Cruzco v. Wal-Mart Stores Texas, LLC

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JACQUELINE CRUZCO, 	§
§
§
§
Plaintiff,
VS. 	§ 	CIVIL ACTION NO. 4:24-CV-02681
§
WAL-MART STORES TEXAS, LLC, 	§
§
Defendant. 	§
ORDER
Pending before this Court is Defendant Wal-Mart Stores Texas, LLC's ("Defendant")
Motion for 	Summary Judgment (Doc. No. 	13) , Plaintiff Jacqueline 	Cruzco's 	("Plaintiff'')
Response (Doc. No. 14), and Defendant 's Reply (Doc. No. 16) . Having reviewed these documents,
the record, and the applicable law, the Court hereby GRANTS in part and DENIES in part
Defendant's Motion for Summary Judgment. (Doc. No. 13).
BACKGROUND
This case concerns an incident that occurred at one of Defendant 's stores. On December 8,
2022, Plaintiff was shopping at Defendant 's store located at 2727 Dunvale Road, Houston, Texas
when she slipped and fell on a white substance on the floor. Plaintiff alleges injuries from the fall.
This case was originally filed in Harris County District Court. (Doc. 1-2). Defendant then
removed the case to this Court based on diversity jurisdiction. (Doc. No. 1). Defendant now seeks
summary judgment, contending that each of Plaintiffs claims lack evidence and fail as a matter of
law.
United States District Court
Southern District of Texas
ENTERED
January 12, 2026
Nathan Ochsner, Clerk
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LEGAL STANDARD
Summary judgment is warranted " 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). "The movant bears the burden of identifying those portions of the record it believes
demonstrate the absence of a genuine issue of material fact." Triple Tee Golf, Inc. v. Nike, Inc.,
485 F.3d 253 , 261 (5th Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322- 25 (1986)).
Once a movant submits a properly supported motion, the burden shifts to the non-movant
to show that the court should not grant the motion. Celotex, 477 U.S. at 321 - 25. The non-movant
then must provide specific facts showing that there is a genuine dispute. Id. at 324; Matsushita
Elec. Indus. Co . v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A dispute about a material fact
is genuine 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). The court must draw all
reasonable inferences in the light most favorable to the nonmoving party in deciding a summary
judgment motion. Id. at 255. The key question on summary judgment is whether there is evidence
raising an issue of material fact upon which a hypothetical, reasonable factfinder could find in
favor of the nonmoving party. Id. at 248. It is the responsibility of the parties to specifically point
the Court to the pertinent evidence, and its location, in the record that the party thinks are relevant.
Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003). It is not the duty of the Court to search
the record for evidence that might establish an issue of material fact. Id.
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ANALYSIS
A. Plaintiffs Negligence Claim
Plaintiff alleges both negligence and premises liability claims in her Petition. See (Doc. 1-
2). Defendant, however, contends that, under Texas law, "a person injured on another 's property
has either a negligent activity claim or a premises-liability claim." (Doc. No. 13 at 3).
Generally, there are two negligence-related theories upon which a plaintiff may recover
from a premises owner: general negligence and premises liability. Although a person injured on
another's property may have both a negligence claim and a premises liability claim against the
property owner, the two are "independent theories of recovery, and a finding of one will not suffice
to create liability for the other." Cobarrubias v. Lowe's Home Centers, LLC, 2023 WL 5729941 ,
at *5 (S.D. Tex. Sept. 4, 2023) (citing Clayton W. Williams. Jr., Inc. v. Olivo, 952 S.W.2d 523,
527 (Tex. 1997)). "[N]egligent activity encompasses a malfeasance theory based on affirmative,
contemporaneous 	conduct 	by 	the 	owner that 	caused 	the 	injury, 	while 	premises 	liability
encompasses a nonfeasance theory based on the owner's failure to take measures to make the
property safe." Del Lago Partn ers, Inc. v. Smith, 307 S.W.3d 762, 775 - 76 (Tex. 2010). As such,
when an injury is the result of a condition created by the defendant's activity, rather than the
activity itself, a plaintiff is limited to a premises defect theory of liability. Brown v. Wal-Mart
Stores Texas, L.L.C., 2023 WL 4354225, at *2 (S.D. Tex. July 5, 2023) (citing Lucas v. Titus
County Hosp. Dist. /Titus County Mem'l Hosp. , 964 S.W.2d 144 , 153 (Tex. App.-Texarkana
1998, pet. denied), 988 S.W.2d 740 (Tex. 1998)).
