Opinion
SA-22-CV-973-OLG (HJB)
06-13-2024
MARY ANN SHELTON Plaintiff, v. PF WESTPOND, LLC and WESTPOND UNIT II, LTD., Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Henry J. Bemporad, United States Magistrate Judge
To the Honorable United States District Judge Orlando L. Garcia:
This Report and Recommendation concerns the Motion for Summary Judgment (Docket Entry 17) filed by Defendant PF Westpond, LLC. The District Court referred has all pretrial matters in this case to the undersigned pursuant to 28 U.S.C. § 636(b). (See Docket Entry 22.) For the reasons set forth below, I recommend that Defendant's motion (Docket Entry 17)be GRANTED.
I. Jurisdiction.
The Court has original jurisdiction over this case pursuant to 28 U.S.C. §§ 1332(a) and 1441(a). The undersigned has authority to issue this report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
II. Background.
On August 28, 2020, Defendant purchased the Westpond Apartments in San Antonio, Texas. (See Docket Entry 17, at 38.) Plaintiff Mary Ann Shelton was a resident there. (See Docket Entry 1-1, at 2.) On September 4, 2020, while on her way to work, Plaintiff stopped at the leasing office to drop off her rent payment. (See id.; Docket Entry 25-9, at 5.) Normally, Plaintiff paid her rent online, but Defendant's website was down at the time. (See Docket Entry 25-9, at 16.) Plaintiff was familiar with the leasing office, having gone there on prior occasions to report maintenance issues and to retrieve mailed packages. (See Docket Entry 25-9, at 7.) Plaintiff parked her car in one of the available spots by the leasing office, made her way into the office without incident, then headed back toward her vehicle. (See Docket Entry 25-9, 5-7.) While walking along, Plaintiff's foot got snagged on a raised lip in the sidewalk, causing her to fall forward and break her wrist. (See Docket Entry 25-9, at 5-7, 10.)
Plaintiff filed suit on August 3, 2022, in the 225th District Court, Bexar County, Texas, asserting claims of premises liability and gross negligence against Defendant and co-defendant Westpond Unit II, Ltd. (See Docket Entry 1-1, at 5-7.)Defendant removed the case shortly thereafter and now moves for summary judgment on both of Plaintiff's claims. (See Docket Entries 1 and 17.)
Defendant Westpond Unit II, Ltd., has never been served or made an appearance in this case.
III. Summary Judgment Standard.
Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact,” and that they are “entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Allen v. U.S. Postal Serv., 63 F.4th 292, 300 (5th Cir. 2023) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A disputed fact is material if it “might affect the outcome of the suit under the governing law.” Id. (quoting Anderson, 447 U.S. at 248). When considering a motion for summary judgment, a court “must view all facts and evidence in the light most favorable to the non-moving party.” Feist v. La., Dep't of Just., Off. of the Atty. Gen., 730 F.3d 450, 452 (5th Cir. 2013)
The party moving for summary judgment bears the initial burden of “informing the court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party carries its burden, “the nonmovant must direct the court's attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial.” Mary Kay, Inc. v. Weber, 601 F.Supp.2d 839, 851 (N.D. Tex. 2009) (citing Celotex, 477 U.S. at 323-24). “The parties may satisfy their respective burdens by tendering depositions, affidavits, and other competent evidence.” Arthur v. Liberty Mut. Pers. Ins. Co., No. SA-21-CV-00602-FB, 2022 WL 17824520, at *1 (W.D. Tex. Dec. 20, 2022) (citing Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992)), report and recommendation adopted, No. SA-21-CA-602-FB, 2023 WL 2557392 (W.D. Tex. Feb. 3, 2023). The Court need consider only cited materials. FED. R. CIV. P. 56(c)(3); see Am. Fam. Life Assur. Co. of Columbus v. Biles, 714 F.3d 887, 896 (5th Cir. 2013) (“Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence ....”) (citation omitted).
IV. Analysis.
Defendant moves for summary judgment as to Plaintiff's premises liability claim and her gross negligence claim. (See Docket Entry 17, at 16.) Defendant also asks the Court to dismiss all claims against co-defendant Westpond Unit II, Ltd., on the grounds that it “has never owned or operated the Westpond Apartments and is not properly before this Court.” (Id. at 1, n.1.) This Report and Recommendation first addresses Plaintiff's premises liability claim, then turns to her gross negligence claim, and then addresses Plaintiff's claims against Westpond Unit II, Ltd.
