2:25-cv-00018•Lopez v. Dolgencorp of Texas, Inc., et al
Gesamter Gesetzestext
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION CONSUELO LOPEZ, Plaintiff, VS. § § § § § § § § § CIVIL ACTION NO. 2:25-CV-00018 DOLGENCORP OF TEXAS, INC., et al., Defendants. MEMORANDUM AND RECOMMENDATION Consuelo Lopez sued Dolgencorp of Texas, Inc., Dolgencorp, LLC, Dolgencorp, Inc., and Dollar General #3626 (collectively, “Defendants”) in state court alleging that she slipped and fell on water or an unknown liquid leaking from an ice machine while at a Dollar General store in Falfurrias, Texas. (D.E. 1-2, pg. 4). She brought a premises liability claim. (D.E. 1-2). Defendants removed the case to federal court. (D.E. 1). The parties engaged in discovery and now Defendants move for summary judgment. (D.E. 23). The Court recommends that Defendants’ motion be GRANTED and this case be dismissed with prejudice. I. JURISDICTION After removal of this matter from Texas state court pursuant to 28 U.S.C. § 1441, this Court retains jurisdiction based on the diverse citizenship of the parties and the amount in controversy, pursuant to 28 U.S.C. § 1332(a)(1). Venue is appropriate because a United States District Court Southern District of Texas ENTERED December 19, 2025 Nathan Ochsner, Clerk Case 2:25-cv-00018 Document 28 Filed 12/18/25 in TXSD Page 1 of 9
2 substantial part of the events giving rise to the plaintiff’s claims occurred within the territorial jurisdiction of this Court. See 28 U.S.C. § 1391(b). II. SUMMARY JUDGMENT EVIDENCE The facts presented to the Court are limited. According to Lopez, on or about December 28, 2024, she was a customer at a Dollar General store in Falfurrias, Texas. (D.E. 1-2, pg. 4). She was injured as she proceeded to walk on the sidewalk of the store’s premises, not noticing water on the ground leaking from an ice machine. Id. She slipped and fell on unknown liquid and injured herself. Id. Lopez testified at her deposition that she was walking on the sidewalk towards the store’s entrance when she saw little rocks on the sidewalk, stepped on the little rocks with her right foot, and then fell to the ground injuring herself. (D.E. 23-2, pgs. 6-9). Lopez testified that she did not notice any type of liquid on the ground before she fell. Id. at 7. She also agreed that there was not any water leaking from the ice machine on the sidewalk prior to her fall. Id. at 10. Plaintiff’s responses to Defendants’ Requests for Admissions were that she denied seeing any liquid or water on the ground prior to her fall and denied that any Dollar General employee caused any water or liquid to be on the ground where she fell. (D.E. 23-3, pg. 4). III. MOTION AND STANDARD OF REVIEW Defendants have filed a Motion for Summary Judgment (D.E. 23) arguing that Lopez has failed to present any evidence of actual or constructive knowledge of the condition at issue on the premises by Defendants. Defendants contend that Lopez has no Case 2:25-cv-00018 Document 28 Filed 12/18/25 in TXSD Page 2 of 9
3 evidence as to how long little rocks, an unknown liquid, or water were present on the sidewalk, as well as no evidence of actual notice by Defendants or their employees. (D.E. 23, pg. 6). Defendants further argue that the condition at issue in this case was an open and obvious hazard for which no duty was owed to Lopez by Defendants. Id. at 11. Lopez responded to Defendants’ Motion for Summary Judgment arguing that there are multiple genuine issues of material fact and, because of that, summary judgment is inappropriate. (D.E. 25). Specifically, Lopez argues that there is a genuine issue of material fact regarding whether the incident occurred in the store or outside of the store. Id. at 3. Lopez also submits that the issue of whether a condition is unreasonably dangerous is a fact issue that should preclude summary judgment. Id. Summary judgment is appropriate when the moving party establishes there exists no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The movant “can show there’s no material dispute if he demonstrates that the [non-movant] could not prevail even if each factual question were resolved in their favor.” Freedom From Religion Found., Inc. v. Mack, 49 F.4th 941, 950 (5th Cir. 2022). A “genuine issue of material fact exists where evidence is such that a reasonable jury could return a verdict for the non-movant.” Piazza’s Seafood World, L.L.C. v. Odom, 448 F.3d 744, 752 (5th Cir. 2006). If the non-movant would bear the burden of proof at trial, the moving party may satisfy its summary judgment burden “by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving Case 2:25-cv-00018 Document 28 Filed 12/18/25 in TXSD Page 3 of 9
