Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Villarreal v. Family Dollar Stores of Texas, LLC

United States District Court, S.D. Texas, Brownsville Division

January 8, 2018

WHITNEY VILLARREAL, Plaintiff,
v.
FAMILY DOLLAR STORES OF TEXAS, LLC., Defendant.

          REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

          Ronald G. Morgan United States Magistrate Judge.

         On June 24, 2016, Plaintiff Whitney Villarreal (“Villarreal”) filed a complaint in the Cameron County Court at Law II asserting claims of negligence and premises liability against Defendant Family Dollar Stores of Texas, LLC (“Family Dollar”). Dkt. No. 1-1, p. 5. Villarreal alleges that she was injured when her car hit “a deep pot hole on Defendant's premises that was covered with water.” Id. On September 7, 2016, Family Dollar timely removed the case to this Court. Dkt. No. 1.

         On October 20, 2017, Family Dollar filed a motion for summary judgment, which is currently before the Court. Dkt. No. 14. Villarreal timely filed a response and Family Dollar filed a reply brief. Dkt. Nos. 16, 18, 22.

         After reviewing the record and the relevant case law, the Court recommends that the motion for summary judgment be granted. Villarreal has not shown a genuine dispute of material fact as to her premises liability claim. Additionally, her negligence claim fails as a matter of law.

         I. Background

         A. Factual Background

         On September 18, 2014, Villarreal went to Family Dollar with a friend to buy some paint brushes. Dkt. 16-1, p. 36. Villarreal arrived at the store around 5:00 p.m. Id., p. 52. After purchasing the paint brushes, Villarreal and her friend left the store and returned to their vehicle. Id, p. 39. As they were leaving the parking lot, the car hit a pothole. According to Villarreal: “we were just driving and you just felt the car go in. You felt the car go in and our bodies move to the front and back. It was like a little whiplash. And there was water. We could not see the pothole because there was water over it.” Id. Villarreal stated she was driving at a speed of about 10 to 15 miles per hour when she hit the pothole. Id, p. 43.

         Villarreal called the police, who came to the scene. Dkt. No. 16-1, p. 49. An unidentified police officer told Villarreal “that there were previous incidents and that the general manager had already emailed [. . .] corporate or had spoke to corporate to come and fix the pothole and they hadn't done anything to it.” Id. The police report states that the officer “made contact with Family Dollar employee Norma and advised her of the situation. Norma stated that she has already notified the corporate office about said pothole, but nothing has been done about this matter.” Dkt. No. 16-4, p. 1.

         Villarreal later saw a chiropractor for back pain that she suffered after the accident. Dkt. No. 16-1, p. 64. The chiropractor referred her to a specialist, who gave her epidural steroid injections into her spine.

         B. Procedural Background

         On June 24, 2016, Villarreal filed a complaint in the Cameron County Court at Law II, asserting claims of negligence and premises liability. Dkt. No. 1-1, p. 5. Villarreal sought damages for medical expenses, physical pain, mental anguish, physical impairment, loss of earnings, disfigurement, property damage, loss of use, costs, and interest. Id, p. 6. Villarreal pled that she sought damages of “over $100, 000 but not more than $200, 000.” Id, p. 7.

         On August 8, 2016, Family Dollar was served with a copy of the petition. Dkt. No. 1, p. 2.

         On September 7, 2016, Family Dollar timely removed the case to this Court on the basis of diversity jurisdiction. Dkt. No. 1. No. party challenges jurisdiction in this Court. Dkt. No. 5, p. 2.

         On September 7, 2017, Family Dollar filed a motion for summary judgment. Dkt. No. 13. In its motion, Family Dollar argued that Plaintiff had failed to submit admissible evidence showing that there was a genuine dispute of material fact as to whether Family Dollar “controlled the area where the pothole was located or that the pothole posed an unreasonable risk of harm.” Id. Family Dollar also asserted that the general negligence claim failed as a matter of law. Lastly, Family Dollar sought summary judgment, arguing that there was no genuine dispute of material fact, as to whether Villarreal was entitled to damages for “(1) reasonably necessary past and future medical costs; (2) future pain and suffering; (3) physical impairment in the future; (4) loss of past earnings; (5) loss of future earning capacity; (6) disfigurement; (7) past or future mental anguish; (8) property damage; or (9) loss of use of the damaged property.” Id.

         On November 10, 2017, Villarreal timely filed a response to the motion for summary judgment. Dkt. No. 14. Villarreal asserted that there was a genuine dispute of material fact as to whether Family Dollar controlled the parking lot where the pothole was located. Id. Villarreal did not address any arguments relating to the general negligence claim. Villarreal's response repeatedly cited Texas summary judgment standards rather than federal summary judgment standards.[1]

         On November 17, 2017, Family Dollar timely filed a reply brief. Dkt. No. 18.

         On December 12, 2017, the Court struck Villarreal's response for failing to brief the issue under the appropriate federal summary judgment standards and ordered Villarreal to file a corrected brief. Dkt. No. 21.

         On December 18, 2017, Villarreal timely filed an amended response brief. Dkt. No. 22. In it, Villarreal reiterated her argument that there is a genuine dispute of material fact as to whether Family Dollar had control over the parking lot. Id.

         On January 5, 2018, Family Dollar timely filed its reply brief. Dkt. No. 24.

         II. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.