Defendant asserts that to the extent Plaintiff has pled a negligence claim, it fails because
her injuries stem from a condition of the premises rather than from Defendant 's contemporaneous,
negligent activity. See (Doc. No. 13 at 3). Specifically, Defendant contends that because Plaintiff's
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claims are rooted in the alleged presence of "a white substance on the floor," Plaintiff may only
pursue her claims under a theory of premises liability. (Id.). In response, Plaintiff asserts that, based
on the surveillance video footage, "the [white] substance had been there for at least an hour" before
Plaintiffs fall. (Doc. No. 14 at 8). Further, Plaintiff contends that "15 minutes prior to Plaintiffs
fall, another customer slipped on the precise substance that caused Plaintiffs injuries." (Id.). 1 As
such, Plaintiff essentially concedes that Plaintiffs fall did not occur contemporaneously with a
Wal-Mart employee's activity. Instead, it was the result of a condition created by the alleged
negligent activity. Therefore, Plaintiff is not entitled to bring a negligent activity claim as a matter
of law. Defendant's Motion for Summary Judgment is granted as it relates to Plaintiffs active
negligence claim.
B. 	Plaintiff's Prem ises Liability Claim
To succeed on a premises liability claim, Plaintiff must prove four elements: (1) that
Defendant had actual or constructive knowledge of the condition on the premises; (2) that the
condition posed an unreasonable risk of harm; (3) that Defendant failed to exercise reasonable care
to reduce or eliminate the risk; and (4) that Defendant's failure to use such care proximately caused
Plaintiffs injuries. See Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998).
Defendant contends Plaintiff does not have evidence to raise a fact issue with respect to
several of the elements of this cause of action. First, Defendant argues Plaintiff cannot establish
1 In Defendant' s Reply, Defendant asserts that the prior customer' s alleged slip occurred thirteen minutes
before Plaintiffs incident, not fifteen minutes. (Doc. No. 16 at 3). After reviewing the surveillance video,
the Court agrees with Defendant that the customer' s slip occurred at approximately 4: 17:41 PM, while
Plaintiffs fall occurred at approximately 4:30:49 PM. For the purposes of this order, the Court finds that
the prior customer' s alleged slip occurred thirteen minutes before Plaintiffs fall but also notes that the
two minute differential makes no difference to the outcome of this motion. The Court, however, will
continue to refer to the alleged fifteen minutes argued by Plaintiff when referencing her Response.
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that the white substance on the floor posed an unreasonable risk of harm. See (Doc. No. 13 at 4-
5). Second, Defendant maintains that Plaintiff cannot show that it had actual or constructive
knowledge of any white substance or condition on the ground. See (Id. at 5- 10). The Court will
address each argument in turn.
I. 	Unreasonable Risk of Harm
The duty a premises owner owes to its invitees is not that of an insurer, meaning a condition
is not deemed unreasonably dangerous simply because an invitee gets hurt. See Brinson Ford, Inc.
v. Alger, 228 S.W.3d 161, 162- 63 (Tex. 2007). A determination of whether a particular condition
poses an unreasonable risk of harm is generally fact specific and there is no definitive, objective
test that may be applied to determine whether a specific condition presents an unreasonable risk
of harm. Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 754 (Tex. 1970). Generally, "[a]
condition presenting an unreasonable risk of harm is defined as 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." Id. Evidence of other falls attributable to the same
condition or evidence of the defectiveness of the condition could be probative but not conclusive
on this element. Dietz v. Hill Country Restaurants, 398 S.W.3d 761 , 766 (Tex. App.- 	San Antonio
2011, pet aff.); Seideneck, 451 S.W.2d at 754.
Defendant contends as a matter of law that the white substance on the floor does not pose
an unreasonable risk of harm, citing Texas law that "common or innocuous hazards are not
unreasonably dangerous." Christ v. Tex. Dep 't of Transp. , 664 S.W.3d 82 , 87 (Tex. 2023). As
evidence, Defendant points to Plaintiffs Petition where she stated that she was "shopping near the
produce and meat area when suddenly, and without warning, she slipped and fell backwards ....
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After her fall, she noticed a creamy white substance on the floor which caused her fall." (Doc. No.
