Prideaux v. Home Depot U.S.A., Inc.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
WARREN PRIDEAUX,
Plaintiff.
V.
HOME DEPOT U.S.A., INC.,
Defendant.
§
§
§
§
§
§
§
§
§
CIVIL ACTION NO. 3:24-cv-00211
OPINION AND ORDER
Pending before me in this slip-and-fall case is a motion for summary
judgment filed by Defendant Home Depot U.S.A., Inc. See Dkt. 34. Having
reviewed the briefing, the record, and the applicable law, I deny the motion as to
the premises liability claim but grant the motion as to the gross negligence claim.
BACKGROUND
On November 5, 2023, Plaintiff Warren Prideaux slipped and fell while
shopping in the outdoor garden center of a Home Depot in Alvin, Texas. On the
day of the incident, Prideaux went to Home Depot for lumber and potting soil.
After using a large, flatbed shopping cart to retrieve the lumber, Prideaux exited
Home Depot’s interior doors leading to the outdoor garden center. Around 9:15
a.m., Prideaux slipped on water on the garden center’s ground and fell, hitting his
tailbone, hip, and head.
On June 11, 2024, Prideaux filed suit against Home Depot in state court,
asserting premises liability. Home Depot timely removed the case to federal court.
In his First Amended Complaint, Prideaux added a gross negligence claim.
Discovery is complete, and Home Depot has moved for summary judgment.
SUMMARY JUDGMENT STANDARD
A movant is entitled to summary judgment “if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment
United States District Court
Southern District of Texas
ENTERED
November 13, 2025
Nathan Ochsner, Clerk
Case 3:24-cv-00211 Document 53 Filed on 11/13/25 in TXSD Page 1 of 11

2
as a matter of law.” Fed. R. Civ. P. 56(a). “A fact is material if it might affect the
outcome of the suit[,] and a factual dispute is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Harville v. City
of Houston, 945 F.3d 870, 874 (5th Cir. 2019) (citation modified).
“The moving party bears the initial burden of showing that there is no
genuine issue for trial.” Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th
Cir. 1995). “For a defendant, this means showing that the record cannot support a
win for the plaintiff—either because the plaintiff has a failure of proof on an
essential element of its claim or because the defendant has insurmountable proof
on its affirmative defense to that claim.” Joseph ex rel. Est. of Joseph v. Bartlett,
981 F.3d 319, 329 (5th Cir. 2020). “If the defendant succeeds on that showing, the
burden shifts to the plaintiff to demonstrate that there is a genuine issue of
material fact and that the evidence favoring the plaintiff permits a jury verdict in
the plaintiff’s favor.” Id.
“To satisfy its burden, the party opposing summary judgment is required to
identify specific evidence in the record, and to articulate the precise manner in
which that evidence supports their claim.” Willis v. Cleco Corp., 749 F.3d 314, 317
(5th Cir. 2014) (citation modified). “It is axiomatic that the evidence of the
nonmovant is to be believed, and all justifiable inferences are to be drawn in his
favor.” Davis v. Davis, 826 F.3d 258, 264 (5th Cir. 2016) (quotation omitted).
“The Supreme Court has recognized that, even in the absence of a factual
dispute, a district court has the power to ‘deny summary judgment in a case where
there is reason to believe that the better course would be to proceed to a full trial.’”
Black v. J.I. Case Co., Inc., 22 F.3d 568, 572 (5th Cir. 1994) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
ANALYSIS
To prevail on his premises-liability claim under Texas law, Prideaux must
establish that: (1) Home Depot had actual or constructive knowledge of a condition
on the premises; (2) “the condition posed an unreasonable risk of harm”; (3) Home
Case 3:24-cv-00211 Document 53 Filed on 11/13/25 in TXSD Page 2 of 11

