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Hollinger v. Hobby Lobby Stores, Inc.

United States District Court, E.D. Texas, Sherman Division

March 23, 2017

TONI HOLLINGER, Plaintiff,
v.
HOBBY LOBBY STORES, INC., Defendants.

          MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          RICHARD A. SCHELL UNITED STATES DISTRICT JUDGE

         The 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.

         PROCEDURAL AND FACTUAL BACKGROUND

         The following facts are largely undisputed:[1]

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 fell.
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 fall incident.
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] came in.”[2]

Def. Mtn. for Summ. Judg., pp. 3-5.

         On 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.

         SUMMARY ...


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