Flores v. Wal-Mart Stores TX

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Case: 20-20551     Document: 00515863388         Page: 1     Date Filed: 05/14/2021




              United States Court of Appeals
                   for the Fifth Circuit                        United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
                                                                   May 14, 2021
                                  No. 20-20551
                                                                  Lyle W. Cayce
                                Summary Calendar                       Clerk


   Macrina Flores,

                                                           Plaintiff—Appellant,

                                       versus

   Wal-Mart Stores Texas, L.L.C.,

                                                           Defendant—Appellee.


                  Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 4:19-CV-2037


   Before Jolly, Elrod, and Graves, Circuit Judges.
   Per Curiam:*
          Macrina Flores traveled to Houston in December 2017 to attend a
   baptism. During this trip, Flores went shopping at a Wal-Mart. While in the
   store, Flores tripped on a clothes hanger that was lying on the floor and was
   injured.


          *
            Pursuant to 5th Circuit Rule 47.5, the court has determined that this
   opinion should not be published and is not precedent except under the limited
   circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-20551      Document: 00515863388          Page: 2   Date Filed: 05/14/2021




                                    No. 20-20551


          Flores brough suit against Wal-Mart, alleging negligence and premises
   liability under Texas law. The district court granted summary judgment for
   Wal-Mart on Flores’ premises liability claim because it found that she had
   not produced sufficient evidence for a reasonable jury to find that Wal-Mart
   had actual or constructive knowledge of the dangerous condition, i.e., the
   hanger on the floor, that caused her injury. Flores appealed. We now affirm.
                                         I.
          Plaintiff Macrina Flores (“Flores”) filed a petition in Harris County
   District Court alleging negligence and premises liability claims against
   defendant Wal-Mart Stores Texas, L.L.C. (“Wal-Mart”).               Wal-Mart
   removed to the United States District Court for the Southern District of
   Texas. After discovery, the district court granted Wal-Mart’s motion for
   summary judgment on the premises liability claim, finding that Flores had
   not produced sufficient evidence to allow a reasonable jury to conclude that
   the retailer had actual or constructive knowledge of the hanger that caused
   the accident.
                                         II.
          We review a grant of summary judgment de novo. West v. City of
   Houston, 

960 F.3d 736

, 740 (5th Cir. 2020) (per curiam). Summary judgment
   is appropriate 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 dispute is genuine if “the evidence is such that a
   reasonable jury could return a verdict for the nonmoving party.” Anderson v.
   Liberty Lobby, 

477 U.S. 242

, 248 (1986). A fact is material if it “might affect
   the outcome of the suit.”

Id. We view the

evidence in the light most
   favorable to the nonmovant and draw all reasonable inferences in that party’s
   favor. Adams v. Alcolac, Inc., 

974 F.3d 540

, 543 (5th Cir. 2020) (per curiam).




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                                          No. 20-20551


                                               III.
           Flores argues that the district court did not correctly apply the
   summary judgment standard and erroneously granted summary judgment for
   Wal-Mart. She also argues that, under the facts of this case, she need not
   establish knowledge of the particular hanger involved in the incident but
   instead can prevail on a showing that Wal-Mart had knowledge of the danger
   that fallen hangers, in general, posed to shoppers. These arguments fail for
   the reasons discussed below.
           Flores’ premises liability claim has four elements: (1) Wal-Mart’s
   actual or constructive knowledge of a dangerous condition; (2) the condition
   created an “unreasonable risk of harm;” (3) Wal-Mart failed to exercise
   reasonable care to reduce or eliminate the risk; and (4) Wal-Mart’s failure to
   do so was the proximate cause of her injury. See CMH Homes, Inc. v. Daenen,
   

