Garcia A/N/F of A.U. v. Wal-Mart Stores Texas, LLC

UNITED STATES DISTRJCT COURT
SOUTHERN DISTRJCT OF TEXAS
HOUSTON DIVISION
FRANCISCA GARCIA A/N/F OF A.U., 	§
§
Plaintiff, 	§
§
VS. 	§ 	CIVIL ACTION NO. 4:24-CV-01350
§
WAL-MART STORES TEXAS, LLC, 	§
§
Defendant. 	§
ORDER
Pending before the Court is Defendant Wal-Mart Stores Texas, LLC' s ("Defendant" or
"Wal-Mart") Motion for Summary Judgment, (Doc. No. 15) , Plaintiff Francisca Garcia A/N/F of
A.U. ' s ("Plaintiff) Response, (Doc. No. 17) , and Defendant' s Reply, (Doc. No. 18). Having
reviewed these documents, the record, and the applicable law, the Court hereby GRANTS
Defendant's Motion for Summary Judgment. (Doc. No. 15).
BACKGROUND
This case concerns an incident that occurred at one of Defendant' s stores located at 9235
North Sam Houston Parkway East, Humble, Texas 77396. On August 6, 2022, Plaintiffs son A.U.
allegedly slipped and fell from scattered school supplies on the floor of Wal-Mart. Plaintiff alleges
A.U. suffered injuries from the fall.
This case was originally filed in the 270th Judicial District Court of Harris County, Texas.
See (Doc. No. 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 Plaintiff's claims
lack evidence and fail as a matter of law.
United States District Court
Southern District of Texas
ENTERED
March 11, 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. Ce lotex, 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. Indu s. Co. v. Zenith R adio Co rp., 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 ke y 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 asserts both negligence and premises liability claims in her Petition. (Doc. No. 1-
2 at 4- 5). 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. 15 at 4- 5).
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)). Plaintiffs cannot pursue both a negligence claim and a premises liability claim
based on the same injury. Austin v. Kroger Tex. L.P., 746 F.3d 191 , 197 (5th Cir. 2014), certified
question answered, 465 S.W.3d 193 (Tex. 2015).
"[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 Partners, 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)).
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Defendant argues that Plaintiffs negligence claim should be dismissed because A. U.
alleges "he slipped due to scattered school supplies on the floor - a condition of the premises."
(Doc. No. 15 at 5) . Defendant asserts that since there was " no contemporaneous, negligent activity
by any Walmart employee occurring at the time of the fall," Plaintiffs claims sound in premises
liability. (Id.). In response, Plaintiff avers that the images from Wal-Mart' s surveillance video
depict "a cluttered sales floor and cardboard boxes lying on the floor" in the area where A.U. fell.
(Doc. No. 17 at 2). Plaintiff appears to argue that this condition was the result of a "congested aisle
packed with temporary back-to-school displays and stacks of merchandise" and "loose school
supplies . .. displayed in open bins stacked above knee level." (Id.) . As such, Plaintiff essentially
concedes that A.U. ' s fall did not occur contemporaneous ly with a Wal-Mart employee's activity.
Instead, it was the result of a condition created by the alleged negligent activity of Wal-Mart.
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. 	Plaintiffs Premises 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. Se e Wal-Mart Store s, Inc. v. Gonzale z, 968 S.W.2d 934, 936 (Tex. 1998).
Defendant contends Plaintiff does not have evidence to raise a fact issue with respect to
several elements of this claim: (1) Plaintiff provides " no evidence to suggest there was any
condition that posed an unreasonable risk of harm;" and (2) Plaintiff cannot show that Defendant
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had actual or constructive notice of any scattered school supplies or any other condition on the
aisle floor. (Doc. No. 15 at 7- 11).
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 that Plaintiff is "unable to raise a genuine dispute as to any material
fact that there was any condition that posed an unreasonable risk of harm." (Doc. No. 15 at 7) .
Defendant provides its surveillance video of the school supplies section of Wal-Mart as evidence.
Specifically, Defendant maintains that, as seen on the video, A.U. and other children began to
"horseplay in the store by pushing each other around" and then two children, including A.U., ran
out of the frame of the video, returning seconds later with A.U. "holding his head." See (Doc. No.
15 -1 at 1:54:33- 1:54:57). Defendants avers that "[t]here is nothing about the condition of the floor
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that could have caused Walmart to foresee an incident similar to Plaintiffs occurring." (Doc. No.
15 at 7) .
