United States District Court, N.D. Texas, Dallas Division
CAROLYN S. SAULTERS, Plaintiff,
WAL-MART STORES TEXAS, LLC, Defendant.
MEMORANDUM OPINION ORDER
BARBARA M. G. LYNN CHIEF JUDGE
the Court is Defendant's Motion for Summary Judgment (ECF
No. 12). For the reasons stated below, the Motion is DENIED.
a premises liability case arising out of injuries Plaintiff
Carolyn Saulters sustained on September 8, 2015, when she
slipped and fell in front of an ice machine inside a Wal-Mart
store in Dallas, Texas. Saulters claims that after checking
out, she proceeded to the exit and slipped and fell on water
in front of the ice machine. The slip and fall resulted in
Saulters fracturing her right patella. On April 1, 2016,
Saulters filed suit in state court, alleging that Wal-Mart
was liable for her injuries. On May 12, 2016, Wal-Mart
removed the case to this Court, and now moves for summary
surveillance recorded the incident. Just before Saulters'
fall, a customer approached the ice machine, removed a bag of
ice, and dropped it into his shopping cart, before exiting
the store. For approximately thirty seconds after that, no
other customer or employee walked near that area. As Saulters
moved toward the exit, she crossed over the place where the
previous customer removed a bag of ice into his cart, and she
slipped and fell. The area directly in front of the ice
machine was not covered by a mat, nor were any warning signs
judgment is appropriate if the pleadings, affidavits, and
other summary judgment evidence show that no genuine issue of
material fact exists and that the movant is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(c); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). A
dispute of a material fact is genuine if a reasonable jury
viewing the evidence could reach a verdict in favor of the
nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). The movant bears the initial burden of
showing the absence of evidence to support the
nonmovant's claims. Celotex, 477 U.S. at 325.
Once the movant satisfies this initial burden, the burden
shifts to the nonmovant to show summary judgment is not
proper. Fields v. City o/S. Houston, 922 F.2d 1183,
1187 (5th Cir. 1991). To carry this burden, the nonmovant
must designate specific facts in the record to show the
existence of a genuine issue of material fact.
Celotex, 477 U.S. at 325. All evidence and
inferences must be viewed in the light most favorable to the
nonmovant. Boudreaux v. Swift Transp. Co., Inc., 402
F.3d 536, 540 (5th Cir. 2005).
Texas law, "a property owner owes invitees a duty to use
ordinary care to reduce or eliminate an unreasonable risk of
harm created by a premises condition about which the property
owner knew or should have known." Del Lago Partners,
Inc. v. Smith, 307 S.W.3d 762, 767 (Tex. 2010). However,
the property owner is not the insurer of a patron's
safety. Wal-Mart v. Reece, 81 S.W.3d 812, 814 (Tex.
2002). To prevail on her premises liability claim, Saulters
must show: (1) a condition in Wal-Mart's store posed an
unreasonable risk of harm; (2) Wal- Mart knew or reasonably
should have known of this risk; (3) Wal-Mart failed to
exercise ordinary care to protect Saulters from this
condition; and (4) Wal-Mart's failure to do so was a
proximate cause of Saulters' injury. See Del Lago
Partners, 307 S.W.3d at 767. To establish constructive
notice, Saulters must show "some proof of how long the
hazard was there" to best indicate whether Wal-Mart
"had a reasonable opportunity to discover and remedy
[the] dangerous condition." See Reece, 81
S.W.3d at 815-16; see also Dixon v. Wal-Mart Stores,
Inc., 330 F.3d 311, 314 (5th Cir. 2003).
argues that Saulters fails to raise a genuine issue of
material fact regarding two elements-1) whether Wal-Mart had
actual or constructive notice of a dangerous condition and 2)
whether such a condition posed an unreasonable risk of harm.
respect to notice, Saulters argues that Wal-Mart's
standard procedure for its regular morning floor cleaning
near the ice machines was to temporarily remove the mat
normally in front of the ice machine and to display warning
signs of wet areas until the floor is reasonably
DeJean Mickles, a Wal-Mart employee, testified that the floor
mat is "supposed[d] to go in front of both ice makers..
.because it's an ice marker. It pertains ice just like
water and just in case that it falls." Mickles further
testified that floor cleaning occurs every morning, that mats
are picked up for cleaning and put back as soon as the floor
is dry, and that by 9:00 a.m. on the day of Saulters'
fall, the daytime maintenance crew had already
cleaned. Saulters asserts that no mat or warning
signs were in place when she fell at approximately 9:15
Surveillance footage confirms the absence of a mat or warning
signs in front of the ice machine during the forty-five
minutes leading up to Saulters' fall. Saulters contends
that the jury, as fact finder, could reasonably infer that
the floor was still wet from a morning cleaning, and that
Wal-Mart therefore had notice of an unreasonably dangerous
condition it created when it failed to employ its standard
precautionary measures of displaying warning signs.
also testified that one reason for the policy to place a mat
in front of the ice machine was to protect persons in the
store from slipping on ice or leaked water. Saulters argues
that the jury could determine that Wal-Mart's failure to
adhere to its mat policy or its warning signs created an
unreasonable risk of harm, and that Wal-Mart had constructive
notice of the dangerous condition. See Corbin v.
Safeway, 648 S.W.2d 292, 296 (Tex. 1983) (holding
Plaintiff could satisfy notice requirement and recover for
premises liability claim if store failed to place a mat on
the floor, contrary to general store maintenance practices).
The surveillance footage and Mickles' deposition
testimony is circumstantial evidence that Wal-Mart had either
constructive or actual notice of a dangerous condition.
Therefore, a fact question exists, and summary judgment is
respect to the second element, unreasonable risk of harm,
Wal-Mart contends there is no evidence of a condition that
posed an unreasonable risk of harm. Wal-Mart notes that
Saulters admitted in her deposition testimony that she does
not know what kind of substance caused her fall. Wal-Mart
also points to Mickles' testimony that no liquid was
visible on or near Saulters after she fell.
asserts that her being unaware of what she slipped on is
irrelevant to Wal-Mart's liability. She claims that she
slipped on something on the floor, causing her patella to
fracture. It is unclear from the surveillance
footage whether she slipped on something. Saulters argues
that a wet spot on the floor from the ice machine and
Wal-Mart's failure to deploy standard safety measures
next to the ice machine is evidence of a condition that
presented an unreasonable risk of harm. In the alternative,
she argues that a slippery floor without a mat or a warning
sign after the morning cleaning is also a condition that
presents an unreasonable risk of harm. The surveillance
footage, Saulters' testimony that she slipped on
something, and Mickles' deposition testimony indicating
that Wal-Mart possibly acted contrary to store policy, is
circumstantial evidence that there was either a slippery
floor from the morning cleaning, ...