Opinion
NO.1:19-CV-00469-TH
10-20-2020
JERRY MAZZOLA, Plaintiff, v. LOWE'S HOME CENTER, LLC, EULISICA MOFFETT, Defendants.
REPORT AND RECOMMENDATION DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This case is assigned to the Honorable Thad Heartfield, United States District Judge, and has been referred to the undersigned for pretrial management. This is a trip-and-fall case in which the Plaintiff, Jerry Mazzola ("Mazzola"), brings a premises liability claim. Pending before the court is a Motion for Summary Judgment filed by the Defendant, Lowe's Home Center, LLC ("Lowe's"). Doc. No. 16. Lowe's argues that Mazzola's premises liability claim fails because there is no evidence that (1) the wooden pallet display Mazzola tripped over posed an unreasonable risk of harm; or (2) Lowe's knew or should have known about the purportedly dangerous condition. Doc. No. 16, 26. After reviewing the parties' briefs, exhibits, and applicable authorities, the undersigned finds that there is a genuine dispute as to both elements. Accordingly, Lowe's is not entitled to summary judgment.
I. Background
On December 1, 2018, Mazzola visited the Lowe's store located in Beaumont, Texas. Doc. No. 11 ¶ 7. He dropped off some paint to be shaken, and then he searched for an item in the hardware aisle. Doc. No. 25 Ex. 5 at 29:4-25. According to Mazzola, he approached the end of the aisle where a small pallet supporting a product display jutted out at a forty-five-degree angle. Id. at 30:1-12, 33:13-24. He allegedly made eye contact with a passing employee just before he tripped. Id. at 30:13-15, 86:20-87:17. Mazzola claims he "was tripped by a broken, loose and partially displaced board on a wooden pallet upon which a fire extinguisher display was stacked at the end of and between two aisles near the front of the store. The tripping hazard caused Plaintiff to fall to the concrete floor, and caused Plaintiff's injuries." Doc. No. 11 ¶ 7. Lowe's moved for summary judgment, arguing that Mazzola has failed to adduce any evidence showing that Lowe's had actual or constructive knowledge of an unreasonably dangerous condition on its premises, or that a dangerous condition even existed. Doc. No. 16.
II. Standard of Review
Summary judgment is proper 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 about a material fact exists if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material when it is relevant or necessary to the ultimate outcome of the case. Id. The moving party bears the initial burden of demonstrating that there are no genuine disputes of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Harvill v. Westward Commc'ns, LLC, 433 F.3d 428, 433 (5th Cir. 2005). The movant must support its assertion by "citing to particular parts of materials in the record . . . or showing that the materials cited do not establish the . . . presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." FED. R. CIV. P. 56(c)(1)(A)-(B).
"If the moving party fails to meet this initial burden, the motion must be denied, regardless of the nonmovant's response." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). "If the movant does, however, meet this burden, the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial." Id. at 1075. The nonmovant cannot satisfy its burden with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
The court resolves any doubts and draws all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); United States ex rel. Longhi v. United States, 575 F.3d 458, 465 (5th Cir. 2009). But the court "may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000); Anderson v. Liberty Lobby, 477 U.S. at 255.
III. Analysis
Premises liability is a branch of negligence law in which a property owner's standard of care changes depending on the status of those on the property. Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016). No one disputes that Mazzola was an "invitee" because he was a customer at Lowe's. See RESTATEMENT (SECOND) OF TORTS § 332 (AM. LAW INST. 1965) (invitee defined). Under Texas law, "a property owner owes invitees a duty to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition about which the property owner knew or should have known." Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex. 2010); CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000).
To prevail in a trip-and-fall case, an invitee must prove that (1) the owner/operator had actual or constructive knowledge of some condition on the premises, (2) the condition posed an unreasonable risk of harm, (3) the owner/operator did not exercise reasonable care to reduce or eliminate the risk, and (4) the owner/operator's failure to use such care proximately caused the plaintiff's injuries. Wal-Mart Stores v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998); Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992); Corbin v. Safeway Stores, 648 S.W.2d 292, 296 (Tex. 1983).
