Villarreal v. Wal-Mart Stores Texas, LLC

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION
Jose Villarreal, 	§
Plaintiff, 	§
§
v. 	§ 	Civil Action M-23-421
§
Wal-Mart Stores Texas, LLC, 	§
Defendant. 	§
MEMORANDUM AND RECOMMENDATION
This is a personal injury lawsuit arising from a slip and fall
incident 	in 	a 	Wal-Mart 	store. 	Pending 	before 	the 	court 	is
Defendant’s Motion for Summary Judgment. ECF No. 46. This
case 	has 	been 	referred 	to 	the 	undersigned 	magistrate 	judge
pursuant 	to 	28 U.S.C. § 636(b)(1). 	ECF 	No. 2. 	The 	court 	has
considered the motion, to which no response has been filed, and
the applicable law. The court recommends that the motion be
GRANTED.
1. Factual Background and Procedural Posture
Wal-Mart Stores Texas, LLC (Wal-Mart) filed its motion for
summary 	judgment 	on 	September 	30, 	2025. 	ECF 	No. 46.
Villarreal’s response was due on October 21, 2025. Villarreal did
not file a response. He did file a deposition notice, however. ECF
No. 47. Wal-Mart filed its Reply on January 12, 2026, in which it
pointed out that Villarreal did not respond. ECF No. 49. Villarreal
still did not respond. Instead, he filed a motion seeking a trial
setting. ECF No. 51. It is clear that Villarreal’s counsel is actively
monitoring the court’s dockets but has decided to forego filing a
response to the pending motion for summary judgment.
In the Southern District of Texas, a failure to timely respond
to a motion is taken as a representation of no opposition. S.D. Tex.
United States District Court
Southern District of Texas
ENTERED
March 06, 2026
Nathan Ochsner, Clerk
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L.R. 7.4. However, a “motion for summary judgment cannot be
granted simply because there is no opposition, even if failure to
oppose violated a local rule.” Hetzel v. Bethlehem Steel Corp., 50
F.3d 360, 362 n.3 (5th Cir. 1995). Instead, the court may accept the
unopposed facts set forth in the summary judgment motion as
undisputed. See Eversley v. MBank Dallas, 843 F.2d 172, 174 (5th
Cir. 1988) (affirming the district court’s acceptance of the facts in
support 	of 	the 	defendant’s 	summary 	judgment 	motion 	as
undisputed, where the plaintiff made no opposition to the motion);
Smith v. AZZ Inc., No. 20-cv-375-P, 2021 WL 1102095, at *1–3
(N.D. Tex. Mar. 23, 2021) (citing Eversley, 843 F.2d at 174) (taking
as 	true 	the 	facts 	set 	forth 	in 	the 	moving 	party’s 	motion 	for
summary judgment).
The following facts are taken from Wal-Mart’s Motion for
Summary Judgment. ECF No. 46.
Villarreal testified in his deposition that he, his wife and
granddaughter 	visited 	Wal-Mart 	as 	shoppers 	on 	the 	date 	of
incident. Villarreal testified that he went into the front restroom
of the Wal-Mart store to use the restroom that day and sat down
to use the handicap stall at the end of the restroom. Villarreal
testified that he had barely sat down in the stall when he started
hearing a loud gushing sound of water within the restroom. So
much water had accumulated that Villarreal was still in the stall
when water began to reach his area of the restroom. Villarreal
opened the stall door and attempted to exit the restroom by bracing
himself and grabbing onto portions of the stalls, eventually making
his way to the restroom sink where the water was coming from.
Villarreal was unable to safely exit the restroom that day and
testified he slipped and fell. ECF No. 46 at 2.
Plaintiff hired a flooring expert, Russell Kendzior, to opine
on the condition of the floor on which Plaintiff slipped and fell. Mr.
Kendzior has opined that the dangerous condition in this case is
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not the floor by itself, but rather the moderate to high-traction floor
coupled with the presence of water as a result of the de-coupled
water supply line to the restroom sink. ECF No. 46 at 5. Based on
Plaintiff’s testimony that he was in the restroom for a very short
period of time before the condition manifested itself, Wal-Mart
asserts as a fact that the “condition at issue was created while
Villarreal was in the restroom.” Id. at 5–6. Wal-Mart further
represents 	that 	“Villarreal 	has 	presented 	no 	evidence 	that
Walmart had received reports of prior complaints involving the
condition at issue.” Id. at 6. Wal-Mart asserts that it had no actual
or constructive knowledge of the condition in the bathroom that
caused Villarreal’s injuries. Id. at 5.
Wal-Mart 	moves 	for 	summary 	judgment 	on 	Villarreal’s
premises liability and gross negligence claims.
2. Summary Judgment Standard
“Summary judgment is appropriate 	only if, 	viewing the
evidence in the light most favorable to the nonmovant, ‘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.’” Davenport
v. Edward D. Jones & Co., 891 F.3d 162, 167 (5th Cir. 2018)
(quoting Fed. R. Civ. P. 56(a)). No genuine issue of material fact
exists if a rational jury could not find for the nonmoving party
based on the complete record. McMichael v. Transocean Offshore
Deepwater Drilling, Inc., 934 F.3d 447, 455 (5th Cir. 2019) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986)).
