Luna v. Macy's South, Inc., No. 4:2017cv01759 - Document 36 (S.D. Tex. 2018)

Court Description: MEMORANDUM AND OPINION entered GRANTING 27 MOTION for Partial Summary Judgment on Punitive Damages. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4)

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Luna v. Macy's South, Inc. Doc. 36 United States District Court Southern District of Texas ENTERED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION ELIZABETH LUNA § § § § § § § § § § Plaintiff, v. MACY’S SOUTH, INC. and MACY’S RETAIL HOLDINGS INC., Defendants. July 23, 2018 David J. Bradley, Clerk CIVIL ACTION NO. H-17-1759 MEMORANDUM AND OPINION Macy’s moves for partial summary judgment on Luna’s claim for gross negligence and punitive damages. (Docket Entry No. 27). Macy’s argues that Luna cannot establish that it “authorized or ratified any involved employee’s alleged actions/inactions and or that any involved employee was a vice principal for Macy’s.” (Docket Entry No. 27 at 3). Macy’s also argues that Luna cannot meet the heightened standard for gross negligence because she neither presents nor points to evidence that the circumstances presented an extreme degree of risk or that Macy’s was subjectively aware of the risk of harm and consciously indifferent to it. (Id. at 3–4). Under Texas law, a corporation cannot be liable for punitive damages based on the conduct of its employees or agents under respondeat superior. See, e.g., Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 390 (Tex. 1997) (citing Fort Worth Elevators Co. v. Russell, 70 S.W.2d 397, 402 (Tex. 1934), overruled on other grounds by Wright v. Gifford-Hill & Co., 725 S.W.2d 712, 714 (Tex. 1987)). Texas recognizes “exceptional liability,” which holds corporations liable for punitive damages only if the corporation itself acts with gross negligence. Id. at 391 (citing Fort Worth Elevators, 70 S.W.2d at 406). Texas law requires proof of two elements to establish gross negligence: an objective element that “the actor at the time of [the act 1 Dockets.Justia.com or omission’s] occurrence involves an extreme degree of risk, considering the probability of the potential harm to others[,]” and a subjective element that the actor has “awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.” TEX. CIV. PRAC. & REM. CODE § 41.001(11). Luna responded to Macy’s motion by stating that she: does not oppose the relief sought because there is not clear and convincing evidence that Macy’s vice principals Penney Fontenot (“Fontenot”) or Zoe White (“White”) had ‘actual, subjective awareness of the [extreme degree of risk, considering the probability and magnitude of potential harm to others] involved,’ or that Macy’s proceeded subjectively with ‘conscious indifference to the rights, safety, or welfare of others. (Docket Entry No. 33 at 2) (quoting TEX. CIV. PRAC. & REM. CODE § 41.001(11)) (alterations and emphasis in original). Luna maintains that the objective element of gross negligence is satisfied, but because “Fontenot testified that she was not aware of the likelihood that Luna would be injured in the subject incident,” and “the circumstantial evidence of subjective awareness does not rise to the level of clear and convincing evidence,” Luna does not oppose summary judgment in favor of Macy’s. The parties agree, and the court finds, that “there is not clear and convincing evidence that Macy’s vice principal had actual, subjective awareness of the extreme degree of risk of harm.” (Docket Entry No. 33 at 7–8). Based on the parties’ agreement, Macy’s motion for partial summary judgment is granted and Luna’s claim for gross negligence and punitive damages is dismissed, with prejudice. SIGNED on July 23, 2018, at Houston, Texas. _______________________________________ Lee H. Rosenthal Chief United States District Judge 2

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