Lowe's focuses on the first two elements—the "duty" elements. First, Lowe's argues that Mazzola "has no evidence to show that the condition he complains of posed an unreasonable risk of harm." Doc. No. 16 ¶ 14. Second, Lowe's contends that "Plaintiff has no evidence to support the proposition that Lowe's knew or should have known of such a danger, thus triggering a duty to warn or make the condition safe." Doc. No. 26 ¶ 8; see also id. ¶¶ 15-16. Lastly, Lowe's originally argued in its motion (but not in its reply) that Mazzola had no evidence of damages. See Doc. No. 16, 26.
Lowe's also moved for summary judgment with respect to a negligent activity claim, but Mazzola did not plead a general negligence claim. See Pl.'s Am. Compl., Doc. No. 11 ¶ 9 ("failing to exercise reasonable care to not create, but eliminate tripping hazards in the store"). Realizing that Mazzola only pled a premises liability claim, Lowe's did not discuss negligent activity in its reply. See Doc. No. 26. That topic is therefore moot.
A. Defendant's "No Evidence" Motion
In Texas state court, a party may move for summary judgment purely "on the ground that there is no evidence of one or more essential elements." TEX. R. CIV. P. § 166a(i). But "the concept of a 'no evidence' summary judgment neither accurately describes federal law nor has any particular import in the vernacular of federal . . . procedure." Royal Surplus Lines Ins. Co. v. Brownsville Indep. Sch. Dist., 404 F. Supp. 2d 942, 948 (S.D. Tex. 2005); Cardner v. Home Depot U.S.A., Inc., 561 F. Supp. 2d 640, 643 (E.D. Tex. 2006) ("A no evidence motion for summary judgment is only available in the Texas state courts."). "The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact." Royal Surplus, 404 F. Supp. 2d at 948 (citing Celotex, 477 U.S. at 323). While the movant need not support its motion with evidence negating the opponent's case, the movant must at least point out the absence of evidence. Celotex, 477 U.S. at 322-25; FED. R. CIV. P. 56(c)(1)(B); see also In re Hydro-Action, Inc., 341 B.R. 186, 193 (Bankr. E.D. Tex. 2006) ("While federal law clearly contemplates summary judgment in circumstances where there is truly no evidence of an essential element, the party moving for summary judgment must make some showing that evidence on an essential point is wholly lacking." (internal citations omitted)).
Here, Lowe's might not have met its burden because its motion is debatably a no evidence motion. In the brief, Lowe's cites to some federal cases and FED. R. CIV. P. 56, but Lowe's does not point to any depositions, affidavits, or the like to demonstrate an absence of evidence. See generally Doc. No. 16. In the argument section, Lowe's never mentions the broken board that Mazzola allegedly tripped over, and only once does Lowe's specifically refer to "a pallet of fire extinguishers" as opposed to a "condition." Id. ¶ 16. Lowe's summary judgment motion appears to be a no evidence motion. It is not enough for Lowe's to say that Mazzola has no evidence. Royal Surplus, 404 F. Supp. 2d at 948. Therefore, Lowe's fails to meet its burden and the motion could be denied for that reason. Little v. Liquid Air Corp., 37 F.3d at 1075.
What's more, Lowe's appears to cite to the old version of Rule 56. See, e.g., Doc. No. 16 ¶ 5 ("no genuine issue of material fact . . . Under Rule 56(c) . . ." (emphasis added)).
Lowe's does reference "a stationary pallet of fire extinguishers that served as a products display," but that statement is in a paragraph devoted to a negligent activity claim, which Mazzola did not actually plead. Doc. No. 16 ¶ 21; see supra note 1.
However, Lowe's does argue the merits in its reply. See Doc. No. 26 at 2-7. In its reply, Lowe's frequently cites to depositions and exhibits in the record to try to show that there are no genuine disputes of material fact. See id. In an effort to rule on the merits, the undersigned will treat Lowe's reply as part of its motion and continue the analysis in the alternative. Even if the court considers the substantive arguments in Lowe's reply, Mazzola still overcomes summary judgment because he has raised a genuine dispute about Lowe's knowledge of a dangerous condition on the premises.
B. Unreasonable Risk of Harm
A premises owner is not an insurer of its invitees. Brinson Ford, Inc. v. Alger, 228 S.W.3d 161, 162 (Tex. 2007). Therefore, a plaintiff in a premises liability case must prove that some condition on the premises posed an unreasonable risk of harm. Corbin v. Safeway, 648 S.W.2d at 296. A condition that presents an unreasonable risk of harm is "one in which 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 Assocs., 451 S.W.2d 752, 754 (Tex. 1970). A condition is not unreasonably dangerous simply because it is not foolproof. Brinson Ford, 228 S.W.3d at 163.
