United States District Court, W.D. Texas, Austin Division
SPARKS, SENIOR UNITED STATES DISTRICT JUDGE
REMEMBERED on this day the Court reviewed the file in the
above-styled cause, and specifically Defendant Home Depot,
U.S.A., Inc. d/b/a The Home Depot (Home Depot)'s Motion
for Summary Judgment [#27], Plaintiffs Linda and Steven
Reeves's Response [#35] in opposition, and Home
Depot's Reply [#43] in support. Having reviewed the
documents, the governing law, and the file as a whole, the
Court now enteres the following opinion and order.
October 19, 2015, Linda and Steven Reeves were shopping in a
Home Depot in Kyle, Texas. Resp. Mot. Summ. J. [#35] at 1.
While browsing the cabinet aisle of the Home Depot,
Plaintiffs encountered an unattended "order
picker." Mot. Summ. J. [#27-1] Ex. B (Linda Reeves Dep.)
at 16. An order picker is a type of drivable lift
equipment similar to a forklift which is used to load and
unload merchandise in store aisles. Resp. Mot. Summ. J. [#35]
at 1 n.l. It is a large piece of machinery. Linda Reeves Dep.
at 16. Instead of forks, order pickers have a platform that
extends forward from the front of the machine. Id.
Reeves immediately noticed the order picker when she stepped
into the cabinet aisle, and in her deposition, she described
the order picker as a "big, colorful machine."
Id. at 13, 16. After spotting the order picker,
Linda Reeves walked around it and proceeded to the end of the
aisle. Id. at 16-17. She then turned around and
retraced her steps, walking past the order picker for a
second time. Id. at 16-17. Linda Reeves then
reversed course again and began to walk down the aisle past
the order picker for a third time, this time accompanied by
her husband. Id. at 16-17. On this third trip past
the order picker, Linda Reeves tripped over the end of the
order picker's platform and fell to the ground,
fracturing her right shoulder. Id. at 16-17; Resp.
Mot. Summ. J. [#35] at 2.
deposition, Linda Reeves testified that she had not noticed
the platform of the order picker because she was distracted
looking at the cabinets on the shelves and because the
platform "was not as colorful" as the order picker
itself. Linda Reeves Dep. at 18; see also Resp. Mot.
Summ. J. [#35-1] Ex. A at 6-7 (testifying platform was the
same color as Home Depot's concrete floor). At the time
of the incident, the platform of the order picker was empty
of merchandise. Linda Reeves Dep. at 18. Home Depot had not
placed any cones or flags on the end of the platform to draw
it to the attention of its shoppers. Resp. Mot. Summ. J.
[#35] at 2.
Linda's injury, the Reeveses brought premises liability,
negligent activity, and loss of consortium claims against
Home Depot in state court. Notice Removal [#1-2] Ex. B-2
(Original Pet.). The action was subsequently removed to this
Court on the basis of diversity jurisdiction, and Home Depot
has moved for summary judgment. Not. Removal [#1]; Mot. Summ.
J. [#27]. This pending motion is now ripe for review.
judgment shall be rendered when the pleadings, the discovery
and disclosure materials on file, and any affidavits show
that there is no genuine dispute as to any material fact and
that the moving party is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett,
477 U.S. 317, 323-25 (1986); Washburn v. Harvey, 504
F.3d 505, 508 (5th Cir. 2007). A dispute regarding a material
fact is "genuine" if the evidence is such that a
reasonable jury could return a verdict in favor of the
nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). When ruling on a motion for summary
judgment, the court is required to view all inferences drawn
from the factual record in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith
Radio, 475 U.S. 574, 587 (1986); Washburn, 504
F.3d at 508. Further, a court "may not make credibility
determinations or weigh the evidence" in ruling on a
motion for summary judgment. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000);
Anderson, 477 U.S. at 254-55.
the moving party has made an initial showing that there is no
evidence to support the nonmoving party's case, the party
opposing the motion must come forward with competent summary
judgment evidence establishing the existence of a genuine
fact issue. Matsushita, 475 U.S. at 586. Mere
conclusory allegations are not competent summary judgment
evidence, and thus are insufficient to defeat a motion for
summary judgment. Turner v. Baylor Richardson Med.
Ctr., 476 F.3d 337, 343 (5th Cir. 2007). Unsubstantiated
assertions, improbable inferences, and unsupported
speculation are not competent summary judgment evidence.
Id. The party opposing summary judgment is required
to identify specific evidence in the record and to articulate
the precise manner in which that evidence supports his claim.
Adams v. Travelers Indent. Co. of Conn., 465 F.3d
156, 164 (5 th Cir. 2006). Rule 56 does not impose a duty on
the court to "sift through the record in search of
evidence" to support the nonmovant's opposition to
the motion for summary judgment. Id.
disputes over facts that might affect the outcome of the suit
under the governing laws will properly preclude the entry of
summary judgment." Anderson, 477 U.S. at 248.
Disputed fact issues that are "irrelevant and
unnecessary" will not be considered by a court in ruling
on a summary judgment motion. Id. If the nonmoving
party fails to make a showing sufficient to establish the
existence of an element essential to its case and on which it
will bear the burden of proof at trial, summary judgment must
be granted. Celotex, 477 U.S. at 322-23.