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 United States
of America's Motion for Summary Judgment [#19], and
Plaintiff Kathryn Kasparek's Response [#23] in
opposition. Having considered the case file and the
applicable law, the Court enters the following opinion and
a premises liability case. On a rainy May 8, 2014, Kasparek
slipped and fell while walking over a metal grate in front of
the United States Post Office located 1212 U.S. Highway 281,
Marble Falls, Texas 78654. Compl. [#1] at ¶ 7. As a
result of her fall, Kasperek suffered numerous injuries,
including a broken femur, torn rotator cup, laceration,
puncture wound, and abrasions. Id. Kasperek alleges
postmaster Alan Smith told her after her accident that
"the post office had been having trouble with that
drainage area and had been trying to figure out how to fix
it." Id. at ¶ 8; Resp. [#23] at 2.
filed this lawsuit on December 20, 2016, asserting one claim
for premises liability. Compl. [#1] at ¶ 9. Defendant
moves for summary judgment. See Mot. Summ. J. [#19].
The motion is ripe for consideration.
Legal Standard-Summary Judgment
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,
Ml 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., Ml
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 of 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 Indem. Co. of Conn., 465 F.3d 156,
164 (5th 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.
parties agree Texas law applies in this case. Under Texas
law, a landowner has a "duty to make safe or warn
against any concealed, unreasonably dangerous conditions of
which the landowner is, or reasonably should be, aware but
the invitee is not." Austin v. Kroger Texas,
L.P., 465 S.W.3d 193, 203 (Tex. 2015). As a general
rule, however, a landowner is not required to make safe or
warn of hazards that are open and obvious or known to the
invitee. Id. at 204.
elements of a claim for premises liability under Texas law
are: (1) defendant had actual or constructive knowledge of a
condition on the premises; (2) the condition posed an
unreasonable risk of harm to plaintiff; (3) the defendant did
not exercise reasonable care to reduce or to eliminate the
risk; and (4) defendant's failure to use such care
proximately caused plaintiffs injuries. United
Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 472 (Tex.
2017), reh'g denied (Jan. 26, 2018). Naturally
occurring or accumulating conditions such as rain, mud, and
ice do not create conditions posing an unreasonable risk of
harm as a matter of law, and therefore do not give rise to
premises liability. Walker v. UME, Inc.,
03-15-00271-CV, 2016 WL 3136878, at *2 (Tex. App.-Austin June
3, 2016, pet. denied); see also M.O. Dental Lab v.
Rape, 139 S.W.3d 671, 676 (Tex. 2004).
contends it is entitled to summary judgment because the metal
grate at issue in this case was an open and obvious condition
for which it had no duty to warn or protect against.
See Mot. Summ. J. [#19] at 3-5. Defendant also
argues rainwater cannot create an unreasonable risk of harm
to invitees as a matter of law. See Id. at 5-10.
Kasperek responds Defendant did not plead the affirmative
defense of open and obvious, and Defendant's rainwater