3
Depot “did not exercise reasonable care to reduce or eliminate the risk”; and
(4) Home Depot’s “failure to use such care proximately caused [Prideaux]’s
injuries.” Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992).
A. 	THERE 	I S 	A 	GENUINE 	D ISPUTE 	A BOUT 	WHETHER 	THE 	WATER
CONSTITUTED AN O PEN AND O BVIOUS CONDITION
The Supreme Court of Texas has stressed “that premises owners are not
strictly liable for conditions that result in injury.” CMH Homes, Inc. v. Daenen, 15
S.W.3d 97, 102 (Tex. 2000). “Generally, premises owners . . . have a duty to protect
invitees from, or warn them of, conditions posing unreasonable risks of harm if the
owners knew of the conditions or, in the exercise of reasonable care, should have
known of them.” Henkel v. Norman, 441 S.W.3d 249, 251 (Tex. 2014). Yet, a
premises owner is not an insurer of an invitee’s safety. See Wal-Mart Stores, Inc.
v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). Accordingly, a premises owner has
no duty to protect invitees from, or warn against, conditions that are “open and
obvious.” Hillis v. McCall, 602 S.W.3d 436, 440 (Tex. 2020).
As the Supreme Court of Texas has explained:
When the condition is open and obvious or known to the
invitee . . . , the landowner is not in a better position to discover it.
When invitees are aware of dangerous premises conditions—whether
because the danger is obvious or because the landowner provided an
adequate warning—the condition will, in most cases, no longer pose
an unreasonable risk because the law presumes that invitees will take
reasonable measures to protect themselves against known risks,
which may include a decision not to accept the invitation to enter onto
the landowner’s premises.
Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 203 (Tex. 2015).
“Whether a danger is open and obvious is a question of law determined
under an objective test. The question is whether the danger is so open and obvious
that 	as 	a 	matter 	of 	law 	the 	plaintiff 	will 	be 	charged 	with 	knowledge 	and
appreciation thereof.” Los Compadres Pescadores, L.L.C. v. Valdez, 622 S.W.3d
771, 788 (Tex. 2021) (citation modified). Thus, “the question is not what the
plaintiff subjectively or actually knew but what a reasonably prudent person would
Case 3:24-cv-00211 Document 53 Filed on 11/13/25 in TXSD Page 3 of 11

4
have known under similar circumstances.” Id. “The common denominator” in
cases where Texas and federal courts have found conditions to be open and obvious
“is distinctive, conspicuous features inherent in the condition relative to its
surroundings, the extent to which the condition is unobscured from view, and the
fact that the plaintiff was, or a reasonable person—with plaintiff’s degree of
familiarity 	under 	similar 	circumstances—would 	have 	been, 	aware 	of 	the
condition.” Ille v. Lowe’s Home Ctrs., LLC, No. 1:20-cv-143, 2021 WL 6063112, at
*5 (N.D. Tex. Dec. 20, 2021) (collecting cases).
Home Depot contends that Prideaux’s premises liability claim fails because
“water on the ground in the uncovered garden center filled with plants during the
day is an open and obvious dangerous condition.” Dkt. 34 at 9. Prideaux retorts
that he slipped, not just on water on the ground, but “on a dangerous combination
of water, mud, and algae that Home Depot had allowed to accumulate on their
garden center floor.” Dkt. 35 at 1. Prideaux’s expert, Jason English, will opine that:
[P]roperly finished exterior concrete and asphalt surfaces should
retain adequate slip resistance under normal wet conditions, and
therefore the appearance of wetness on an exterior textured concrete
walkway would not necessarily alert a common retail customer that
the surface is slippery. However, when such water pools in areas, or is
combined with the soil and debris created from the plant watering
process, and/or the presence of algae or mildew in some areas, the
slippery 	condition 	created 	may 	not 	be 	reasonably 	perceived 	or
expected by a customer. That is, even if water on an exterior surface is
seen, 	any 	danger 	associated 	with 	such 	water, 	particularly 	in
combination 	with 	the 	water 	pooling, 	soil/mud, 	debris, 	and
algae/mildew, may not be reasonably appreciated or obvious to a
customer, based on common experiences on exterior sidewalks,
parking lots, and other exterior surfaces that are reasonably slip
resistant even when water is present.
Dkt. 52 at 17.
In its reply brief, Home Depot acknowledges English’s opinion “that the
mere appearance of liquid on exterior concrete would not necessarily indicate it
being slippery.” Dkt. 36 at 3. Yet, Home Depot offers no competent summary
judgment evidence or argument in response. Instead, Home Depot argues only
Case 3:24-cv-00211 Document 53 Filed on 11/13/25 in TXSD Page 4 of 11

