Opinion
SA-22-CV-00481-FB
03-05-2024
LORI BERMEA, Plaintiff, v. WAL-MART STORES TEXAS, LLC, Defendant.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
ELIZABETH S. ("BETSY") CHESTNEY UNITED STATES MAGISTRATE JUDGE
To the Honorable United States District Judge Fred Biery
This Report and Recommendation concerns Defendant Wal-Mart Stores Texas LLC's Rule 56 Motion for Partial Summary Judgment [#22]. All dispositive pretrial matters in this case have been referred to the undersigned for disposition pursuant to Western District of Texas Local Rule CV-72 and Appendix C [#27]. The undersigned has authority to enter this recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, it is recommended that Defendant Wal-Mart Stores Texas LLC's Rule 56 Motion for Partial Summary Judgment [#22] be GRANTED.
I. Background
Plaintiff Lori Bermea originally filed this action in the 150th District Court of Bexar County, Texas, regarding injuries she sustained in a Wal-Mart Stores Texas LLC (hereinafter “Wal-Mart”). As Ms. Bermea was shopping and bending over to retrieve an item from a bottom shelf, a Wal-Mart employee named Gerald G. Eckelberger ran into her with his cart. (Pl.'s Orig. Pet. [#22-1], at 2, ¶ 6.) Wal-Mart removed the case to this Court on the basis of diversity jurisdiction. (Def.'s Notice of Removal [#1], at 2, ¶ 4.) The original petition asserts the following claims: (1) premises liability, (2) respondeat superior, (3) negligent hiring, training, supervision, and retention, and (4) gross negligence. Wal-Mart now moves for partial summary judgment on Plaintiff's claims of: (1) negligent hiring, training, supervision, and retention, and (2) gross negligence.
II. Summary Judgment Standard
Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Fed.R.Civ.P. 56(c). A dispute is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. “Factual disputes that are irrelevant or unnecessary will not be counted.” Id.
Once the movant carries its burden, the burden shifts to the nonmoving party to establish the existence of a genuine issue for trial. Anderson, 477 U.S. at 248; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Wise v. E.I. Dupont de Nemours & Co., 58 F.3d 193, 195 (5th Cir. 1995). The non-movant must respond to the motion by setting forth particular facts indicating that there is a genuine issue for trial. Miss. River Basin Alliance v. Westphal, 230 F.3d 170, 174 (5th Cir. 2000). 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. 1992). The Court will view the summary judgment evidence in the light most favorable to the non-movant. Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993).
“After the non-movant has been given the opportunity to raise a genuine factual issue, if no reasonable juror could find for the non-movant, summary judgment will be granted.” Westphal, 230 F.3d at 174. However, if the party moving for summary judgment fails to satisfy its 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) (per curiam). The Fifth Circuit has noted that “summary judgment should be granted . . . when the nonmoving party fails to meet its burden to come forward with facts and law demonstrating a basis for recovery that would support a jury verdict.” Id. at 1071.
III. Objections to Summary Judgment Evidence
Wal-Mart objects to one piece of evidence attached to Plaintiff's summary judgment response: a portion of deposition testimony from Ruben Rodriguez which Plaintiff references throughout her response to the Motion for Summary Judgment. (Ex. C Ruben Rodriguez Dep. [#23-3], at 45:2-46:12) (Ex. Affidavit of Blake J. Harmon Verifying Summary Judgment Exhibits [#23-4], at 2.) Plaintiff refers to Rodriguez as a manager, but Wal-Mart refers to Rodriguez as a “digital coach.” (Pl.'s Resp. to Def.'s Mot. for Partial Summ. J. [#23], at 2); (Def. Wal-Mart Stores Texas LLC's Reply in Support of its Rule 56 Mot. for Partial Summ. J. [#24], at 2.)
