United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
Kenneth M. Hoyt United States District Judge
I.
INTRODUCTION
Pending
before the Court is the defendant’s, Lowe’s (the
“defendant”), motion for summary judgment (Dkt.
No. 16). The plaintiff Hiram Cachola (the
“plaintiff”), has filed a response in opposition
to the motion (Dkt. No. 19). After having carefully
considered the motion, response, record and applicable law,
the Court determines that the defendant’s motion for
summary judgment should be GRANTED.
II.
FACTUAL OVERVIEW AND THE PARTIES’ CONTENTIONS
On a
rainy day, the plaintiff visited one of the defendant’s
stores located in Houston, Texas. After exiting the store, he
walked to his car. While walking through the parking lot he
slipped and fell. He claims to have slipped on a wet handicap
symbol painted on the parking lot surface. He suffered
injuries as a result of the fall.
Arguing
that at least one element of the plaintiff’s claim for
premises liability and negligence have been negated, the
defendant moves for summary judgment. The defendant maintains
that the plaintiff has failed to provide evidence that the
rain on which he slipped did not result from naturally
occurring rain falling at the time of his fall. The defendant
claims that Texas law recognizes that precipitation is a
naturally occurring element that does not pose an
unreasonable risk of harm. It further contends that it did
not owe the plaintiff a duty and did not breach any duty that
establishes a premises liability claim.
On the
other hand, the plaintiff contends that a material fact
exists as to whether the painted handicap symbol created an
unreasonable risk of harm. In his deposition, he states that
he slipped and fell because of the smooth surface of the
symbol in the parking lot. The plaintiff further explains
that the concrete parking lot was rough, but made slippery
when painted. He adds that a dangerous condition exists as a
result of the painted handicap symbol-not the rain itself and
as a result creates an unreasonable risk of harm. Therefore,
the defendant owed him a duty to exercise reasonable care to
reduce or eliminate the unreasonable condition.
III.
LEGAL STANDARD
Summary
Judgment Standard
Rule 56
of the Federal Rules of Civil Procedure authorizes summary
judgment against a party who fails to make a sufficient
showing of the existence of an element essential to the
party’s case and on which that party bears the burden
at trial. See Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994) (en banc). The movant bears the
initial burden of “informing the district court of the
basis for its motion” and identifying those portions of
the record “which it believes demonstrate the absence
of a genuine issue of material fact.” Celotex,
477 U.S. at 323; see also Martinez v. Schlumber,
Ltd., 338 F.3d 407, 411 (5th Cir. 2003). Summary
judgment is appropriate where “the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as
a matter of law.” Fed.R.Civ.P. 56(c).
If the
movant meets its burden, the burden then shifts to the
nonmovant to “go beyond the pleadings and designate
specific facts showing that there is a genuine issue for
trial.” Stults v. Conoco, Inc., 76 F.3d 651,
656 (5th Cir. 1996) (citing Tubacex, Inc. v. M/V
Risan, 45 F.3d 951, 954 (5th Cir. 1995);
Little, 37 F.3d at 1075). “To meet this
burden, the nonmovant must ‘identify specific evidence
in the record and articulate the ‘precise manner’
in which that evidence support[s] [its]
claim[s].’” Stults, 76 F.3d at 656
(citing Forsyth v. Barr, 19 F.3d 1527, 1537 (5th
Cir.), cert. denied, 513 U.S. 871, 115 S.Ct. 195,
130 L.Ed.2d 127 (1994)). It may not satisfy its burden
“with some metaphysical doubt as to the material facts,
by conclusory allegations, by unsubstantiated assertions, or
by only a scintilla of evidence.” Little, 37
F.3d at 1075 (internal quotation marks and citations
omitted). Instead, it “must set forth specific facts
showing the existence of a ‘genuine’ issue
concerning every essential component of its case.”
Am. Eagle Airlines, Inc. v. Air Line Pilots Ass'n,
Intern., 343 F.3d 401, 405 (5th Cir. 2003) (citing
Morris v. Covan World Wide Moving, Inc., 144 F.3d
377, 380 (5th Cir. 1998)).
“A
fact is material only if its resolution would affect the
outcome of the action, . . . and an issue is genuine only
‘if the evidence is sufficient for a reasonable jury to
return a verdict for the [nonmovant].’” Wiley
v. State Farm Fire and Cas. Co., 585 F.3d 206, 210 (5th
Cir. 2009) (internal citations omitted). When determining
whether a genuine issue of material fact has been
established, a reviewing court is required to construe
“all facts and inferences . . . in the light most
favorable to the [nonmovant].” Boudreaux v. Swift
Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005)
(citing Armstrong v. Am. Home Shield Corp., 333 F.3d
566, 568 (5th Cir. 2003)). Likewise, all “factual
controversies [are to be resolved] in favor of the
[nonmovant], but only where there is an actual controversy,
that is, when both parties have submitted evidence of
contradictory facts.” Boudreaux, 402 F.3d at
540 (citing Little, 37 F.3d at 1075 (emphasis
omitted)). Nonetheless, a reviewing court is not permitted to
“weigh the evidence or evaluate the credibility of
witnesses.” Boudreaux, 402 F.3d at 540
(quoting Morris, 144 F.3d at 380). Thus,
“[t]he appropriate inquiry [on summary judgment] is
‘whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of
law.’” Septimus v. Univ. of Hous., 399
F.3d 601, 609 (5th Cir. 2005) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251 – 52
(1986)).
IV.ANALYSIS
To
prevail on a premises liability claim a plaintiff must show:
(1) actual or constructive knowledge of a condition on the
premises by the owner or occupier; (2) that the condition
posed an unreasonable risk of harm; (3) that the owner or
occupier did not exercise reasonable care to reduce or
eliminate the risk; and (4) that the owner or
occupier’s failure to use such care proximately caused
the plaintiff’s injury. Sturdivant v. Target
Corp., 464 F.Supp.2d 596, 601 (2006). Both parties
acknowledge that it rained on the day the plaintiff visited
Lowes. The defendant claims that the rain, naturally
occurring precipitation was ...