United States District Court, W.D. Texas, San Antonio Division
MEMORANDUM OPINION AND ORDER
PULLIAM UNITED STATES DISTRICT JUDGE
matter is before the Court upon Defendant Wal-Mart Stores
Texas, LLC's Motion for Summary Judgment (ECF No. 14) to
which Plaintiff responded (ECF No. 15). After careful
consideration of the arguments and evidence of the parties,
the Court denies Defendant's Motion.
Nellie Flores (“Flores”) brings this action for
injuries she sustained when she tripped and fell while
entering a San Antonio Wal-Mart. Defendant Wal-Mart Stores
Texas, LLC (“Wal-Mart”) moves for summary
judgment contending Flores has failed to establish it had
notice of the condition of the mat on which Flores tripped.
facts taken in the light most favorable to Flores are as
follows. On January 19, 2018, Nellie Flores tripped on a
floor mat as she walked into Wal-Mart with her grandchildren.
ECF No. 15-12 at 50:5-15. It was raining that day, and at the
store's entrance Wal-Mart placed mats for people to wipe
their shoes and yellow cones to warn people that the floors
might be slippery. ECF No. 15 at 3. At least five times in
the hour preceding Flores's fall, employees stood near or
directly on top of the mat on which Flores tripped.
Id. at 4. Additionally, a Wal-Mart employee
straightened a mat inside of the store but left the adjacent
vestibule mats untouched. Id. at 12. As she
approached the entrance, Flores walked carefully and looked
at the ground to avoid slipping. ECF No. 15-12 at 40:10-12;
51:16-25; 52:1-2. Flores noticed the yellow signs, which drew
her attention to the area. Id. at 48:1-25; 61:21-23;
63:2-16. This gave Flores the impression that once she
reached the mats she was no longer at risk of slipping; the
mats signified that she had reached the safe zone.
Id. at 40:13-15; 47:8-11; 61:21-23; 63:2-16. As
Flores stepped onto the mat with her right foot, she lifted
her head to tell her grandkids to wipe their feet; continuing
forward, her left foot caught on the rumpled mat and she
tripped, stumbling several feet before crashing into a pile
of wood stacked on a pallet. Id. at 49:3-14;
50:5-15. 56:25; 57:1; 71:21-72:5.
STANDARD OF REVIEW
judgment is appropriate “if the 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 genuine dispute of material fact exists
when “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). A dispute is “genuine” where “there
is sufficient evidence favoring the nonmoving party for a
jury to return a verdict for that party.” Id.
at 249. A dispute is “material” only if it
“might affect the outcome of the suit under the
governing law.” Id. 477 U.S. at 248. While all
evidence and reasonable inferences are viewed in the light
most favorable to the nonmovant, and all disputed facts are
resolved in favor of the nonmovant, the judge's function
“is not ‘to weigh the evidence and determine the
truth of the matter but to determine whether there is a
genuine issue for trial.'” Tolan v.
Cotton, 572 U.S. 650, 656 (2014) (quoting
Anderson, 477 U.S. at 249); see also
Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540
(5th Cir. 2005) (the district court does not make credibility
determinations or weigh evidence).
State Court Petition, Flores asserts both negligence and
premises liability causes of action against Wal-Mart. ECF No.
1-3 at 6-7. In her response to Wal-Mart's Motion for
Summary Judgment, Flores clarifies she is proceeding solely
on a premises liability claim. ECF No. 15 at 2.
Texas law, a premises liability claim arises from a property
owner's duty “to make the premises safe or warn of
dangerous conditions as reasonably prudent under the
circumstances.” Occidental Chem. Corp. v.
Jenkins, 478 S.W.3d 640, 644 (Tex. 2016) (discussing the
difference between a negligence claim and a premises
liability claim and citing Corbin v. Safeway Stores,
Inc., 648 S.W.2d 292, 295 (Tex. 1983); Smith v.
Henger, 148 Tex. 456, 226 S.W.2d 425, 431 (Tex. 1950)).
An invitee is “one who enters on another's land
with the owner's knowledge and for the mutual benefit of
both.” Rosas v. Buddies Food Store, 518 S.W.2d
534, 536 (Tex. 1975). A customer is an invitee. As such, a
store owes its customer a duty to exercise reasonable care to
protect her from known or discoverable dangerous conditions
in the store. Wal-Mart Stores, Inc. v. Gonzalez, 968
S.W.2d 934, 936 (Tex. 1998). This duty does not make a store
owner a general insurer of its customers' safety on the
Texas Supreme Court has “consistently treated
slip/trip-and-fall cases as presenting claims for premises
defects.” Sampson v. Univ. of Tex. at
Austin, 500 S.W.3d 380, 386, 391 (Tex. 2016). To prevail
on a premises liability claim, a plaintiff must prove (1)
actual or constructive knowledge of some condition on the
premises by the owner; (2) the condition posed an
unreasonable risk of harm; (3) the owner did not exercise
reasonable care to reduce or eliminate the risk; and (4) the
owner's failure to use such care proximately caused the
plaintiff's injuries, Gonzalez, 968 S.W.2d at
936 (citing Keetch v. Kroger Co., 845 S.W.2d 262,
264 (Tex. 1992); Corbin, 648 S.W.2d at 296).
contends “[w]hether the complained of condition is a
wet mat, or a bunched-up mat, Plaintiff cannot recover under
a theory of premises liability.” ECF No. 14 at 6.
Flores responds that she did not slip and fall on a wet mat,
“she tripped on an unlevel and rumpled mat.” ECF
No. 15 at 2. With the facts confined to a rumpled or
bunched-up mat, the only element Wal-Mart challenges in the
subject Motion for Summary Judgment is actual or constructive
notice of the condition of the mat. Wal-Mart argues that
Flores has no knowledge or evidence that the mat was
“bunched-up” prior to her fall, nor does she have
knowledge or evidence “proving Defendant, through
its' employees, had actual or constructive notice of the
alleged bunched-up mat.” ECF No. 14 ¶ 21.
Accordingly, the other elements of a premises liability claim
are not at issue here.
establish that the owner had actual or constructive notice
about the dangerous condition in a trip and fall case, a
plaintiff must establish “(1) the defendant [created
the condition] on the floor, (2) the defendant actually knew
[about the condition] on the floor, or (3) 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).
as a matter of law, “the mere proximity of an employee
to a [hazard], without evidence of when or how it came to be
on the floor, [is] legally insufficient to charge a premises
owner with constructive notice of the hazard, ” the
question of constructive notice ...