MCSWAIN v. Fiesta Mart LLC

MARY MCSWAIN,
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
aintiff,
v.
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CIVIL ACTION NO. H-23-4141
FIESTA MART, LLC D/B/A FIESTA
MART #51,
Defendant.
MEMORANDUM OPINION AND ORDER
Mary Mcswain ("Plaintiff"} brought this action against Fiesta
Mart, LLC D/B/A Fiesta Mart #51 ("Defendant") in the 127th District
Court of Harris County, Texas, alleging a premises liability
claim. 1 Pending before the court is Defendant's No Evidence Motion
for Summary Judgment ("Defendant's MSJ") (Docket Entry No. 26).
For the reasons stated below, Defendant's MSJ will be denied.
I . Background
Plaintiff alleges that on June 10, 2022, she slipped and fell
on cottage cheese while shopping at the Fiesta Mart located at 9420
Cullen Boulevard, Houston, Texas.2 Prior to her , Plaintiff
1Plaintiff's Original Petition, Exhibit 2 to Defendant's
Notice of Removal, Docket Entry No. 1-2, pp. 6-8. All page numbers
reference the pagination imprinted at the top of page by the
court's Electronic Case Filing system.
2Id. at 7 <_[<_[ 7 8; Plaintiff's First Amended Response to
Defendant's No Evidence Motion for Summary Judgment ("Plaintiff's
(continued... )
United States District Court
Southern District of Texas
ENTERED
June 30, 2026
Nathan Ochsner, Clerk
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saw a wet floor cone at the end of the aisle, located about six to
ten feet away from where she fell. 3 After Plainti fell, a store
manager told an employee to move the cone because it was in the
wrong location. 4
On October 9, 2023, Plaintiff brought this action against
Defendants in the 127th District Court of Harris County, Texas,
asserting a premises liability claim. 5 On November 1, 2023,
Defendants removed the action to this court based on diversity
jurisdiction. 6
On October 24, 2025, Defendants filed a Motion for Summary
Judgment. 7 Plaintiff filed a response on June 9, 2026. 8 Defendant
did not file a reply.
2 ( ••• continued)
Response"), Docket Entry No. 46, p. 1.
3Oral Deposition of Mary Mcswain ("Mcswain Depo"), Exhibit 1
to Plaintiff's Response, Docket Entry No. 46-1, p. 2 lines 14-20,
p. 3 lines 10-13.
4 Id. at 3 lines 19-24.
5 Plaintiff's Original Petition, Exhibit 2 to Defendant's
Notice of Removal, Docket Entry No. 1-2, pp. 6-8.
6Notice of Removal, Docket Entry No. 1, p. 1. Plaintiff is a
citizen of Texas and Fiesta Mart is a citizen of Delaware and
California. Id. at 1-2.
7 Defendant's MSJ, Docket Entry No. 26.
8 Plaintiff's Response, Docket Entry No. 46.
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II. Summary Judgment Standard
"The court shall grant summary judgment if 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.n Fed. R. Civ.
P. 56(a). A party asserting that a fact is or is not genuinely
disputed must support the assertion by "citing to particular parts
of materials in the record." Fed. R. Civ. P. 56(c)(1)(A). Summary
judgment is proper "after adequate time for discovery and upon
motion, against a party who ls to make a showing sufficient to
establish the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at
trial." Celotex Corp, v. Catrett, 106 S. Ct. 2548, 2552 (1986).
"[T]he burden on the moving party may be discharged by 'showing'
that is, pointing out to the district court-that there is an
absence of evidence to support the nonmoving party's case." ll;;L_ at
2554. "The burden shifts to the non-moving party to show, with
competent evidence, the existence of a genuine dispute of material
fact." Miller v. Michaels Stores, Inc., 98 F.4th 211, 216 (5th
Cir. 2024). "'The burden on the nonmoving party is not a heavy
one; the nonmoving party simply is required to show specific facts,
as opposed to general allegations, that present a genuine sue
worthy of trial."' Swope v, Columbian Chemicals Co,, 281 F.3d 185,
197 (5th Cir. 2002) (quoting 10A Wright, Miller & Kane, Federal
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Practice and Procedure § 2727, at 490 (3d ed. 1998)) . 9 But �'[a]
mere scintilla of evidence is insufficient to present a question
for the jury.'" Rex Real Estate I, L. P. v. Rex Real Estate
Exchange, Inc., 80 F.4th 607, 616 (5th Cir. 2023).
The court "must view all facts and draw all reasonable
inferences in [the nonmovant's] favor." Crawford v. Metropolitan
Government of Nashville and Davidson County, Tennessee, 129 s. Ct.
846, 851 n.2 (2009). The court "may not make credibility
determinations or weigh the evidence." Reeves v. Sanderson
Plumbing Products, Inc., 120 s. Ct. 2097, 2110 (2000).
