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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION

WALTER HARVEY, §
§
Plaintiff, §
§
v. § CIVIL ACTION NO. 1:14-CV-663
§
CARRABBA’S ITALIAN GRILL, LLC, §
§
Defendant. §

REPORT AND RECOMMENDATION ON MOTION FOR SUMMARY JUDGMENT

I. Background

In accordance with 28 U.S.C. § 636, General Order 14-10, and the Local Rules for the United

States District Court for the Eastern District of Texas, the above-captioned civil action is directly

assigned to the undersigned United States Magistrate Judge for pretrial matters. Now pending before

the Court is the defendant Carrabba’s Italian Grill, LLC’s (“Carrabba’s) Motion for Summary

Judgment (doc. #10).

On December 11, 2014, Carrabba’s filed its notice of removal (doc. #1) in this federal court,

citing diversity jurisdiction pursuant to 28 U.S.C. § 1332. Specifically, Walter Harvey filed suit in

the 60th District Court of Jefferson County, Texas, asserting claims for premises liability arising out
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of his alleged slip and fall while dining at the Carrabba’s restaurant in Beaumont, Texas, on

September 29, 2013. See Original Petition, filed with Notice of Removal (doc. #1-4).

Carrabba’s filed the instant motion for summary judgment on October 14, 2015 (doc. #10).

In its motion, Carrabba’s argues that plaintiff cannot establish that Carrabba’s knew or should have

known of an unreasonably dangerous condition on its premises and, in the alternative, the plaintiff

admitted that the alleged unreasonably dangerous condition was open and obvious to him. See

Motion, at p. 1. In support, Carrabba’s cites Texas case law on premises liability and contends that

plaintiff cannot establish actual or constructve notice of an unreasonably dangerous condition at the

time Plaintiff fell. Id. at p. 2. Further, citing Austin v. Kroger, Texas, L.P., 465 S.W. 3d 193 (Tex.

2015), Carrabba’s contends that plaintiff cannot prevail on his premises claim against Carrabba’s

because plaintiff admitted the condition allegedly causing his fall was open and obvious. Id. at pp.

2-3.

The plaintiff responded in opposition (doc. #11) to the motion for summary judgment, and

then subsequently filed an amended response (doc. #13). In his first response, plaintiff points to

deposition testimony which he contends supports the “actual or constructive knowledge”

requirement for his claims. See Response, at p. 4. He also argues that Carrabba’s made no effort

to eliminate, reduce or warn of the unreasonably dangerous condition. Id. Furthermore, plaintiff

avers that Carrabba’s reliance on the Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406, 409 (Tex.

2006) and Austin v. Kroger cases are misplaced, further citing his and his wife’s testimony which

he argues supports the necessary elements of his premises claim. In his amended response, plaintiff

offers the same substantive arguments in opposition to summary judgment, but attaches the

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referenced deposition testimony in support. See Amended Response (doc. #13) and Exhibits (doc.

#13-1).

II. Discussion

A. Summary Judgment Standard of Review

Summary judgment should be granted only “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter

of law.” FED. R. CIV. P. 56(c). This rule places the initial burden on the moving party to identify

those portions of the record which it believes demonstrate the absence of a genuine issue of material

fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548 (1986) (quoting Rule 56);

Stults v. Conoco, Inc., 76 F.3d 651, 655-56 (5th Cir. 1996) (citations omitted). An issue is genuine

if the evidence is sufficient for a reasonable jury to return a verdict for the non-moving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-56, 106 S. Ct. 2505, 91 L. Ed.2d 202 (1986).

A fact is material when it is relevant or necessary to the ultimate conclusion of the case. Anderson

477 U.S. at 248. The movant’s burden is only to point out the absence of evidence supporting the

nonmovant’s case. Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 913 (5th Cir.); 5th Cir.), cert

denied, 506 U.S. 832, 113 S. Ct. 98, 121 L. Ed.2d 59 (1992).

Once the moving party has carried its burden of demonstrating the absence of a genuine issue

of material fact, the nonmoving party bears the burden of coming forward with “specific facts

showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio

Corp.475 U.S. 574, 587 (1986). The Court must consider all of the evidence but refrain from

making any credibility determinations or weighing the evidence. See Turner v. Baylor Richardson

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Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (citation omitted). In considering a motion for summary

judgment, “the evidence of the non-movant is to be believed, and all justifiable inferences are to be

drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505 (1986).

However, the non-movant may not rest on the mere allegations or denials of its pleadings, but must

respond by setting forth specific facts indicating a genuine issue for trial. Webb v. Cardiothoracic

Surgery Assocs. of North Texas, P.A., 139 F.3d 532, 536 (5th Cir. 1998).

When a moving party makes an initial showing that there is no evidence to support the

nonmoving party’s case, the party opposing the motion must come forward with competent summary

judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere

conclusory allegations are not competent summary judgment evidence, and thus are insufficient to

defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996).

Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent

summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513

U.S. 871, 115 S. Ct. 195, 130 L. Ed.2d 127 (1994). 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 his claim. Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).

