Yerian v. Wal-Mart Stores Texas, LLC, No. 6:2019cv00087 - Document 29 (E.D. Tex. 2020)
Court Description: ORDER granting 25 Motion for Summary Judgment. Signed by District Judge J. Campbell Barker on 3/23/2020. (ndc)
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, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, F. d , th Cir. . The court may grant summary judgment against a party who cannot provide any evidence of an essential element of a claim on which that party will bear the burden of proof at trial. Celotex Corp., U.S. at - . Finally, [w]hen opposing parties tell two diferent stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment. Scot v. Harris, U.S. , . When there is video evidence available in the record, the court is not bound to adopt the nonmoving party’s version of the facts if it is contradicted by the record, but rather should view the facts in the light depicted by the videotape. Harris v. Serpas, F. d , th Cir. . The evidence With its original motion, defendant submited as Exhibit the aidavit of Darrell ”ow, the manager of the Wal-Mart location in question. “tached to the aidavit are sub-exhibits “ through K. Exhibit “ is a customer-incident report, created at the time of the incident. Exhibits ” through H are witness - - statements, all created at the time of the incident. Exhibit I is the video-request form created at the time of the incident. Exhibit J is black-and-white photos of the loor with the liquid on it. Exhibit K is surveillance video of the front exterior and front entrance if the store, and two angles of the area where the fall occurred. Defendant further ofered Exhibit , the afidavit of its counsel, Jessica LaRue. “tached to Exhibit are sub-exhibits “, plaintif’s initial disclosures, and ”, plaintif’s supplemental initial disclosures. Plaintif atached exhibits “ through D to his response. Exhibit “ is plaintif’s aidavit. Exhibit ” is seven of the same black-and-white photos submited with defendant’s motion. Exhibits C and D are two angles of surveillance footage. These are the same two angles of the store’s interior that defendant provided. Analysis The court addresses seriatim plaintif’s two theories of recovery premises liability and negligent activity. I. Premises liability The elements of a premises-liability cause of action in Texas are that the defendant had actual or constructive knowledge of a condition on the premises that the condition posed an unreasonable risk of harm that the condition was concealed not open and obvious that the plaintif was not aware of the danger that defendant did not exercise reasonable care to make safe or warn against the unreasonably dangerous condition and that defendant’s failure to use reasonable care proximately caused plaintif’s injuries. Keetch v. Kroger Co., S.W. d , Tex. . The irst element is at issue here. Without actual knowledge, there must be suicient evidence to show that the condition had existed for long enough that the defendant should have discovered it through the exercise of reasonable care and inspection. See Wal-Mart Stores, Inc. v. Reece, S.W. d , Tex. . In other words, that the defendant had a reasonable - - opportunity to discover it. Id. Establishing the mere possibility that the condition had existed for the requisite amount of time or that it was possible for it to have been discovered is not suicient to prove constructive knowledge. Id. at . In determining whether the defendant should have discovered the condition, the court may consider the proximity of employees to the condition, the conspicuousness of the condition, and the length of time it existed. Wal-Mart Stores, Inc. v. Spates, S.W. d , Tex. citing Reece, S.W. d at . “s to the length-of-time factor, plaintif’s only evidence of when the spill occurred are the photos, which plaintif claims show that the water was dirty and had track marks through it. This claim is dubious at best, given that the photos are lowquality and in black and white. Moreover, the Texas Supreme Court has held that this kind of dirty water evidence is insuicient because of the equal-inferences rule. In one case, the court held that dirt in macaroni salad on which a plaintif slipped was no evidence of the length of time the macaroni had been on the loor because that evidence could equally support either the inference that it had accumulated dirt over a long period of time or that it had been quickly contaminated. Walmart v. Gonzales, S.W. d Tex. citing many cases with the same result as to various substances . “s to conspicuousness, the parties agree that the liquid was clear, and the photos tend to show that there was not a large amount of liquid. The Texas Supreme Court has held that clear liquid on a light tile loor is not conspicuous. Reece, S.W. d at . Finally, the proximity factor does nothing to help plaintif because, if one does not know when the liquid got on the loor, one cannot say how many employees, if any, came within close proximity to it. Reece, S.W. d at . The Texas Supreme Court has concluded that, without evidence of how long the spill had been on the loor, an employee walking past the spill and not noticing it a few moments before the - - plaintif’s fall could not establish constructive knowledge. Id. at citing Gonzales, S.W. d at explaining that even where a spill is highly conspicuous or where an employee was in close proximity to a less conspicuous spill for a signiicant period of time, there must be some proof of how long the hazard was there before liability can be imposed on the premises owner for failing to discover and rectify, or warn of, the dangerous condition. Otherwise, owners would face strict liability for any dangerous condition on their premises, an approach we have clearly rejected. . In this case, the dirt and track marks in the water are, as a mater of law, no evidence of how long the water had been there. The clear water on a light tile loor is, as a mater of law, inconspicuous. “nd, without any evidence of when the spill occurred, constructive knowledge cannot be established simply by showing that the employee who was escorting plaintif, or some other employee, walked past the spill moments before the fall. Therefore, the