Whether a condition is unreasonably dangerous may be determined as a matter of law. Pipkin v. Kroger Tex., LP, 383 S.W.3d 655, 671 (Tex. App. 2012); Martin v. Chick-Fil-A, No. 14-13-00025-CV, 2014 WL 465851, at *3-4 (Tex. App. Feb. 4, 2014) (listing factors that Texas courts have considered, like whether any injuries had occurred in the past). However, "the extent to which a condition is unreasonably dangerous is ordinarily a fact question." Pipkin, 383 S.W.3d at 671; Martin v. Chick-Fil-A, 2014 WL 465851, at *3 ("This determination . . . must be made on a case-by-case basis.").
In this case, Lowe's wants the court to analyze the Martin v. Chick-Fil-A factors and hold that the display did not pose an unreasonable risk of harm as a matter of law. Doc. No. 26 at 4-7. First, whether a condition poses an unreasonable risk of harm under Texas law is ordinarily a fact question. Pipkin, 383 S.W.3d at 671. The court can leave that determination to the jury. Second, the parties' disagreement over what the "condition" is leads the undersigned to believe that deferring to a factfinder is the best approach here.
Lowe's thinks the condition is the whole display. Doc. No. 26 at 4-7. Lowe's contends that the display is not dangerous because the store has not had problems with similar displays in the past. Id. Mazzola focuses on the broken board, but he also asserts that any one or combination of the following could be hazardous: the angle of the pallet jutting into the aisle; the fact that the pallet is slightly wider than the display and thus "concealed" by it; the decision to place the display on a pallet while a nearby display lies flat on the ground. Doc. No. 27 at 2-5. --------
Starting with the moving party, Lowe's cites deposition testimony suggesting that merchandise displays like this one are often attached to pallets and angled away from aisle endcaps. Doc. No. 25 Ex. 4 at 25:16-26:10, 31:11-32:2. Lowe's corporate representative thought that the display at issue did not constitute a hazard (assuming the underlying pallet was in proper condition). See id. at 35:4-5, 41:14-22. Lowe's also points out that "there is no evidence that the palletized display . . . was involved in any trip-and-fall incidents prior to Plaintiff's fall." Doc. No. 26 ¶ 5. If true, these claims tend to establish the absence of a genuine dispute as to whether the display posed an unreasonable risk of harm. The burden then shifts to Mazzola to put forward sufficient evidence demonstrating a genuine material dispute on this element.
Mazzola has presented a picture of the pallet allegedly taken right after his trip-and-fall. Doc. No. 25 Ex. 1; see Doc. No. 25 Ex. 5 at 87:18-88:9. Quite clearly, it depicts a wooden slat that is broken on one end and hanging off the front of the pallet. See Doc. No. 25 Ex. 1. The broken board is loose on the side Mazzola approached. See Doc. No. 25 Ex. 5 at 30:1-12, 32:2-17, 33:22- 24. In other words, someone making that same left turn at the end of the aisle could have tripped over the broken board based on where it was disconnected.
In response, Lowe's counters that Mazzola cannot prove the board was broken prior to his fall. Doc. No. 26 ¶ 2. Yet, this argument only underscores why summary judgment is not appropriate. Issues of factual specificity—such as whether it would even be possible for Mazzola to have broken the slat based on his angle of approach—are issues for a jury to decide. A reasonable jury could look at the picture of the broken board taken immediately after the fall and conclude that the broken board must have caused Mazzola to trip because of where it was broken. Without even considering the size or orientation of the display, a reasonable jury could conclude that a broken board hanging off the front of a pallet only a few inches off the ground is a foreseeable tripping hazard. In fact, Lowe's corporate representative agreed that a broken, loose board on the edge of a pallet is a tripping hazard. Doc. No. 25 Ex. 4 at 41:5-22.
At the same time, a reasonable factfinder could consider the orientation of the display and conclude that it is foreseeable that someone rounding the corner could trip over the side of the pallet. Additional pictures taken by Mazzola show the fire extinguisher display across from a drill display. See Doc. No. 25 Ex. 3. The fire extinguisher display sits atop a pallet and juts into the aisle at a forty-five-degree angle, while the drill display has nothing underneath it and sits flush against a kiosk. See id. These pictures directly contradict Lowe's assertion that the fire extinguisher display matches other product displays in the store. Furthermore, reasonable minds can differ as to which of the display's qualities—aforementioned or otherwise—might make it hazardous. Therefore, there is a genuine dispute of material fact about whether a condition at Lowe's posed an unreasonable risk of harm.
