Mottu v. Wal-Mart Stores Texas, L.L.C. et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DIONYSIA MARIE MOTTU, §
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Plaintiff,
v.
WAL-MART STORES TEXAS, LLC
and SUSANA DISLA,
Defendants.
CIVIL ACTION NO. H-24-4486
MEMORANDUM OPINION AND ORDER
Dionysia Marie Mottu ("Plaintiff") brought this action against
Wal-Mart Stores Texas, LLC ("Wal-Mart") and Susana Disla
(collectively referred to as nDefendants") in the 165th District
Court of Harris County, Texas, alleging negligence and premises
liability. 1 Pending before the court is Defendants Wal-Mart Stores
Texas, LLC and Susana Disla's Motion for Summary Judgment
("Defendants' MSJ") (Docket Entry No. 20). For the reasons stated
below, Defendants' MSJ will be granted and this action will be
dismissed with prejudice.
I. Background
Plaintiff alleges that on or about June 26, 2023, at the
Wal-Mart store located at 5655 East Sam Houston Parkway North,
1Plaintiff's Original Petition, Jury Demand, and Rule 193.7
Notice ("Petition"), Exhibit B to Notice of Removal, Docket Entry
No. 1-2, pp. 4-7. All page numbers reference the pagination
imprinted at the top of the page by the court's Electronic Case
Filing system.
United States District Court
Southern District of Texas
ENTERED
March 20, 2026
Nathan Ochsner, Clerk
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Houston, Texas, a BBQ grill fell from a shelf and struck her on the
back of her head and upper body. 2 At the time of the alleged
incident, the Wal-Mart store was being remodeled, which involved
rearranging certain merchandise. 3
Plaintiff brought this action against Defendants in the 165th
District Court of Harris County, Texas, on October 9, 2024,
asserting claims of (1) premises liability, (2) vicarious
liability, (3) ordinary negligence, and (4) negligent training and
supervision. 4 Plaintiff also asserted claims of (1) ordinary
negligence and (2) negligent supervision against Susana Disla, the
manager of the Wal-Mart store at the time of the alleged incident. 5
Defendants removed the action to this court based on diversity
jurisdiction on November 14, 2024. 6
On February 12, 2026, Defendants filed a Motion for Summary
Judgment arguing that each of Plaintiff's claims fail as a matter
2 Id. at 3 1 4.1.
3 Plaintiff's Response in Opposition to Defendants' Motion for
Summary Judgment ("Plaintiff's Response") , Docket Entry No. 21,
pp. 9-11; Oral and Videotaped Deposition of Susana Disla ("Disla
Deposition"), Exhibit C to Plaintiff's Response, Docket Entry
No. 21-3, p. 12 (depo p. 45 lines 4-25).
4Petition, Exhibit B to Notice of Removal, Docket Entry
No. 1-2, pp. 1, 4-5; Plaintiff conceded her claims of negligent
hiring and negligent retention. Plaintiff's Response, Docket Entry
No. 21, pp. 12-14.
5 Petition, Exhibit B to Notice of Removal, Docket Entry
No. 1-2, pp. 5-6.
6Notice of Removal, Docket Entry No. 1, p. 1.
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of law.7 Plaintiff filed a response on March 4, 2026, 8 and
Defendants replied on March 11, 2026. 9
II. Summary Judgment Standard
"The court shall grant summary judgment 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). 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 fails 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." Id. 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
7Defendants' MSJ, Docket Entry No. 20, pp. 5-6.
8 Plaintiff's Response, Docket Entry No. 21.
9Defendants' Wal-Mart Stores Texas, LLC and Susana Disla's
Reply to Plaintiff's Response to Defendants' Motion for Summary
Judgment ("Defendants' Reply"), Docket Entry No. 32.
