Opinion
No. 3-03-CV-2751-D.
March 18, 2005
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Defendant The Kroger Company d/b/a Kroger Food Stores has filed a motion for summary judgment in this premises liability case. For the reasons stated herein, the motion should be denied.
I.
On or about May 24, 2001, Plaintiff Wanda Leffall tripped over a piece of landscape timber protruding from an empty plant display situated near the entrance of a Kroger store in Duncanville, Texas. (Plf. Orig. Pet. at 1-2, ¶ III). As a result of this incident, plaintiff sustained serious personal injuries, including a broken left ankle and damage to the muscles, ligaments, and soft structures of her spine. ( Id. at 3, ¶ VII; see also Def. MSJ App. at 29-30).
On May 2, 2003, just prior to the expiration of the two-year statute of limitations, plaintiff sued defendant for negligence in Texas state court. Defendant timely removed the case to federal court when it became apparent that the amount in controversy exceeded $75,000. After conducting discovery, defendant filed the instant motion for summary judgment. The motion has been fully briefed by the parties and is ripe for determination.
Plaintiff originally sought damages in the amount of $40,000. (Plf. Orig. Pet. at 3, ¶ VII). However, she later testified that her damages exceeded $75,000. (Not. of Rem., Exh. 1 at 49). Because plaintiff and defendant are citizens of different states, federal diversity jurisdiction is proper. See 28 U.S.C. § 1332(a)(1).
II.
Summary judgment is proper when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. FED.R.CIV.P.56(C); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A dispute is "genuine" if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). A fact is "material" if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
A summary judgment movant who does not have the burden of proof at trial must point to the absence of a genuine fact issue. Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 312 (5th Cir. 1995). The burden then shifts to the nonmovant to show that summary judgment is not proper. Duckett v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992). The parties may satisfy their respective burdens by tendering depositions, affidavits, and other competent evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir), cert. denied, 113 S.Ct. 82 (1992). All evidence must be viewed in the light most favorable to the party opposing the motion. Rosado v. Deters, 5 F.3d 119, 122 (5th Cir. 1993). However, conclusory statements and testimony based merely on conjecture or subjective belief are not competent summary judgment evidence. Topalian, 954 F.2d at 1131.
III.
Both parties agrees that Texas law governs the substantive legal issues in this diversity case. Under Texas law, the threshold issue in any premises liability action is the degree of care owed to the plaintiff. See Richardson v. Wal-Mart Stores, Inc., 963 S.W.2d 162, 164 (Tex.App.-Texarkana 1998, no writ), citing Thacker v. J.C. Penney Co., 254 F.2d 672, 676 (5th Cir.), cert. denied, 79 S.Ct. 31 (1958). Where, as here, the plaintiff is an invitee who enters the premises by express or implied invitation of the owner or for their mutual advantage, the property owner owes the highest degree of care. Id.; see also Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996). Thus, an owner must exercise ordinary care to protect the invitee not only from risks of which the owner is aware, but also those risks of which the owner should be aware after reasonable inspection. Lopez, 929 S.W.2d at 3.
In order to prevail on her slip-and-fall claim, plaintiff must prove:
(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 failure to use such care proximately caused the plaintiff's injury.See CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000); Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983). Defendant contends that plaintiff cannot establish any of these elements by competent summary judgment evidence.
A.
An invitee may satisfy the actual or constructive knowledge requirement by proving: (1) that the property owner created a dangerous condition; (2) that the owner knew a dangerous condition existed and negligently failed to remove or repair it; or (3) that the dangerous condition had existed so long that, in the exercise of ordinary care, it should have been discovered and removed. See Keetch v. Kroger Co., 845 S.W.2d 262, 265 (Tex. 1992); see also Richardson, 963 S.W.2d at 165. Here, the summary judgment evidence shows that Gerald Brinkley, the Kroger store manager, personally erected the plant display in the sidewalk area near the front of the store. (Plf. Am. MSJ App. at 2, 16). The evidence further shows that Brinkley instructed his employees to remove all plants from the display, leaving it empty. ( Id. at 3). This constitutes circumstantial evidence of knowledge. See, e.g., Keetch, 845 S.W.2d at 265 (fact that defendant put foreign substance on floor supported an inference of knowledge); Richardson, 963 S.W.2d at 165 (same); Collard v. Interstate Northborough Partners, 961 S.W.2d 701, 703 (Tex.App.-Tyler 1998, no writ) (creation of a condition is circumstantial evidence of knowledge).
B.
The next element requires proof that the condition, in this case the empty plant display, posed an unreasonable risk of harm. A condition is unreasonably dangerous if there is "a sufficient probability of a harmful event occurring that a reasonably prudent person would have foreseen it or some similar event as likely to happen." Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752, 754 (Tex. 1970). In general, reasonableness determinations are highly fact-intensive and involve issues well-suited for a jury. See Reliable Consultants, Inc. v. Jaquez, 25 S.W.3d 336, 342 (Tex.App.-Austin 2000, writ denied); Collard, 961 S.W.2d 704. There is no definitive, objective test that may be applied to determine whether a specific condition presents an unreasonable risk of harm. See Seideneck, 451 S.W.2d at 754.