C. Actual or Constructive Knowledge
Lowe's argues that it is entitled to summary judgment because Mazzola "has no evidence that Lowe's knew or should have known of the purportedly unreasonably dangerous condition." Doc. No. 26 ¶ 11. Mazzola claims that Lowe's knew or should have known of the risk because employees left the display on a pallet, at an intrusive angle, and should have detected the broken board through reasonable inspection. Doc. No. 27 ¶¶ 8-10.
"A slip-and-fall plaintiff satisfies the notice element by establishing that (1) the defendant placed the substance on the floor, (2) the defendant actually knew that the substance was 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 v. Reece, 81 S.W.3d 812, 814 (Tex. 2002). To establish a premises owner's constructive knowledge, a plaintiff must provide "some temporal evidence." Id. at 816. "[T]here 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." Id.
Beginning with the movant, Lowe's has met its burden with respect to the notice element. Here, to establish that there is no dispute that Lowe's lacked notice, Lowe's refers to the deposition testimony of an employee who worked in the area the day of Mazzola's incident. Doc. No. 26 ¶ 9. Lowe's asserts that the employee signed a daily inspection report indicating that the area was free of any hazards. Doc. No. 26 Ex. 1 at 12:3-14, 15:12-21. That employee does not remember seeing a broken board on the pallet the day of the incident. Id. at 13:10-15. Nor does the employee recall the fire extinguisher display being involved in any other incidents. Id. at 13:20-24.
Further, Lowe's argues that Mazzola has no evidence of how long the purported hazard was there. Doc. No. 26 ¶¶ 8-11. This is likely true because the store's video cameras do not cover the area where Mazzola fell. Doc. No. 25 Ex. 4 at 65:1-4. Lastly, Mazzola cannot claim that Lowe's must have seen the broken board because an employee passed Mazzola (and the pallet) right before the fall. "[E]vidence that the premises owner's employee was in close proximity to the dangerous condition right before the plaintiff fell . . . is [not] legally sufficient to charge the premises owner with constructive notice . . . absent some evidence demonstrating that the condition existed long enough that the premises owner had a reasonable opportunity to discover it." Wal-Mart Stores v. Reece, 81 S.W.3d at 813.
Without any temporal evidence, the court cannot say it is more likely than not that the broken board existed long enough to give Lowe's a reasonable opportunity to discover and fix it. Reece, 81 S.W.3d at 814. Therefore, the burden shifts to Mazzola to come forward with sufficient evidence demonstrating that there is a genuine dispute of material fact as to whether Lowe's had (1) actual notice of the broken board or (2) actual or constructive knowledge of any other hazardous defect in the display. The court need not decide whether Lowe's had this form of constructive knowledge because there is a genuine dispute regarding Lowe's actual knowledge.
The Fifth Circuit found a genuine dispute of material fact about the defendant's actual knowledge in a case with very similar facts. Armendariz v. Wal-Mart Stores, 721 F. App'x 368 (5th Cir. 2018). In Armendariz, the plaintiff suffered injuries when she fell because her foot got stuck in a pallet. Id. at 369. "While the nail polish display itself was straight, . . . the pallet underneath was 'improperly placed' at an angle, partially blocking the aisle." Id. Walmart employees are responsible for "plac[ing] pallets for merchandise displays using a pallet jack." Id. Likewise, a Lowe's employee must have used a pallet jack to lift the heavy pallet in this case. Doc. No. 26 Ex. 1 at 18:7-15. In slip-and-fall cases involving grocery stores, premises owners often lack notice because another customer created the hazard shortly before the slip-and-fall. See, e.g., Corbin v. Safeway, 648 S.W.2d at 296 (finding a jury question on the store's constructive knowledge, not because old grapes were on the floor, but because the store knew that customers had been knocking grapes onto the floor due to the angle of the display case). But when a case involves a heavy item that can only be moved by employees, it is more likely that the premises owner created and/or maintained the hazard. That is why the Fifth Circuit found a genuine dispute of material fact as to Wal-Mart's actual knowledge in Armendariz. See 721 F. App'x at 371.
