United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
J. BOYLE, UNITED STATES DISTRICT JUDGE
the Court is Defendant Ross Stores, Inc.'s Motion for
Summary Judgment. Doc. 21. For the reasons explained below,
Defendant's motion is GRANTED.
a premises liability case concerning a slip-and-fall at a
Ross department store. Plaintiff Blanca Robles was shopping
at the Ross store in Mesquite, Texas in the middle of the day
with her mother and sister. Doc. 22, Def.'s Br. in Supp.
of Mot. for Summ. J. 3 [hereinafter Def.'s Br.]. After
being in the store for approximately half an hour, Blanca
Robles fell in the women's clothing department.
Id. Her mother was in another department at the time
and did not witness her fall. Id. Her sister was on
a different aisle in the women's department, but it is
unclear whether the sister witnessed the fall. Id. A
Ross employee standing a few feet away did not observe the
fall but heard a noise and turned around to see Plaintiff
sitting on the ground. Id.
admits she did not see what she tripped on, but after falling
she noticed a “size nub” stuck to the bottom of
her shoe. Id. “Size nubs, ” as the
parties describe them, are small, cylindrical tags which clip
onto clothing hangers and are marked with different
letters-“S, ” “M, ” “L, ”
“XL, ” etc.-indicating the clothing's size.
Id. Size nubs are roughly the size of a dime and
come in various colors. Doc. 27, Pl.'s Br. in Resp. to
Def.'s Mot. for Summ. J. 11, 17, 19 [hereinafter
Pl.'s Resp.].Plaintiff indicated to the Ross employee
that she had tripped on a size nub. Doc. 22, Def.'s Br.
3. The Ross employee noticed three size nubs on the ground
near Plaintiff: a red one, a black one, and a yellow one.
Id. at 4. Two were in the aisle, and one was under a
clothing rack. Id. The floor where Plaintiff fell
was white. Id.
prior to the incident, approximately five or at most ten
seconds before, the Ross employee had walked through the
exact area where Plaintiff fell and observed no size nubs on
the floor. Doc. 27, Pl.'s Resp. 4. The employee had,
however, noticed a pair of sunglasses on the ground and
picked them up. Id. at 5. Additionally, evidence
establishes that Ross employees do walkthroughs of every
department to “recover” items from the floor
every 30 minutes. Doc. 22, Def.'s Br. 4. Plaintiff also
admitted that she was not looking at the floor in front of
her as she was walking down the aisle and that if she had
been she thinks she would have seen the size nubs.
Id. at 3.
filed her Original Petition in state court on November 30,
2015, alleging negligence and premises liability. Doc. 1-3,
Pl.'s Orig. Pet. 9-11. Defendant answered in state court
on January 7, 2016 (Doc. 1-3, Def.'s Answer 21-23), and
removed the case to this Court on January 12, 2016, based on
diversity. Doc. 1, Notice of Removal. Defendant then filed
the present motion for summary judgment on December 22, 2016.
Doc. 21, Def.'s Mot. for Summ. J. Plaintiff's counsel
missed the deadline for filing a response and requested an
extension (Doc. 24), which the Court granted (Doc. 25).
Plaintiff responded (Doc. 27), and Defendant replied (Doc.
31). Therefore, Defendant's motion for summary judgment
is ripe for review.
judgment is appropriate “if 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.”
Fed.R.Civ.P. 56(a). A dispute “is ‘genuine'
if the evidence is sufficient for a reasonable jury to return
a verdict for the non-moving party.” Burrell v. Dr.
Pepper/Seven Up Bottling Grp., 482 F.3d 408, 411 (5th
Cir. 2007). And a fact “is ‘material' if its
resolution could affect the outcome of the action.”
summary judgment movant bears the burden of proving that no
genuine issue of material fact exists. Latimer v.
Smithkline & French Labs., 919 F.2d 301, 303 (5th
Cir. 1990). Usually, this requires the movant to identify
“those portions of the pleadings, depositions, answers
to interrogatories, and admissions on file, together with
affidavits, if any, which it believes demonstrate the absence
of a genuine issue of material fact.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation
marks omitted). But if the non-movant ultimately bears the
burden of proof at trial, the movant may satisfy its burden
just by pointing to the absence of evidence supporting the
non-movant's case. Id. at 322-23.
movant meets that burden, then it falls to the non-movant to
“show with significant probative evidence that there
exists a genuine issue of material fact.” Hamilton
v. Segue Software Inc., 232 F.3d 473, 477 (5th Cir.
2000) (internal quotation marks omitted) (citing Conkling
v. Turner, 18 F.3d 1285, 1295 (5th Cir. 1994)). And
significant probative evidence is just that: significant.
See Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994) (per curiam). “[M]etaphysical doubt as
to material facts, ” “conclusory allegations,
” “unsubstantiated assertions, ” or a mere
“scintilla of evidence” will not do.
Id.(internal citations and quotation marks omitted).
Rather, “the non-movant must go beyond the pleadings
and present specific facts indicating a genuine issue for
trial.” Bluebonnet Hotel Ventures, L.L.C. v. Wells
Fargo Bank, N.A., 754 F.3d 272, 276 (5th Cir. 2014)
(citing Celotex, 477 U.S. at 324).
sure, the court views evidence in the light most favorable to
the non-movant when determining whether a genuine issue
exists. Munoz v. Orr, 200 F.3d 291, 302 (5th Cir.
2000). But it need not “sift through the record in
search of evidence to support a party's opposition to
summary judgment.” Ragas v. Tenn. Gas Pipeline
Co., 136 F.3d 455, 458 (5th Cir. 1998) (quoting
Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16
& n.7 (5th Cir. 1992)). Simply put, the non-movant must
“identify specific evidence in the record” and
“articulate the precise manner in which that evidence
supports [its] claim.” Id. If it cannot, then
the court must grant summary judgment. Little, 37
F.3d at 1076.
turning to the merits of Defendant's motion, the Court
first clarifies that the only claim in this case is one for
premises liability. Although Plaintiff's Original
Petition appears to plead two separate causes of action-one
for negligence and one for premises liability-as Defendant
notes in its motion for summary judgment, the allegations in
this case “sound only in premises liability.”
Doc. 22, Def.'s Br. 1, 6-7.
Texas, when an injury arises on a premises, two potential
causes of action generally arise against the premises owner
and/or occupier-negligent activity and premises
liability.” U.S. Dist. Court S. Dist. of Tex. Hous.
Div. Charles Plata v. Chipotle Mexican Grill, Inc.,
H-15-2436, 2016 WL 126420, at *1 (S.D. Tex. Jan. 12, 2016).
“Although negligent activity and premises liability
claims are branches of the same tree, they are conceptually
distinct: ‘[N]egligent activity encompasses a
malfeasance theory based on affirmative contemporaneous
conduct by the owner that caused the injury, while premises
liability encompasses a nonfeasance theory based on the
owner's failure to take measures to make the property
safe.” Austin v. Kroger Tex. L.P., 746 F.3d
191, 196 (5th Cir. 2014) (quoting Del Lago Partners, Inc.
v. Smith, 307 S.W.3d 762, 776 (Tex. 2010)).
“Distinguishing between these two causes of action can
be tricky: ‘The lines between negligent activity and
premises liability are sometimes unclear, since almost every
artificial condition can be said to have been created by an
activity.'” Id. (quoting Del
Lago, 307 S.W.3d at 776). Here, however, it is clear
that Plaintiff can recover only, if at all, on a premises
alleged injury is caused by a condition created by some
activity rather than by the activity itself, a plaintiff is
limited to a premises defect theory of liability. Garcia
v. Ross Stores, Inc., 896 F.Supp.2d 575, 579 (S.D. Tex.
2012) (citing Lucas v. Titus Cty. Hosp. Dist./Titus Cty.
Mem'l Hosp., 964 S.W.2d 144, 153 (Tex.
App.-Texarkana 1998, no pet.)); see also Austin, 746
F.3d at 197 (concluding that “[plaintiff] cannot pursue
both a negligent activity and a premises defect
theory of recovery based on the same injury”) (emphasis
entirety of Plaintiff's factual allegations in her
Original Petition are as follows:
CAUSE OF ACTION
On or about April 22, 2014, Plaintiff was browsing for, or
shopping, merchandise at Defendant's business premises at
19113 Lyndon B Johnson Freeway, Mesquite, Texas
(“premises”), when she fell after stepping on a
size nub/plastic label or tag which was on the floor of said
premises. The size nub/label/tag on the floor presented an
unreasonably dangerous condition for invitees of the
premises, such as the Plaintiff. At all relevant times,
Defendant owned, possessed, maintained and/or controlled the
premises, fixtures, display racks and instrumentalities
involved in the incident in question, including the hangers
and nubs/labels/tags for the display and sale of merchandise
at the premises. Defendant owed a duty to provide its
invitees with a reasonably safe premises, or to warn invitees
that an unreasonably safe [sic] condition on the premises
existed. However, Defendant did not provide the Plaintiff
with a reasonably safe premises nor did Defendant warn the
Plaintiff that an unreasonably safe [sic] condition on the
The dangerous condition complained of existed long enough to
give Defendant a reasonable opportunity to discover and
correct the condition, which the establishment failed to do.
Accordingly any reasonable person could believe that
Plaintiff has a cause of action, based on the facts described
herein. It was Defendant's negligence and ...