Rule 56 does not impose a duty on the court to “sift through the record in search of evidence” to

support the nonmovant’s opposition to the motion for summary judgment. Id.; see also Skotak., 953

F.2d at 915-16 & n. 7. If the nonmoving party fails to make a showing sufficient to establish the

existence of an element essential to its case and on which it will bear the burden of proof at trial,

summary judgment must be granted. Celotex, 477 U.S. at 322-23.

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B. Premises Liability Under Texas Law

Because the Court is sitting in diversity and the incidents at issue took place in Texas, Texas

law governs Plaintiff's claims. Romo v. Ford Motor Co., 798 F. Supp. 2d 798, 805 (S.D. Tex. 2011).

Under Texas law, to establish tort liability, the plaintiff must establish the existence of a duty owed

by the defendant to the plaintiff and a breach of that duty. Otis Engineering Corp. v. Clark, 668

S.W.2d 307, 309 (Tex.1983). Whether a duty exists is the threshold inquiry in a negligence case.

Graff v. Beard, 858 S.W.2d 918, 919 (Tex.1993). In a premises liability case, the duty owed to the

plaintiff depends on the status of the plaintiff at the time of the incident. M.O. Dental Lab v. Rape,

139 S.W.3d 671, 675 (Tex. 2004). The plaintiff's status can be invitee, licensee, or trespasser.

Mellon Mortg. Co. v. Holder, 5 S.W.3d 654, 655 (Tex. 1999). A landowner’s duty to an invitee is

to “make safe or warn against any concealed, unreasonably dangerous conditions of which the

landowner is, or reasonably should be, aware but the invitee is not.” Austin v. Kroger Tex., L.P., 465

S.W.3d 193, 203 (Tex. 2015). Therefore, while a licensee must prove the landowner actually knew

of the dangerous condition, the invitee is only required to prove the landowner knew or reasonably

should have known of the condition. State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d

235, 237 (Tex. 1992); Ybarra v. Cty. of Hidalgo, 362 S.W.3d 129, 133 (Tex.App.–San Antonio

2011, no pet.).

The parties do not appear to dispute that Mr. Harvey was an invitee on Carrabba’s’ premises.

Accordingly, the elements of his claim are: (i) a premises condition created an unreasonable risk of

harm, (ii) Carrrabba’s knew or reasonably should have known of the condition, (iii) Carrabba’s’

failed to exercise ordinary care to protect Mr. Harvey from danger, and (iv) Carraba’s’ failure

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proximately caused injury to Harvey. See Fort Brown Villas III Condo. Ass'n, Inc. v. Gillenwater,

285 S.W.3d 879, 883 (Tex.2009) (per curiam).

(1) Was There an Unreasonably Dangerous Condition?

A condition presents an unreasonable risk of harm if there is a sufficient probability of a

harmful event occurring that a reasonably prudent person would have foreseen that it or a similar

event were likely to happen. Cnty. of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002). In most

cases, a condition that is open and obvious or one that an invitee is adequately warned but does not

pose an unreasonable risk of harm. See Austin v. Kroger, L.P., 465 S.W.3d at 203.

Here, Mr. Harvey testified that the floor where he fell inside the restaurant was slick and

slippery. See Deposition of Walter Harvey, at 17:14-21. He also indicated that there was no mat

where he fell but there was a mat one step away. Id. at 17:8-13. He indicated that he did not know

what substance made him slip, but the restaurant manager, Mary Buxton, told him that the restaurant

staff was cleaning the area where he fell. Id. at 14:10-16. His wife, Karen Harvey, also testified that

the manager told her that area of the restaurant was “always greasy” because it’s the area where

employees come in and out with the food and the area was “slippery. . .that’s the slipperiest part and

they have problems there all the time because of the kitchen area where they come in and out.” See

Deposition of Karen Harvey (doc. #13-1), at 5:10-24, 30:4-12;12. Carrabba’s also points to Harvey’s

admission that the floor condition was open and obvious:

“Q. Before you fell, was whatever condition you are claiming was on the floor, was it

open and obvious?

*****

A. Oh, yes.”

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See Depo. of Walter Harvey (doc. #10-1), at 51:22-52:3.

The testimony above indicates that the slippery area near the Carrabba’s kitchen was no

secret. Harvey himself admitted that the allegedly dangerous condition was open and obvious. The

evidence indicates that not only was Carrabba’s aware of the condition, but the plaintiff was as well.

A landowner’s duty only extends to unreasonably dangerous conditions of which the landowner is,

or reasonably should be, aware but the invitee is not. See Austin, at 203 (emphasis added). When

the condition is open and obvious or known to the invitee, the landowner is not in a better position

to discover it. Id. While the plaintiff’s evidence suggests that the condition may have been

dangerous, under Texas Supreme Court jurisprudence, Carrabba’s duty is alleviated by plaintiff’s

admission that the condition was open and obvious. Carrabba’s therefore prevails on its summary

judgment burden by establishing that there is no genuine issue of material fact on this element of Mr.

Harvey’s premises claim.

(2) Did Carrabba’s Have Knowledge of the Condition?

As pointed out by both parties in their briefs, a possessor’s knowledge of a dangerous

condition can be actual or constructive. See Del Lago Partners v. Smith, 307 S.W.3d 762, 769 (Tex.

