Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Shirey v. Wal-Mart Stores Texas, LLC

United States District Court, S.D. Texas, Houston Division

March 30, 2017

ELIZABETH SHIREY, Plaintiff,
v.
WAL-MART STORES TEXAS, LLC, Defendant.

          MEMORANDUM AND OPINION

          Lee H. Rosenthal Chief United States District Judge

         The 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 negligence.

         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 reasons are set out below.

         I. Background[1]

         The 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).

         Shirey 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.

         After 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.

         II. The Applicable Legal Standards

         A. Summary Judgment

         “Summary 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).

         “Where 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)).

         “Once 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.

         B. Premises Liability

         “Under 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.