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Briley v. Wal-Mart Stores, Inc.

United States District Court, S.D. Texas, Corpus Christi Division

January 3, 2018

DEANA BRILEY, Plaintiff,
v.
WAL-MART STORES, INC., et al, Defendants.

          ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO EXCLUDE EXPERT TESTIMONY

          NELVA GONZALES RAMOS, UNITED STATES DISTRICT JUDGE

         Plaintiff Deana Briley brings this personal injury action against Wal-Mart Stores Texas, LLC (Wal-Mart) in connection with her slip and fall at a Wal-Mart store in Kingsville, Texas. Wal-Mart has moved for summary judgment on Plaintiff's claims for negligence, negligence per se, and premises liability. D.E. 49. Wal-Mart also moved separately for summary judgment on Plaintiff's gross negligence claim. D.E. 48. Plaintiff, in turn, moved for summary judgment on various affirmative defenses Wal-Mart has asserted. D.E. 50. Finally, Wal-Mart has moved to strike the testimony of an expert proffered by Plaintiff. D.E. 51.

         For the following reasons, the Court: (1) GRANTS IN PART and DENIES IN PART Wal-Mart's motion for summary judgment (D.E. 49); (2) DENIES Wal-Mart's motion for summary judgment on Plaintiff's gross negligence claim (D.E. 48); (3) GRANTS IN PART and DENIES IN PART Plaintiff's motion for summary judgment (D.E. 50); and (4) GRANTS IN PART and DENIES IN PART Wal-Mart's motion to strike the testimony of Dr. Jahan Rasty (D.E. 51).

         FACTS

         On the evening of July 18, 2014, Plaintiff was shopping with her daughter at a Wal-Mart store in Kingsville, Texas, when she slipped and fell on some cherries that had fallen on the floor. D.E. 16, p. 2; D.E. 53-1, p. 3. At the time, Wal-Mart was promoting a sale by displaying cherries in an “action alley, ” Wal-Mart's term for the highest-traffic areas of its stores. D.E. 50-2, pp. 7, 10. Wal-Mart policy calls for placing floor mats around displays of produce such as cherries and grapes to reduce the risk that customers will slip on fruit that has fallen to the floor. See D.E. 50-3, p. 16. Wal-Mart does not typically place floor mats in action alleys, however, and there were no floor mats around the cherry display when Plaintiff slipped and fell. D.E. 50-2, p. 10; D.E. 50-3, p. 16. Plaintiff has asserted negligence claims against Wal-Mart in connection with her fall.

         STANDARD OF REVIEW

         Summary judgment is proper if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). “A genuine dispute of material fact means that ‘evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Evidence must be viewed, and all justifiable inferences drawn, in favor of the party opposing the motion. Anderson, 477 U.S. at 255.

         The moving party bears the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets that burden, the nonmoving party cannot avoid summary judgment by “rest[ing] on mere conclusory allegations or denials in its pleadings.” Smith v. Reg'l Transit Auth., 827 F.3d 412, 417 (5th Cir. 2016) (quoting Hightower v. Tex. Hosp. Ass'n, 65 F.3d 443, 447 (5th Cir. 1995)) (internal quotation mark omitted). Nor must the Court “sift through the record in search of evidence to support” the nonmoving party's claim or defense. Carr v. Air Line Pilots Ass'n, Int'l, 866 F.3d 597, 601 (5th Cir. 2017) (quoting Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994)) (internal quotation marks omitted). Instead, the nonmoving party must “identify specific evidence in the record and . . . articulate the precise manner in which that evidence supports his or her claim.” Id. (quoting Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998)) (internal quotation marks omitted). “After the nonmovant has been given an opportunity to raise a genuine factual issue, if no reasonable juror could find for the nonmovant, summary judgment will be granted.” Caboni v. Gen. Motors Corp., 278 F.3d 448, 451 (5th Cir. 2002).