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Cir. 2024). "'The burden on the nonmoving party is not a heavy
one; the nonrnoving party simply is required to show specific facts,
as opposed to general allegations, that present a genuine issue
worthy of trial.'" Swope v. Columbian Chemicals Co., 281 F.3d 185,
197 (5th Cir. 2002} (quoting l0A Wright, Miller & Kane, Federal
Practice and Procedure § 2727, at 490 (3d ed. 1998}).10 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 nonrnovant 1 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
Although Disla and Plaintiff are both citizens of Texas,
Defendants removed the action to this court based on diversity
jurisdiction.11 Defendants then moved for summary judgment on each
of Plaintiff 1 s claims against Wal-Mart.12
10 see also l0A Wright, Miller, & Kane, Federal Practice &
Procedure § 2727.2, at 501 (4th ed. 2016} (same).
11Notice of Removal, Docket Entry No. 1, p. 1 1 1, p. 2 11 5-7,
p. 3 111, p. 4 113.
12Defendants' MSJ, Docket Entry No. 20.
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Before the court may address Defendants' MSJ, the court must
first determine whether it has subject matter jurisdiction over
this action.
A. The court has subject matter jurisdiction.
Plaintiff asserts claims of (1) ordinary negligence and
(2) negligent supervision against defendant Disla. 13 Defendants
argue that Disla is improperly joined because Plaintiff has failed
to state a claim against Disla under Texas law, which precludes a
plaintiff from bringing negligence or premises liability claims
against both a company and a company's employee who is acting
within the scope of his or her employment duties.14
Federal courts "must consider [subject matter] jurisdiction
sua sponte if not raised by the parties." Howery v. Allstate
Insurance Co., 243 F.3d 912, 919 (5th Cir. 2001). "To properly
allege diversity jurisdiction under § 1332, the parties need to
allege 'complete diversity[,] 1 [which] means 'all persons on one
side of the controversy [must] be citizens of different states than
all persons on the other side.'" Midcap Media Finance, L.L.C. v.
Pathway Data, Inc., 929 F.3d 310, 313 (5th Cir. 2019} (quoting
McLaughlin v. Mississippi Power Co., 376 F.3d 344, 353 (5th Cir.
2004)). "But, a case may be removed despite a non-diverse
defendant, if that defendant was improperly joined." Frisby V.
13 Petition, Exhibit B to Notice of Removal, Docket Entry
No. 1-2, pp. 5-6.
14Notice of Removal, Docket Entry No. 1, pp. 3-4 11 11-12.
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Lumbermens Mutual Casualty Co., 500 F.Supp.2d 697, 698 (S.D. Tex.
2007). "The Fifth Circuit has recognized two ways to establish
improper joinder: (1) actual fraud in the pleading of jurisdic
tional facts, or (2) inability of the plaintiff to establish a
cause of action against the non-diverse party in state court." Id.
at 699 (quoting Smallwood v. Illinois Central Railroad Co., 385
F.3d 568, 573 (5th Cir. 2004)) (internal quotation marks omitted).
A court determines whether the plaintiff is unable to
establish a cause of action under state law against the non-diverse
defendant by conducting "'a Rule 12 (b) (6)-type analysis.'"
International Energy Ventures Management, L.L.C. v. United Energy
Group, Ltd., 818 F.3d 193, 200 (5th Cir. 2016) (quoting Smallwood,
385 F.3d at 573). "'To pass muster under Rule 12 (b) (6) , [a]
complaint must have contained enough facts to state a claim to
relief that is plausible on its face.'" Id. (quoting Reece v.
United States Bank National Ass'n, 762 F.3d 422, 424 (5th Cir.
2014) (internal quotation marks omitted).