In the excerpt at issue, Rodriguez stated that pickers, like Eckelberger, were required to pick one hundred items per minute. (Ex. C Ruben Rodriguez Dep. [#23-3], at 45:2-46:12.) WalMart's objection is that the word “minute” should be replaced with “hour,” and that pickers were required to pick one hundred items per hour, not minute. In support of this, Wal-Mart attached an errata deposition sheet to its reply in support of its motion. (Ex. B Errata Sheet [#24-2].) The errata sheet reflecting this change was signed by Rodriguez and notarized on April 17, 2023-a little over a month after the March 14, 2023, deposition. (Ex. B Errata Sheet [#24-2].)
A deponent is allowed 30 days from the date transcript is completed to review the transcript and prepare an errata sheet. See Fed.R.Civ.P. 30(e)(1). Here, given that just 34 days transpired between the deposition and the notarization of the errata sheet, the deponent likely completed his corrections within 30 days of receiving a copy of the transcript. But even if the court reporter provided a copy of the transcript unusually quickly and the deponent was tardy in completing the errata sheet, it was at most by a day or two, and Plaintiff had more than sufficient notice of the correction and was not prejudiced by the brief delay. The undersigned will therefore sustain Wal-Mart's objection based on the errata sheet.
IV. Facts Supported by the Summary Judgment Record
In light of the foregoing ruling, and construing the evidence most favorably to the nonmovant Plaintiff, the summary judgment record establishes the following facts, which are uncontested unless otherwise noted.
Eckelberger originally started working at Wal-Mart in 2015, unloading and stocking merchandise. (Ex. C Eckelberger Dep. [#24-3], at 14:1-18, 20:1-21:12, 25:8-12); (Ex. A Eckelberger Dep. [#23-1], at 25:8-12.) After he experienced a hernia in 2016, Eckelberger was first assigned to work light duty and then reassigned to grocery online services. (Ex. C Eckelberger Dep. [#24-1], at 25:11-26:25.) When he first transitioned to the grocery online services role, his duties consisted of transporting completed orders, “dispensing” from the store to customer vehicles. (Ex. C Eckelberger Dep. [#24-3], at 31:1-25.) In 2020, Eckelberger had a heart attack and took six months of leave. (Ex. A Eckelberger Dep. [#25-1], at 32:1-16.) It appears that Eckelberger transitioned to the role of “picking,” or pulling items from shelves into totes to fulfill customer orders, when he returned from this leave. (Ex. A Eckelberger Dep. [#25-1], at 32:1-25); (Ex. C Eckelberger Dep. [#24-3], at 30:23-31:1.)
Mr. Eckelberger has testified that he was not required to take a test or other assessment prior to assignment to the unloading/stocking and grocery online services positions. (Ex. A Eckelberger Dep. [#25-1], at 18:1-13.) As part of the transition to the grocery online services from his unloading and stocking position, Eckelberger was required to watch training videos and train in person with a manager, who shows how to bag the items, place them in the cart, as well as stage the items for the customer. (Ex. C Eckelberger Dep. [#24-3], at 27:9-28:9); (Ex. B Joseph E. Junod, II Dep. [#23-2], at 16:4-8.)
Grocery online services employees are not trained on how to unload or load shelves, or how to maneuver the carts used while picking items for the online orders. (Ex. C Eckelberger Dep. [#24-3], at 28:10-21). Grocery services employees like Eckelberger are expected to pick one hundred items per hour and can be terminated or transferred to another position if they fail to do so. (Ex. B Rodriguez Dep. [#25-2], at 54:6-15); (Ex. B Errata Sheet to Rodriguez Dep. [#24-2].)