In response, Plaintiff asserts that Wal-Mart's provided images and surveillance video show
"a congested aisle packed with temporary back-to-school displays and stacks of merchandise;"
"narrow" aisles with "loose school supplies" displayed in "open bins stacked above knee level;"
"multiple customers and children crowded between display racks;" and "a cluttered sales floor"
with "cardboard boxes lying on the floor." (Doc. No. 17 at 2). As such, Plaintiff maintains that
" [a] reasonable jury could conclude from these images that the configuration of displays and
merchandise created an unreasonably dangerous condition." (Id.). Further, Plaintiff contends that
Wal-Mart "actively promoted back-to-school supplies and invited children to pick out supplies."
(Id. at 3). This invitation to "shop in an area overflowing with loose merchandise," Plaintiff alleges,
makes it foreseeable that "children would move quickly or run to retrieve items," causing injury.
(Id.) .
The Court finds several issues with Plaintiffs argument. First, having reviewed the
surveillance video and images, the Court does not see any indication of cardboard boxes, school
supplies, or other merchandise on the actual floors . See (Doc. No. 15-1) ("Video Footage ofBack-
to -School Department taken on August 6, 2022"); (Doc. No. 15-2 at 3) (a photo of the video
footage at 1:53:03 , showing Plaintiff, A.U., and other children in an aisle); (Doc. No. 15-2 at 5) (a
photo of the video footage at 1:54:31, seconds before A.U. ran off camera). More importantly,
even if Wal-Mart's video and images showed items on the aisle floors, A.U. allegedly fell and
struck his head in a different area offcamera - far away from where these supplies were displayed.
Indeed, the video merely depicts A.U. and his cousin running down one aisle, disappearing for a
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brief period, and then re-appearing an aisle over, with A.U. already holding his head. See (Doc.
No. 15-1 at 1:54:32- 1:54:57).
Thus, the surveillance video and images do not, and cannot, establish whether A.U. fell
due to the alleged items on the floor or that he fell at all. Further, A.U. himself testified that he did
not recall seeing anything on the floor when he slipped and he did not know what he slipped on.
See (Doc. No. 15-3 at 10:12- 20). Plaintiff similarly testified that she did not see what her son
slipped on, he did not tell her what he slipped on, and, ultimately, she did not know what he slipped
on. See (Doc. No. 15-4 at 22:9- 24). A.U. very well may have fallen merely from running in the
aisle, just as his cousin in the black shirt seemingly does earlier in the video. See (Doc. No. 15-1
at 1:54:32).
Plaintiff, therefore, provides no evidence of any school supplies, cardboard boxes, or other
merchandise on the aisle floor causing A. U. 's fall. In contrast, Defendant has, at least, provided
surveillance video and images showing the school supplies area and the lack of items on the floor.
The surveillance video establishes that A. U.' s fall occurred outside the frame of the camera,
meaning Plaintiff cannot use the video as evidence of what caused A. U. 's fall. Plaintiff has,
therefore, not provided evidence of any condition on the floor and cannot raise a fact issue on that
element. Accordingly, Defendant has demonstrated the absence of a genuine issue of material fact
regarding any condition on the aisle floor posing an unreasonable risk of harm.
Since Plaintiff has not provided evidence of any condition at Wal-Mart that posed an
unreasonable risk of harm, Plaintiff has failed to establish an essential element of her premises
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liability claim. 1 As such, Plaintiff's premises liabili ty claim fails as a matter of law. The Court
grants Defendant's Motion for Summary Judgment regarding Plaintiffs premises liability claim.
C. Plaintiff's Failure to Maintain Claim
Defendant contends that Plaintiff's failure to maintain claim fails as a matter of law because
"Tex as courts have held that failure to inspect claims fail absent any evidence of constructive
notice." (Doc. No. 15 at 11). 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.); (Doc. No. 15 at 12). Defendant maintains that Plaintiff
"has no evidence that any additional monitoring of the store would have discovered the condition
on the ground because there is no evidence as to the length of time it was on the floor. " (Doc. No.
15 at 12).
In response, Plaintiff asserts that Wal-Mart misstates the standard for constructive notice,
arguing that Plaintiff need not provide "direct evidence showing how long the spilled supplies
were on the floor" but rather can "rely on circumstantial evidence, including the conspicuousness
of the hazard and employee proximity." (Doc. No. 17 at 7). Plaintiff maintains that the hazard of
school supplies and boxes in the walkway was "conspicuous and existed for some time during
which employees and customers traversed the aisle." (Id.). Plaintiff provides her own testimony
that she and her family shopped for about an hour and a half in the school-supply area and that
1 Defendant also asserts that Plaintiff has not provided evidence that Defendant had actual or constructive
notice of any condition on the floor. See (Doc . No. 15 at 7- 11 ). The Court need not address this argument
for the purposes of this Motion since Plaintiff has failed to establish the necessary element of a condition
posing unreasonable risk of harm.
