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Tolson v. Hyatt Corp.

United States District Court, W.D. Texas, Austin Division

December 9, 2019





         Before the Court are Defendant's Full and Final Motion for Summary Judgment (Dkt. No. 21); Plaintiff's Response (Dkt. No. 29); and Defendant's Reply (Dkt. No. 30). The District Court referred these Motions to the undersigned Magistrate Judge for report and recommendation pursuant to 28 U.S.C. §636(b) and Rule 1(c) of Appendix C of the Local Rules.

         I. BACKGROUND

         This is a personal injury slip and fall case. Plaintiff JoAnn Tolson alleges that on September 7, 2018 (at the age of 94 at the time of the fall), she tripped on a broken tile while exiting the Driskill Hotel in Austin, Texas, and sustained serious injuries. Tolson brought the suit in state court, naming as defendants not only Hyatt, but also LH Brazos Holding, LP, the Great American Life Insurance, Co., and Rottet Studio, LLC. While the suit was still in state court, Tolson non-suited her claims against the Rottet Studio, and shortly after the case was removed to this Court, she voluntarily dismissed her claims against LH Brazos. Dkt. Nos. 1-3 at 31; 16 and 17. Great American Life has not been served at this point.

         In the motion before the Court, Hyatt seeks summary judgment on three grounds: (1) Tolson cannot bring a claim of negligence when she has pled a premises liability claim; (2) Tolson's premises liability claim fails because the video evidence of the incident shows without question that Tolson did not trip on a tile as she claims; and (3) because she cannot demonstrate either a premises liability or negligence claim, Tolson cannot make out a claim for gross negligence. Tolson responds that genuine issues of material fact exist and that she in fact tripped on the broken tile. Tolson supports her contentions with deposition testimony from herself and her daughter.


         Summary judgment is proper if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A genuine issue exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court must examine “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.” Id. at 251-52. The Court must view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. Salazar-Limon v. City of Houston, 826 F.3d 272, 274-75 (5th Cir. 2016).

         The moving party bears the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party demonstrates an absence of evidence supporting the nonmoving party's case, then the burden shifts to the nonmoving party to come forward with specific facts showing that a genuine issue for trial does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “After the nonmovant has been given an opportunity to raise a genuine factual issue, if no reasonable juror could find for the nonmovant, summary judgment will be granted.” Anderson, 477 U.S. at 248.

         III. ANALYSIS

         A. Negligence Claim

         Hyatt asserts that as a matter of law Tolson cannot make out a neglience claim under Texas law, because she is pleading facts that would only support a premises liability claim. Negligence and premises liability claims “involve closely related but distinct duty analyses.” W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). A person injured on another's property may have either claim against the property owner. Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016). “When the injury is the result of a contemporaneous, negligent activity on the property, ordinary negligence principles apply. When the injury is the result of the property's condition rather than an activity, premises-liability principles apply.” Id. The distinction is that negligent activity “encompasses a malfeasance theory based on affirmative, contemporaneous conduct” by the property owner, while premises liability “encompasses a nonfeasance theory based on the owner's failure to take measures to make the property safe.” United Scaffolding, 537 S.W.3d 463, 471 (Tex. 2017) (quoting Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010)).

         Tolson pleads that a cracked floor tile caused her to fall. Dkt. No. 18 at ¶¶ 5 and 7; Dkt. No. 21-1 at 4. Tolson alleges that Hyatt owed her a duty of care as a business invitee, and failed to repair or warn her about the broken floor tile, thereby causing her accident. This is not a theory based on affirmative, contemporaneous conduct by Hyatt. United Scaffolding, 537 S.W.3d at 471. Rather, it is a nonfeasance theory, as it is founded on the claim that Hyatt failed to take measures to make its hotel safe. Id. The claim is therefore based on premises liability, not negligent conduct. As a result, Tolson's negligence claim must be dismissed. See Manna v. Ross Dress for Less, Inc., 2019 WL 4087376 at *2 (W.D. Tex. July 12, 2019); Charles Plata v. Chipotle Mexican Grill, Inc., 2016 WL 126420 at *1 (S.D. Tex. Jan. 12, 2016); Robles v. Ross Stores, Inc., 2017 WL 2306527 at *2 (N.D. Tex. May 26, 2017); Garcia v. Ross Stores, Inc., 896 F.Supp.2d 575, 579 (S.D. Tex. 2012); Austin v. Jo-Ann Stores, LLC, 2019 WL 2075827 at *1 (N.D. Tex. May 9, 2019).

         B. Premises Liability Claim

         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). Hyatt's motion for summary judgment on this claim focuses on the causation element. Hyatt argues that a video of Tolson's fall clearly demonstrates that the broken tile was not the cause of the fall, as it shows that she did not step on, or even near, the cracked tile before her fall. Supplementing the video, Hyatt also submits a photograph of the tile in question, and a declaration authenticating the video. Dkt. No. 21-1, Ex. C, and C-1. The video shows Tolson, wearing a long dress, walking slowly carrying a styrofoam cup, as she traverses the area in question. The location of the broken tile is clearly visible in the video, and Tolson walks past and some distance from the tile. She never steps on the tile, nor does she trip on it. Instead, from the video it appears that after passing the area with the broken tile, and at the top of the stairs, Tolson slowly loses her balance toward her left, fails to recover and falls to her left and down the stairs.

         In response, Tolson submits her deposition testimony and that of her daughter, both asserting that Tolson's foot got caught on a broken tile. The relevant testimony from the Plaintiff was:

Q. Okay. And so I'm just - because it's sort of a big patio, and so I'm just trying to figure out as best as I can, how is it you're certain you tripped on that cracked tile as opposed to something else, maybe just tripping over your foot or tripping over ...

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