United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND OPINION
Rosenthal Chief United States District Judge
plaintiff, Elizabeth Shirey, slipped and fell on a single
green grape while shopping at a Wal-Mart store. Shirey was
injured and required surgery. The green grape had fallen onto
the off-white floor 17 minutes before Shirey slipped and
fell. Shirey sued Wal-Mart for premises liability and
on a careful review of the motion, response, and reply; the
record; and the relevant law, Wal-Mart's motion for
summary judgment is granted. The reasons are set out below.
plaintiff, Elizabeth Shirey, slipped on a single green grape
and fell while shopping at a Wal-Mart store in July 2015.
(Docket Entry No. 30, Ex. B at 44). She was injured and has
had surgery for the injuries she sustained. (Docket Entry No.
31, Ex. 8 at 85). The green grape fell from another
customer's cart on to the off-white floor approximately
17 minutes before Shirey slipped. (Docket Entry No. 30, Ex.
G). Approximately 30 seconds after the grape fell onto the
floor, a Wal-Mart associate walked past the grape and did not
see it on the floor. (Id.). She contends that while
the Wal-Mart associate who walked past the grape did not
notice it on the floor, he should have. (Docket Entry No.
31). She points to a Wal-Mart policy that requires associates
to perform a “visual sweep” by looking for
potential hazards, like spills and debris. (Id., Ex.
9). Company policy also requires Wal-Mart associates to be
attentive to their surroundings while on duty. (Docket Entry
No. 30, Ex. F at 24-25).
sued Wal-Mart under a premises liability theory and for
negligence. (Docket Entry No. 15). In Shirey's response
to the motion for summary judgment, she concedes that her
negligence claim cannot be maintained simultaneously with a
premises liability action. (Docket Entry No. 31 at n.1). The
negligence claim is accordingly dismissed.
discovery, Wal-Mart moved for summary judgment, Shirey
responded, and Wal-Mart replied. (Docket Entry Nos. 30, 31,
32). Based on a careful review of the motion, response, and
reply; the record; and the relevant law, Wal-Mart's
motion for summary judgment is granted.
The Applicable Legal Standards
judgment is required 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.'”
Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015)
(quoting Fed.R.Civ.P. 56(a)). “A genuine dispute of
material fact exists when the ‘evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.'” Nola Spice Designs, LLC v. Haydel
Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015)
(quoting Anderson v. Liberty Lobby, 477 U.S. 242,
248 (1986)). “The moving party ‘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.'” Id.
(quoting EEOC v. LHC Grp., Inc., 773 F.3d 688, 694
(5th Cir. 2014)); see also Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986).
the non-movant bears the burden of proof at trial, the movant
may merely point to the absence of evidence and thereby shift
to the non-movant the burden of demonstrating by competent
summary judgment proof that there is an issue of material
fact warranting trial.” Id. (quotation marks
omitted); see also Celotex, 477 U.S. at 325.
Although the party moving for summary judgment must
demonstrate the absence of a genuine issue of material fact,
it does not need to negate the elements of the
nonmovant's case. Boudreaux v. Swift Transp.
Co., 402 F.3d 536, 540 (5th Cir. 2005). “A fact is
‘material' if its resolution in favor of one party
might affect the outcome of the lawsuit under governing
law.” Sossamon v. Lone Star State of Texas,
560 F.3d 316, 326 (5th Cir. 2009) (quotation omitted).
“If the moving party fails to meet [its] initial
burden, the motion [for summary judgment] must be denied,
regardless of the nonmovant's response.” United
States v. $92, 203.00 in U.S. Currency, 537 F.3d 504,
507 (5th Cir. 2008) (quoting Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)).
the moving party [meets its initial burden], the non-moving
party must ‘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.'” Nola Spice, 783 F.3d at 536
(quoting EEOC, 773 F.3d at 694). The nonmovant must
identify specific evidence in the record and articulate how
that evidence supports that party's claim. Baranowski
v. Hart, 486 F.3d 112, 119 (5th Cir. 2007). “This
burden will not be satisfied by ‘some metaphysical
doubt as to the material facts, by conclusory allegations, by
unsubstantiated assertions, or by only a scintilla of
evidence.'” Boudreaux, 402 F.3d at 540
(quoting Little, 37 F.3d at 1075). In deciding a
summary judgment motion, the court draws all reasonable
inferences in the light most favorable to the nonmoving
party. Connors v. Graves, 538 F.3d 373, 376 (5th
Cir. 2008); see also Nola Spice, 783 F.3d at 536.
Texas law, a property owner owes an invitee a duty to protect
the invitee from dangerous conditions that are known or
reasonably discoverable. CMH Homes, Inc. v. Daenen,
15 S.W.3d 97, 101 (Tex. 2000). The property owner is not,
however, an insurer of the invitee's safety. Wal-Mart
Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002);
Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934,
936 (Tex. 1998). A plaintiff asserting a claim for premises
liability must show that: (1) the owner or occupier had
actual or constructive knowledge of a condition on the
premises; (2) the condition posed an unreasonable risk of
harm; (3) the owner or occupier did not exercise ...