         On cross-motions for summary judgment, the Court must “review each party's motion independently, viewing the evidence and inferences in the light most favorable to the nonmoving party.” Ford Motor Co. v. Tex. Dep't of Transp., 264 F.3d 493, 498 (5th Cir. 2001).

         DISCUSSION

         A. Wal-Mart's Motions for Summary Judgment

         1. Plaintiff's Claim Does Not Satisfy The Ordinary Notice Requirement for a Premises Liability Claim

         Under Texas law, which governs in this diversity action, “a person injured on another's property may have either a negligence claim or a premises-liability claim against the property owner.” Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016).[1] A premises liability claim arises from a property owner's duty “to make the premises safe or to warn of dangerous conditions as reasonably prudent under the circumstances.” Id.

         A claim for premises liability requires:

(1) Actual or constructive knowledge of some condition on the premises by the owner/operator; (2) That the condition posed an unreasonable risk of harm; (3) That the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and (4) That the owner/operator's failure to use such care proximately caused the plaintiff's injuries.

Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992) (citing Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983)). To meet the notice element, a plaintiff must ordinarily “establish[] that (1) the defendant placed the substance on the floor, (2) the defendant actually knew that the substance was on the floor, or (3) it is more likely than not that the condition existed long enough to give the premises owner a reasonable opportunity to discover it.” Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002). The third means of showing the premises owner's knowledge is referred to as the “time-notice rule” and “is based on the premise that temporal evidence best indicates whether the owner had a reasonable opportunity to discover and remedy a dangerous condition.” Id. at 816.

         Plaintiff cannot establish Wal-Mart's notice of the cherry spill as needed to reach the jury on this claim. None of the evidence suggests that any Wal-Mart employee dropped the cherries on the floor or actually knew about the spill. Therefore, Plaintiff must rely on circumstantial evidence that the spill lingered on the floor if she is to establish Wal-Mart's constructive knowledge of it through ordinary means.

         Plaintiff has not met that burden. She contends only that, despite Wal-Mart's policy requiring hourly safety sweeps to address any slip hazards in the store's aisles, Wal-Mart's Kingsville store was understaffed when she fell and thus safety sweeps occurred at most only once every three hours. See D.E. 54, p. 8. Even if true, “[a] store policy cannot be substituted for temporal evidence in a constructive-notice analysis.” Murray v. Chick-fil-A, Inc., No. 9-14-CV-11, 2014 WL 11282893, at *4 (E.D. Tex. Dec. 17, 2014), aff'd, 626 Fed. App'x 515 (5th Cir. 2015).

         2. Plaintiff Has a Viable Premises Liability Claim Under Corbin Based on Wal-Mart's Method of Displaying Cherries

         While Plaintiff's evidence cannot establish a standard slippery-floor claim, Texas law recognizes a narrow category of premises liability claims in which a condition on the requiring the plaintiff to show when the risk materialized. See Corbin, 648 S.W.2d at 297; see also Nat'l Convenience Stores, Inc. v. Erevia, 73 S.W.3d 518, 523 (Tex. App.- Houston [1st Dist.] 2002, pet. denied); Crosby v. Minyard Food Stores, Inc., 122 S.W.3d 899, 901 (Tex. App.-Dallas 2003, no pet.). Under these authorities, disputed issues of fact preclude summary judgment on Plaintiff's premises liability claim.

         The analogous case that supports premises liability in this scenario is Corbin, which concerned a plaintiff who slipped on green grapes that had fallen from a self-service display onto a bare, green linoleum tile floor. Corbin, 648 S.W.2d at 296. In Corbin, the plaintiff adduced evidence that Safeway policy called for non-skid floor mats to be placed around grape displays, which the store knew were “unusually hazardous and continual source[s] of slippery material on which customers may fall.” Id. at 294. According to the plaintiff, no mat was present when he fell, nor did Safeway take other precautionary measures to reduce the risk that customers would slip on grapes that inevitably fell from the display. See id. at 297. The Texas Supreme Court held that the evidence could support a jury finding that Safeway's grape display itself constituted an ongoing, unreasonably dangerous condition giving rise to premises liability without independent evidence of notice of the particular spill. Id. at 296.