The display at issue was constructed of four landscape timbers placed in a rectangular arrangement on the ground bordering a tarp. (Plf. Am. MSJ App. at 29). The structure was on a sidewalk in front of the store entrance. ( Id. at 4, 8-9). All plants were removed from the display. ( Id. at 20-21). Most significantly, Brinkley testified that the display was located in an area where he expected customers to walk. ( Id. at 24). An obstacle placed in or near a pedestrian walkway could be unreasonably dangerous to customers entering the store. See, e.g., Coffee v. F.W. Woolworth Co., 536 S.W.2d 539, 540 (Tex. 1976) (empty platform similar in color to the floor and lying only six inches above the floor in the aisle of a grocery store could be a dangerous condition); Nevills v. H.E. Butt Grocery Co., 38 S.W.3d 294, 297 (Tex.App.-Beaumont 2001, writ denied) (stock cart placed just behind an area where customer might stand while picking an item off the shelf created an unreasonable risk of harm); Furr's Inc. v. Patterson, 618 S.W.2d 417, 419 (Tex.Civ.App.-Amarillo 1981, no writ) (large, rectangular sign located in the middle of a cart path designed as a store entrance was a dangerous condition). This fact issue precludes summary judgment in favor of defendant.
Defendant cites H.E. Butt Grocery Co. v. Resendez, 988 S.W.2d 218, 219 (Tex. 1999), for the proposition that "the mere fact that a store has a customer sampling display cannot, without more, be evidence of a condition on the premises that poses an unreasonable risk of harm." ( See Def. Reply Br. at 6). While this is a correct statement of Texas law, it is wholly inapposite. Plaintiff does not argue that the empty plant display, by itself, constitutes an unreasonably dangerous condition. Rather, she complains that the display was located in an area where customers were expected to walk, that it was empty and low to the ground, and that no warning was given as to its existence. In light of these other factors, Resendez is not controlling. See also Plainview Motels, Inc. v. Reynolds, 127 S.W.3d 21, 29 (Tex.App.-Tyler 2003, writ denied) (question of whether a self-service display is unreasonably dangerous can be answered only by considering the nature of the display in light of, but not limited to, its surroundings).
C.
Plaintiff also has adduced sufficient evidence to create a fact issue as to whether defendant exercised reasonable care to reduce or eliminate the risk. By his own admission, Brinkley had three options for minimizing the potential risk of harm to customers: (1) he could have removed the plant display if it was no longer in use; (2) he could have erected a barricade or warning sign; or (3) he could have instructed an employee to monitor the display and warn consumers. (Plf. Am. MSJ App. at 22-23, 28). This evidence at least suggests that defendant may have failed to exercise ordinary care under the circumstances. See McClure v. Rich, 95 S.W.3d 620, 627 (Tex.App.-Dallas 2002, no writ) (evidence that defendant placed a loose rug on a parquet floor at the foot of the stairs while plaintiff was moving furniture up the stairs raised a fact issue as to the exercise of reasonable care).
The court rejects defendant's argument that expert testimony is required to establish a failure to exercise reasonable care. ( See Def. MSJ Br. at 9). Expert testimony is necessary only where the alleged negligence is of such a nature as not to be within the experience of a layperson. See Hamburger v. State Farm Mutual Automobile Insurance Co., 361 F.3d 875, 884 (5th Cir. 2004). Whether defendant should have taken some action to reduce or eliminate the potential risks presented by an empty plant display left on the sidewalk is within the province of a jury. See e.g., K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 361 (Tex. 2000) (jury is competent to determine the ultimate issues in a premises liability case without expert testimony).
D.
Finally, defendant contends that plaintiff cannot prove causation because she has "no evidence of what Kroger did and did not do." (Def. MSJ Br. at 9). Although plaintiff did not see what tripped her, she testified that the timber "was the only thing that was up under me." (Plf. Am. MSJ App. at 12). In addition, an incident report completed by Brinkley immediately after the accident indicates that a witness saw plaintiff "step up on the sidewalk onto a timber where her left ankle rolled over." ( Id. at 14). These facts are similar to Whalen v. Condominium Consulting and Management Services, Inc., 13 S.W.3d 444 (Tex.App.-Corpus Christi 2000, writ denied), where the court held:
[C]ausation does not have to be supported by direct evidence, but rather that circumstantial evidence and inferences therefrom are sufficient. Whalen's evidence is sufficient to raise a fact issue on causation. Whalen's testimony that she felt the board with her foot when she tripped is actually direct evidence that the protruding board caused the fall. A person may have personal knowledge of something felt but not seen. Also, both she and [a witness] saw the protruding board immediately after the fall in the immediate area of the fall, which is circumstantial evidence that the board caused the fall. This constitutes some evidence, and we hold that the trial court erred in granting summary judgment on the basis that Whalen presented no evidence on causation. Id. at 447 (citation omitted); see also Texas Dept. of Transportation v. Olson, 980 S.W.2d 890, 893 (Tex.App.-Fort Worth 1998, no writ) (circumstantial evidence and inferences therefrom are sufficient to prove causation). Like Whalen, the summary judgment evidence in this case is sufficient to create a fact issue regarding causation.
Defendant attempts to distinguish Whalen by pointing out there is no direct evidence of causation in this case. While that may be true, defendant seemingly ignores the court's holding that "causation does not have to be supported by direct evidence, but rather that circumstantial evidence and inferences therefrom are sufficient." Whalen, 13 S.W.3d at 447. As in Whalen, plaintiff's testimony and the observations of an eyewitness are sufficient to create a fact issue as to whether the display erected by defendant caused her fall.
RECOMMENDATION
Plaintiff has adduced sufficient evidence to support each and every element of her slip-and-fall claim. Accordingly, defendant's motion for summary judgment should be denied.A copy of this report and recommendation shall be sent to all counsel of record. Any party may file written objections to the recommendation by April 1, 2005. The failure to file written objections shall bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Services Automobile Association, 79 F.3d 1415, 1417 (5th Cir. 1996).