1-2 at if7). Defendant also cites Plaintiffs deposition where she stated that "mayonnaise was on
the floor, and [she] didn't notice it." (Doc. No. 13-1 at 10) (32:2- 8). Defendant argues, therefore,
that "[t]here is nothing about this alleged substance that created an unreasonable risk of harm" and
"[t]here was nothing about it that would lead Walmart to foresee an incident similar to Plaintiff's
occurring." (Doc. No. 13 at 5).
In response, Plaintiff contends that "Defendant's own employees admitted that the
substance was dangerous and should have been cleaned." (Doc. No. 14 at 15). Plaintiff highlights
the deposition of Mungaz Armani, a digital coach at Wal-Mart, who testified that a substance on
the floor can be slippery and dangerous. See (Doc. No. 14-5 at 15) (15:14- 23). Further, Plaintiff
points to the testimony of Joel Hernandez, a Wal-Mart manager, who also testified that a floor
with "any sort of liquid or fluid" can be slippery, dangerous, and could cause someone to fall.
(Doc. No. 14-3 at 18- 19) (18:23- 19:4). Additionally, Plaintiff emphasizes Hernandez 's testimony
that he would expect that if there were employees stocking the area around the substance, they
would've seen the spill if it was visible and would've had an obligation to clean it. (Id. at 21)
(21 :4 - 9). Within Plaintiffs response, she also notes that fifteen minutes prior to Plaintiffs fall,
another customer slipped on the same substance that caused Plaintiffs injuries. (Doc. No. 14 at 8).
The Court is not persuaded by Defendant' s argument that the substance on the floor cannot
pose an unreasonable risk of harm as a matter oflaw. The Christ case cited by Defendant highlights
prior Supreme Court of Texas cases involving factually different "common" hazards, such as a
divot in a parking lot, a pedestrian ramp that extended beyond its handrails, and a rug in a
showroom. Christ, 664 S.W.3d at 87 (citing to United Supermarkets, LLC v. McIntire , 646 S.W.3d
800, 803 (Tex. 2022); Brinson Ford, 	Inc. 	v. Alger, 228 S.W.3d 161 , 162- 63 (Tex. 2007);
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Seideneck, 451 S.W.2d at 754- 55). Relying on these cases, Christ states that a claimant must
"adduce evidence either of prior complaints or injuries or that some surrounding circumstance
transformed an everyday hazard into one measurably more likely to cause injury." 664 S.W.3d at
87- 88. Here, the white substance on the floor of Wal-Mart was not an "everyday hazard." Indeed,
Wal-Mart's own employee testified that such a substance, if noticed, should be immediately
cleaned up and, therefore, remedied. (Doc. No. 14 -3 at 21) (21:4- 9). As such, the condition at
issue here is unlike the conditions referenced in Christ that were common, constant conditions of
which a plaintiff could seek evidence of prior complaints and injuries.
Therefore, whether the white substance on the floor was unreasonably dangerous is a fact
question. Since Defendant' s legal argument fails , Defendant must demonstrate the absence of a
genuine issue of material fact regarding the condition's unreasonable risk of harm. Triple Te e Golf,
485 F.3d at 261. The Court finds that Defendant has not done so - Defendant merely cites to
Plaintiffs petition and deposition where she states that there was a white substance on the floor.
Se e (Doc. No. 13 at 5) . As such, Defendant has not provided sufficient evidence to meet its initial
summary judgment burden regarding unreasonable risk of harm.
2. 	Actual or Constructive Knowledge
To establish the element of actual or constructive knowledge, there must be evidence to
support that: (1) Defendant placed the substance on the floor; (2) Defendant actually knew the
substance was on the floor prior to the incident and negligently failed to remove the substance; or
(3) it was more likely than not that the substance was on the floor long enough to give Defendant
a reasonable opportunity to discover the substance. K ee tch v. Kroger Co. , 845 S.W.2d 262, 265
(Tex. 1992).
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Defendant alleges that Plaintiff provides no evidence that Defendant had actual or
constructive notice of the white substance or condition on the floor. See (Doc. No. 13 at 6). In her
response, Plaintiff impliedly concedes Defendant's point regarding actual knowledge as she only
argues that Defendant had constructive knowledge of the condition. See (Doc. No. 14 at 9-15).
Thus, the Court will only address whether she has raised an issue of material fact as to Defendant 's
constructive knowledge of the condition on the floor.
To demonstrate constructive knowledge, Plaintiff must show that it is more likely than not
that the substance was present on the floor long enough to give Defendant a reasonable opportunity
to discover and remove the substance in the exercise of ordinary care. Keetch, 845 S.W.2d at 265.
