United States District Court, W.D. Texas, Austin Division
JOANN S. TOLSON
HYATT CORPORATION and GREAT AMERICAN LIFE INSURANCE, CO.
REPORT AND RECOMMENDATION OF THE UNITED STATES
W. AUSTIN UNITED STATES MAGISTRATE JUDGE.
HONORABLE ROBERT PITMAN UNITED STATES DISTRICT JUDGE
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
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
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 STANDARD
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).
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.
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)).
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
Premises Liability Claim
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.
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
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 ...