III. Analysis
A landowner owes to invitees "a duty to maintain the premises
in a reasonably safe condition, . . . a duty of reasonable care to
inspect and discover a condition involving an unreasonable risk of
harm, . and the duty to protect against the danger and to make
safe any defects or to give an adequate warning thereof." Rawlings
v. Angelo State University, 648 S.W.2d 430, 433 (Tex. App.-Austin
1983, no pet.). "To prevail on a premises liability claim against
a property owner, an injured invitee must establish four elements:
(1) the property owner had actual or constructive knowledge the
condition causing the injury; ( 2) the condition posed an
unreasonable risk of harm; (3) the property owner failed to take
9 See also l0A Wright, Miller, & Kane, Federal Practice &
Procedure § 2727.2, at 501 (4th ed. 2016) (same).
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reasonable care to reduce or eliminate the risk; and (4) the
property owner's failure to use reasonable care to reduce or
eliminate the risk was the proximate cause of injuries to the
invitee." Henkel v. Norman, 441 S.W.3d 249, 251-52 (Tex. 2014).
Defendant argues it is entitled to summary judgment
because Plaintiff has provided no evidence that Defendant had
actual or constructive knowledge of the cottage cheese before she
fell . 10 Plaintiff argues that the wet floor cone in the dairy aisle
is circumstantial evidence of Defendant's actual knowledge.11
"An invitee in a premises-liability case 'must prove that the
premises owner had actual .QJ;: constructive knowledge of a dangerous
condition on the premises.'" Albertsons, LLC v. MohammadL 689
S.W.3d 313, 317 (Tex. 2024) (quoting Wal-Mart Stores, Inc. v.
Reece, 81 S.W.3d 812, 813 (Tex. 2002)) (emphasis in original).
"'Actual knowledge requires knowledge that the dangerous condition
existed at the time of the accident.'" Sampson v. University of
Texas at Austin, 500 S.W.3d 380, 397 (Tex. 2016)
Corsicana v. Stewart, 249 S.W.3d 412, 414-15
(quoting
(Tex. 2008)).
"Circumstantial evidence establishes actual knowledge only when it
directly or by reasonable inference supports that conclusion."
Duncan v. First Texas Home, 464 S.W.3d 8, 16 (Tex. App-Fort Worth
2015, no pet.). "[C]onstructive knowledge can be established by
showing that the condition had existed long enough for the owner or
10 Defendant's MSJ, Docket Entry No. 26, pp.
11Plaintiff's Response, Docket Entry No. 46, pp. 6-7.
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occupier to have discovered it upon reasonable inspection." .Q:lli
Homes, Inc. y. Daenen, 15 S.W.3d 97, 102-03 (Tex. 2000). To
establi constructive knowledge, "[t]here must be proof how
long the dangerous condition was present before liability can be
imposed on the premises owner for failing to discover and fy,
or warn of, the dangerous condition." Slape v. Wal-Mart Stores
Texas, LLC, 656 S.W.3d 698, 701 {Tex. App.
(citing Reece, 81 S.W.3d at 816).
Paso 2022, no pet.)
Plaintiff has raised a fact issue as to whether Defendant had
actual knowledge of the cottage cheese.12 The evidence establishes
that (1) Defendant trains s employees to place wet floor cones on
top of a spill, (2) a wet floor cone was placed six to ten
from the cottage cheese before Plaintiff slipped on it and 1,
and (3) shortly after Plaintiff's accident, an employee was told to
move cone closer to the cottage cheese. 13 This evidence
directly or by reasonable inference supports the conclusion that
12 Defendant also argues that recovery is precluded because
Plainti has not provided evidence that establishes how long the
cottage cheese was present. Defendant's MSJ, Docket Entry No. 26,
pp. 4-5. However, as discussed below, because Plaintiff has raised
a fact issue as to whether Defendant had actual knowledge, the
court wi not address whether Plaintiff has raised a fact issue as
to whether Defendant had constructive knowledge. Mohammadi, 689
S.W.3d at 317 (quoting Reece, 81 S.W.3d at 813) {"An invitee in a
premises-liability case 'must prove that the premises owner had
actual ru;;: constructive knowledge of a dangerous condition on the
premises.'").
13McSwain Depo, Exhibit 1 to Plaintiff's Response, Docket Entry
No. 46-1, pp. 2-3; Oral and Remote Deposition of Rodney Lee,
Corporate Representative, Exhibit 3 to Plaintiff's Response, Docket
Entry No. 46-3, p. 3 line 23 thru p. 4 line 4, p. 11 lines 19-23.
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Defendant knew of the cottage cheese before Plaintiff slipped on it
and fell. See, e.g., City of Houston v. Crawford, NO. 01-18-00179-
CV, 2018 WL 4868306, at *4-*5 (Tex. App.-Houston [1st Dist.] Oct.
9, 2018, no pet.) (holding that a fact finder could make a
reasonable inference of actual knowledge where there was evidence
that the defendant had placed safety cones around a greasy area of
the floor even though the cones did not encompass the entirety of
the defective premises).
IV. Conclusion and Order
Because Plaintiff has raised a fact issue as to whether
Defendant had actual knowledge of the dangerous condition,
Defendant's No Evidence Motion for Summary Judgment (Docket Entry
No. 26) is DENIED.
SIGNED at Houston, Texas, on this 30th day of June, 2026.
SIM LAKE
SENIOR UNITED STATES DISTRICT JUDGE
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