A. Premises Liability.
Under Texas law,a landowner owes to invitees a “duty to make safe or warn against any concealed unreasonably dangerous conditions of which the landowner is, or reasonably should be, aware but the invitee is not.” Hillis v. McCall, 602 S.W.3d 436, 440 (Tex. 2020) (citation omitted). To prevail on a premises-liability claim, an invitee must show that: (1) the owner had actual or constructive knowledge of the condition at issue; (2) the condition was unreasonably dangerous; (3) the owner failed to exercise reasonable care to reduce or eliminate the risk; and (4) the owner's failure to use such care proximately caused the invitee's injuries. United Supermarkets, LLC v. McIntire, 646 S.W.3d 800, 802 n.4 (Tex. 2022).
“Although federal procedural rules govern summary judgment, the underlying claim in a federal case based on diversity jurisdiction is governed by state substantive law.” Whisenhunt v. WestRock, Tex., L.P., 628 F.Supp.3d 693, 698 (E.D. Tex. 2022) (citing Climarex Ener. Co. v. CP Well Testing, L.L.C., 26 F.4th 683, 687 (5th Cir. 2022)).
Defendant argues that it is entitled to summary judgment as to the premises liability claim because (1) the %-inch raised lip of sidewalk was not unreasonably dangerous and was open and obvious; (2) Defendant lacked actual or constructive knowledge of its presence on the property; and (3) Defendant's failure to remove the condition did not proximately cause Plaintiff's injuries. (See Docket Entry 17, at 5-14.) Because summary judgment should be granted based on the first argument, this Report and Recommendation does not address the others.
Defendant's first argument contains two related assertions: (1) that the sidewalk at issue was not unreasonably dangerous, and (2) that any defect was open and obvious. To support these arguments, Defendant relies upon the declaration of Elizabeth Curiel, the property manager both before and after Defendant purchased the apartment complex; photographs of the sidewalk condition taken by Curiel shortly after Plaintiff's fall; and excerpts of Plaintiff's deposition testimony. (See Docket Entry 17, at 27-37.)
Plaintiff argues that the condition was, in fact, unreasonably dangerous and that it was not open and obvious because it was unmarked, unnoticed even by the property manager, and because reasonable persons do not ordinarily watch their feet as they walk. (See Docket Entry 25, at 5, 1113, 15-16.) In support Plaintiff attaches an engineering report from 2020; correspondence from CBRE, Defendant's mortgage loan servicer; an amendment to the purchase agreement, whereby Defendant used the estimated costs of making repairs to the property-including the sidewalks- to secure a credit to the purchase price; Plaintiff's and Curiel's deposition transcripts; an excerpt of a San Antonio ordinance; photographs of the sidewalk condition; the incident report prepared by Curiel shortly after Plaintiff fell; and an expert report prepared by Jason English, a professional engineer, citing several safety codes. (See Docket Entry 25-1-25-15.)
This Report and Recommendation first considers whether the sidewalk condition was unreasonably dangerous, and second whether the condition was open and obvious.
1. Unreasonably dangerous.
“A condition is unreasonably dangerous if it presents an unreasonable risk of harm.” Brinson Ford, Inc. v. Alger, 228 S.W.3d 161, 163 (Tex. 2007) (citation omitted). It presents an unreasonable risk of harm when “there is 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). As Plaintiff correctly points out (see Docket Entry 25, at 11), whether a condition was unreasonably dangerous is normally a fact question for a jury. McIntire, 646 S.W.3d at 802 (citing Seideneck, 451 S.W.2d at 754). However, “some particularly innocuous or commonplace hazards are not unreasonably dangerous as a matter of law.” McIntire, 646 S.W.3d at 802 (collecting cases where courts respectively held that a patch of ice, a pedestrian ramp, wet floor by a soda fountain, and a patch of mud were not unreasonably dangerous as a matter of law).
