Case: 20-20551 Document: 00515863388 Page: 1 Date Filed: 05/14/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 14, 2021
No. 20-20551
Lyle W. Cayce
Summary Calendar Clerk
Macrina Flores,
Plaintiff—Appellant,
versus
Wal-Mart Stores Texas, L.L.C.,
Defendant—Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-2037
Before Jolly, Elrod, and Graves, Circuit Judges.
Per Curiam:*
Macrina Flores traveled to Houston in December 2017 to attend a
baptism. During this trip, Flores went shopping at a Wal-Mart. While in the
store, Flores tripped on a clothes hanger that was lying on the floor and was
injured.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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Flores brough suit against Wal-Mart, alleging negligence and premises
liability under Texas law. The district court granted summary judgment for
Wal-Mart on Flores’ premises liability claim because it found that she had
not produced sufficient evidence for a reasonable jury to find that Wal-Mart
had actual or constructive knowledge of the dangerous condition, i.e., the
hanger on the floor, that caused her injury. Flores appealed. We now affirm.
I.
Plaintiff Macrina Flores (“Flores”) filed a petition in Harris County
District Court alleging negligence and premises liability claims against
defendant Wal-Mart Stores Texas, L.L.C. (“Wal-Mart”). Wal-Mart
removed to the United States District Court for the Southern District of
Texas. After discovery, the district court granted Wal-Mart’s motion for
summary judgment on the premises liability claim, finding that Flores had
not produced sufficient evidence to allow a reasonable jury to conclude that
the retailer had actual or constructive knowledge of the hanger that caused
the accident.
II.
We review a grant of summary judgment de novo. West v. City of
Houston, 960 F.3d 736, 740 (5th Cir. 2020) (per curiam). Summary judgment
is appropriate 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 dispute is genuine if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, 477 U.S. 242, 248 (1986). A fact is material if it “might affect
the outcome of the suit.” Id. We view the evidence in the light most
favorable to the nonmovant and draw all reasonable inferences in that party’s
favor. Adams v. Alcolac, Inc., 974 F.3d 540, 543 (5th Cir. 2020) (per curiam).
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III.
Flores argues that the district court did not correctly apply the
summary judgment standard and erroneously granted summary judgment for
Wal-Mart. She also argues that, under the facts of this case, she need not
establish knowledge of the particular hanger involved in the incident but
instead can prevail on a showing that Wal-Mart had knowledge of the danger
that fallen hangers, in general, posed to shoppers. These arguments fail for
the reasons discussed below.
Flores’ premises liability claim has four elements: (1) Wal-Mart’s
actual or constructive knowledge of a dangerous condition; (2) the condition
created an “unreasonable risk of harm;” (3) Wal-Mart failed to exercise
reasonable care to reduce or eliminate the risk; and (4) Wal-Mart’s failure to
do so was the proximate cause of her injury. See CMH Homes, Inc. v. Daenen,
15 S.W. 3d 97, 99 (Tex. 2000). The district court granted summary judgment
on the basis that Flores had failed to produce sufficient evidence to establish
the first element, actual or constructive knowledge.
Flores produced one item of evidence to establish the knowledge
element:1 the testimony of her sister-in-law, Hortencia Alvarado Arriaga
(“Alvarado”), that a Wal-Mart employee who picked up the hangers after
Flores had fallen said that she was picking them up because, if she didn’t, she
and other employees “would be scolded.” This statement supposedly
supports Flores’ contention that “Wal-Mart [was] aware of the hazards of
1
Flores argues that two out-of-circuit opinions, Ballance v. Wal-Mart Stores, Inc.,
No. 98-1702, 1999 WL 231653 (4th Cir. Apr. 21, 1999), and Ricci v. Wal-Mart Stores E., LP,
2018 WL 4308556 (S.D.N.Y. Sept. 10, 2018), involving different Wal-Mart stores operated
by different Wal-Mart entities in different states contain material that supports the first
element of her premises liability claim. We disagree. Because the testimony cited in these
opinions does not relate to the store involved in this case or the defendant LLC, we do not
find them probative.
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hangers on the floor.” Really, it indicates nothing more than that an
employee of a large retail store knew or assumed that management would not
want objects littered on the floor. Because this one item of evidence is
insufficient to establish a genuine dispute with respect to knowledge, Flores’
premises liability claim fails.
Flores discusses the summary judgment standard at great length, but
applying the standard to this record is not complicated. In order to survive a
motion for summary judgment, there must be a genuine dispute of material
fact, meaning that the evidence must be such that a reasonable jury could
return a verdict for the nonmoving party. See Anderson, 477 U.S. at 248. A
reasonable jury could not find, merely on the basis of Alvarado’s testimony,
that Wal-Mart had knowledge of the hanger that caused the accident. The
district court thus did not err in granting summary judgment for Wal-Mart.
Flores also argues that she need not show knowledge of the actual
hanger that caused the accident but that she can establish knowledge by
showing that Wal-Mart was aware, generally, that hangers often got onto the
floor of its stores, creating hazards. This argument is grounded in Corbin v.
Safeway Stores, Inc., 648 S.W. 2d 292 (Tex. 1983), a case in which a retailer
was held liable for injuries sustained by a shopper who slipped on a grape,
even though it had no knowledge of the particular grape on which Corbin
slipped. In Corbin, Safeway had set up a grape display that it acknowledged
created an “unusually high risk” of grapes falling onto the linoleum floor
below and creating a hazard. Although the store did not have knowledge of
the particular grape that caused the accident, the court held that a jury could
find that the display, and not the fallen grape, was the dangerous condition
giving rise to liability.
Flores reads Corbin much too broadly. It essentially created an
exception to the general rule for establishing knowledge on account of the
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unusual facts involved, i.e., an “unusually high risk” display that could be
expected to repeatedly generate more specific hazards. See Brookshire
Grocery Co. v. Taylor, 222 S.W. 3d 406, 408 (Tex. 2006) (describing Corbin
as an “exceptional case”). There is nothing analogous to the grape display
in this case. The mere presence of clothes hangers in normal use at a retail
store cannot reasonably be construed, in and of itself, as a dangerous
condition, even if they do sometimes fall on the floor.
IV.
In order to create a genuine dispute with respect to her premises
liability claim, Flores needed to produce evidence sufficient for a reasonable
jury to find that Wal-Mart had actual or constructive knowledge of the hanger
that caused her accident. She did not do so. The evidence she has produced
is not even sufficient to support her contention that Wal-Mart had knowledge
of a persistent problem with hangers falling on the floor in its stores. The
district court thus did not err in granting summary judgment for Wal-Mart.
For the reasons stated, the judgment of the district court is, in all
respects, AFFIRMED.
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