Similarly, Mazzola argues that "Lowe's chose to use a defective loaded pallet for its display base, then—unlike other, palletless displays—place it right . . . in a walkway." Doc. No. 27 ¶ 10. Given that only Lowe's employees could move the display using a pallet jack, Mazzola infers that the board was already broken when the employees placed it down, and/or Lowe's employees ignored the broken board later. See Doc. No. 27 ¶¶ 8-9. Additionally, Mazzola argues that Lowe's should have foreseen that the pallet display "and its positioning" posed an unreasonable risk of harm because Lowe's employees placed it as such. Doc. No. 25 ¶ 26.
Still, it might not be enough for Mazzola to say Lowe's created the defect. "Proof that the premises owner . . . created a condition which poses an unreasonable risk of harm may constitute circumstantial evidence that the owner or occupier knew of the condition. However, creating the condition does not establish knowledge as a matter of law for purposes of premises liability." Keetch v. Kroger, 845 S.W.2d at 266. Mazzola recognizes this issue. He argues that "Lowe's created this tripping hazard, then let it fester." Doc. No. 27 ¶ 10 (emphasis added). Only Lowe's employees could move the heavy display using a pallet jack. That makes it possible, if not likely, that an employee—as opposed to a customer—used an originally defective pallet or subsequently broke the slat. The only other possibility is that a customer broke the board by stepping on the pallet. But the undersigned will not speculate as to whether a customer could have broken the slat. A jury should decide which is most likely.
At this stage, Mazzola does not have to affirmatively establish Lowe's actual knowledge as a matter of law; he just has to raise a genuine dispute to overcome Lowe's summary judgment motion. Considering only Lowe's employees could move the display, and Lowe's employees inspected the area daily, Mazzola has raised a genuine dispute as to whether Lowe's knew about a problem with the pallet. Therefore, Mazzola has established a genuine dispute of material fact as to whether Lowe's had actual knowledge of a hazard on the premises.
D. Damages
Initially, Lowe's also argued that it is entitled to summary judgment because Mazzola had no evidence to support his damages. See Doc. No. 16 ¶¶ 23-25. However, Mazzola's response cited to medical records and bills that support Mazzola's damages. See Doc. No. 25 at 17-23; Doc. No. 25 Exs. 6-14. Seeing this evidence, Lowe's did not contest damages in the reply. See generally Doc. No. 26. Regardless, Lowe's argued this point in its motion, so the undersigned must address it. As the movant, Lowe's likely did not meet its burden with its conclusory "no evidence" argument. See Cardner v. Home Depot, 561 F. Supp. 2d at 643. Even if the burden did shift, Mazzola cited to medical records which create genuine disputes of material fact about the cause and extent of his injuries. For instance, Mazzola presented evidence that the trip-and-fall exacerbated preexisting injuries to the point where he now needs to use a cane, and he may need a left knee replacement. Doc. No. 25 Ex. 9. Whether and to what extent the trip-and-fall exacerbated preexisting injuries is surely a question for the jury. Therefore, the court cannot grant summary judgment to Lowe's on the ground that Mazzola has no evidence of damages.
IV. Recommendation
For the foregoing reasons, the undersigned recommends that Defendant Lowe's Motion for Summary Judgment (Doc. No. 16) be DENIED.
V. Objections
Pursuant to 28 U.S.C. § 636(b)(1)(C), each party to this action has the right to file objections to this Report and Recommendation. Objections to this Report must (1) be in writing, (2) specifically identify those findings or recommendations to which the party objects, (3) be served and filed within fourteen (14) days after being served with a copy of this Report; and (4) be no more than eight (8) pages in length. See 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b)(2); E.D. TEX. CIV. R. CV-72(c). A party who objects to this Report is entitled to a de novo determination by the United States District Judge of those proposed findings and recommendations to which a specific objection is timely made. 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b)(3).
A party's failure to file specific, written objections to the proposed findings of fact and conclusions of law contained in this Report, within fourteen (14) days of being served with a copy of this Report, bars that party from: (1) entitlement to de novo review by the United States District Judge of the findings of fact and conclusions of law, and (2) appellate review, except on grounds of plain error, of any such findings of fact and conclusions of law accepted by the United States District Judge. See Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
SIGNED this 20th day of October, 2020.
/s/_________
Zack Hawthorn
United States Magistrate Judge