Examining Plaintiff's Petition under a Rule 12 (b) (6)-type
analysis, it is clear that the allegations of the Petition, "if
true would not establish claims under state law, against [Disla],
for negligence [or] premises liability." Kutchinski v. Costco
Wholesale Co:r:p., Civil Action No. 4:22-CV-00083, 2022 WL 1809308,
at *3 (S.D. Tex. June 1, 2022). In Tri v. J.T.T., 162 S.W.3d 552
(Tex. 2005), the Texas Supreme Court explained that �'individual
liability [of an employee] arises only when the [employee] owes an
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independent duty of reasonable care to the injured party apart from
the employer's duty.'" Id. at 562 (emphasis added). Applying the
holding of J.T.T., district courts in the Fifth Circuit have held
that Texas law "preclude[s] a plaintiff from bringing negligence
[or premises liability] claims against both a company and a company
employee acting within the scope of his or her employment duties."
Kutchinski, 2022 WL 1809308, at *3; Solis v. Wal-Mart Stores East,
L.P., 617 F.Supp.2d 476, 481 (S.D. Tex. 2008) (premises liability);
Bourne v. Wal-Mart Stores, Inc., 582 F.Supp.2d 828, 837 (E.D. Tex.
2008).
Because Plaintiff has failed to allege that Disla owes her an
independent duty, 15 Plaintiff has failed to state a claim under
state law against Disla. Accordingly, Disla was improperly joined
as a defendant and will not be considered in determining if the
case was properly removed based on diversity jurisdiction. Because
Plaintiff is a citizen of Texas and Wal-Mart is a citizen of
Delaware and Arkansas and because the amount in controversy exceeds
$75,000,16 the court has diversity jurisdiction over this action.
B. Plaintiff is precluded from asserting her ordinary negligence
claims.
"Under Texas law, a person injured on another's property has
two potential but mutually exclusive causes of action against the
15 Petition, Exhibit B to Notice of Removal, Docket Entry
No. 1-2, pp. 5-7 11 7.1-7.4; Notice of Removal, Docket Entry No. 1,
pp. 3-4 ,, 11-12.
16Notice of Removal, Docket Entry No. 1, p. 2 11 5-6, p. 3
,, 9-10.
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owner of the property: (1) an ordinary negligence claim arising
from a negligently conducted activity on the premises, or (2) a
premises liability claim for an unreasonably dangerous condition on
the premises." Lopez v. Ensign U.S. Southern Drilling, LLC, 524
S.W.3d 836, 845 {Tex. App.-Houston [14th Dist.] Mar. 21, 2017, no
pet.) {citing Clayton W. Williams Jr., Inc. v. Olivo, 952 S.W.2d
523, 527 {Tex. 1997)) . Because Plaintiff's Petition asserts a
premises liability claim based on an unreasonably dangerous
condition, 17 Plaintiff is precluded under Texas law from asserting
her ordinary negligence claim, her vicarious liability claim, and
her negligent training and supervision claim against Wal-Mart.
Id.; see also Driskell v. Concrete Raising Corporation, NO. 14-19-
00117-CV, 2021 WL 1184400, at *11 (Tex. App.-Houston [14th Dist.]
Mar. 30, 2021, no pet.) ("Because [plaintiff's] claims in this case
stem from an alleged premises defect, she cannot recast them in
negligence. [Plaintiff's] claims for negligence, negligent hiring,
negligent undertaking, negligence per se, and gross negligence
17Petition, Exhibit B to Notice of Removal, Docket Entry
No. 1-2, p. 4 1 5.2 {stating that Wal-Mart owed a duty to Plaintiff
"to exercise ordinary care in their ownership, possession, control,
maintenance, and use of Defendant's premises to reduce or eliminate
the unreasonable risk of harm created by a condition on Defendant's
premises which Defendant knew about, or in the exercise of ordinary
care, should have known about"). The duty described in the Peti
tion is the duty a property owner owes to an invitee. See Lopez,
524 S.W.3d at 846 {"Generally 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.").
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against [Defendant] are not viable. . ") . Therefore,
Plaintiff's only remaining claim is her premises liability claim.
C. Defendants are entitled to summary judgment on Plaintiff's
premises liability claim.
