Opinion
4:01-CV-0117-E.
December 4, 2001.
MEMORANDUM OPINION AND ORDER
Now before the Court is a Motion for Summary Judgment filed by defendant Kroger Texas Limited Partnership ("Kroger") in the above-styled and numbered cause. Plaintiff John Bloskas has responded in opposition, and Kroger has submitted reply briefing. After considering the motions and arguments of the parties, the record before the Court, and the applicable law, the Court determines that Kroger's Motion for Summary Judgment should be GRANTED.
I. BACKGROUND
Plaintiff John Bloskas brings this lawsuit to recover for personal injuries he allegedly sustained in a Kroger Food Store in Arlington, Texas, on February 11, 1998. Leaving the store after purchasing groceries, Bloskas contends that he tripped and fell over a rolled-up floor mat in the store's foyer and suffered a lower back injury.Bloskas originally filed this action in state court on February 9, 2000. After discovering that Bloskas sought more than $75,000 in damages — the requisite amount in controversy for federal court jurisdiction — Kroger removed this matter to federal court on February 2, 2001. Kroger now moves for summary judgment, alleging both that Bloskas has failed to produce evidence showing that Kroger had actual or constructive knowledge of rolled-up floor mats in the store foyer, and that Bloskas has presented no evidence to demonstrate that Kroger's alleged actions proximately caused Bloskas's injuries.
II. SUMMARY JUDGMENT STANDARDS
In order to prevail on a motion for summary judgment, the moving party has the initial burden of demonstrating that there is no genuine issue as to any material fact and that it is entitled to a judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986);Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511 (1986); Hill v. London, Stetelman, Kirkwood, Inc., 906 F.2d 204, 207 (5th Cir. 1990). Where the nonmoving party bears the burden of proof on a claim upon which summary judgment is sought, the moving party may discharge its summary judgment burden by showing that there is an absence of evidence to support the nonmoving party's case. See Celotex, 477 U.S. at 325, 106 S.Ct. at 2554. Once the moving party has made an initial showing, the burden shifts to the party opposing the motion to come forward with competent summary judgment evidence of the existence of a genuine fact issue. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585, 106 S.Ct. 1348, 1355 (1986); Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. In order to avoid summary judgment, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356. Rule 56(e) requires that the nonmoving party "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256, 106 S.Ct. at 2514.
In making its determination on the motion, the Court must look at the full record including the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits. See Williams v. Adams, 836 F.2d 958, 961 (5th Cir. 1988). Although all reasonable inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.
II. DISCUSSION
Neither party disputes that Bloskas was Kroger's invitee, and that the company thus had a duty to exercise reasonable care to protect Bloskas from dangerous conditions in its store known to or discoverable by it. See Rosas v. Buddie's Food Store, 518 S.W.2d 534, 536-37 (Tex. 1975). However, this duty of reasonable care does not make Kroger an insurer of Bloskas's safety. See McElhenney v. Thielpape, 285 S.W.2d 940, 941 (Tex. 1956). The Texas Supreme Court has held that to recover in a trip-and-fall case, a plaintiff must prove: (1) actual or constructive knowledge of some condition on the premises by the owner/operator/possessor; (2) that the condition posed an unreasonable risk of harm; (3) that the owner/operator/possessor did not exercise reasonable care to reduce or eliminate the risk; and (4) that the owner/operator/possessor's failure to use such care proximately caused the plaintiff's injuries. See Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998).
The central issue in this case is whether Kroger had actual or constructive knowledge of the rolled-up floor mat that Bloskas alleges he tripped over. The requirement of proving actual or constructive knowledge of a premises defect, "while harsh and demanding on plaintiffs, is nevertheless well established and plaintiffs must always discharge the burden of proving that the dangerous condition was either known to the defendant or had existed for such a length of time that he should have known it."See id. at 938 ( quoting Henderson v. Pipken Grocery Co., 268 S.W.2d 703, 705 (Tex.Civ.App.-El Paso 1954, writ dism'd w.o.j.).