Texas courts have set out a number of factors to consider in determining whether a condition is unreasonably dangerous as a matter of law: (1) whether the condition was clearly marked; (2) the size of the condition: (3) whether the condition had caused prior injuries or generated prior complaints; (4) whether the condition was unusual or substantially differed from the condition of other objects of the same kind; (5) whether the condition is a naturally occurring phenomenon; (6) whether the invitee had reasonable alternatives to traversing the area where the condition was located; and (7) whether the condition met applicable safety standards. See McIntire, 646 S.W.3d at 803 (collecting cases); Martin v. Chick-Fil-A, No. 14-13-00025-CV, 2014 WL 465851, at *3-4 (Tex. App.-Houston [14th Dist.] Feb. 4, 2014, no pet.) (collecting cases).
The lion's share of the above factors strongly support the conclusion that the sidewalk condition in this case did not pose an unreasonable risk of harm as a matter of law. The raised lip “measured less than an inch,” (see Docket Entry 17, at 30), and “nothing in the record indicates it yielded other complaints or injuries” (see id. at 27-28),or that it “was ‘unusual' relative to other small pavement defects” (see Docket Entry 25-1, at 18 (reporting 13 similar conditions throughout the property)). See McIntire, 646 S.W.3d at 803. “If anything, the defect was profoundly ordinary.” See id. After all, “[t]iny surface defects in pavement are ubiquitous and naturally occurring.” Id. (See Docket Entry 25-1, at 18 (describing the uneven sidewalk edges on the property as “due to tree roots or subsidence/heaving”).) Furthermore, as the photographs in the record demonstrate, Plaintiff was not wholly deprived of any reasonable alternatives than to walk over the uneven sidewalk-she could have gone around either side of it: either through the grass or through the parking lot. (See Docket Entry 17, at 29-31.)
Plaintiff cites to a property assessment conducted about six weeks before the accident in which an engineering company noted that “[s]idewalk trip hazards in the form of uneven vertical edges were observed at approximately 13 locations near the leasing office/clubhouse” and other buildings. (Docket Entry 25-1, at 14, 18.) However, this report did not specifically identify the portion of sidewalk at issue in this case and, in any event, indicated that repairs were not critical, but recommended that repairs be completed within a year. (Id.) CBRE, Defendant's mortgage loan servicer, subsequently imposed conditions on financing Defendant's purchase of the property based on the findings in the engineer's report. (See Docket Entry 25-2, at 2.) One condition was to repair the “[s]idewalk trip hazards,” albeit within six months instead of one year. (Id.) CBRE expressly noted, however, that the sidewalk conditions were not a life or safety concern. (Id.) Accordingly, even if the recommendations in the engineer's report or the loan-conditions imposed by CBRE were considered a prior “complaint” within the meaning of McIntire, neither support an inference that the specific sidewalk condition here was dangerous, let alone unreasonably so.
The remaining factors-the existence of any applicable safety codes and whether the raised lip was marked-do not raise a genuine dispute as to the unreasonable dangerousness of the sidewalk. With regard to safety codes, McIntire makes clear that only “applicable safety codes” can be considered “relevant to assessing whether a condition poses an unreasonable risk of harm.” 646 S.W.3d at 804 (emphasis in original). Of the codes invoked by Plaintiff, only two are directly applicable to the sidewalk at issue: (1) § 29-11 of the San Antonio Municipal Code, which imposes a duty on “property owner[s] . . . to keep the sidewalks . . . in a good and safe condition and free from any defects and hazards” (Docket Entry 25, at 13); and (2) the San Antonio (International) Property Maintenance Code (cited by Plaintiff's expert), which requires that sidewalks “be kept in a proper state of repair, and maintained free from hazardous conditions” (Docket Entry 25-15, at 10-11). Neither code defines the “defect,” “hazard” or “hazardous condition” it prohibits- accordingly, they provide no basis upon which to find that the sidewalk in this case was unreasonably dangerous.
To the extent the expert relies on these codes to inform his own opinion of the dangerousness of the sidewalk, it cannot change the outcome here, as “expert testimony does not create a fact issue as to whether a condition is unreasonably dangerous when undisputed, material facts demonstrate that it is not.” McIntire, 646 S.W.3d at 804.
One of the other cited codes-the National Fire Protection Association 101 Life Safety Code-only applies to entrances and exits of “state-owned and state-leased buildings,” as opposed to privately-owned apartment complexes. See McIntire, 646 S.W.3d at 805 n.6 (finding this same code was immaterial to whether defect in grocery store parking lot was unreasonably dangerous). Two other codes cited by Plaintiff's expert similarly apply only to entrancesi.e., means of ingress and egress. (See Docket Entry 25-15, at 10-11.) And the last code cited by Plaintiff's expert describes “good practice[s],” but has no binding authority or applicability here. (See id. at 11-12.)
