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Heredia v. Wal Mart Stores, Texas, LLC

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

July 27, 2017

NORMA HEREDIA, Appellant,
v.
WAL MART STORES, TEXAS, LLC, Appellee.

         On appeal from the 275th District Court of Hidalgo County, Texas.

          Before Chief Justice Valdez and Justices Longoria and Hinojosa .

          MEMORANDUM OPINION

          LETICIA HINOJOSA JUSTICE.

         Appellant Norma Heredia appeals from a summary judgment granted in favor of appellee Wal-Mart Stores Texas, LLC, (Wal-Mart) in a premises liability case. By one issue, which we treat as three, Heredia argues the trial court erred in granting Wal-Mart's no-evidence motion for summary judgment because: (1) Heredia presented more than a scintilla of evidence that Wal-Mart had constructive knowledge of a dangerous condition; (2) Heredia was not provided notice and an opportunity to be heard which constituted a denial of due process; and (3) Wal-Mart improperly destroyed evidence, making it impossible for appellant to present any evidence that Wal-Mart had constructive knowledge of a dangerous condition. We affirm.

         I. Factual and Procedural Background

         The summary judgment evidence shows that Heredia entered Wal-Mart and while pushing a shopping cart in the women's department, Heredia slipped on an unknown dark and sticky fluid on the floor and fell, injuring herself. According to Heredia's deposition testimony, she did not know how long the spill had been on the floor, how the fluid got onto the floor, or whether Wal-Mart had knowledge of the spill. Heredia testified that no other customers or Wal-Mart employees were in the area at the time of her slip and fall. Heredia remained on the floor for roughly three minutes, but she was eventually able to stand on her own. Heredia waited in the same area until Wal-Mart associate Elizabeth Sanchez arrived at her location. Heredia pointed out the spill to Sanchez, who notified Wal-Mart manager Bill Daniels of the situation. Daniels offered to call an ambulance and file a report. Heredia stated she did not need an ambulance and declined to file a report with the manager. Sanchez proceeded to clean up the spill. Heredia checked out with her purchases and left Wal-Mart. After remaining at home for a few hours, Heredia testified that the pain she experienced from the fall worsened. Heredia returned to Wal-Mart to file a report with store manager Maria E. Del Angel. Heredia then asked an acquaintance to drive her to a local hospital to receive treatment for her injuries.

         After meeting with Heredia and completing the report, Del Angel went to the location where Heredia was injured. Del Angel met with Sanchez, the Wal-Mart associate who cleaned up the spill, and took pictures of the location. Del Angel also testified by deposition that a video request form was submitted to a Wal-Mart asset protection member. The asset protection member stated that the store's surveillance equipment did not record Heredia's incident as a camera was not directed toward the location of the fall.

         Heredia filed a premises liability suit against Wal-Mart claiming that she, as a business invitee, sustained injuries when she slipped and fell on an unknown fluid. Wal-Mart filed a no-evidence motion for summary judgment arguing that, "plaintiff cannot set forth any evidence that Defendant [Wal-Mart] had actual or constructive knowledge of the condition so as to have had a reasonable opportunity to discover and remedy the condition." The trial court granted Heredia's motion for continuance so that the parties could attend mediation. Wal-Mart later filed a supplemental no-evidence motion for summary judgment. Wal-Mart supported its motion with plaintiff's original petition and discovery requests, and Heredia's deposition.

         Heredia filed a response to the no-evidence motion for summary judgment arguing that Wal-Mart had knowledge of the current spill based on Wal-Mart's knowledge of prior spills that occurred at multiple stores since April of 1988. Heredia also argued that Wal-Mart's practice of cleaning up spills and disposing of the spills resulted in spoliation of evidence, preventing Heredia from obtaining evidence of Wal-Mart's constructive knowledge. Heredia attached to her response the depositions of Wal-Mart assistant manager Alfredo Sandoval, Del Angel, the declarations of Heredia and James Falasco, an expert witness for Heredia, Wal-Mart's responses to Heredia's first set of requests for admissions, and Heredia's deposition testimony. Wal-Mart filed a reply to Heredia's response arguing that Heredia presented no evidence that would prove the length of time the spill was on the floor prior to Heredia's incident.

         Heredia later filed a fifth amended original petition alleging that Wal-Mart owed a legal duty to Heredia to preserve the fluid she slipped on as evidence relevant to her claim and that Wal-Mart owed a duty to Heredia to utilize a computerized video surveillance system "for early detection of foreign substances on floors[.]" Wal-Mart filed a "Motion for Summary Judgment for Failure to State a Claim" asserting that there is no legal requirement or duty that retail stores use a video surveillance system. Heredia filed a response to Wal-Mart's failure-to-state-a-claim motion for summary judgment stating that Wal-Mart owed a duty to Heredia to reasonably inspect the store to discover dangerous conditions such as fluids on the floor, and that Wal-Mart breached this duty by failing to use computerized video surveillance which amounts to negligence that proximately caused Heredia's slip and subsequent injuries.

         The trial court granted Wal-Mart's no-evidence motion for summary judgment and dismissed Heredia's claims.[1] This appeal followed.

         II. No-Evidence Summary Judgment Standard of review

         We review a trial court's ruling on a summary judgment motion de novo. Travelers Ins. Co v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010); Alejandro v. Bell, 84 S.W.3d 383, 390 (Tex. App.-Corpus Christi 2002, no. pet). A no-evidence motion must state the elements as to which there is no evidence. Tex.R.Civ.P. 166a(i); Timpte Indus. v. Gish, 286 S.W.3d 306 (Tex. 2009). When reviewing a no-evidence summary judgment, "we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor." Nassar v. Liberty Mut. Fire Ins. Co., 508 S.W.3d 254, 257 (Tex. 2017). A trial court must grant a no-evidence motion for summary judgment unless the nonmovant produces more than a scintilla of summary judgment evidence to raise a genuine issue of material fact on the challenged elements. See Tex. R. Civ. P. 166a(i); Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (per curiam); City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005); Forbes Inc. v. Granada Biosciences, 124 S.W.3d 167, 172 (Tex. 2003). A nonmovant produces no more than a scintilla of evidence when the evidence is so weak that it does no more than create a mere surmise of suspicion of a fact. Forbes, 124 S.W.3d at 172. "More than a scintilla of evidence exists if it would allow reasonable and fair-minded people to differ in their conclusions." Id.

         III. ...


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