United States District Court, S.D. Texas, Corpus Christi Division
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT AND
MOTION TO EXCLUDE EXPERT TESTIMONY
GONZALES RAMOS, UNITED STATES DISTRICT JUDGE
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.
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).
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.
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.
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).
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).
Wal-Mart's Motions for Summary Judgment
Plaintiff's Claim Does Not Satisfy The Ordinary Notice
Requirement for a Premises Liability Claim
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). 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
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.
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.
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).
Plaintiff Has a Viable Premises Liability Claim Under
Corbin Based on Wal-Mart's Method of Displaying
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.
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.
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).
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.
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”).
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.
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.
Plaintiff's Gross ...