Riley v. Nike Retail Services, Inc.

CLIFTON RILEY,
Plaintiff,
VS.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
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§ 	CIVIL ACTION NO. 4:24-CV-03755
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NIKE RETAIL SERVICES, INC., 	§
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Defendant. 	§
ORDER
Pending before this Court is Defendant NIKE Retail Services, Inc.' s ("Defendant" or
"NIKE") Motion to Deem Requests for Admission Admitted (Doc. No. 15), Plaintiff Clifton
Riley 's ("Plainti ff' or "Riley"). Motion to Withdraw Deemed Admissions (Doc. No. 21, 22),
Defendant's Motion for Summary Judgment (Doc. No. 27), and Defendant's Motion to Strike
Plaintiff's Summary Judgment Evidence (Doc. No. 31). Plaintiff responded to Defendant's
Motion for Summary Judgment, and Defendant filed a reply brief. (Doc. Nos. 29, 30). Upon
close review of the filings, admissible summary judgment evidence, and the relevant legal
standards, this Court hereby grants Defendant 's Motion for Summary Judgment and dismisses
the case with prejudice.
I. 	Factual Background
This case arises from a trip-and-fall incident in a NIKE retail store. On August 15,
2022, Riley visited the NIKE retail store located in Cypress, Texas. (Doc. No. 1-2 at 3). The
store is owned and operated by the Defendant. (Doc. No. 2 at 2). While at the store, Riley was
escorted to the fitting rooms through a hallway by a store employee. (Doc. No. 27-1 at 2).
United States District Court
Southern District of Texas
ENTERED
January 27, 2026
Nathan Ochsner, Clerk
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Before Riley entered the fitting room, he tripped and fe ll over a large metal object on the floor.
(Id.) . Riley hit his head on the stall, and he injured his back, shoulder, elbow, feet, toes, and
knee. (Id.). After the incident, the store employee offered some assistance, including offering
to dial 9-1-1 , providing him with a chair and water, and drafting an incident report. (Id.). Soon
after, Riley received medical treatment for his injury, including a trip to an urgent care facility
and over a year of chiropractic treatment. (Doc. No. 27-2).
Nearly two years after the incident, Plaintiff filed this lawsuit against NIKE in Harris
County, Texas state court, alleging that NIKE is liable for negligence and premises liability.
(Doc. No. 1-2). NIKE properly removed the case to this Court on the basis of diversity
jurisdiction. (Doc. No. 1). NIKE filed this Motion for Summary Judgment (Doc. No. 27) on
both claims. The Court considers the admissible summary judgment evidence below.
II. 	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). It is the
responsibility of the parties to specifically point the Court to the pertinent evidence, and its
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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.
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 .
III. 	Analysis
Plaintiff pleaded two separate causes of action against Defendant: (1) negligence and
(2) premises liability. NIKE requests this Court to grant summary judgment on both causes of
action. (Doc. No. 27). The Court reviews the admissible summary judgment evidence on each
of these claims, in tum, and grants summary judgment on both claims. 1
1 The Court briefly notes that NIKE has a pending request to deem any of the Plaintiffs
unanswered Requests for Admission as factually "admitted" for the purpose of its Motion for
Summary Judgment (Doc. No. 	15) . The Plaintiff promptly responded to this request and
demonstrated some e-mail miscommunication. (Doc. Nos. 21, 22) . NIKE later confirmed that it
had received the requested responses to the Requests for Admission. (Doc. No. 23). Since the
Plaintiff did provide the responses (albeit, after the deadline to do so), the Court will not consider
the "unanswered" requests as factually "admitted." NIKE's request (Doc. No. 15) is denied.
The Court is also in receipt NIKE' s objections to the Plaintiffs summary judgment evidence.
(Doc. No. 31). This Order does not reference or incorporate any of the exhibits listed in the
objections.
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A. Negligence
Plaintiff alleges that NIKE owed a duty to use ordinary care to maintain the premises
in a safe condition by inspecting the property for any dangerous conditions and that NIKE
breached that duty by allowing a metal object to remain in the hallway. (Doc. No. 1-2 at 4) .