The last factor to consider is whether the raised sidewalk lip was marked in any way-it was not. Thus, this factor weighs in Plaintiff's favor. However, McIntire itself downplayed the significance of this particular factor, finding that it is reasonable to infer from the fact that a defendant did not mark a defect to the conclusion that no such demarcation was necessary:
[T]he court of appeals made much of United's failure to mark the divot. . . . But the fact that Trevino thought the defect too insignificant to warrant demarcation does not support the conclusion that the divot posed an unreasonable risk of harm. To the contrary, it indicates that Trevino believed the opposite to be true.McIntire, 646 S.W.3d at 803. In sum, the McIntire factors show that the sidewalk at issue in this case was not unreasonably dangerous as a matter of law.
2. Open and obvious.
As a matter of law, a condition cannot be unreasonably dangerous if it is “open and obvious,” such that the landowner is not “in a better position than the invitee to be aware of [it].” Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 203 (Tex. 2015). In those instances, the condition ceases to “pose an unreasonable risk because the law presumes that invitees will take reasonable measures to protect themselves against known risks.” Id.; see also Barry v. Lowe's Home Ctrs., LLC, No. 4:18-CV-00872-P, 2020 WL 1809184, at *3 (N.D. Tex. Apr. 9, 2020) (same), aff'd, No. 20-10455, 2021 WL 4783088 (5th Cir. Oct. 13, 2021). After all, a property owner “is not an insurer of . . . [an invitee's] safety.” Austin, 465 S.W.3d at 203 (citing Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 769 (Tex. 2010); RESTATEMENT (SECOND) OF TORTS § 344 cmt. f).
“[W]hether a condition is open and obvious is an objective inquiry.” Rivas de Rios v. Wal-Mart Stores Tex., L.L.C., No. CV 1:15-217, 2017 WL 1032118, at *3 (S.D. Tex. Feb. 8, 2017) (citing Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 383 (Tex. 1995)), report and recommendation adopted, No. 1:15-CV-217, 2017 WL 1030721 (S.D. Tex. Mar. 14, 2017). It is “a question of law for the court,” not an issue “for the jury to decide.” Sanchez v. Dolgencorp of Tex., Inc., No. 2340536, 2024 WL 2846072, at *2 (5th Cir. June 5, 2024) (quoting Austin, 645 S.W.3d at 212). The question is “not what the plaintiff subjectively or actually knew but what a reasonably prudent person would have known under similar circumstances.” Los Compadres Pescadores, L.L.C. v. Valdez, 622 S.W.3d 771, 788 (Tex. 2021). To answer this question, the Court “must consider the totality of the particular circumstances the plaintiff faced.” Id. at 788-89 (citation and internal quotation marks omitted).
The raised sidewalk lip in this case was open and obvious for two reasons. First, there is no evidence in the record indicating that the raised lip was concealed or otherwise obscured in any way when Plaintiff tripped over it. (See, e.g., Docket Entry 17, at 29-31; Docket Entry 25-9, at 6.) Cf. Dodson v. Watermark at Timbergate B, LLC, No. 13-22-00129-CV, 2023 WL 163584, at *2 (Tex. App. Jan. 12, 2023) (finding cracked sidewalk open and obvious where nothing “concealed .... [or] actually covered the crack at the time of the accident”); Sanchez v. Dolgencorp of Tex., Inc., No. 7:22-CV-362, 2023 WL 5216805, at *3 (S.D. Tex. Aug. 14, 2023) (granting summary judgment for property owner where plaintiff fell due to “crack in the sidewalk,” because “it was daytime outside and the crack was well lit and visible, . . . [and] not obscured by any sort of debris or grass overgrowth”), aff'd, No. 23-40536, 2024 WL 2846072 (5th Cir. June 5, 2024).
