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Robles v. Ross Stores Inc.

United States District Court, N.D. Texas, Dallas Division

May 26, 2017

ROSS STORES, INC., Defendant.



         Before the Court is Defendant Ross Stores, Inc.'s Motion for Summary Judgment. Doc. 21. For the reasons explained below, Defendant's motion is GRANTED.



         This is 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.

         Plaintiff 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.].[2]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.

         Immediately 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.

         Plaintiff 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.



         Summary 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.” Id.

         The 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.

         If the 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).

         To be 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.



         Before 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.

         “In 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 liability theory.

         When an 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 in original).

         The entirety of Plaintiff's factual allegations in her Original Petition are as follows:


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 premises existed.
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 ...

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