United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
KINKEADE UNITED STATES DISTRICT JUDGE
the Court is Defendant Wal-Mart Stores, Inc.'s Motion for
Summary Judgment on Plaintiff's Claims (Doc. No. 22).
After careful review of the motion, the response, the reply,
the supporting appendices, the applicable law, and any
relevant portions of the record, the Court
GRANTS the motion for the following reasons.
shopping at a store of Defendant Wal-Mart Stores, Inc.
(“Defendant”) in Dallas, Texas, Plaintiff Wanda
Graves (“Plaintiff”) slipped and fell on a grape
on the floor. Plaintiff filed this lawsuit against Defendant
in state court, alleging state law claims, and Defendant
removed the case to this Court based on diversity.
Standards for Summary Judgment
judgment is appropriate when the pleadings, affidavits and
other summary judgment evidence show that no genuine issue of
material fact exists, and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(c); see
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A
dispute of 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). All
evidence and reasonable inferences must be viewed in the
light most favorable to the nonmovant, and all disputed facts
resolved in favor of the nonmovant. See United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962); Boudreaux
v. Swift Transp. Co., Inc., 402 F.3d 536, 540
(5th Cir. 2005).
moving party bears the burden of identifying those portions
of the record it believes demonstrate the absence of a
genuine issue of material fact. Celotex, 477 U.S. at
322-25. Once the movant satisfies his burden, the nonmovant
must present competent summary judgment evidence showing a
genuine fact issue for trial exists. Id. at 321-25;
Anderson, 477 U.S. at 255-57. To meet this burden,
the nonmovant must go beyond the pleadings and designate
specific facts in the record establishing a genuine issue of
material fact exists. Celotex, 477 U.S. at 325;
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994)(en banc). The nonmovant may satisfy this burden by
providing depositions, affidavits, and other competent
evidence; not with “conclusory allegations,
speculation, and unsubstantiated assertions.”
Douglass v. United Servs. Auto. Ass'n, 79 F.3d
1415, 1429 (5th Cir. 1996) (en banc). Conclusory allegations,
unsubstantiated assertions, or a mere scintilla of evidence
cannot defeat a motion for summary judgment. See
Anderson, 477 U.S. at 249-52; Boudreaux, 402
F.3d at 540. If the nonmovant fails to make a sufficient
showing to prove the existence of an essential element to the
case and on which the nonmovant will bear the burden of
proving at trial, summary judgment must be granted.
Celotex, 477 U.S. at 322.
if there is a dispute regarding some material facts, a movant
may obtain summary judgment if he can prove there is no
evidence to support one or more essential elements of the
non-moving party's claim.” Walker v.
Geithner, 400 F. App'x 914, 916 (5th Cir. 2010)(per
curium)(citing Celotex, 477 U.S. at 323-25).
However, “[i]t is not sufficient to merely list the
elements of the claims and state that there is no evidence to
support the elements.” Seastruck v. Darwell
Integrated Tech., Civ. No. 3:05-CV-0531-BF, 2008 WL
190316, at *3 (N.D. Tex. Jan. 22, 2008) (Stickney, M.J.). The
movant must cite to the record to demonstrate a lack of
evidence that supports the nonmovant's claims.
invitee is owed a duty by the owner to exercise reasonable
care to protect invitees from dangerous store conditions
known to or discoverable by the store. Wal-Mart Stores,
Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998);
see also Rosas v. Buddie's Food Store, 518
S.W.2d 534, 536 (Tex. 1975)(invitee is “one who enters
on another's land with the owner's knowledge and for
the mutual benefit of both.”). But this duty does not
make the owner a general insurer of its customers' safety
on the premises. See id. To prove a claim of
premises liability, the plaintiff must establish: (1) the
owner had actual or constructive knowledge of some condition
on the premises; (2) that the condition created or posed an
unreasonable risk of harm; (3) that the owner failed to
exercise reasonable care to reduce or eliminate the risk; and
(4) that the owner's failure to exercise reasonable care
was the proximate cause of the plaintiff's injuries.
CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex.
establish the owner had knowledge of a potentially harmful
condition, “a slip-and-fall plaintiff . . . [must
establish] that (1) the defendant placed the substance on the
floor, (2) the defendant actually knew that the substance was
on the floor, or (3) it is more likely than not that the
condition existed long enough to give the premises owner a
reasonable opportunity to discover it.” Wal-Mart
Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002).
It is not enough for the plaintiff to merely show that an
employee came in close proximity to a hazard; a plaintiff
must point to some temporal evidence that the owner had a
reasonable opportunity to discover a dangerous condition.
Id. at 816.
Application of the Law to the Facts
moves for summary judgment on the grounds that Plaintiff
cannot establish the required notice element of her claims.
Plaintiff responds that she “believes that Defendant
had constructive knowledge” because the condition of
the floor was not inspected prior to her fall and Defendant
had a reasonable amount of time to discover the condition. In
its reply, Defendant maintains Plaintiff offers no evidence
supporting her claim that Defendant had any knowledge,
constructive or actual, of the grape.
knowledge of the grape on the floor is a required element of
Plaintiff's claim. See CMH Homes, 15 S.W.3d at
99. To establish Defendant's actual or constructive
knowledge, Plaintiff would have to show: (1) that Defendant
placed the grape on the floor; (2) that Defendant actually
knew the grape was on the floor; or (3) that the grape was on
the floor long enough to give Defendant a reasonable
opportunity to discover and remove it. See Reece, 81
S.W.3d at 814. Plaintiff concedes she does not know how the
grape came to be on the floor, and also that she has no
evidence Defendant had actual knowledge about the grape.
Instead, in her response, Plaintiff argues Defendant had
constructive knowledge of the grape on the floor because the
condition of the grape on the floor was never inspected prior
to Plaintiff's fall. In support of her constructive
knowledge argument, Plaintiff cites to her own affidavit in
which she states she heard an employee of Defendant say he
didn't know of anyone who had been ...