United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. MILLER UNITED STATES DISTRICT JUDGE
before the court is a motion for partial summary judgment
filed by defendant Wal-Mart Stores Texas, LLC. Dkt. 23 at 1.
Plaintiff Alicia Loesch-Simmons did not
respond. Having considered the motion, record, and
applicable law, the court is of the opinion that
Wal-Mart's motion should be GRANTED.
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
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.
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).
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).
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).
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
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.