Plaintiff Lori Bermea was shopping in Wal-Mart on or about July 18, 2021. (Pl.'s Orig. Pet. [#22-1], at 2, ¶ 6.) On that day, Gerald Eckelberger was working as a picker, fulfilling an online order as part of his role in grocery online services. (Ex. C Eckelberger Dep. [#24-3], at 26:10-25, 30:23-31:19); (Ex. A Eckelberger Dep. [#25-1], at 32:14-25.) While he was making his way through the store, he pushed his cart forward and bumped into Ms. Bermea. (Ex. B Eckelberger Dep. [#22-2], at 47:8-25.) After he hit her, Mr. Eckelberger asked if Ms. Bermea was ok, to which she responded that she was “fine.” (Ex. C Eckelberger Dep. [#24-3], at 44:117.) Ms. Bermea contends she was injured as a result of this collision.
In both Plaintiff's response [#23] and reply brief [#25], Plaintiff stated that Eckelberger was performing “stocking duties” at the time of the accident. (Pl.'s Resp. to Def.'s Mot. for Partial Summ. J. [#23], at 6-7) (Pl.'s Reply in Supp. of its Resp. to Def.'s Mot. for Partial Summ. J. [#25], at 7.) However, Plaintiff has not submitted any competent summary judgment evidence that Eckelberger was performing stocking duties at that time. And that assertion conflicts with manager/digital coach Ruben Rodriguez's testimony, which is cited in support of that assertion. Id. Defendant notes this discrepancy in its reply brief. (Def. Wal-Mart Stores Texas LLC's Reply in Supp. of its Rule 56 Mot. for Partial Summ. J. [#24], at 4.) Because Plaintiff does not otherwise argue there is a disagreement as to Eckelberger's role at the time of the accident, it appears this was an unintentional reference, and the undersigned does not consider there to be a dispute over whether Eckelberger was “picking,” or completing online orders, at the time of the accident in question. (Ex. A Eckelberger Dep. [#25-1], at 32:14-25.)
V. Analysis
The record establishes that Wal-Mart is entitled to judgment as a matter of law on Ms. Bermea's gross negligence claim against it because Ms. Bermea has failed to produce evidence that Wal-Mart had actual, subjective awareness of an extreme risk and consciously disregarded that risk. Wal-Mart is also entitled to summary judgment as a matter of law on the negligent hiring, training, supervision and retention claim because Wal-Mart is not disputing Eckelberger was acting in the course of scope of his employment when he collided with Ms. Bermea, and she cannot proceed on a theory of direct liability while also proceeding on a theory of vicarious liability.
A. Ms. Bermea Cannot Prevail on a Claim of Gross Negligence
The Court should grant Wal-Mart's summary judgment motion on the gross negligence claim. Under Texas law, a plaintiff may be awarded exemplary damages upon a showing of gross negligence. Tex. Civ. Prac. & Rem. Code § 41.003. To prevail on a claim of gross negligence, the plaintiff must prove by clear and convincing evidence both an objective and subjective component of her claim: (1) that viewed objectively from the standpoint of the defendant at the time of the events underlying this suit, the act or omission of the defendant involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (2) that the defendant had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others. See Tex. Civ. Prac. & Rem. Code § 41.001(11); U-HaulInt'l, Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012). “Clear and convincing evidence” means a degree of proof that “will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Tex. Civ. Prac. & Rem. Code § 41.001(2).
Here, that would mean that Ms. Bermea must establish that Wal-Mart was aware that Eckelberger's operation of the merchant cart at the time of the accident posed an extreme degree of risk. Ms. Bermea would also need to establish that Wal-Mart had an actual, subjective awareness of the risk involved, but continued to allow the operation of its merchant cart with that awareness and conscious indifference to the rights, safety, or welfare of others.
