Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Loesch-Simmons v. Wal-Mart Stores Texas, LLC

United States District Court, S.D. Texas, Houston Division

June 25, 2018

Alicia Loesch-Simmons, Plaintiff,
v.
Wal-Mart Stores Texas, LLC, Defendant.

          MEMORANDUM OPINION AND ORDER

          GRAY H. MILLER UNITED STATES DISTRICT JUDGE

         Pending before the court is a motion for partial summary judgment filed by defendant Wal-Mart Stores Texas, LLC.[1] Dkt. 23 at 1. Plaintiff Alicia Loesch-Simmons did not respond.[2] Having considered the motion, record, and applicable law, the court is of the opinion that Wal-Mart's motion should be GRANTED.

         I. Background

         This is a personal injury case. Wal-Mart owns a store located at 150 West El Dorado Boulevard, Friendswood, Texas 77546. Dkt. 23, Ex. A at 2. On May 16, 2015, Loesch-Simmons entered the store to shop. Id. During her visit, Loesch-Simmons slipped and fell in “condensation/water left standing on the floor.” Id. She “landed forcefully on the ground, ” and as a result, “sustained severe and extensive injuries to her body.” Id. Loesch-Simmons could not determine the source of the water. Dkt. 23, Ex. B at 32. Nor could she determine if any Wal-Mart employee knew about it before her fall. Id.

         On February 23, 2017, Loesch-Simmons sued Wal-Mart in state court, alleging premises liability, negligence, gross negligence, and malice. Dkt. 23, Ex. A. She seeks monetary damages. Id. Wal-Mart removed to this court. Dkt. 1. Here, Wal-Mart moves for summary judgment on Loesch-Simmons's claims of negligence, gross negligence, and malice. Dkt. 23 at 1. Loesch-Simmons has not responded.

         II. Legal Standard

         A court shall grant summary judgment when a “movant shows that 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). “[A] fact is genuinely in dispute only if a reasonable jury could return a verdict for the nonmoving party.” Fordoche, Inc. v. Texaco, Inc., 463 F.3d 388, 392 (5th Cir. 2006). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986). If the party meets its burden, the burden shifts to the non-moving party to set forth specific facts showing a genuine issue for trial. Fed.R.Civ.P. 56(c). The court must view the evidence in the light most favorable to the non-movant and draw all justifiable inferences in favor of the non-movant. Envtl. Conservation Org. v. City of Dall., 529 F.3d 519, 524 (5th Cir. 2008).

         III. Analysis

         A. Negligence

         Wal-Mart moves for summary judgment on Loesch-Simmons's negligence claim. Under Texas law, “[r]ecovery on a negligent activity theory requires that the person have been injured by or as a contemporaneous result of the activity itself rather than by a condition created by the activity.” Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). “[N]egligent activity encompasses a malfeasance theory based on affirmative, contemporaneous conduct by the owner that caused the injury, while premises liability encompasses a nonfeasance theory based on the owner's failure to take measures to make the property safe.” Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010).

         Wal-Mart argues that Loesch-Simmons cannot recover for negligence because she bases her claim on a condition rather than an activity. Dkt. 23 at 5. In support of this argument, Wal-Mart cites a Texas case for the proposition that a successful negligence claim must be based on an activity and not a condition. Id. at 4 (citing Keetch, 845 S.W.2d at 263-64).

         In Keetch, the Texas Supreme Court determined that “there was not ongoing activity when [the plaintiff] was injured.” 845 S.W.2d at 264. Like Loesch-Simmons, the Keetch plaintiff was injured after slipping and falling in a grocery store. Id. at 263-64. However, unlike this case, Keetch involved a substance that an employee sprayed at least thirty minutes before the injury. Id. Keetch explained that the plaintiff “may have been injured by a condition created by the spraying but she was not injured by the activity of spraying.” Id. Therefore, the facts did not support a jury instruction on a negligent activity theory of liability. Id.

         Loesch-Simmons's negligence claim fails for the same reasons. See Id. When Loesch-Simmons fell, no evidence shows an activity was ongoing. Dkt. 23, Ex. B at 40. Because all evidence indicates that Loesch-Simmons's injury occurred due to a condition, her claim falls under premises liability, not negligence. Thus, she cannot recover for negligence. Accordingly, Wal-Mart's motion is GRANTED as to the negligence claim and it is DISMISSED with PREJUDICE.

         B. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.