This "t ime-notice" rule is based on the assumption that temporal evidence best indicates whether
the premises owner had a reasonable opportunity to discover and remedy a dangerous condition.
See Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 816 (Tex. 2002). " [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. 	In determining whether a
premises owner had constructive knowledge, a court may consider a combination of (i) the length
of the time the hazard existed, (ii) the proximity of employees to the hazard, and (iii) the
conspicuousness of the hazard. Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 567- 68 (Tex.
2006). " [M]ere proximity of an employee to a spill, without evidence of when or how it came to
be on the floor, [is] legally insufficient to charge a premises owner with constructive notice of the
hazard." Id. at 567 (citing Reec e, 81 S.W.3d at 816- 87).
1. 	Length of Time
Regarding the first factor, Plaintiff contends that the white substance was on the floor for
a sufficient time based on (1) photos of the substance that demonstrate "there were track marks
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and footprints in the area where Plaintiff fell," (Doc. No. 14 at 13) ; (2) video footage that
commences an hour prior to Plaintiffs fall with "nothing that demonstrates that a customer or
employee dropped a substance on the floor" during that time, (Id. at 15) (Exhibit B); and (3)
testimony from Plaintiffs son that in observing the substance on the floor, "it appeared to be dried
around the edges." (Id.). Further, Plaintiff notes that allegedly fifteen minutes prior to her fall,
another customer slid on the same substance, indicating it was at least present on the floor for
fifteen minutes. (Id. at 12).
As Defendant points out, however, Plaintiff herself testified that she did not know how the
substance came to be on the floor or how long it was there. (Doc. No. 13-1 at 12) (38:5- 9).
Defendant contends that Plaintiffs speculated hour of time based on the video of the incident is
merely a "guess" as the white substance is never even seen in the video. Additionally, Defendant
argues that at 4:12:43 PM of the video, a customer can be seen potentially spilling something on
the floor, meaning the white substance possibly only existed on the floor for eighteen minutes prior
to Plaintiffs incident. See (Doc. No. 16 at 3-4). Even assuming a customer did spill a substance
eighteen minutes before Plaintiffs fall and another customer slipped on that substance three to
five minutes later, Defendant asserts this length of time is legally insufficient to show constructive
knowledge. See Shirey v. Wal-Mart Stores Texas, LLC, 699 F. App'x 427, 429 (5th Cir. 2017) ("the
seventeen minutes during which the inconspicuous grape was on the floor did not afford Wal-Mart
a reasonable time to discover and remove the hazard"); Brookshire Foods Store, LLC v Allen, 93
S.W.3d 897, 900-01 (Tex. App.- 	Texarkana 2002) (evidence that grapes had been on the floor
for fifteen minutes or less was legally insufficient); see also Taylor v. Good Shepherd Hospital,
Inc., 2005 WL 2035836, at *3 (Tex. App.- 	Tyler Aug. 24, 2005, no pet.) (mem. op) (evidence
'
that step stool had been in the aisle for five to seven minutes was insufficient).
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Under the summary judgment framework, once the movant (in this case, Defendant) carries
its initial summary judgment burden of proof, the burden shifts to the non-movant (Plaintiff) to
persuade the Court that the motion should not be granted by showing the existence of a genuine
issue of material fact. Celotex, 477 U.S. at 321 - 25 ; Matsushita, 475 U.S. at 587. Here, Defendant
has provided sufficient evidence to meet its initial summary judgment burden regarding the length
of time the white substance was on the floor. Defendant provided video evidence that a customer
may have spilled the substance on the floor approximately eighteen minutes before Plaintiffs fall,
an arguably insufficient time to establish Defendant' s constructive knowledge. See (Doc. No. 16
at 3-4).
The burden thus shifted to Plaintiff, who also provided evidence that the substance may
have been on the floor for at least an hour prior to Plaintiff's fall. (Doc. No. 14 at 15); (Doc. No.
14-2) (Exhibit B). Having reviewed the surveillance video, the Court agrees with Defendant that
the substance cannot be seen in the video. S ee (Doc. No. 13-3); (Doc. No. 14-2) (Plaintiffs Exhibit
B) . That being said, both parties acknowledge that Plaintiff did in fact slip on a white substance
on the floor. Since there is no identifiable change on the floor from the start of the video to the
incident, a reasonable juror could conclude that the substance existed on the floor for at least an
hour. See (Doc. No. 	14-2) (Plaintiff's Exhibit B). Plaintiff therefore satisfied her summary
judgment burden to show the existence of a genuine issue of material fact concerning the length
of time the substance was on the floor.