         As in Corbin, Plaintiff has cited evidence indicating that Wal-Mart policy requires special safety measures around displays of loose fruits like cherries because such displays pose inherent slip-and-fall risks. See D.E. 54-1, p. 10 (Joseph Todd Dep.); see also D.E. 54-2, p. 16 (Juan Garza Dep.). Wal-Mart nonetheless located this display in a high-traffic action alley and allegedly made matters worse by consciously deviating from its policy requiring floor mats near cherry displays. See D.E. 54-1, p. 10 (Joseph Todd Dep.) (“my choice, store choice” not to use mats with the cherry display).

         Construing the evidence in Plaintiff's favor, there is a factual dispute as to whether the cherry display, like the grape display in Corbin, constituted an inherently, unreasonably dangerous condition from the moment it was put in place. See CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000) (“The grape display in Corbin allowed grapes to fall on the floor throughout each day and had no mat to protect customers from slipping. The display constituted a dangerous condition from the moment it was used.” (citation omitted)); see also Keetch, 845 S.W.2d at 265 (describing Corbin as holding that “Safeway did not have to know that a particular grape was on the floor at a particular time because it knew that the grapes would be on the floor due to the nature of the display”). The question of whether the natural propensities of the cherry display, when placed in an action alley and without any floor mats, created an ongoing, unreasonably dangerous condition on the premises is therefore one for the jury to decide.

         Wal-Mart, which concedes that this is a premises liability case, contends that as a matter of pleading, Plaintiff's complaint does not sufficiently allege “that the cherry display in [and] of itself was a dangerous condition.” D.E. 64, p. 3; see also D.E. 51, p. 5. However, Plaintiff does allege sufficient facts regarding the essence of a premises liability claim: that Wal-Mart owed her a duty of care as an invitee on the premises, but breached that duty by maintaining an unreasonably dangerous condition in its store with respect to the cherries and thereby caused her injury. See D.E. 16, pp. 2, 3. Construing the facts alleged in the complaint in Plaintiff's favor, her failure to articulate the precise operation of her legal theory does not entitle Wal-Mart to summary judgment. See Eastland v. Tenn. Valley Auth., 553 F.2d 364, 370 (5th Cir. 1977) (“The formal issues framed by the pleadings are not determinative on a motion for summary judgment . . . .”); see also Perna v. Kroger Tex., L.P., No. 3:13-cv-1606-N, 2014 WL 11456890, at *2 (N.D. Tex. Feb. 19, 2014) (plaintiff's “failure to specifically state a claim for premises liability” did not require summary judgment in premises owner's favor because “the substance of [plaintiff's] petition supports recovery under a theory of premises liability”).

         Wal-Mart next attempts to distinguish Corbin by relying on Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406 (Tex. 2006), but that case is inapposite. Brookshire held that a self-service soft drink dispenser was not itself an unreasonably dangerous condition, notwithstanding patrons' known propensity to spill ice onto the floor below. Id. at 408. Brookshire is distinguishable because the record in that case, unlike the record here, lacked evidence that the dispenser was any more dangerous than similar drink dispensers, or that shoppers were any more likely to spill ice around it. Id.

         Here, there are two reasons why a jury could reasonably find that this cherry display posed an unreasonably greater danger to customers than Wal-Mart's typical cherry display: (1) due to its location in an action alley, where more customer traffic might foreseeably result in more spilled cherries; and (2) because it lacked the safety measures Wal-Mart normally uses for cherry displays. See Erevia, 73 S.W.3d at 523 (noting store owner's disregard for its policy requiring floor mats around self-service barrel-type soft drink displays and sustaining Corbin-style premises liability claim). For these reasons, Wal-Mart's motion for summary judgment (D.E. 49) is DENIED IN PART on Plaintiff's premises liability claim.

         3. Plaintiff's Gross ...


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