Lopez v. Dolgencorp of Texas, Inc., et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
CONSUELO LOPEZ,
Plaintiff,
VS.
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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
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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
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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
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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.
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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.
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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.”).
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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
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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
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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).
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