11. 	Additional Factors
"What constitutes a reasonable time for a premises owner to discover a dangerous condition
will, of course, vary depending upon the facts and circumstances presented. And proximity
evidence will often be relevant to the analysis." Reec e, 81 S.W.3d at 816. Here, Plaintiff provides
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evidence regarding the other constructive knowledge factors - proximity of employees to the
hazard and conspicuousness of the hazard. Based on the surveillance video, Plaintiff contends that
at least seventeen employees walked through the area where the substance was prior to Plaintiffs
fall and, twelve minutes before, a Wal-Mart employee was stocking in the area and maneuvered
her cart over the substance. (Doc. No. 14 at 12); (Doc. No. 14-2) (Exhibit B). Further, Plaintiff
also argues that the white substance on the floor was conspicuous, stating it was "thick and white,
markedly different from water or a translucent liquid." (Doc. No. 14 at 13). 2 As support, Plaintiff
provides photographs of the substance. (Id. at 7) (Plaintiffs Exhibit A).
Admittedly, the Court finds it difficult to even identify the substance in Plaintiffs
photographs. Moreover, Plaintiff contradicts herself as she previously testified that she did not
notice the substance on the floor when she fell. (Doc. No. 13-1 at 10) (32:2- 8). Plaintiff even
admitted that she didn 't see the substance because "the mayonnaise [was] beige, and the Wal-Mart
floor 	[was] 	also 	beige." 	(Id. 	at 	11) 	(36:9- 11). 	Regardless, Plaintiffs additional evidence
concerning Wal-Mart employees' proximity to the substance and the substance' s conspicuity
further support Defendant's alleged constructive knowledge. If, as Plaintiff alleges, the substance
was on the floor for at least an hour, the number of Wal-Mart employees in close proximity to the
substance make it more likely that Defendant had a reasonable opportunity to discover it. Keetch,
845 S.W.2d at 265 .
In sum, when considering all three prongs of constructive knowledge, Plaintiffs claims
concerning the conspicuity and longevity of the substance on the floor, and the proximity of Wal-
Mart employees to the same, raise a genuine fact issue to be put to a jury. Succinctly put, using
2 In making this claim, Plaintiff fails to exp lain why, if the substance was so conspicuous, she (1) either
could not see it at the time; or (2) saw it and chose to knowingly walk through it.
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Wal-Mart's own video and its admission that there was indeed a substance on the floor, there is
circumstantial evidence that the substance was on the floor at the time a Wal-Mart employee
walked through the immediate area. That being the case, this Court cannot rule in Defendant's
favor as a matter of law. Plaintiff has established an issue of material fact regarding Defendant's
constructive notice of the condition that allegedly caused Plaintiffs fall. Accordingly, this Court
denies Defendant's Motion for Summary Judgment regarding Plaintiffs premises liability cause
of action.
C. Plaintiffs Failure to Maintain Claim
Defendant contends that Plaintiffs failure to maintain claim fails as a matter of law because
"Texas courts have held that failure to inspect claims fail absent any evidence of constructive
notice." (Doc. No. 13 at 10). Defendant relies on Richardson v. Wal-Mart Stores, Inc. , another slip
and fall case against Wal-Mart, to argue that "[a]bsent evidence of the length of time that the
substance had been on the floor, there can be no inference that any increased level of inspecting or
cleaning by Wal-Mart would have discovered and remedied the condition." 963 S.W .2 d 162 , 166
(Tex. App.- 	Texarkana 1998, no pet.).
Plaintiff does not directly address Defendant's argument but notes throughout her response
that Defendant has "strict procedures regarding inspections of areas as Wal-Mart emp lo yees walk
through the area" and alleges that Defendant failed to perform these required inspections in the
area where the white substance was located. (Doc. No. 14 at 5, 12 , 23). As evidence, Plaintiff
points to Hernandez's testimony that "it would have been the responsibility of the employee that
was in the area to inspect and clean the spill" if it were visible. (Id. at 12); (Doc. No. 14-3 at 23-
24) (23:1 7-24:7).