“The movant bears the burden of identifying those portions
of the record it believes demonstrate the absence of a genuine issue
of material fact.” Lincoln Gen. Ins. v. Reyna, 401 F.3d 347, 349 (5th
Cir. 2005) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–25
(1986)). If this burden is met, the nonmovant must then “set forth
specific facts showing that there is a genuine issue for trial.”
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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
nonmovant 	must 	“go 	beyond 	the 	pleadings,” 	using 	competent
summary judgment evidence to cite to “specific facts” showing a
genuine issue for trial. Bustos v. Martini Club, Inc., 599 F.3d 458,
468 (5th Cir. 2010) (quoting Celotex Corp., 477 U.S. at 324).
The court reviews all evidence and reasonable inferences in
the light most favorable to the nonmoving party. Lincoln Gen. Ins.,
401 	F.3d 	at 	350. 	“[C]onclusory 	allegations, 	unsubstantiated
assertions, or ‘only a scintilla of evidence[]’” are not enough to
defeat a properly supported motion for summary judgment. Turner
v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)
(quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994)). The nonmovant must “articulate the precise manner in
which the submitted or identified evidence supports his or her
claim.” CQ, Inc. v. TXU Mining Co., 565 F.3d 268, 273 (5th Cir.
2009) (quoting Smith ex rel. Estate of Smith v. United States, 391
F.3d 621, 625 (5th Cir. 2004)).
3. Analysis
Villarreal 	sued 	Wal-Mart 	under 	theories 	of 	negligence,
negligence per se, premises liability, and gross negligence. The
court notes that the only evidence before the court is of a dangerous
condition. There is no evidence of any negligent activity. Therefore,
Plaintiff’s claims for ordinary negligence and negligence per se
should 	be 	dismissed. 	Occidental 	Chem. Corp. v. Jenkins, 478
S.W.3d 640, 644 (Tex. 2016) (stating that a plaintiff’s claim is for
premises liability when the injury results from the property’s
condition rather than a contemporaneous, negligent activity on the
property).
In a premises liability case, the duty owed by a landowner
depends on the plaintiff’s legal status on the property. An invitee
is a person who enters another’s land with the owner’s knowledge
and for the mutual benefit of both. Rosas v. Buddies Food Store,
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518 S.W.2d 534, 536 (Tex. 1975) (citation omitted). Villarreal was
a customer and therefore an invitee. See United Supermarkets,
LLC v. McIntire, 646 S.W.3d 800, 801–02 (Tex. 2022).
In order to prevail on a premises liability claim, “the invitee
plaintiff 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 did not exercise reasonable
care to reduce or eliminate the unreasonable risk of harm; and (4)
the owner’s failure to reduce or eliminate the unreasonable risk of
harm 	proximately 	caused 	the 	plaintiff’s 	injuries.” 	United
Supermarkets, LLC, 646 S.W.3d at 802 n.4.
Wal-Mart 	argues 	that 	it 	had 	no 	actual 	or 	constructive
knowledge of the water in the bathroom that caused the accident.
The court agrees. The undisputed facts show that the water began
to leak while Villarreal was in the stall. There is no evidence that
the water was leaking before Villarreal entered the bathroom.
There is no evidence that the store or its employees knew about
the leak. There is no evidence that there was a history of a leak in
the bathroom. Plaintiff has presented no evidence that Wal-Mart
knew or should have known about the condition that caused
Villarreal’s injuries. Summary judgment should be granted on
Villarreal’s premises liability claim.
“To recover for gross negligence in Texas, 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 Tex. L.P., 746 F.3d 191, 196 n.2
(5th Cir. 2014) (quoting Texas v. Shumake, 199 S.W.3d 279, 286
(Tex. 2006)); Tex. Civ. Prac. & Rem. Code § 41.001. “Extreme
risk [] 	‘is 	not 	a 	remote 	possibility 	of 	injury 	or 	even 	a 	high
probability of minor harm, but rather the likelihood of serious
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injury to the plaintiff.’” Austin, 746 F.3d at 196 n.2 (quoting Mobil
Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998)).
Because 	Villarreal’s 	negligence, 	negligence 	per 	se, 	and
premises liability claims should be dismissed, so should his gross
negligence claim. Moreover, there is no evidence that Wal-Mart
was 	aware 	of 	any 	extreme 	risk 	or 	that 	it 	was 	consciously
indifferent to Villarreal’s safety or welfare.
4. Conclusion
For 	the 	foregoing 	reasons, 	the 	court 	recommends 	that
Defendant’s 	Motion 	for Summary Judgment, 	ECF 	No. 	46, be
GRANTED. 	Plaintiff’s 	Motion 	for 	Expedited 	Trial 	Setting 	is
DENIED AS MOOT.
The 	parties 	have 	fourteen 	days 	from 	service 	of 	this
Memorandum and Recommendation to file written objections. 28
U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72. Failure to timely file
objections will preclude appellate review of factual findings or legal
conclusions, except for plain error. See Thomas v. Arn, 474 U.S.
140, 147–49 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276–77 (5th
Cir. 1988).
Signed at Houston, Texas on March 6, 2026.
___________________________________
Peter Bray
United States Magistrate Judge
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