15 S.W.3d 97

, 99 (Tex. 2000). The district court granted summary judgment
   on the basis that Flores had failed to produce sufficient evidence to establish
   the first element, actual or constructive knowledge.
           Flores produced one item of evidence to establish the knowledge
   element:1 the testimony of her sister-in-law, Hortencia Alvarado Arriaga
   (“Alvarado”), that a Wal-Mart employee who picked up the hangers after
   Flores had fallen said that she was picking them up because, if she didn’t, she
   and other employees “would be scolded.” This statement supposedly
   supports Flores’ contention that “Wal-Mart [was] aware of the hazards of


           1
             Flores argues that two out-of-circuit opinions, Ballance v. Wal-Mart Stores, Inc.,
   No. 98-1702, 

1999 WL 231653

(4th Cir. Apr. 21, 1999), and Ricci v. Wal-Mart Stores E., LP,
   

2018 WL 4308556

(S.D.N.Y. Sept. 10, 2018), involving different Wal-Mart stores operated
   by different Wal-Mart entities in different states contain material that supports the first
   element of her premises liability claim. We disagree. Because the testimony cited in these
   opinions does not relate to the store involved in this case or the defendant LLC, we do not
   find them probative.




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                                     No. 20-20551


   hangers on the floor.” Really, it indicates nothing more than that an
   employee of a large retail store knew or assumed that management would not
   want objects littered on the floor. Because this one item of evidence is
   insufficient to establish a genuine dispute with respect to knowledge, Flores’
   premises liability claim fails.
           Flores discusses the summary judgment standard at great length, but
   applying the standard to this record is not complicated. In order to survive a
   motion for summary judgment, there must be a genuine dispute of material
   fact, meaning that the evidence must be such that a reasonable jury could
   return a verdict for the nonmoving party. See 

Anderson, 477 U.S. at 248

. A
   reasonable jury could not find, merely on the basis of Alvarado’s testimony,
   that Wal-Mart had knowledge of the hanger that caused the accident. The
   district court thus did not err in granting summary judgment for Wal-Mart.
           Flores also argues that she need not show knowledge of the actual
   hanger that caused the accident but that she can establish knowledge by
   showing that Wal-Mart was aware, generally, that hangers often got onto the
   floor of its stores, creating hazards. This argument is grounded in Corbin v.
   Safeway Stores, Inc., 

648 S.W.2d 292

(Tex. 1983), a case in which a retailer
   was held liable for injuries sustained by a shopper who slipped on a grape,
   even though it had no knowledge of the particular grape on which Corbin
   slipped. In Corbin, Safeway had set up a grape display that it acknowledged
   created an “unusually high risk” of grapes falling onto the linoleum floor
   below and creating a hazard. Although the store did not have knowledge of
   the particular grape that caused the accident, the court held that a jury could
   find that the display, and not the fallen grape, was the dangerous condition
   giving rise to liability.
           Flores reads Corbin much too broadly. It essentially created an
   exception to the general rule for establishing knowledge on account of the




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                                    No. 20-20551


   unusual facts involved, i.e., an “unusually high risk” display that could be
   expected to repeatedly generate more specific hazards.         See Brookshire
   Grocery Co. v. Taylor, 

222 S.W.3d 406

, 408 (Tex. 2006) (describing Corbin
   as an “exceptional case”). There is nothing analogous to the grape display
   in this case. The mere presence of clothes hangers in normal use at a retail
   store cannot reasonably be construed, in and of itself, as a dangerous
   condition, even if they do sometimes fall on the floor.
                                        IV.
          In order to create a genuine dispute with respect to her premises
   liability claim, Flores needed to produce evidence sufficient for a reasonable
   jury to find that Wal-Mart had actual or constructive knowledge of the hanger
   that caused her accident. She did not do so. The evidence she has produced
   is not even sufficient to support her contention that Wal-Mart had knowledge
   of a persistent problem with hangers falling on the floor in its stores. The
   district court thus did not err in granting summary judgment for Wal-Mart.
          For the reasons stated, the judgment of the district court is, in all
   respects, AFFIRMED.




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