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they were still wait in g in line to pay when A.U. fell , as evidence of the temporal element. See
(Doc. No. 17 at 3, 8); (Doc. No. 15-4 at 20:12- 15 , 21:2- 8) (Deposition of Francisca Garcia).
Further, Plaintiff avers that the surveillance images show that employees and other customers
repeatedly traversed the aisle. (Id. at 3).
Plaintiff also notes that Deborah Chenevert, a Wal-Mart employee, testified that Wal-Mart
relied on a "reactive 'see-it, own-it' system for spills and debris" where maintenance staff
inspected the store throughout the day. (Doc. No. 17 at 4); (Doc. No. 17-1 at 15:21- 16 :6).
Chenevert testified that Wal-Mart did not keep logs showing what areas the maintenance staff had
inspected, (Doc. No. 17-1 at 17: 12- 16) , and Plaintiff argues "this lack of documented inspections"
could be viewed as "evidence that Walmart failed to implement adequate safety protocols." (Id.) .
As previously discussed, the Court has not been provided with any evidence that any school
supplies or cardboard boxes were in fact on the floor of the Wal-Mart aisles or that they caused a
fall. Again, viewing the surveillance video and images, the Court did not see any indication of
items on the floor in the visible aisles. Since the area where A.U. fell was in a different part of the
store and off camera, there is no evidence that there were any items on the floor in that area, much
less for how long they may have been there.
Regardless, Plaintiffs allegations concerning Defendant' s failure to maintain the premises
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). As such, the Court finds that Plaintiff's failure to maintain
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-
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Mart or its employees. Accordingly, the Court grants D efendant's Motion for Summary Judgment
regarding Plaintiffs failure to maintain claim.
D. Plaintiff's Gross Negli ge nce Claim
Defendant asserts that Plaintiffs gross negligence claim fails because "Plaintiff has no
ev idence 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 actions of a vice-principal."
(Doc. No. 15 at 14). Plaintiff does not address Defendant 's argument in her Response. See (Doc.
No. 	17 ). In her Petition, Plaintiff merely asserts that Defendant's actions described above
constitute gross negligence. (Doc. No. 1-2 at 6).
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 right s, safety, or welfare of others." Austin, 746 F.3d at 196 n.2; 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 established above, Plaintiff has not provided evidence satisfying the elements of her
premises liability claim. Specifically, Plaintiff did not show that there was any condition at Wal-
Mart that posed an unreasonable risk of harm. Accordingly, Plaintiff has also failed to satisfy the
elements of her gross negligence claim. Austin, 746 F .3d at 196 n. 2 (requiring plaintiff to satisfy
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the elements of a premises liability claim to succeed on a gross negligence claim). Defendant is
entitled to summary judgment on Plaintiff's claim for gross negligence.
E. 	Plaintifrs Negligent Hiring, Training, Supervision, and Retention Claim
Lastly, Defendant argues that Plaintiff's 	negligent hiring, training, 	supervision, and
retention claim fails because it is rooted in negligence and, as established above, a negligence
claim is a separate, distinct theory ofrecovery from a premises liability claim. See (Doc. No. 15 at
14). Since Plaintiff's claims "lie so lely in premises liability," Defendant avers that this claim must
fail. (Id.). Plaintiff does not respond to this argument in her Response. Her Petition generally
recites the elements of the claim. See (Doc. No. 1-2 at 6).
As previously mentioned, Plaintiff cannot pursue both negligence and premises liability
claims based on the same injury. Austin, 746 F.3d 191 at 197. Plaintiff's claims result from a
condition created by the a ll eged negligent activity of Wal-Mart, meaning they sound in premises
liability. As a result, just as her negligence claim failed, so too does her claim for negligent hiring,
training, supervision, and retention. Shelton v. Wal-Mart Stores Tex. , LLC, 2024 WL 3744402, at
*2 (S.D. Tex. Aug. 8, 2024) (citing Medina v. Costco Wholesale Corp., 2024 WL 1122054, at *2
(N.D. Tex. Mar. 14, 2024) (stating that "claims for respondeat superior and negligent hiring,
retention, training, and supervision fail where the plaintiff fa il s to a ll ege a contemporaneous
activity")). Moreover, Plaintiff has not brought forth any evidence of negligence in hiring, training,
supervision, or retention, nor has she produced any evidence of causation related to this claim.
Accordingly, Defendant's Motion for Summary Judgment is granted regarding Plaintiff's
negligent hiring, retention, training, and supervision claim.
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CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant's Motion for Summary
Judgment. (Doc. No. 15). This matter is hereby dismissed with prejudice. A final judgment will
issue separately.
~
Signed on this -/.L day of March 2026. I~ 1~
Andrew S. Hanen
United States District Judge
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