2010); see also Lee v. K & N Mgmt., Inc., No. 03-15-00243-CV, 2015 WL 8594163, at *2 (Tex.

App.–Austin Dec. 11, 2015, no pet.) (memorandum opinion) (citing Keetch v. Kroger Co., 845

S.W.2d 262, 264 (Tex. 1992)). Actual knowledge is relatively straightforward; the possessor must

have actually known the dangerous condition existed when the plaintiff was injured. See City of

Denton v. Paper, 376 S.W.3d 762,767 (Tex. 2012), City of Irving v. Seppy, 301 S.W.3d 435, 444

(Tex. App. – Dallas 2009, no pet.).

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The plaintiff presented testimony indicating that management at Carrabba’s was aware that

the area where he fell presented a problem and was often slippery. Considering this evidence in the

light most favorable to the plaintiff, it also suggests that Carrabba’s knew the substance was there

and for whatever reason failed to remove the substance or correct the condition before Mr. Harvey

fell. The testimony also indicates that a mat was placed on the allegedly slippery location where the

plaintiff slipped, but only after the fall occurred. See Depo. of Karen Harvey (doc. #13-1), at 5:17-

24. This evidence at least creates an issue of fact on the knowledge element of plaintiff’s premises

claim.

(3) Did Carrabba’s Exercise Ordinary Care to Protect its Invitee from the Dangerous
Condition?

A possessor’s duty of care to its invitees does not make the possessor an insurer of their

safety. See Del Lago, 307 S.W.3d at 767. Instead, a landowner’s premises-liability duties, like its

negligence duties, are limited to a duty to exercise ordinary, reasonable care. Austin, 465 S.W. at

203 (internal citation omitted). The duty to use ordinary care toward invitees includes the duty to

warn about or make safe any dangerous condition that the possessor knows of or should have known

of. Id. at 203. However, under the Austin v. Kroger case, this duty is obviated by a finding that

the alleged dangerous condition was open and obvious. “[S]ince there is no need to warn against

obvious or known dangers, a landowner generally has no duty to warn of hazards that are open and

obvious or known to the invitee.” Austin, at 204.

Furthermore, neither party points to supportive summary judgment evidence on the issue of

whether Carrabba’s met its duty to reduce or warn of the allegedly dangerous condition. The

testimony indicates that while there was not a mat exactly where Mr. Harvey fell, there was one “one

step away.” In his response, plaintiff points to the allegation that a mat was placed there after his

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fall as evidence that it should have been placed there before his fall. This is the only specific evidene

referenced on this issue in plaintiff’s response. Because plaintiff himself testified that the condition

was open and obvious, and he has not presented responsive evidence showing how Carrabba’s

breached its duty to either make safe or warn about the condition, the defendant is entitled to

summary judgment on this element of the premises liability claim.

(4) Were Plaintiff’s Damages Proximately Caused by the Alleged Failure of Carrabba’s
to Exercise Ordinary Care?

Neither party briefed the issue of proximate cause or damages in the motion or responses.

In fact, nowhere in the record is there an indication of exactly how plaintiff was injured by the fall.

In the deposition testimony, there are references to Mr. Harvey having back pain and undergoing

epidural injections. See Karen Harvey Depo. (doc. #13-1), at 7:15-9:9. There is no argument or

citation to specific evidence, however, linking this in any way to his fall at Carrabba’s. Furthermore,

the Court is not required to sift through the summary judgment record; it is the non-movant’s burden

to point to specific evidence creating a factual issue. For these reasons, coupled with the finding that

Carrabba’s duty of care was alleviated by the open and obvious nature of the alleged condition, the

Court must find an absence of a genuine issue of material fact on the proximate cause and damages

element of plaintiff’s claim.

III. Conclusion of Court and Recommended Disposition

The undersigned United States Magistrate Judge concludes that the defendant has carried its

burden in establishing an absence of evidence showing a genuine issue of material fact on at least

two of the four essential elements of plaintiff’s cause of action for premises liability. Based on the

findings and legal conclusions stated herein, the undersigned therefore recommends that Carrabba’s

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motion for summary judgment (doc. #10) be granted and judgment be entered in favor of the

defendant.

IV. Objections

Pursuant to 28 U.S.C. § 636(b)(1)(c), all parties are entitled to serve and file written

objections to the report and recommendation of the magistrate judge within fourteen (14) days of

service. Failure to file specific, written objections to the proposed findings of fact, conclusions of

law and recommendations contained within this report shall bar an aggrieved party from de novo

review by the District Judge of the proposed findings, conclusions and recommendations, and from

appellate review of factual findings and legal conclusions accepted by the District Court except on

grounds of plain error. See Thomas v. An, 474 U.S. 140, 155 (1985); Douglass v. United Serv. Auto.

Ass’n., 79 F.3d 1415 (5th Cir. 1996) (en banc); 28 U.S.C. § 636(b)(1).

SIGNED this the 19th day of May, 2016.

____________________________________
KEITH F. GIBLIN
UNITED STATES MAGISTRATE JUDGE

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