7:23-cv-00421•Villarreal v. Wal-Mart Stores Texas, LLC
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS MCALLEN DIVISION Jose Villarreal, § Plaintiff, § § v. § Civil Action M-23-421 § Wal-Mart Stores Texas, LLC, § Defendant. § MEMORANDUM AND RECOMMENDATION This is a personal injury lawsuit arising from a slip and fall incident in a Wal-Mart store. Pending before the court is Defendant’s Motion for Summary Judgment. ECF No. 46. This case has been referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636(b)(1). ECF No. 2. The court has considered the motion, to which no response has been filed, and the applicable law. The court recommends that the motion be GRANTED. 1. Factual Background and Procedural Posture Wal-Mart Stores Texas, LLC (Wal-Mart) filed its motion for summary judgment on September 30, 2025. ECF No. 46. Villarreal’s response was due on October 21, 2025. Villarreal did not file a response. He did file a deposition notice, however. ECF No. 47. Wal-Mart filed its Reply on January 12, 2026, in which it pointed out that Villarreal did not respond. ECF No. 49. Villarreal still did not respond. Instead, he filed a motion seeking a trial setting. ECF No. 51. It is clear that Villarreal’s counsel is actively monitoring the court’s dockets but has decided to forego filing a response to the pending motion for summary judgment. In the Southern District of Texas, a failure to timely respond to a motion is taken as a representation of no opposition. S.D. Tex. United States District Court Southern District of Texas ENTERED March 06, 2026 Nathan Ochsner, Clerk Case 7:23-cv-00421 Document 53 Filed 03/06/26 in TXSD Page 1 of 6
2 L.R. 7.4. However, a “motion for summary judgment cannot be granted simply because there is no opposition, even if failure to oppose violated a local rule.” Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 362 n.3 (5th Cir. 1995). Instead, the court may accept the unopposed facts set forth in the summary judgment motion as undisputed. See Eversley v. MBank Dallas, 843 F.2d 172, 174 (5th Cir. 1988) (affirming the district court’s acceptance of the facts in support of the defendant’s summary judgment motion as undisputed, where the plaintiff made no opposition to the motion); Smith v. AZZ Inc., No. 20-cv-375-P, 2021 WL 1102095, at *1–3 (N.D. Tex. Mar. 23, 2021) (citing Eversley, 843 F.2d at 174) (taking as true the facts set forth in the moving party’s motion for summary judgment). The following facts are taken from Wal-Mart’s Motion for Summary Judgment. ECF No. 46. Villarreal testified in his deposition that he, his wife and granddaughter visited Wal-Mart as shoppers on the date of incident. Villarreal testified that he went into the front restroom of the Wal-Mart store to use the restroom that day and sat down to use the handicap stall at the end of the restroom. Villarreal testified that he had barely sat down in the stall when he started hearing a loud gushing sound of water within the restroom. So much water had accumulated that Villarreal was still in the stall when water began to reach his area of the restroom. Villarreal opened the stall door and attempted to exit the restroom by bracing himself and grabbing onto portions of the stalls, eventually making his way to the restroom sink where the water was coming from. Villarreal was unable to safely exit the restroom that day and testified he slipped and fell. ECF No. 46 at 2. Plaintiff hired a flooring expert, Russell Kendzior, to opine on the condition of the floor on which Plaintiff slipped and fell. Mr. Kendzior has opined that the dangerous condition in this case is Case 7:23-cv-00421 Document 53 Filed 03/06/26 in TXSD Page 2 of 6
3 not the floor by itself, but rather the moderate to high-traction floor coupled with the presence of water as a result of the de-coupled water supply line to the restroom sink. ECF No. 46 at 5. Based on Plaintiff’s testimony that he was in the restroom for a very short period of time before the condition manifested itself, Wal-Mart asserts as a fact that the “condition at issue was created while Villarreal was in the restroom.” Id. at 5–6. Wal-Mart further represents that “Villarreal has presented no evidence that Walmart had received reports of prior complaints involving the condition at issue.” Id. at 6. Wal-Mart asserts that it had no actual or constructive knowledge of the condition in the bathroom that caused Villarreal’s injuries. Id. at 5. Wal-Mart moves for summary judgment on Villarreal’s premises liability and gross negligence claims. 2. Summary Judgment Standard “Summary judgment is appropriate only if, viewing the evidence in the light most favorable to the nonmovant, ‘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.’” Davenport v. Edward D. Jones & Co., 891 F.3d 162, 167 (5th Cir. 2018) (quoting Fed. R. Civ. P. 56(a)). No genuine issue of material fact exists if a rational jury could not find for the nonmoving party based on the complete record. McMichael v. Transocean Offshore Deepwater Drilling, Inc., 934 F.3d 447, 455 (5th Cir. 2019) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). “The movant bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact.” Lincoln Gen. Ins. v. Reyna, 401 F.3d 347, 349 (5th Cir. 2005) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–25 (1986)). If this burden is met, the nonmovant must then “set forth specific facts showing that there is a genuine issue for trial.” Case 7:23-cv-00421 Document 53 Filed 03/06/26 in TXSD Page 3 of 6
