United States District Court, N.D. Texas
MEMORANDUM OPINION AND ORDER
McBryde United States District Judge
for consideration the motion of defendant, Kroger Texas,
L.P., for summary judgment. The court, having
"considered the motion, the response of plaintiff,
Judith Henson, the reply, the record, . :the summary
judgment evidence, and applicable authorities, finds that the
motion should be granted.
operative pleading is her amended complaint filed June 21,
2016. Doc. 12. In it, she alleges that on August 30,
2014, while shopping at defendant's premises in the aisle
where defendant stocks and displays dog food that is packaged
in four and eight pound bags, she was injured when an eight
pound bag of dog food fell on her. Specifically:
3.3 Defendant's employees stacked large eight (8) lb.
bags of dog food on top of the four (4) lb. bags on the
highest shelf in the aisle.
3.4 Unbeknownst to Plaintiff, she attempted to remove a four
(4) lb. bag, but was injured when an eight (8) lb. bag that
was stacked on top of the four (4) lb. bag struck the left
side of her body.
Doc. 12 at 2. Plaintiff asserts a premises liability claim,
seeking to recover for injuries allegedly sustained when an
eight pound bag of dog food fell on her. Doc. 12 at 3-4.
of the Motion
says that it is entitled to judgment because plaintiff can
produce no evidence of an unreasonably dangerous premises
condition about which defendant had actual or constructive
notice. And, in the event plaintiff is asserting a claim
based on an unreasonably dangerous premises defect, plaintiff
cannot prevail because such defect was open and obvious
and/or actually known to plaintiff and defendant owed her no
duty to warn or to protect her from such defect.
Applicable Summary Judgment Principles
56(a) of the Federal Rules of Civil Procedure provides that
the court shall grant summary judgment on a claim or defense
if 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, 247 (1986}. The movant bears the
initial burden of pointing out to the court that there is no
genuine dispute as to any material fact. Celotex Corp. v,
Catrett, 477 U.S. 317, 323, 325 (1986). The movant can
discharge this burden by pointing out the absence of evidence
supporting one or more essential elements of the nonmoving
party's claim, "since a complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial."
Id. at 323. Once the movant has carried its burden
under Rule 56(a), the nonmoving party must identify evidence
in the record that creates a genuine dispute as to each of
the challenged elements of its case. Id. at 324;
see also Fed.R.Civ.P. 56(c) ("A party asserting
that a fact ... is genuinely disputed must support the
assertion by . . . citing to particular parts of materials in
the record ...."). If the evidence identified could not
lead a rational trier of fact to find in favor of the
nonmoving party as to each essential element of the nonmoving
party's case, there is no genuine dispute for trial and
summary judgment is appropriate. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587,
597 (1986). In Mississippi Prot. &
Advocacy Sys. v. Cotten, the Fifth Circuit
Where the record, including affidavits, interrogatories,
admissions, and depositions could not, as a whole, lead a
rational trier of fact to find for the nonmoving ...