NIKE argues that well-established Texas law does not permit the Plaintiff to bring a negligence
claim and a premises liability claim when the incident arises from the condition of the
property- 	not a contemporaneous negligent action. (Doc. No. 28). The Court grants summary
judgment on the negligence claim.
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 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,
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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)).
In this case, NIKE argues that Plaintiffs claims arise from a condition in the hallway
of the store-not any contemporaneous, negligent activity of the store owner or employee.
(Doc. No. 28 at 10). Specifically, NIKE contends that because the Petition only alleges that
"the Plaintiff tripped on a huge metal [sic] placed on the hallway floor," the Plaintiff has failed
to establish any genuine issue of material fact that the store was negligent. (Id.). Nevertheless,
Plaintiff argues that the improper management of the fitting room is contemporaneous conduct
sufficient to support a negligence theory of liability. (Doc. No. 29 at 6). While Plaintiff
identifies the overall poor management of the fitting room area, Plaintiff still does not identify
any 	affirmative 	action 	taken 	by 	the 	store 	employee 	that 	could 	be 	considered 	as 	a
contemporaneous, negligent action. Plaintiff did not provide any evidence of the existing
standard of care or any evidence of specific negligent acts or omissions taken by NIKE or its
employees. 2 Therefore, even if this claim was truly a negligence claim instead of a premises
liability claim, the claim would fail because the Plaintiff has not raised a fact issue. That being
said, even in his Interrogatory Responses, Plaintiff stated that "I was walking to the back to try
on some clothing, the doors were locked to the dressing room. There are assistant [sic] that
helps you to unlock dressing room doors, as we were walking I tripped and fell over a metal
bar they had laying on the floor." (Doc. No. 27 -1 at 2). Plaintiffs own narrative of incident
demonstrates that the employee did not take any contemporaneous action that could have
2 The Court notes that the Plaintiff only provided a handful of blurry photographs and a set of
interrogatory responses as summary judgment evidence. (Doc. No . 29). None of the evidence
supports the Plaintiff's contention that NIKE or its employees were negligent.
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contributed to the fall. Instead, the root of the Plaintiffs theory of liability is the condition of
the premises, which is the well-established definition of a premises liability claim. Therefore,
Plaintiff is not entitled to bring a negligence claim as a matter of law. Defendant's Motion for
Summary Judgment is granted as to Plaintiffs negligence claim.
B. Premises Liability
Plaintiff also alleges that NIKE had a duty to ensure that the premises was free of any
unreasonably dangerous conditions and that NIKE breached that duty when it allowed the large
piece of metal to remain on the floor without providing any warning signs. (Doc. No. 1-2). 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). Nevertheless, "[a]s in any negligence action, a defendant in a premises liability case is
liable only to the extent it owes the plaintiff a legal duty." Lopez v. Ensign US S. Drilling,
LLC, 524 S.W.3d 836, 846 (Tex. App.- 	Houston [14th Dist.] 2017).
As a preliminary matter, this Court must determine whether NIKE owed the Plaintiff a
duty of care to mitigate the potential danger presented by the metal object in the hallway. The
existence of a duty is a question of law for the Cami. Id. Under Texas law, "a property owner
owes invitees a duty to use ordinary care to reduce or eliminate an unreasonable risk of harm
created by a premises condition that the property owner knew or should have known about."
Id. (citing Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex. 2010)). As the Supreme
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Court of Texas has described, "[t]his general rule is consistent with the reasons for imposing
a duty on landowners in the first place." Austin v. Kroger Texas, L.P., 465 S.W.3d 193 , 203
(Tex. 2015). While "[t]he landowner is typically in a better position than the invitee to be
aware of hidden hazards on the premises," the law changes when the condition is "open and
ob vious." Id. In that case, "the landowner is not in a better position to discover it," and "the
law presumes that invitees will take reasonable measures to protect themselves against known
risks." Id. As such, "a landowner generally has no duty to warn of hazards that are open and
obvious or known to the invitee." Id. at 204.
IKE contends that the metal object in the hallway was an "open and obvious"
condition on the premises, and therefore, it had no legal duty to mitigate the alleged danger.
"Whether a condition is open and obvious is a question of law and is determined under an
objective test." Oliver v. Wal -Mart Stores Tex. , LLC, 748 F. Supp. 3d 433 , 436 (N.D. Tex.
