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Henson v. Kroger Texas, L.P.

United States District Court, N.D. Texas

May 16, 2017

JUDITH HENSON, Plaintiff,
v.
KROGER TEXAS, L.P ., Defendant.

          MEMORANDUM OPINION AND ORDER

          John McBryde United States District Judge

         Came on 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.

         I.

         Plaintiff's Claims

         Plaintiff's operative pleading is her amended complaint filed June 21, 2016. Doc.[1] 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.

         II.

         Grounds of the Motion

         Defendant 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.

         III. Applicable Summary Judgment Principles

         Rule 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 explained:

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 ...

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