United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
A. FITZWATER, UNITED STATES DISTRICT JUDGE
removed slip and fall action, defendant Kroger Texas L.P.
(“Kroger”) moves for summary judgment. The court
grants the motion in part and denies it in
Blanca Ruiz De Velasco (“De
Velasco”) sues defendant Kroger alleging that she
suffered personal injuries when she slipped and fell at a
Kroger store in Duncanville, Texas after stepping on liquid
near the dairy case. Although in her state-court petition she
alleges claims for negligence/gross negligence and premises
liability, she acknowledges in her response that her claim is
for premises liability. See P. Br. 2 (stating that
“Thus, this is a premises liability case.”) and
4-9 (addressing only elements of premises liability claim).
The court therefore grants in part Kroger's motion for
summary judgment to the extent it seeks dismissal of De
Velasco's claims for negligence and gross negligence.
court now turns to De Velasco's premises liability claim.
threshold matter, De Velasco filed in response to
Kroger's motion a request for an extension of time to
respond, which Kroger opposed. Kroger filed its summary
judgment motion on March 13, 2017. De Velasco's response
was therefore due by April 3, 2017. See N.D. Tex.
Civ. R. 7.1(e). De Velasco requested in her motion an
extension through June 6, 2017. The motion did not comply
with Fed.R.Civ.P. 56(d), so the court did not act on it. De
Velasco then filed her response on April 25, 2017, before the
court ruled on Kroger's summary judgment motion.
maintains in its reply brief that the court should disregard
De Velasco's response as untimely. But where, as here,
the untimeliness of the response has not interfered with the
decisional process of the court, the court will not disregard
the response. The court denies De Velasco's motion for an
extension of time to file her summary judgment response as
court now turns to the merits of Kroger's motion for
summary judgment seeking dismissal of De Velasco's
premises liability claim.
maintains that it is entitled to summary judgment on this
claim because De Velasco has no evidence that (1) Kroger had
actual or constructive knowledge of any hazard; (2) the
condition posed an unreasonable risk of harm; (3) Kroger
failed to exercise reasonable care to reduce or eliminate the
risk posed by the alleged presence of the substance on the
floor; and (4) Kroger's alleged failure to use such care
proximately caused her alleged injuries.
Velasco has introduced sufficient evidence to avoid summary
judgment.Regarding notice, there is evidence that
immediately after De Velasco slipped and fell, a customer
advised a Kroger employee of the incident and the presence of
the wet substance. The employer responded, “Oh, I
thought they had picked it up.” P. App. 9. Kroger
offers evidence that calls into question whether, when making
the alleged statement, the employee was actually referring to
the spill that caused De Velasco's fall. See D.
Reply Br. 7 (“Plaintiff's testimony makes clear
that the statement attributed to the Kroger employee could
have been referring to a completely different condition that
had occurred earlier in the day.”).
a reasonable jury may find Kroger's position persuasive
and De Velasco's proof lacking, there is sufficient