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 of the
condition causing the injury; ( 2) the condition posed an
unreasonable risk of harm; (3) the property owner failed to take
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).18
18Plaintiff asserts standalone claims for Wal-Mart's alleged
failure to inspect and failure to maintain a safe premises.
Plaintiff's Response, Docket Entry No. 21, pp. 11-12. To recover
for a breach of the duty to maintain or inspect, a plaintiff must
prove that the landowner had actual or constructive knowledge of an
unreasonably dangerous condition. Motel 6 G.P., Inc. v·. Lopez, 929
S.W.2d 1, 3-4 (Tex. 1996) (per curiam) ("An invitee must show that
a land owner either knew, or after reasonable inspection should
have known, of an unreasonably dangerous condition before arguing
(continued ...)
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1. Unreasonably Dangerous Condition
"To prevail on a premises liability claim against a property
owner, an injured invitee must establish . . . [that] the condition
posed an unreasonable risk of harm." Henkel, 441 S.W.3d at 251-52.
"A condition creates an unreasonable risk of harm if 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." Christ v. Texas Department of
Transportation, 664 S.W.3d 82, 87 (Tex. 2023) (quoting County of
Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002)) (internal
quotation marks omitted). "In determining whether a condition is
unreasonably dangerous, [courts] consider several factors including
'whether the relevant condition was clearly marked, its size,
whether it had previously caused injuries or generated complaints,
whether it substantially differed from conditions in the same class
of objects, and whether it was naturally occurring.'" Id. (quoting
United Supermarkets, LLC v. McIntire, 646 S.W.3d 800, 803 (Tex.
2022)). Although determining whether a condition is unreasonably
dangerous is a fact question, the Texas Supreme Court "has held
that certain innocuous or commonplace hazards are not unreasonably
dangerous as a matter of law, particularly when they have not
caused other injuries or been the subject of complaints." Id.
18 ( ••. continued)
that the owner breached a duty by failing to take any one of
several precautions."). The court therefore addresses these claims
when addressing Plaintiff's premises liability claim.
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Plaintiff has failed to raise a genuine issue of material fact
as to whether the BBQ grill was unreasonably dangerous. Plaintiff
offers no evidence of prior accidents, injuries, complaints, or
reports. McIntire, 646 S.W.3d at 803 (finding that a divot in a
parking lot was not an unreasonably dangerous condition as a matter
of law because "[i]t measured less than an inch deep, and nothing
in the record indicate[d] it yielded other complaints or
injuries"); see also Meadows v. Costco Wholesale Corporation, Civil
Action No. 4:23-cv-01536, 2024 WL 4729481, at *3 (S.D. Tex. Nov. 8,
2024) (granting summary judgment because plaintiff failed to of
evidence "of prior accidents, injuries, complaints, or reports11 );
Villareal v. Dolgencorp of Texas, Inc., No. 3:23-cv-219, 2025
WL 1485859, at *2 (S.D. Tex. Jan. 23, 2025) (same). There is no
evidence that Defendants were aware of any other prior accidents,
injuries, complaints, or reports involving the BBQ grill.19
Although Plaintiff asserts that "placing a BBQ grill with the
wheels down vertically oriented on an elevated surface is an
unreasonably dangerous condition, as the wheels making contact with
the ground can result in the grill rolling and falling due to the
wheels being face-down and because the vertical placement raises
the center of gravity, contributing to the likelihood it may tip
over and fall,"20 she cites no evidence to support her argument.
19Disla Deposition, Exhibit C to Plaintiff's Response, Docket
Entry No. 21-3, p. 17 (depo. p. 63 line 25 thru p. 64 lines 1-4).
20 Plaintiff's Response, Docket Entry No. 21, p. 9.
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Without more, Plaintiff's opinion that the BBQ grill should not
have been placed with its wheels down is not sufficient to raise a
fact issue as to whether the BBQ grill was an unreasonably
dangerous condition.