Under the objective component, “‘extreme risk' is not a remote possibility or even a high probability of minor harm, but rather the likelihood of the plaintiff's serious injury.” U-Haul Int'l, 380 S.W.3d at 137 (citations omitted). The objective prong (the degree of risk) is viewed from the time of the accident, not in hindsight. See N. Am. Van Lines, Inc. v. Emmons, 50 S.W.3d 103, 128 (Tex. App.-Beaumont 2001, pet. denied). As to the subjective component, an act or omission that is “merely thoughtless, careless, or not inordinately risky cannot be grossly negligent.” Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 22 (Tex. 1994), superseded by statute on other grounds as stated in U-Haul Int'l, 380 S.W.3d 118. Only if the defendant's act or omission is unjustifiable and likely to cause serious harm can it be grossly negligent, i.e., the situation must be “highly dangerous.” Id.; Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 326 (Tex. 1993). Thus, a party cannot be liable for gross negligence when it actually and subjectively believes that circumstances pose no risk to the injured party, even if he or she is wrong. U-Haul Int'l, 380 S.W.3d at 141 (citation omitted). A defendant's subjective mental state can be proven by direct or circumstantial evidence. Moriel, 879 S.W.2d at 23. There is a high burden to find gross negligence, as “punitive damages are proper only in the most exceptional cases.” Id. at 18.
The defendant's state of mind is what separates ordinary negligence from gross negligence; the plaintiff must show that the defendant knew about the peril, but his acts or omissions demonstrate that he did not care. Aguirre v. Vasquez, 225 S.W.3d 744, 755 (Tex. App.-Houston [14th Dist.] 2007, no pet.) (citing Louisiana-Pacific Corp. v. Andrade, 19 S.W.3d 245, 246-47 (Tex. 1999)). Texas Law indicates that gross negligence “can be supported only by an extreme degree of risk, not ‘a remote possibility of injury or even a high probability of minor harm, but rather the likelihood of serious injury to the plaintiff.” Medina v. Zuniga, 593 S.W.3d 238, 249 (Tex. 2019). Garden-variety negligent acts do not amount to gross negligence. Id. at 250. For example, in Medina, the court found that a driver's exiting a parking lot at an unsafe speed and failing to look both ways, resulting in hitting a pedestrian, did not amount to gross negligence. Id. As the court there noted, if such failures amounted to gross negligence, “punitive damages would routinely be available in the most common types of [] accidents.” Id.
Ms. Bermea cannot prevail on her claim of gross negligence because she has not presented evidence that Wal-Mart was aware of an extreme risk associated with Eckelberger's operation of the merchant cart, or that it consciously disregarded such a risk. In support of her gross negligence claim, Ms. Bermea has presented evidence that Eckelberger was in his seventies, had recently suffered a heart attack, and may have been rushing to fulfill orders to meet the 100/items per hour quota. But she has not presented evidence which shows that Wal-Mart was aware of associated risks, or that any such risk was extreme. For instance, there is no evidence of prior accidents related to the 100/items per hour quota involving Eckelberger himself or of other pickers. Nor has she produced evidence that Wal-Mart consciously disregarded a risk associated with Eckelberger operating the merchant cart. Though manager/digital coach Rodriguez answered affirmatively that he believed it might be difficult for someone in their seventies to meet the quota, he also indicated that Eckelberger had no problem meeting it, saying that “he does it.” (Ex. A Rodriguez Dep. [#24-1], at 47:8-15.)
The record merely reflects that he was on leave after a heart attack and returned to his position after about six months of leave. There is no evidence that he was under any medical restrictions or that he was struggling with the pace of his duties upon his return. Nor is there any evidence in the record that other pickers of Eckelberger's advanced age or health status were involved in more accidents than other employees while performing their duties. Suffering a heart attack and being in one's seventies is not sufficient to cause a reasonable employer to not hire or retain an employee.
As described above, the threshold for showing an “extreme degree of risk” is “significantly higher than the objective ‘reasonable person test for negligence.” Medina, at 249 (citing Moriel, 879 S.W.2d at 22). The evidence presented in this case does not meet that threshold. Thus, because Ms. Bermea has failed to produce evidence that establishes Wal-Mart was aware of the risk of Eckelberger operating the merchant cart and consciously disregarded that risk, or that such a risk was extreme, she cannot prevail on a gross negligence claim.