2024) (citing Los Compadres Pescadores, L.L.C. v. Valdez , 622 S.W.3d 771 , 788 (Tex. 2021)).
This inquiry is "not controlled by whether the invitee had personal, subjective knowledge or
awareness" of the dangerous condition. Id. (quoting Martin v. Gehan Homes Ltd. , 2008 WL
2309265, at *2 (Tex. App.- 	Austin 2008, no pet.)). Instead, "[a] condition is open and obvious
when the evidence ' conclusively establishes ' that, under a totality of the circumstances, a
reasonably prudent invitee would have knowledge and a full appreciation of the nature and
extent of the danger." Id. (citing Los Compadres, 622 S.W.3d at 788). Courts generally treat
"unobscured, 	stationary 	impediments 	which 	can 	be 	easily 	distinguished 	from 	their
surroundings as open and obvious as a matter of law." Maldonado v. AEP Texas Inc. , 681 F.
Supp. 3d 704 , 709- 10 (S .D. Tex. 2023) (citing a string of cases that found open and obvious
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conditions, such as Ille v. Lowe's Home Ctrs., LL C, No. 20 -CV-143-H, 2021 WL 6063112, at
*9 (N.D. Tex. Dec. 20 , 2021) (unattended flatbed cart); Rincon v. Home Depot US.A ., Inc. ,
No. 17-CV-02909-X, 2019 WL 6118406, at *3--4 (N.D. Tex. Nov. 15 , 2019) (nylon strap on
floor) ; Dunn v. Wal-Mart Stores, Inc ., No. 17 -CV-1187-K, 2018 WL 4772408, at *3 (N.D.
Tex. Oct. 2018) (wrinkled floor mat); Culotta v. DoubleTree Hotels, LLC, No. 01 - 18 -00267-
CV, 2019 WL 2588103, at *4 (Tex. App.-Houston [1st Dist.] June 25 , 2019, pet. denied)
(ankle-high water-feature ledge)).
Viewing the facts in the light most favorable to the Plaintiff, the Court finds that the
metal object was an open and obvious condition of the premises, and thus, NIKE did not owe
any legal duty to the Plaintiff. First, the Court notes that the photographs of the metal object
clearly show that it was in plain view and easily distinguishable from its surroundings. (Doc.
No. 27-2 at 13) . While neither party provided any measurements of the object or other
photographs to demonstrate its scale, the photograph provided (and included in the Plaintiffs
Complaint) shows that the object was a different color from the floor and significantly raised
from the ground. (Id.; Doc. No. 1-2 at 3) . The Plaintiff did not provide any evidence that the
metal object was blocked, hidden, or obscured in any way. The Plaintiff also did not provide
any evidence that the metal object was moving or presented any unique dangers. From the
photographic evidence, the Court finds that "a reasonably prudent invitee would have
knowledge and a full appreciation of the nature and extent of the danger" of the metal object
in the hallway, and the reasonably prudent invitee would in no better position than the
landowner to discover it. Oliver, 748 F. Supp. 3d at 436 . The Court finds that this metal object
was an "unobscured, stationary impediment[] which [could] be easily distinguished from [its]
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surroundings as open and obvious" contemplated by Texas law. See Maldonado, 681 F. Supp.
3d at 709-10 (finding that a rolled-up carpet satisfied this definition). Finding that the metal
object was an open and obvious condition, the Court therefore holds that NIKE did not owe
the Plaintiff a legal duty to mitigate the metal object or provide any warning.
Recognizing that "a defendant in a premises liability case is liable only to the extent it
owes the plaintiff a legal duty," Lopez, 524 S.W.3d at 846, the Court hereby grants NIK.E's
Motion for Summary Judgment (Doc. No. 27) as to the premises liability claim.
IV. 	Conclusion
For the foregoing reasons, the Court hereby grants NIK.E's Motion for Summary
Judgment (Doc. No. 27) on each of Plaintiffs causes of action. All other pending motions are
denied as moot. The Court hereby dismisses this action with prejudice. An order compliant
with Federal Rule of Civil Procedure 58 will follow this entry.
It is so ordered.
~
Signed on this the 	'l--1 	day of January 2026.
Andrew S. Hanen
United States District Judge
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