5
that “the distinction between wet and dry concrete is extremely apparent.” Id. at 4.
Indeed, it is. But Prideaux’s argument is that the water, which is itself apparent, is
not an open and obvious dangerous condition when combined with algae and
mildew growth that make the concrete more slippery than normal when wet. Home
Depot’s failure to respond to that assertion creates a genuine dispute of material
fact as to whether the water on the ground in the garden center was an open and
obvious dangerous condition.
In O’Connor v. Wal-Mart Stores Texas, L.L.C., the Fifth Circuit held that the
district court erred in granting summary judgment in Wal-Mart’s favor on the
plaintiff’s premises liability claim because a reasonable jury could have found that
unnatural algae growth on the sidewalk outside the garden center where plaintiff
slipped was an unreasonably dangerous condition. See No. 21-40609, 2023 WL
316368, at *3 (5th Cir. Jan. 19, 2023). Unlike in O’Connor, the parties here have
focused their dispute, not on whether the water was an unreasonably dangerous
condition, but whether it was an open and obvious condition. Regardless, the same
logic deployed in O’Connor applies here.
The evidence in the summary judgment record creates a genuine dispute of
material fact as to whether a reasonably prudent person would have been aware
that the garden center’s concrete floor was slippery even when wet, due to the
presence of algae and mildew growth. Accordingly, Home Depot is not entitled to
summary judgment on the argument that the water constituted an open and
obvious dangerous condition of which it had no duty to warn Prideaux.
B. 	THERE 	I S 	A 	GENUINE 	D ISPUTE 	A BOUT 	THE 	A DEQUACY 	OF 	HOME
D EPOT ’S WARNINGS
Home Depot next argues that, even if the water was not an open and obvious
condition, it adequately warned Prideaux of the condition.
“If the evidence conclusively establishes that the property owner adequately
warned the injured party of the condition, then the property owner was not
negligent as a matter of law.” Henkel, 441 S.W.3d at 252. A warning is adequate “if,
Case 3:24-cv-00211 Document 53 Filed on 11/13/25 in TXSD Page 5 of 11

6
given the totality of the surrounding circumstances, the warning identifies and
communicates the existence of the condition in a manner that a reasonable person
would perceive and understand.” Id. at 253. To be adequate, a warning must
“identify the particular hazard.” TXI Operations, L.P. v. Perry, 278 S.W.3d 763,
765 (Tex. 2009).
To enter the garden center from Home Depot’s interior, Prideaux passed
through two automatic sliding glass doors, each of which bore a yellow caution
warning that spanned the width of the door and warned, “CAUTION Plants Are
Watered Frequently Floors Are Slippery,” as shown below:
Dkt. 34-2 at 1.
Case 3:24-cv-00211 Document 53 Filed on 11/13/25 in TXSD Page 6 of 11