4 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmovant must “go beyond the pleadings,” using competent summary judgment evidence to cite to “specific facts” showing a genuine issue for trial. Bustos v. Martini Club, Inc., 599 F.3d 458, 468 (5th Cir. 2010) (quoting Celotex Corp., 477 U.S. at 324). The court reviews all evidence and reasonable inferences in the light most favorable to the nonmoving party. Lincoln Gen. Ins., 401 F.3d at 350. “[C]onclusory allegations, unsubstantiated assertions, or ‘only a scintilla of evidence[]’” are not enough to defeat a properly supported motion for summary judgment. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)). The nonmovant must “articulate the precise manner in which the submitted or identified evidence supports his or her claim.” CQ, Inc. v. TXU Mining Co., 565 F.3d 268, 273 (5th Cir. 2009) (quoting Smith ex rel. Estate of Smith v. United States, 391 F.3d 621, 625 (5th Cir. 2004)). 3. Analysis Villarreal sued Wal-Mart under theories of negligence, negligence per se, premises liability, and gross negligence. The court notes that the only evidence before the court is of a dangerous condition. There is no evidence of any negligent activity. Therefore, Plaintiff’s claims for ordinary negligence and negligence per se should be dismissed. Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016) (stating that a plaintiff’s claim is for premises liability when the injury results from the property’s condition rather than a contemporaneous, negligent activity on the property). In a premises liability case, the duty owed by a landowner depends on the plaintiff’s legal status on the property. An invitee is a person who enters another’s land with the owner’s knowledge and for the mutual benefit of both. Rosas v. Buddies Food Store, Case 7:23-cv-00421 Document 53 Filed 03/06/26 in TXSD Page 4 of 6
5 518 S.W.2d 534, 536 (Tex. 1975) (citation omitted). Villarreal was a customer and therefore an invitee. See United Supermarkets, LLC v. McIntire, 646 S.W.3d 800, 801–02 (Tex. 2022). In order to prevail on a premises liability claim, “the invitee plaintiff must show that[:] (1) the owner had actual or constructive knowledge of the condition at issue; (2) the condition was unreasonably dangerous; (3) the owner did not exercise reasonable care to reduce or eliminate the unreasonable risk of harm; and (4) the owner’s failure to reduce or eliminate the unreasonable risk of harm proximately caused the plaintiff’s injuries.” United Supermarkets, LLC, 646 S.W.3d at 802 n.4. Wal-Mart argues that it had no actual or constructive knowledge of the water in the bathroom that caused the accident. The court agrees. The undisputed facts show that the water began to leak while Villarreal was in the stall. There is no evidence that the water was leaking before Villarreal entered the bathroom. There is no evidence that the store or its employees knew about the leak. There is no evidence that there was a history of a leak in the bathroom. Plaintiff has presented no evidence that Wal-Mart knew or should have known about the condition that caused Villarreal’s injuries. Summary judgment should be granted on Villarreal’s premises liability claim. “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.’” Austin v. Kroger Tex. L.P., 746 F.3d 191, 196 n.2 (5th Cir. 2014) (quoting Texas v. Shumake, 199 S.W.3d 279, 286 (Tex. 2006)); Tex. Civ. Prac. & Rem. Code § 41.001. “Extreme risk [] ‘is not a remote possibility of injury or even a high probability of minor harm, but rather the likelihood of serious Case 7:23-cv-00421 Document 53 Filed 03/06/26 in TXSD Page 5 of 6
6 injury to the plaintiff.’” Austin, 746 F.3d at 196 n.2 (quoting Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998)). Because Villarreal’s negligence, negligence per se, and premises liability claims should be dismissed, so should his gross negligence claim. Moreover, there is no evidence that Wal-Mart was aware of any extreme risk or that it was consciously indifferent to Villarreal’s safety or welfare. 4. Conclusion For the foregoing reasons, the court recommends that Defendant’s Motion for Summary Judgment, ECF No. 46, be GRANTED. Plaintiff’s Motion for Expedited Trial Setting is DENIED AS MOOT. The parties have fourteen days from service of this Memorandum and Recommendation to file written objections. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72. Failure to timely file objections will preclude appellate review of factual findings or legal conclusions, except for plain error. See Thomas v. Arn, 474 U.S. 140, 147–49 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276–77 (5th Cir. 1988). Signed at Houston, Texas on March 6, 2026. ___________________________________ Peter Bray United States Magistrate Judge Case 7:23-cv-00421 Document 53 Filed 03/06/26 in TXSD Page 6 of 6
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