United States District Court, S.D. Texas, Galveston Division
SAN JUANITA GALVAN, Plaintiff.
FAMILY DOLLAR, INC., ET AL. Defendants.
ORDER DENYING SUMMARY JUDGMENT
M. EDISON UNITED STATES MAGISTRATE JUDGE
San Juanita Galvan (“Galvan”) claims that she
tripped and fell on broken concrete while walking into a
Family Dollar store in Galveston County, Texas. At the time
of the accident, Ruth Grahm, in her capacity as Trustee of
Grahm Martial Deduction Trust and Grahm Exempt Unified Credit
Trust (“Ruth Grahm”), owned the premises. Ruth
Grahm leased the premises to Family Dollar Stores of Texas,
LLC (“Family Dollar LLC”).
lawsuit, Galvan asserts negligence and premises liability
claims against Ruth Grahm and Family Dollar LLC. Family
Dollar LLC filed a cross-claim against Ruth Grahm, contending
that Ruth Grahm breached her obligation under the lease
agreement to maintain and repair the walkway where Galvan
are three motions for summary judgment pending before me: (1)
Ruth Grahm's Motion for Summary Judgment as to All Claims
Asserted Against Her by Plaintiff San Juanita Galvan (Dkt.
56); (2) Family Dollar Stores of Texas, LLC's Motion for
Summary Judgment (Dkt. 59); and (3) Ruth Grahm's Motion
for Summary Judgment as to All Claims Asserted Against Her by
Cross-Plaintiff Family Dollar Stores of Texas, LLC (Dkt. 62).
After analyzing the motions, the responses, the replies, and
the applicable case law, I conclude that the motions for
summary judgment should all be DENIED.
GRAHM'S AND FAMILY DOLLAR LLC'S MOTIONS FOR SUMMARY
JUDGMENT AGAINST GALVAN
elements of a premises liability claim by an invitee are: (1)
defendant was the owner, occupier or possessor of the
premises; (2) plaintiff was an invitee; (3) a condition posed
an unreasonable risk of harm; (4) defendant had actual or
constructive knowledge of some condition on the premises; (5)
defendant did not exercise reasonable care to reduce or
eliminate the unreasonable risk of harm; and (6) the failure
to use reasonable care to reduce or eliminate the
unreasonable risk of harm proximately caused plaintiff's
injury. See LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688
(Tex. 2006); H.E. Butt Grocery Co. v. Resendez, 988
S.W.2d 218, 218 (Tex. 1999).
their motions for summary judgment against Galvan, Ruth Grahm
and Family Dollar LLC both challenge elements three and four.
They assert that Galvan has adduce d no competent evidence
that the walkway posed an unreasonable risk of harm. They
also claim that there is no summary judgment evidence
establishing that Ruth Grahm and Family Dollar LLC had actual
or constructive knowledge that the walkway posed an
unreasonable risk of harm to invitees.
first address element three. Whether a particular condition
poses an unreasonable risk of harm is fact specific, and
there is no definitive test for determining whether a
specific condition presents an unreasonable risk of harm.
That being said, generally speaking, “[a] condition
poses an unreasonable risk of harm for premises-defect
purposes when there is a ‘sufficient probability of a
harmful event occurring that a reasonably prudent person
would have foreseen it or some similar event as likely to
happen.'” Cty. of Cameron v. Brown, 80
S.W.3d 549, 556 (Tex. 2002) (quoting Seideneck v. Cal
Bayreuther Assocs., 451 S.W.2d 752, 754 (Tex. 1970)).
allegation is that she tripped on a one-inch crack in the
sidewalk, with the key factor being that there was a mat
covering the crack and obscuring the dangerous condition from
view. In my mind, it is inappropriate for me to determine as
a matter of law that there was no unreasonable risk of harm.
Instead, it should be up to a jury to decide whether the
sidewalk crack that was allegedly hidden from view created an
unreasonable risk of harm.
to element four, the question is, has Galvan created a
genuine issue of material fact as to whether Ruth Grahm and
Family Dollar LLC had actual or constructive knowledge that
the walkway constituted an unreasonably dangerous condition?
Ruth Grahm and Family Dollar LLC maintain that they did not
have actual knowledge of the cracks in the concrete, and
there is no summary judgment evidence that suggests
otherwise. Thus, the issue becomes whether Ruth Grahm and
Family Dollar LLC had constructive knowledge of the
sidewalk's condition. The Texas Supreme Court has
explained that a plaintiff can prove constructive knowledge
by showing that “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).
contends that the cracked sidewalk was on the premises for so
long that it should have been easily discovered and removed
in the exercise of ordinary care. In support of this
argument, Galvan points to photos showing weeds growing in
the sidewalk crack and an extensive amount of dirt, debris,
and mold in the same area. To me, these photos-which Galvan
claims truly and accurately depict the conditions on the
premises on the date of the accident-create a fact issue as
to whether Ruth Grahm and Family Dollar LLC had constructive
knowledge of the sidewalk's condition.
Dollar LLC also claims that summary judgment is appropriate
because Galvan cannot support a claim for damages. I am not
convinced. Under Texas law, a plaintiff in a personal injury
action may recover for non-economic damages that include pain
and suffering. See Golden Eagle Archery, Inc. v.
Jackson , 116 S.W.3d 757, 761 (Tex. 2003). Galvan has
presented summary judgment evidence in the form of deposition
testimony establishing that she hurt her shoulder, neck,
lower back, and ankle in the trip-and-fall, and it resulted
in significant pain. In my view, this is “significant
probative evidence” that a genuine issue of material
fact exists, precluding the entry of summary judgment.
Hamilton v. Segue Software, Inc., 232 F.3d 473, 477
(5th Cir. 2000) .
GRAHM'S MOTION FOR SUMMARY JUDGMENT AGAINST FAMILY DOLLAR
Grahm argues that Family Dollar LLC's breach of contract
cross-claim fails as a matter of law because there is no
evidence that Ruth Grahm failed to properly maintain the
premises. As noted above, I have found that a fact issue
exists as to whether there is a valid premises liability
claim and, more specifically, whether a condition that posed
an unreasonably dangerous condition existed at the time of
the accident. That determination disposes of Ruth Grahm's
Motion for Summary Judgment against Family Dollar LLC. A jury