7
Dkt. 52 at 18. There is no question that these warnings communicate the particular
hazard: slippery floors. Prideaux maintains, however, that these warnings were
approximately “120–130 feet away” from where he fell. Dkt. 35 at 7. Additionally,
“[w]hen the sliding doors open, the warning slides to the side and is not visible to
customers entering.” Id.
In its reply brief, Home Depot reiterates that “there was a sign on the door
[that Prideaux] walked through.” Dkt. 36 at 7. Yet, Home Depot fails to engage with
the crux of Prideaux’s argument: that the sign was meaningless because it was far
from where Prideaux fell, and its placement on a sliding glass door means that it
slid out of view. Because Home Depot fails to address these assertions of fact, I
consider it undisputed for the purposes of this summary judgment motion that the
“warning strip on the sliding glass doors was 120–130 feet away from where Mr.
Prideaux fell,” and that “the warning slides to the side and is not visible to
customers entering.” Dkt. 35 at 7; see also Fed. R. Civ. P. 56(e)(2). Accordingly,
Home Depot is not entitled to summary judgment on the argument that the
sliding-glass-door warnings adequately warned Prideaux of the danger of slippery
floors in the garden center.
Home Depot also argues that the “cone sign on the ground [that Prideaux]
passed” constituted an adequate warning. Dkt. 36 at 7. The record includes several
photographs of the area where Prideaux fell, taken shortly after the incident. One
photograph shows a yellow wet-floor sign that Prideaux would have passed on his
left after entering the doors of the garden center:
Case 3:24-cv-00211 Document 53 Filed on 11/13/25 in TXSD Page 7 of 11

8
Dkt. 36-1 at 3. Prideaux disputes that this cone was near his fall. But whether
Prideaux saw the cone, or whether it was near his fall, misses the point. There is
nothing in the record to indicate that the yellow cone warned of the particular
hazard: slippery floors.
As 	discussed 	above, 	English’s 	expert 	report 	is 	competent 	summary
judgment 	evidence 	suggesting 	that 	a 	reasonable 	shopper 	would 	not 	have
understood the exterior concrete floors of the garden center to be slippery even
when wet. Thus, even if Prideaux saw the yellow wet-floor cone, there is still a
genuine dispute of material fact as to whether the cone was a legally adequate
warning that the floor was slippery. Accordingly, Home Depot is not entitled to
summary judgment on the argument that the yellow wet-floor sign adequately
warned Prideaux of the danger of slippery floors in the garden center.
C. 	G ROSS NEGLIGENCE
Prideaux asserts “that all acts, conduct, and/or omissions on the part [Home
Depot], taken singularly or in combination, constituted gross negligence and were
the proximate cause of [his] injuries and damages.” Dkt. 13 at 4. Home Depot
argues that even if Prideaux prevails on his premises liability claim, his gross
negligence claim should fail.
Case 3:24-cv-00211 Document 53 Filed on 11/13/25 in TXSD Page 8 of 11

9
Negligence is the failure to use ordinary or due care—the failure to act as a
reasonably 	prudent 	person 	would 	have 	acted 	under 	the 	same 	or 	similar
circumstances. See 20801, Inc. v. Parker, 249 S.W.3d 392, 398 (Tex. 2008).
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.” State v. Shumake, 199 S.W.3d 279, 286 (Tex. 2006) (citations
omitted).
Austin, 746 F.3d at 196 n.2. The objective element of this test is the extreme degree
of risk; the subjective element is the defendant’s actual awareness of the risk while
proceeding with conscious indifference. See U-Haul Int’l, Inc. v. Waldrip, 380
S.W.3d 118, 137 (Tex. 2012). To prove these elements, Prideaux must offer “proof
that will produce in the mind of the trier of fact a firm belief or conviction as to the
truth of the allegations sought to be established.” Id.
I will assume for the sake of argument that Prideaux can establish the
objective, extreme degree of risk. Even so, Prideaux cannot establish that Home
Depot acted with actual awareness and conscious indifference to the rights, safety,
or welfare of others.
Prideaux quotes Winn-Dixie Texas, Inc. v. Buck, for the proposition that the
summary judgment “evidence demonstrates that Home Depot ‘simply did not care
whether [anyone] slipped on the water or not,’ which constitutes gross negligence.”
Dkt. 35 at 13 (quoting 719 S.W.2d 251, 254 (Tex. App.—Fort Worth 1986)). But the
negligence in Winn-Dixie is far afield of the garden-variety negligence that
Prideaux alleges here. In Winn-Dixie, the store manager was aware of a problem
with a clogged drain in a produce area that caused water to accumulate on the floor
indoors, and the evidence showed “that the employees of Winn-Dixie either knew
or should have known of the water on the floor.” 719 S.W.2d at 253. Moreover, the
trial court admitted into evidence accident reports “for a period of several years
prior” to the plaintiff’s fall, all of which “involved falls by customers slipping on
Case 3:24-cv-00211 Document 53 Filed on 11/13/25 in TXSD Page 9 of 11

