United States District Court, S.D. Texas, Brownsville Division
REPORT AND RECOMMENDATION OF THE MAGISTRATE
G. Morgan United States Magistrate Judge.
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.
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.
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.
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.
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.
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.
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.
August 8, 2016, Family Dollar was served with a copy of the
petition. Dkt. No. 1, p. 2.
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.
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
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
November 17, 2017, Family Dollar timely filed a reply brief.
Dkt. No. 18.
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.
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.
January 5, 2018, Family Dollar timely filed its reply brief.
Dkt. No. 24.