Second, the sidewall of the raised lip was exposed to Plaintiff's view as she approached it and before she fell. A plaintiff's “[v]antage is relevant to whether the danger presented by a condition would have been apparent or appreciable to an ordinary, reasonably prudent person.” Tex. State Univ. v. Guillen, No. 03-23-00333-CV, 2024 WL 39819, at *3 (Tex. App.-Austin Jan. 4, 2024, pet. denied). Here, the evidence in the record indicates that Plaintiff tripped after leaving the leasing office, when her foot caught the raised lip-not that she fell as a result of a sudden and unexpected decrease in the elevation of the sidewalk encountered while walking toward the leasing office. (See, e.g., Docket Entry 1-1, at 3; Docket Entry 25-9, at 5-7; Docket Entry 25-10, at 2.) Based on the photos in the record, the raised lip would have been apparent and appreciable to a reasonably prudent person from her vantage point walking toward it. See Guillen, 2024 WL 39819, at *4 (finding that a much higher, bottom step of staircase was “easily observable . . . from the bottom of the staircase looking up,” but that “an ordinary, reasonably prudent user of the staircase would be unlikely to appreciate such a large riser-heigh differential when coming down the stairs for the first time”).
Because the raised lip of sidewalk in this case was not unreasonably dangerous, but instead “was an open and obvious minor surface defect,” Sanchez, 2023 WL 5216805, at *3, Defendant is entitled to summary judgment on Plaintiff's premises liability claim without consideration of the other arguments it advances.
B. Gross Negligence.
To recover for gross negligence in Texas, Plaintiff “must satisfy the elements of an ordinary . . . premises liability claim and demonstrate two [additional] elements by clear and convincing evidence.” Castro v. Wal-Mart Real Est. Bus. Tr., 645 F.Supp.3d 638, 650 (W.D. Tex. 2022) (citing U-Haul Int'l, Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012)). First, “that the act or omission of the defendant involved an extreme degree of risk.” Castro, 645 F.Supp.3d at 650 (emphasis added) (citing TEX. CIV. PRAC. & REM. CODE § 41.001(11)(A); Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d 778, 784-86 (Tex. 2001)). Second, “that the defendant had actual, subjective awareness of the [extreme] risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others.” Castro, 645 F.Supp.3d at 650 (emphasis in original) (citing TEX. CIV. PRAC. & REM. CODE § 41.001(11)(A)). “An act or omission that is merely thoughtless, careless, or not inordinately risky cannot be grossly negligent.” Phillips v. Super Servs. Holdings, LLC, 189 F.Supp.3d at 640, 654 (S.D. Tex. 2016).
Because the raised sidewalk lip at issue here did not pose an unreasonable risk of harm, see supra part IV-A, it could not, a fortiori, pose the far graver “extreme degree of risk” required for gross negligence. Accordingly, Defendant is entitled to summary judgment on Plaintiff's gross negligence claim.
C. Plaintiff's Claims Against Nonexistent Westpond Unit II, Ltd.
Defendant has produced conclusive evidence that Westpond Unit II, Ltd. never owned the premises at issue and that it actually ceased to exist altogether in December of 2006-more than 13 years before Plaintiff tripped on Defendant's property and 15 years before she filed this suit. (See Docket Entry 11-2, at 26, 38; Docket Entry 17, at 39-40, 44, 51.) Plaintiff has produced neither evidence nor arguments to the contrary. Nor has she served Westpond Unit II, Ltd.-no doubt because service on a nonexistent entity is impossible. See D&T Partners, LLC v. Baymark Partners, LP, No. 3:21-CV-1171-B, 2022 WL 1778393, at *2, *4 n.4 (N.D. Tex. June 1, 2022) (“[A] defendant-entity that ceases to exist before process is effectuated . . . is necessarily incapable of being served, making any resulting judgments entered against it void.”) Accordingly, all claims against Westpond Unit II, Ltd., should be dismissed.
V. Conclusion and Recommendation.
Based on the foregoing, I recommend that the Court GRANT Defendant PF Westpond, LLC's Motion for Summary Judgment (Docket Entry 17). I further recommend that the Court DISMISS all claims against Defendant Westpond Unit II, Ltd.
VI. Notice of Right to Object.
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 the 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 parties shall file any objections with the Clerk of the Court and serve the objections on all other parties. Absent leave of Court, objections are limited to twenty (20) pages in length. An objecting party 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, conclusory, or general objections. Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this Report and Recommendation shall bar the party from a de novo review 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 findings and conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).