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Hatamieh v. Kroger Texas LP

United States District Court, N.D. Texas, Dallas Division

February 21, 2018




         Before the Court is Defendant's Motion for Summary Judgment. Doc. 15. For the reasons that follow, the Court GRANTS Defendant's Motion.



         This is a premises liability case. Plaintiff Sousan Hatamieh filed suit in Texas state court claiming that she was injured in one of Defendant Kroger Texas LP's (Kroger) stores when she slipped and fell while trying to reach straws on a shelf. Doc. 1-2, Notice of Removal, Ex. 1-A. Allegedly, Kroger was remodeling the store, which resulted in an uneven and slippery floor in the aisle where the straws were located. Doc. 16, Def.'s Br., 2. Hatamieh also claims that there was a stocking cart full of boxes in the aisle that she was required to reach around in order to get to the straws. Id. Kroger removed the action to this Court on the basis of diversity jurisdiction, Doc. 1, Notice of Removal, and then filed its Motion for Summary Judgment, Doc. 15, Mot. for Summ J. Kroger claims Hatamieh produced no evidence for several of the elements of a Texas premises-liability claim and therefore summary judgment is appropriate. Doc. 16, Pl.'s Br., 15. Kroger's Motion is ripe for review.



         Summary judgment is proper if the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The substantive law identifies which facts are material, and only a dispute over facts that might affect the outcome of the suit under the governing law will properly preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248(1986). The Court must view the facts and the inferences drawn from the facts in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).

         Once the summary judgment movant has met his burden, the non-movant must “go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(per curiam). A non-movant may not simply rely on the Court to sift through the record to find a fact issue but must point to specific evidence in the record and articulate precisely how that evidence supports the challenged claim. Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). Moreover, the evidence the non-movant provides must raise more than “some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., 475 U.S. at 586 . This evidence must be such that a jury could reasonably find in the non-movant's favor. Anderson, 477 U.S. at 248. If the non-movant is unable to make such a showing, the court must grant summary judgment. Little, 37 F.3d at 1075.



         Kroger moves for summary judgment on three grounds: (1) the alleged uneven and slippery floor was not an unreasonably dangerous condition; (2)the stocking cart and boxes did not proximately cause Hatamieh's fall; and (3) the stocking cart and boxes was an open and obvious condition. Hatamieh responds that the stocking cart and boxes was a dangerous condition and that Kroger knew or should have known of the condition. Doc. 16., Pl.'s Br., 6, 12-13.

         It is not disputed that Hatamieh was Kroger's invitee.[2]As such, Kroger owed a duty to exercise reasonable care to protect Hatamieh from dangerous conditions in the store that were known or reasonable discoverable. Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002). To establish a premises liability claim as an invitee, Hatamieh must show (1) actual or constructive knowledge of some condition on the premises by Kroger; (2) that the condition posed an unreasonable risk of harm; (3) that Kroger did not exercise reasonable care to reduce or eliminate the risk; and (4) that Kroger's failure to use such care proximately caused Hatamieh's injuries. Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992); Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983). Kroger's Motion focuses on elements two and four while Hatamieh's response focuses on element one, and to some extent, element two.

         Because both parties present arguments under element two (whether the condition posed an unreasonable risk of harm), the Court will begin its analysis there. At the outset, there is some confusion about whether the allegedly dangerous condition was the slippery and uneven floor or the stocking cart and boxes. Plaintiff's original petition states that “Hatamieh was seriously injured as a result of hazardous conditions due to construction work that left boxes around without warning signs, ” and then later notes that Kroger “negligently permitted the floor to become slick.” Doc. 1-2, Notice of Removal, Ex. 1-A. In her answer to Kroger's request for admissions, Plaintiff indicates that she was injured while reaching across the stocking cart filled with boxes in order to obtain the straws on the shelf. Doc. 17, Def.'s App'x, Ex. C. But then during her deposition, Hatamieh stated that she fell because the floor was slippery and that she did not have to walk around or reach over the stocking cart of boxes in order to reach the straws. Id. at Ex. B. In her response to Kroger's Motion, Hatamieh never mentions that the floor was slippery but states that “[t]he construction in the store that created the uneven floor surface without warning signs was a dangerous condition ...

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