United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT, UNITED STATES DISTRICT JUDGE.
before the Court is Defendant Wal-Mart Stores Texas, LLC
d/b/a Wal-Mart Supercenter #3236's
(“Wal-Mart”) Motion for Summary Judgment (Dkt.
#15). Having reviewed the motion and relevant pleadings, the
Court finds the motion should be granted.
23, 2015, Plaintiff Ronald Asbell (“Asbell”)
slipped and fell in the Wal-Mart men's clothing
department. After he fell, Asbell noticed two clothes hangers
on the floor in close proximity to him, but he did not know
how long they had been there, or even if the hangers were on
the floor before he slipped. Asbell could not identify which,
if either, of the hangers caused him to slip. On March 14,
2017, Asbell filed a premises liability suit in the 393rd
District Court, Denton County, Texas. On April 20, 2017,
Defendant removed the suit. Subsequently, Asbell filed his
Amended Complaint, which added a claim for a loss of services
and loss of consortium by Plaintiff Jennifer Asbell
October 12, 2017, Defendant filed the current Motion for
Summary Judgment (Dkt. #15). A response to the motion was due
on October 26, 2017. See Local Rule
CV-7(e). Plaintiffs did not file a response by
October 26, 2017. In fact, as of the date of this Order,
Plaintiffs have not filed a response to the motion.
purpose of summary judgment is to isolate and dispose of
factually unsupported claims or defenses. Celotex Corp.
v. Catrett, 477 U.S. 317, 323-24 (1986). Summary
judgment is proper under Rule 56(a) of the Federal Rules of
Civil Procedure “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 about a material fact is genuine when
“the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986).
Substantive law identifies which facts are material.
Id. The trial court “must resolve all
reasonable doubts in favor of the party opposing the motion
for summary judgment.” Casey Enters., Inc. v. Am.
Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir.
party seeking summary judgment bears the initial burden of
informing the court of its motion and identifying
“depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials”
that demonstrate the absence of a genuine issue of material
fact. Fed.R.Civ.P. 56(c)(1)(A); Celotex, 477 U.S. at
323. If the movant bears the burden of proof on a claim or
defense for which it is moving for summary judgment, it must
come forward with evidence that establishes “beyond
peradventure all of the essential elements of the
claim or defense.” Fontenot v. Upjohn Co., 780
F.2d 1190, 1194 (5th Cir. 1986). Where the nonmovant bears
the burden of proof, the movant may discharge the burden by
showing that there is an absence of evidence to support the
nonmovant's case. Celotex, 477 U.S. at 325;
Byers v. Dall. Morning News, Inc., 209 F.3d 419, 424
(5th Cir. 2000). Once the movant has carried its burden, the
nonmovant must “respond to the motion for summary
judgment by setting forth particular facts indicating there
is a genuine issue for trial.” Byers, 209 F.3d
at 424 (citing Anderson, 477 U.S. at 248-49). A
nonmovant must present affirmative evidence to defeat a
properly supported motion for summary judgment.
Anderson, 477 U.S. at 257. Mere denials of material
facts, unsworn allegations, or arguments and assertions in
briefs or legal memoranda will not suffice to carry this
burden. Rather, the Court requires “significant
probative evidence” from the nonmovant to dismiss a
request for summary judgment. In re Mun. Bond Reporting
Antitrust Litig., 672 F.2d 436, 440 (5th Cir. 1982)
(quoting Ferguson v. Nat'l Broad. Co., 584 F.2d
111, 114 (5th Cir. 1978)). The Court must consider all of the
evidence but “refrain from making any credibility
determinations or weighing the evidence.” Turner v.
Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir.
moves for summary judgment arguing that there is no genuine
issue of material fact surrounding two of the essential
elements to Asbell's cause of action: (1) Defendant
actually knew or reasonably should have known of the danger;
and (2) Defendant's actions proximately caused
Asbell's injury. Further, Defendant argues that Mrs.
Asbell's claims are derivative of Asbell's, and thus,
fail as a matter of law.
prove a premises liability claim, an invitee must establish
(1) the property owner had actual or constructive knowledge
of the condition causing the injury; (2) the condition posed
an unreasonable risk of harm; (3) the property owner failed
to take reasonable care to reduce or eliminate the risk; and
(4) the property owner's failure to use reasonable care
to reduce or eliminate the risk was the proximate cause of
injuries to the invitee.
Henkel v. Norman, 441 S.W.3d 249, 252 (Tex. 2014)
(citing CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99
(Tex. 2000)). In order to demonstrate the notice element of a
premises liability claim, a plaintiff can show:
(1) the defendant placed the [item] on the floor, (2) the
defendant actually knew that the [item] was on the floor, or
(3) it is more likely than not that the condition existed
long enough to give the ...