4 party’s claim.” Ortega Garcia v. U.S., 986 F.3d 513, 533 (5th Cir. 2021). The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. Id. “All facts must be viewed in the light most favorable to the nonmovant and all justifiable inferences must be drawn in his favor.” Crane v. City of Arlington, Texas, 50 F.4th 453, 461 (5th Cir. 2022). Thus, factual controversies are resolved in favor of the non- movant, “but only where there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts.” Lexon Ins. Co., Inc. v. Fed. Deposit Ins. Corp., 7 F.4th 315, 321 (5th Cir. 2021). In the “absence of any proof,” the court cannot and will not assume that the non-moving party could or would prove the necessary facts. McCarty v. Hillstone Rest. Grp., Inc., 864 F.3d 354, 358 (5th Cir. 2017). Finally, “a court should not make credibility determinations or weigh the evidence in ruling on a motion for summary judgment.” Chacon v. Copeland, 577 Fed. App’x. 355, 360 (5th Cir. 2014) (unpubl.) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)) (internal quotations omitted). “Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputed fact issues which are “irrelevant and unnecessary” will not be considered by a court in ruling on a summary judgment motion. Id. Case 2:25-cv-00018 Document 28 Filed 12/18/25 in TXSD Page 4 of 9
5 IV. DISCUSSION Texas law governs Lopez’s premises liability claim regarding her slip and fall at Defendants’ property. In Texas, a plaintiff can bring a premises liability claim where they were injured due to defects on a defendant’s property. Chowdury v. Wal-Mart Stores Tex., LLC, No. 19-cv-3870, 2019 WL 13190677, at *2 (S.D. Tex. Nov. 15, 2019). “Texas courts have consistently treated ‘slip/trip-and-fall’ cases as premises liability cases.” Munai v. Wal-Mart Stores Tex., LLC, No. 22-cv-2365, 2024 WL 1998135, at *2 (S.D. Tex. Apr. 12, 2024) (citations omitted), adopted, 2024 WL 1997125 (May 6, 2024). For Lopez to prevail on her premises liability claim, she must show: (1) “Actual or constructive knowledge of the condition on the premises by the owner/operator; (2) That the condition posed an unreasonable risk of harm; (3) That the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and (4) That the owner/operator’s failure to use such care proximately caused the plaintiff’s injuries.” Garcia v. Wal-Mart Stores Texas, L.L.C., 893 F.3d 278 (5th Cir. 2018) (quoting Henkel v. Norman, 441 S.W.3d 249, 251–52 (Tex. 2014)). To the extent any factual argument exists between the parties, they relate to the first element of premises liability under Texas Law, actual or constructive knowledge. Here, the Court will review the evidence presented regarding whether Defendants had knowledge of the allegedly hazardous condition potentially created by the ice machine/water dispenser/little rocks. Case 2:25-cv-00018 Document 28 Filed 12/18/25 in TXSD Page 5 of 9
6 Defendants argue that there is no genuine issue of material fact as to their lack of knowledge of any hazardous condition. Consequently, Defendants seek summary judgment on Lopez’s premises liability claim, arguing Lopez presents no evidence that Defendants had actual or constructive knowledge of the ice, water, little rocks, or any combination thereof, on the floor/ground/sidewalk which then allegedly caused her slip and fall. (D.E. 23, pgs. 4-7). Defendants further contend that Lopez’s deposition testimony fails to demonstrate any of the following: (1) that the hazard was caused by a leaking water dispenser/ice maker, (2) that the hazard was conspicuous, and (3) that the alleged hazard should have been discovered by Defendants. In response, Lopez does not address the argument that Defendants had no actual or constructive knowledge of the hazard, the first element she must prove to bring a premises liability case. Instead, Lopez argues that there is a genuine issue of material fact regarding where the fall occurred and that whether the condition was dangerous is a fact issue. To prevail in refuting Defendants’ alleged lack of knowledge of the hazard element, Lopez must show Defendants created or had knowledge of the hazard or that the hazard likely existed long enough to give Defendants reasonable opportunity to discover it. See Wal-Mart Stores v. Reece, 81 S.W. 3d 812 (Tex. 2002) (explaining a plaintiff can prove knowledge by showing that (a) “the defendant placed the substance on the floor”; (b) “the defendant actually knew that the substance was on the floor”; or (c) “it is more likely than not that the condition existed long enough to give the premises owner a reasonable opportunity to discover it.”). Case 2:25-cv-00018 Document 28 Filed 12/18/25 in TXSD Page 6 of 9