B. Ms. Bermea's Negligent Hiring, Training, Retention, Supervision Claims are Mutually Exclusive to Vicarious Liability Claims
The Court should grant Wal-Mart's motion for summary judgment as to the direct negligence claims of negligent hiring, training, supervision, and retention. Texas law governs this diversity action. R & L Inv. Prop., L.L.C. v. Hamm, 715 F.3d 145, 148-49 (5th Cir. 2013). “[T]he Texas Supreme Court has not ruled definitively on the existence, elements, and scope of the torts of negligent hiring, supervision, training, or retention.” Sanchez v. Transportes Internacionales Tamaulipecos S.A de C.V., No. 7:16-CV-354, 2017 WL 3671089, at *2 (S.D. Tex. July 20, 2017) (citing Waffle House, Inc. v. Williams, 313 S.W.3d 796, 804 n.27 (Tex. 2010)). “Regardless, to the extent that these are viable claims under Texas law, they are based on an employer's direct negligence rather than its vicarious liability.” Id. (citations omitted). Texas law recognizes that the employer-employee relationship can implicate vicarious liability, a common law doctrine under which “an employer is vicariously liable for its employee's negligent acts if those acts are within the course and scope of his employment.” Painter v. Amerimex Drilling I, 561 S.W.3d 125, 130-31 (Tex. 2018).
If “no viable gross negligence claims remain and the defendant employer does not dispute the applicability of vicarious liability,” the remaining (ordinary) direct and vicarious liability claims are “mutually exclusive modes of recovery.” Ochoa v. Mercer Transp. Co., No. 5:17-CV-1005-OLG, 2018 WL 7505640, at *3 (W.D. Tex. Dec. 10, 2018); see also Medina v. Contract Firefighters, Inc., No. 5:21-cv-1224-DAE, 2023 WL 9503469, at *2-4 (W.D. Tex. Dec. 7, 2023); Rosell v. Central West Motor Stages, Inc., 89 S.W.3d 643, 654 (Tex. App.- Dallas 2002, pet. denied) (“Where only ordinary negligence is alleged, the case law supports appellees' contention that negligent hiring or negligent entrustment and respondeat superior are mutually exclusive modes of recovery.”); Estate of Arrington v. Fields, 578 S.W.2d 173, 178 (Tex. Civ. App.-Tyler 1979, writ ref'd n.r.e.). Here, the undersigned has recommended the dismissal of the gross negligence claim against Wal-Mart, which means that only ordinary negligence claims would remain.
Wal-Mart does not dispute that Eckelberger was acting in the course and scope of his employment at the time of the accident underlying this suit, and thus is not disputing potential vicarious liability for any negligent acts or omissions of Eckelberger. (Def. Wal-Mart Stores Texas LLC's Rule 56 Mot. for Partial Summ. J. [#22], at 5-7, ¶ 10); see also (Ex. B Eckelberger Dep. [#22-2], at 47:8-25.) Thus, if a factfinder were to conclude that Eckelberger was negligent and that his negligence proximately caused Plaintiff's injuries, Wal-Mart would bear vicarious liability for his negligence regardless of any inadequacy in its hiring, training, supervision, or retention of him as an employee. Ochoa, 2018 WL 7505640, at *3. Additionally, if a factfinder determines that Eckelberger was not negligent, then any negligence on the part of Wal-Mart in its hiring, supervision, training, or retention of him could not have served as the proximate cause of Plaintiff's damages. Sanchez, 2017 WL 3671089, at *2.
V. Conclusion, Recommendation, and Order
In summary, having considered the Defendant's motion for partial summary judgment, the response, the reply, sur-reply, and the summary judgment record, the undersigned recommends that Defendant Wal-Mart Stores Texas LLC's Rule 56 Motion for Partial Summary Judgment [#22] be GRANTED.
VI. Instructions for Service and Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested. Written objections to this report and recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The party shall file the objections with the clerk of the court and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusive or general objections. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions and recommendations contained in this report and recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).