10
water on the floor, with the water generally leaking from some display case,” and
many of which “involved clogged up drains.” Id. at 254. As proof that Winn-Dixie
“did not care” about this known risk, the appellate court pointed to the fact
that there was no effort to repair the drain, and “no effort was made to block off
the area, put up a sign in the area, or to post someone at the area where the store
employees knew or should have known that water was accumulating.” Id. The gross
negligence described in Winn-Dixie bears little resemblance to the negligence
alleged here.
To start, Home Depot did not have a recurring maintenance problem that it
made no effort to repair. Watering plants at a garden center is a routine activity.
More importantly, unlike in Winn-Dixie, Home Depot placed signs in the area
alerting customers to the wet floor and, by way of the sliding-glass door, alerted
customers that the floors were slippery. That those warnings may have been legally
inadequate is not proof of gross negligence. The warnings are themselves evidence
that Home Depot cared about mitigating the risk of the slippery floors in its garden
center.
Prideaux points to prior slip-and-falls at the garden center as proof that
Home Depot was actually aware of and consciously indifferent to the hazard:
Home Depot’s own records document at least two prior incidents in
the garden center involving water from watering operations: on May
5, 2021, a customer “slipped and fell coming back in the garden
entrance” while a “Garden associate was watering,” and on July 27,
2023—just three months before Mr. Prideaux’s incident—another
customer was “walking through outside Garden between plant tables”
when “he saw water on ground and tried to walk around it but it ended
up slipping.”
Dkt. 35 at 11–12.
“Evidence of other accidents, near accidents, or related similar events has
long been recognized as probative evidence in Texas courts” when it is established
that (1) the conditions were similar or reasonably similar; (2) the conditions are
connected in some special way; and (3) “the incidents occurred by means of the
Case 3:24-cv-00211 Document 53 Filed on 11/13/25 in TXSD Page 10 of 11

11
same instrumentality.” Winn-Dixie, 719 S.W.2d at 254 (quotation omitted). Here,
Prideaux has not offered enough evidence to establish an adequate predicate for
permitting consideration of these incidents. As to the first incident, it is unclear
whether the person slipped in the outdoor garden center like Prideaux, or inside
the store after returning from the garden center. As to the second incident, it is
unclear what instrumentality caused the customer’s fall. Yes, water was involved
because the customer saw water and tried to walk around it, but that in itself does
not mean that the customer actually slipped on the water. Given these unexplained
differences, there is simply no adequate predicate for considering these two other
slip-and-fall incidents.
Because Prideaux has not carried his burden to demonstrate by clear and
convincing evidence that Home Depot acted with actual awareness and conscious
indifference to the rights, safety, and welfare of others, Home Depot is entitled to
summary judgment on Prideaux’s gross negligence claim.
CONCLUSION
For the reasons discussed above, Home Depot’s motion for summary
judgment (Dkt. 34) is denied as to Prideaux’s premises liability claim but granted
as to his gross negligence claim.
SIGNED this ____ day of November 2025.
______________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE
Case 3:24-cv-00211 Document 53 Filed on 11/13/25 in TXSD Page 11 of 11