7 A premises owner or occupier has “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). The duty imposed is neither strict liability nor insurance against all injuries. See Brinson Ford, Inc. v. Alger, 228 S.W. 3d 161, 162 (Tex. 2007); CMH Homes, Inc. v. Daenen, 15 S.W. 3d 97, 101-102 (Tex. 2000). Knowledge of a dangerous condition requires actual knowledge or constructive knowledge on the part of the premises owner or operator. Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 938 (Tex. 1998). When circumstantial evidence is used to prove constructive knowledge, the plaintiff may satisfy this element by showing that “it is more likely than not that the dangerous condition existed long enough to give the proprietor a reasonable opportunity to discover the condition.” Id. Here, there is no evidence in the record to show how or when the liquid or rocks on which Lopez slipped got on the ground. In its summary judgment motion, Defendants point to Lopez’s deposition testimony to demonstrate that she has no information about the source of the hazard. In response to the summary judgment motion Lopez cites no evidence at all relating to actual or constructive knowledge of Defendants. Lopez must go beyond the pleadings and come forward with evidence at this stage of the litigation. See Bustos v. Martini Club, Inc., 599 F.3d 458, 468 (5th Cir. 2010) (explaining that, once the movant establishes that there is no factual issue, the nonmovant must, by affidavits or other Case 2:25-cv-00018 Document 28 Filed 12/18/25 in TXSD Page 7 of 9
8 competent summary judgment evidence, cite specific facts to show there is a genuine issue for trial). “[T]he party moving for summary judgment must ‘demonstrate the absence of a genuine issue of material fact,’ but need not negate the elements of the nonmovant’s case.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (emphasis in original) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). When the nonmovant bears the burden of proof at trial, the movant may “merely point to the absence of evidence and thereby shift to the non-movant the burden of demonstrating by competent summary judgment proof that there is a dispute of material fact warranting a trial.” MDK Sociedad de Responsabilidad Limitada v. Proplant Inc., 25 F.4th 360, 368 (5th Cir. 2022) (quoting Nola Spice Designs, L.L.C. v. Haydel Enters., 783 F.3d 527, 536 (5th Cir. 2015)). Lopez has not done so. Accordingly, it is recommended that summary judgment be granted. V. RECOMMENDATION Because Lopez has failed to produce evidence demonstrating a genuine dispute of material fact as to whether Defendants had actual or constructive knowledge of the condition on the premises, it is recommended that Defendants’ motion for summary judgment (D.E. 23) be GRANTED and this case be dismissed with prejudice. Respectfully submitted on December 18, 2025. ____________________________ Julie K. Hampton United States Magistrate Judge Case 2:25-cv-00018 Document 28 Filed 12/18/25 in TXSD Page 8 of 9
9 NOTICE TO PARTIES The Clerk will file this Memorandum and Recommendation and transmit a copy to each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of the Memorandum and Recommendation, a party may file with the Clerk and serve on the United States Magistrate Judge and all parties, written objections, pursuant to Fed. R. Civ. P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District Court for the Southern District of Texas. A party’s failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge’s report and recommendation within FOURTEEN (14) DAYS after being served with a copy shall bar that 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 (5th Cir. 1996) (en banc). Case 2:25-cv-00018 Document 28 Filed 12/18/25 in TXSD Page 9 of 9
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