2. Actual or Constructive Knowledge
"To prevail on a premises liability claim against a property
owner, an injured invitee must establish . . [that] the property
owner had actual or constructive knowledge of the condition causing
the injury." Henkel, 441 S.W.3d at 251-52. "Actual knowledge is
knowledge 'of the dangerous condition at the time of the incident,
not merely the possibility that a dangerous condition could develop
over time.'" Daniels v. Allsup's Convenience Stores, Inc., 604
S.W.3d 461, 466 (Tex. App.-Amarillo 2020, no pet.) (quoting City of
Corsicana v. Stewart, 249 S.W.3d 412, 413-14 (Tex. 2008)).
"Circumstantial evidence establishes actual knowledge only when it
either directly or by reasonable inference supports that
conclusion." Ineos USA, LLC v. Elmgren, 505 S.W.3d 555, 568 (Tex.
2016) (quoting City of Corsicana, 249 S.W.3d at 415) (internal
quotation marks omitted). "Constructive knowledge is a substitute
in the law for actual knowledge." CMH Homes, Inc. v. Daenen, 15
S.W.3d 97, 102 (Tex. 2000). "In premises liability cases,
constructive knowledge can be established by showing that the
dangerous condition had existed long enough for the owner or
occupier to have discovered it upon reasonable inspection."
Daniels, 604 S.W.3d at 466. "There must be proof of how long the
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dangerous condition was present before liability can be imposed on
the premises owner for failing to discover and rectify, or warn of,
the dangerous condition." Slape v. Wal-Mart Stores Texas, LLC, 656
S.W.3d 698, 701 (Tex. App.-El Paso 2022) (citing Wal-Mart Stores,
Inc. v. Reece, 81 S.W.3d 812, 816 (Tex. 2002)).
Plaintiff argues that Defendants had constructive knowledge of
the BBQ grill's position on the shelf because store employees were
moving shelving and inventory during the remodeling process.21
However, Plaintiff does not provide any evidence about when, if
ever, the BBQ grill was moved by Wal-Mart employees for remodeling
purposes. In fact, nothing in the record establishes when the BBQ
grill was placed on the shelf or how long it was on the shelf with
its wheels facing down. There is no evidence that Wal-Mart
employees ever noticed any problem with the grill, the shelving, or
the manner in which the grill was displayed when completing their
daily walk-throughs of the premises.22
Because Plaintiff has failed to offer evidence that shows the
alleged defect lasted long enough for Defendants to have discovered
it upon reasonable inspection, Plaintiff has failed to, raise a
21 Plaintiff's Response, Docket Entry No. 21, pp. 9-11.
Plaintiff does not argue that Defendants had actual knowledge of
any issue with the grill, the shelving, or the manner in which the
grill was displayed.
22Disla Deposition, Exhibit C to Plaintiff's Response, Docket
Entry No. 21-3, p. 9 (depo p. 30 line 21 thru p. 32 lines 1-14),
p. 17 (depo p. 63 lines 7-14) (stating that she did not nknow if
the grill was unsafe or not" and that she does not recall the setup
of the grill).
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genuine issue of material fact as to whether Defendants had actual
or constructive knowledge of the alleged defect. See Daniels, 604
S.W.3d at 466; Slape, 656 S.W.3d at 701; see also Meadows, 2024
WL 4729481, at *7 (granting summary judgment in favor of the
defendants because "Texas law requires proof of how long the hazard
was there" and plaintiff failed to present that evidence).
IV. Conclusion and Order
Because Plaintiff has failed to raise a genuine issue of
material fact as to whether the alleged defect was unreasonably
dangerous and as to whether Defendants had actual or constructive
knowledge of the alleged defect, Defendants Wal-Mart Stores Texas,
LLC and Susana Disla's Motion for Summary Judgment (Docket Entry
No. 20) is GRANTED. The court will enter a take-nothing judgment
in favor of Defendants.
SIGNED at Houston, Texas, on this 20th day of March, 2026.
SIM LAKE
SENIOR UNITED STATES DISTRICT JUDGE
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