United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
J. BOYLE, UNITED STATES DISTRICT JUDGE.
the Court is Defendant's Motion for Summary Judgment.
Doc. 15. For the reasons that follow, the Court
GRANTS Defendant's Motion.
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.
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).
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
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.
not disputed that Hatamieh was Kroger's
invitee.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.
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 ...