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Plaintiffs allegations regarding Defendant 's failure to maintain or inspect the premises per
its policy is a claim for premises liability because "premises liability encompasses a nonfeasance
theory based on the owner 's failure to take measures to make the property safe." Del Lago
Partners, 307 S. W.3d at 776 (holding that a failure to properly use security resources was properly
submitted to the jury on a premises-liability theory). In light of this, the Court finds that Plaintiffs
failure to maintain or inspect the premises claim is thereby dismissed because it is subsumed by
her premises liability claim. To the extent it is not subsumed by the premises claim, Plaintiff offers
no evidence of any negligence by Wal-Mart or its employees. Accordingly, the Court grants
Defendant' s Motion for Summary Judgment regarding Plaintiffs failure to maintain claim.
D. Plaintifrs Gross Negligence Claim
Gross negligence involves two elements: (1) from the actor' s standpoint at the time of its
occurrence, the act or omission complained of must involve an extreme degree of risk, considering
the probability and magnitude of the potential harm to others; and (2) the actor must have actual,
subjective awareness of the risk involved, but nevertheless proceed in conscious indifference of
the rights, safety, or welfare of others. TEX. CIV. PRAC . & REM. C. § 41.001(11).
Defendant argues that "Plaintiff has no evidence to establish that Walmart committed gross
negligence; that Walmart authorized or ratified an agent' s gross negligence; that Walmart was
grossly negligent in hiring an unfit agent; or that Walmart committed gross negligence through the
actions or inactions ofa vice-principal." (Doc. No. 13 at 12).
In response, Plaintiff maintains that the fact that approximately seventeen employees
walked by the area where Plaintiff fell; an employee was stocking the area where Plaintiff fell; and
fifteen minutes prior to Plaintiffs fall, another customer slid on the same substance and yet no
employee remedied the situation indicates that Defendant "demonstrated conscious disregard for
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the welfare of its customers." (Doc. No. 14 at 17). Plaintiff argues that "Defendant should have
known about the condition of the floor given the number of employees in the vicinity and the
appearance of the substance but decided not to do anything about it. " (Id. at 22). Further, Plaintiff
contends that "Wal-Mart has policies for protecting its customers yet did not take measures to
ensure its policies were implemented" here, indicating Defendant's "conscious indifference ... to
the rights, safety, and welfare of others." (Id. at 22 - 23).
To succeed on a gross negligence claim, a plaintiff must satisfy the elements of an ordinary
negligence or premises liability claim and demonstrate clear and convincing evidence of "an act
or omission involving subjective awareness of an extreme degree of risk, indicating conscious
indifference to the rights, safety, or welfare of others." Austin v. Kroger Texas L.P. , 746 F.3d 191 ,
196, n. 2 (5th Cir. 2014); State v. Shumake , 199 S.W.3d 279, 286 (Tex. 2006). "[W]hat separates
ordinary negligence from gross negligence is the defendant's state of mind; in other words, the
plaintiff must show that the defendant knew about the peril, but his actions or omissions
demonstrate that he did not care." Louisiana- Pacific Corp. v. Andrade, 19 S.W.3d 245, 246--47
(Tex. 1999).
As discussed above, Plaintiff did not provide evidence that Defendant had 	actual
knowledge of the condition on the floor, let alone knowledge about the alleged potential "peril" of
the condition. Even when considering the many alleged Wal-Mart employees that walked near the
substance based on the surveillance video, the Court notes that many customers walked over the
alleged substance without any injury. See (Doc. No. 14-2) (Plaintiffs Exhibit B). Thus, Plaintiff
provides no evidence that Defendant "knew about the p eril" as required in a gross negligence
claim. Id. Moreover, Plaintiff has not offered evidence regarding the "extreme degree of risk" of
the white substance on the floor.
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Plaintiff, therefore, does not provide any specific facts identifying a genuine factual dispute
for her gross negligence claim. As such, she has not met her summary judgment burden.
Accordingly, Defendant is entitled to summary judgment on Plaintiffs claim for gross negligence.
CONCLUSION
For the foregoing reasons, the Comi GRANTS in part and DENIES in part Defendant 's
Motion for Summary Judgment. (Doc. No. 13). The Court denies Defendant 's motion regarding
Plaintiffs premises liability claim. Plaintiffs negligence claim, failure to maintain claim, and
gross negligence claim are hereby dismissed.
+-Signed on this / t,,, day of January, 2026.
Andrew S. Han en
United States District Judge
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