court grants defendant’s motion as to the premises-liability claim on the ground that plaintif has no evidence suicient for a jury to ind defendant’s knowledge or constructive knowledge of the condition. Without some temporal evidence, there is no basis upon which the factinder can reasonably assess the opportunity the premises owner had to discover the dangerous condition. Reece, S.W. d at . II. Negligent activity In Texas, a negligent-activity theory is viable only if the plaintif is injured as a contemporaneous result of the activity, rather than by a condition created by the activity. Austin v. Kroger Texas, L.P., S.W. d Tex. . Whereas premises liability is a nonfeasance theory, negligent activity is a malfeasance theory. Del Lago Partners, Inc. v. Smith, S.W. d , Tex. . “ claim for negligent activity is submited on a general-negligence question. United Scafolding, Inc. v. Levine, S.W. d , Tex. . Texas recognizes that - - almost all artiicial conditions are necessarily created by an activity but has repeatedly refused to blur the lines between negligent activity and premises liability, holding that an activity that creates a condition is not the kind of contemporaneous activity necessary for a negligent activity claim. United Scafolding, S.W. d at Del Lago, S.W. d at . Plaintif argues that Austin v. Kroger largely negate[s] the notion that a premises liability case cannot exist on the same facts as a negligence case. Doc. at citing Austin, S.W. d . That case dealt with an employee who slipped and fell while cleaning a spill as part of his job duties. The court reairmed that when a claim does not result from contemporaneous activity, the invitee has no negligent-activity claim, and his claim sounds exclusively in premises liability. Id. at . The court did state, however, that an injury may have more than one proximate cause and a negligent-activity claim could exist on the same facts as a premises-liability claim. Id. at . So negligent activity and premises liability may be raised in the same action on an appropriate fact patern, and this appears to be an appropriate fact patern. Plaintif alleges a contemporaneous activity that did not create the condition, so, at this threshold stage, the claim seems viable. ”ut defendant does not appear to seriously dispute that proposition. Rather, defendant argues that plaintif has no proof that the activity defendant’s employee escorting plaintif to the requested product was negligent or that the activity caused the injury. Plaintif argues that the employee’s malfeasance in directing plaintif to the spill caused his injury. Plaintif’s summary-judgment evidence on this claim consists of the videos and plaintif’s own aidavit, which states that the employee directed [him] to within less than two feet of the clear liquid that caused [him] to fall. ”ut the video directly and conclusively contradicts his aidavit in showing that she did not direct him to that aisle. No reasonable and - - properly instructed juror could ind that activity to be negligent or a proximate cause of the injury. In this case, Wal-Mart and its employee had a duty to act reasonably in showing plaintif where his requested product was located. In Texas, a person violates the duty of reasonable care if he fails to act as a person of ordinary prudence would have acted in the same or similar circumstances. Texas Patern Jury Charges, General Negligence & Intentional Personal Torts, § . . It is impossible for a reasonable jury to ind that the employee acted unreasonably in this case. “n employee who points a visitor to a product is not obligated to investigate whether any dangerous condition exists in any part of the store that the plaintif might have to pass through in order to get to the intended aisle. One also cannot say that the employee was negligent for failing to identify the puddle on the loor of an aisle that she neither walked down nor intended plaintif to walk down. Texas law establishes that the employee in this case had no obligation to be the absolute insurer of plaintif’s safety. Austin v. Kroger Texas, L.P., S.W. d , Tex. . Plaintif was in at least as good a position to discover and take precaution against the spill as the employee. “ proximate cause of an injury is that cause which, in a natural and continuous sequence, produces the injury and without which the injury would not have occurred. Lear Siegler, Inc. v. Perez, S.W. d , Tex. . “ proximate cause sets in motion a natural and unbroken chain of events leading directing and proximately to a reasonably foreseeable result or injury. Hart v. Van Zandt, S.W. d , Tex. . In Texas, the act or omission complained of must be such that a person using ordinary care would have foreseen that the injury, or some similar injury, might reasonably result therefrom. Texas Patern Jury Charges, General Negligence & Intentional Personal Torts, § . . - - The employee’s actions in this case may be a cause in fact, but the result of her actions was not foreseeable. Plaintif may have found the aisle on his own or at the direction of another person. ”y the time he found the aisle by other means, the spill may have been cleaned up. ”ut because he asked the employee to show him where it was, it could fairly be concluded that he would not have fallen if she had not done so. However, the employee had no reason to foresee that her actions would lead to the injury. The court concludes above that the employer had no constructive knowledge of the spill, and the court must conclude that this employee also had no constructive knowledge. Therefore, in the ordinary execution of her job duties, the employee had no reason to believe that her actions would result in the fall. Conclusion Defendant has carried its burden to show that plaintif has no evidence of one or more elements of each of plaintif’s causes of action and has shown that it is entitled to judgment as a mater of law. Therefore, the court grants defendant’s motion for summary judgment Doc. and will render its judgment by separate instrument. So ordered by the court on March , 0 0. J. C “MP”ELL ” “RKER United States District Judge - -
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