Kroger contends — correctly, in the Court's opinion — that there is no evidence in the record to support Bloskas's claim that Kroger's employees had actual knowledge of the rolled-up floor mat. Bloskas has presented no evidence suggesting that the grocery store manager or any other Kroger employee created or had knowledge of the alleged danger prior to Bloskas's fall. (Pl.'s Answers to Kroger's First Req. for Interrogs., ¶ 14; Ex. A to Kroger's Reply Br. at pp. 148-49 (Q: Has anyone ever told you that someone from Kroger knew the mat was bunched up before you fell? A: No. Never. . . .) (Q: Do you have any facts or any evidence that the manager of the store knew the mat was bunched up before you fell? A: No.).)
Likewise, Bloskas has put forth no evidence to support his contention that Kroger had constructive knowledge of the rolled-up floor mat. At his deposition, Bloskas testified that he did not know how long the mat was bunched up before he tripped over it and fell. (Ex. B to Kroger's Mot. for Summ. J. at pp. 84-85 (Q: Did you personally see with your own eyes how the mat . . . went from being flat to being bunched up . . .? A: No. . . . Q: So you can't . . . say how the mat got bunched up? A: Right. No.).) In addition, Bloskas has failed to identify any witnesses who could support his allegation that the floor mat was rolled up prior to his fall. (Id. at pp. 89-90, 148 (Q: Did . . . any of those people ever tell you that they had seen the mat bunched up before you fell? A: No. . . . Q: So no one said anything to you about the mat being bunched up; yes or no? A: No.) (Q: Has anyone ever told you that someone from Kroger knew the mat was bunched up before you fell? A: No. Never. . . .).)
Lacking any convincing evidence to support his assertion that Kroger had actual or constructive knowledge of the allegedly-dangerous floor mat, Bloskas surmises that Kroger employees "could easily have seen the rolled up or `bunched up' floor mat" while working at checkout stands, returning shopping carts to the foyer area, or exiting the store to assist customers with the loading of groceries. (Br. in Supp. of Pl.'s Resp. to Def.'s Mot. for Summ. J. at 3.) Bloskas's theory sheds no light on how long the floor mat may have been "bunched up," or even whether any specific employee ever actually saw the mat in a potentially-dangerous condition. Such baseless speculation cannot support a factual finding that Kroger employees had actual knowledge of the alleged danger. See Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex. 1993) (holding that "mere surmise or suspicion" cannot support a factual finding).
Similarly, Bloskas's assertion that Kroger employees had numerous opportunities to realize that the floor mat was improperly "bunched up" is insufficient to prove that Kroger had constructive notice of the alleged danger. Although the speculative theory advanced by Bloskas attempts to suggest that the floor mat was in a dangerous condition for up to 30 minutes before the accident, an equally plausible inference from this circumstantial evidence is that the mat became "bunched up" mere seconds before Bloskas tripped and fell. See Gonzalez, 968 S.W.2d at 936 ("meager circumstantial evidence from which equally plausible but opposite inferences may be drawn is speculative and thus legally insufficient to support a finding."). To charge Kroger with constructive notice of the dangerous condition, Bloskas had to demonstrate that it was more likely than not that the floor mat had been "bunched up" for a long enough time to make Kroger responsible for noticing it. See id. at 938. Relying on speculative, uncredible circumstantial evidence, Bloskas has failed to satisfy this burden.
In sum, the Court concludes that defendant Kroger is entitled to summary judgment in this case. Failing to identify any witnesses with knowledge of his accident, plaintiff Bloskas offers only his own speculative testimony to support his argument that Kroger had actual or constructive knowledge of the rolled-up condition of the foyer floor mat, and thus breached its legal duty to provide a safe premise. Because Bloskas has presented no credible evidence to support his claim for personal injuries, and has raised no genuine fact issue for trial, summary judgment for Kroger is appropriate in this matter.
Because the Court determines that Bloskas's failure to present any credible evidence to demonstrate that Kroger had actual or constructive knowledge of the "bunched up" floor mat justifies summary judgment for Kroger, the Court will not consider Kroger's argument that Bloskas has offered no evidence suggesting that Kroger's alleged actions proximately caused Bloskas's injuries.
III. CONCLUSION
Having considered Kroger's Motion for Summary Judgment, the record before the Court, and the applicable law, the Court determines that defendant Kroger is entitled to summary judgment on plaintiff Bloskas's claim for personal injuries.It is therefore ORDERED that Kroger's Motion for Summary Judgment is hereby GRANTED as set forth previously herein.
IT IS SO ORDERED.