United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
A. FITZWATER UNITED STATES DISTRICT JUDGE.
a removed action in which the plaintiff alleges a premises
liability claim based in part on the necessary-use exception
announced by the Supreme Court of Texas in Austin v.
Kroger Texas, L.P., 465 S.W.3d 193 (Tex. 2015).
Concluding that the plaintiff has failed to meet her summary
judgment burden regarding the necessary-use exception, and
that the evidence otherwise conclusively establishes that the
defendant owed her no duty to warn or make the premises safe,
the court grants defendant's motion for summary judgment
and dismisses this action by judgment filed today.
the background facts and procedural history of this case are
set out in two prior memorandum opinions and orders, see
Ladapo v. Target Stores, Inc., 2016 WL 2609996 (N.D.
Tex. May 6, 2016) (Fitzwater, J.) (“Ladapo
II”); Ladapo v. Target Stores, Inc., 2014
WL 6617031 (N.D. Tex. Nov. 21, 2014) (Fitzwater, J.)
(“Ladapo I”), vacated and
remanded, 615 Fed.Appx. 842 (5th Cir. 2015), the court
will limit its discussion to what is necessary to understand
Jackie Sue Ladapo (“Ladapo”) was employed by
Boots Retail USA, Inc. (“Boots”), an independent
contractor of defendant Target Stores, Inc.
(“Target”). In her position as “senior beauty
advisor, ” Ladapo was responsible for marketing Boots
cosmetics products to Target customers by providing them
personalized and detailed information through product
demonstrations and makeovers. At Target's store in Cedar
Hill, Texas, Ladapo stored all of the products she
needed to do her job-testers, samples, journal book, makeup
brushes, and other supplies-in a large white drawer. She
contends that on several occasions prior to June 14, 2012,
she and other Target employees had complained to Target that
the drawer did not function properly and would “pull
out and fall” without warning. Am. Compl. ¶
4(D)(ii). On June 14, 2012 Ladapo was injured when the drawer
came all the way out and fell on her foot.
filed this premises liability action against Target in state
court. Target removed the case and filed a motion for
judgment on the pleadings under Fed.R.Civ.P. 12(c). In
Ladapo I the court granted Target's motion,
holding that Target “owed no duty to warn Ladapo about
a defective drawer that she already knew was defective, and
the hazardous nature of which was not concealed.”
Ladapo I, 2014 WL 6617031, at *2. Ladapo appealed.
Several months after the court decided Ladapo I, the
Supreme Court of Texas issued its decision in
Austin, clarifying the law regarding premises
liability generally, and recognizing a necessary-use
exception. In her appeal of Ladapo I, Ladapo argued
that the necessary-use exception announced in Austin
applied to her case. Without expressing a view on whether the
necessary-use exception could or did apply, the Fifth Circuit
remanded the case to this court with instructions to
“address the pleadings, including any requests to amend
the pleadings, anew in light of the decision in
Austin.” Ladapo v. Target Stores,
Inc., 615 Fed.Appx. 842, 843 (5th Cir. 2015) (per
the Fifth Circuit's remand, Ladapo amended her complaint
and Target moved anew to dismiss under Rule 12(b)(6). In
Ladapo II the court concluded that the allegations
in the amended complaint were sufficient to plausibly allege
a premises liability claim based on the necessary-use
exception recognized in Austin:
At this stage of the case, it is sufficient that Ladapo has
alleged that it was necessary for her to use the white drawer
that caused her injury and that Target should have
anticipated that she was unable to take measures to avoid the
risk. This is all Austin appears to require to state
a claim under the necessary-use exception.
Ladapo II, 2016 WL 2609996, at *3 (footnote
omitted). The court noted, however, that it was not
“suggest[ing] how it would rule on a motion for summary
judgment or what it deems to be the probable verdict at
trial.” Id. at *3 n.5.
now moves for summary judgment on Ladapo's premises
liability claim. It contends that it owed no duty to warn or
protect Ladapo because she has admitted that she was aware of
the hazard; that the necessary-use exception does not apply
to Ladapo's claim; and that there is no evidence that
Target had notice of the degree of the defect. Ladapo opposes
party moves for summary judgment on claims on which the
opposing party will bear the burden of proof at trial, the
moving party can meet its summary judgment obligation by
pointing the court to the absence of admissible evidence to
support the nonmovant's claims. See Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). Once the moving party
does so, the nonmovant must go beyond her pleadings and
designate specific facts showing there is a genuine issue for
trial. See Id. at 324; Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per
curiam). An issue is genuine if the evidence is such that a
reasonable jury could return a verdict in the nonmovant's
favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). The nonmovant's failure to produce proof
as to any essential element of a claim renders all other
facts immaterial. See TruGreen Landcare, L.L.C. v.
Scott, 512 F.Supp.2d 613, 623 (N.D. Tex. 2007)
(Fitzwater, J.). Summary judgment is mandatory if the
nonmovant fails to meet this burden. Little, 37 F.3d
parties primarily dispute whether Target had any duty with
respect to Ladapo, an ...