiff testified that the store was
very crowded. (“It's the second busiest [store] in
the metroplex”). As Plaintiff re-entered the store, she
approached register number 2 where she had checked out before
leaving the store the first time. Suddenly, after taking a
few steps, Plaintiff slipped in some water that had been
tracked in by other customers and fell. Plaintiff testified
that she fell forward and was on her stomach, face down, for
approximately 10 minutes, but that no one came to help her.
Soon thereafter, another customer, who was in line at
register number 2, came over and helped Plaintiff get up and
walk over to get in line at register number 2. Plaintiff
admitted that she slipped in water tracked in by other
customers and that it had been raining off and on all day
long. Plaintiff also admitted that she had no idea
how long the water was on the floor before she slipped in it
or how long it had been since any Hobby Lobby employees had
mopped or cleaned the area where she allegedly slipped and
When Plaintiff made it up to the counter of register number
2, she asked the male clerk if he had her debit card.
Curiously, Plaintiff did not notify the clerk that she
had just slipped in water and had fallen. After the
clerk told Plaintiff he did not have her debit card,
Plaintiff walked over to register number 1 and spoke with the
store's customer service manager, Cheryl Huelsman, about
the missing card. As with the clerk at register number 2,
Plaintiff failed to notify Ms. Huelsman of the slip and
fall incident; rather, she only inquired about the
missing debit card. According to Plaintiff, Ms. Huelsman
responded that “we haven't seen the card.”
Thereafter, Plaintiff left the premises and drove home,
without telling any Hobby Lobby employee about the slip and
According to Plaintiff, when she got home she called the
store and asked to speak to the store manager, Jerry Tropp.
Mr. Tropp told Plaintiff that he had her debit card. Mr.
Tropp testified that Plaintiff never mentioned her fall to
him during this conversation. Plaintiff subsequently returned
to the store - for the third time that day - and retrieved
the debit card from Ms. Huelsman. Plaintiff admitted that
when she returned to the store to retrieve the debit card,
she did not mention the slip and
fall incident to Ms. Huelsman or any other Hobby Lobby
employee. According to Plaintiff, she called the store the
following day and reported the slip and fall incident to Mr.
Tropp. However, Mr. Tropp testified that he first learned of
the incident about “a week or two” after it
happened when Plaintiff called to report it. Ms. Huelsman
similarly testified that she first learned of the incident
about two weeks later when Plaintiff came into the store and
reported that “[she] fell the day [Dec. 21] that [she]
Def. Mtn. for Summ. Judg., pp. 3-5.
December 3, 2015, the Plaintiff filed her original petition
in the 199th Judicial District Court of Collin County, Texas.
On February 9, 2016, the Defendant removed this case to this
court on the basis of diversity jurisdiction. In the
Plaintiff's original petition, and subsequent first
amended petition, the Plaintiff sued the Defendant for
damages pursuant to a premises liability theory of recovery.
The Defendant now moves for summary judgment on the
Plaintiff's theory of recovery.