HOUSTON – A federal judge has dismissed through summary judgment a lawsuit brought by a woman who allegedly slipped on a grape inside a Fiesta Mart store and suffered significant injuries from her fall.
U.S. District Court for the Southern District of Texas Judge Keith P. Ellison issued a memorandum opinion to that effect on Aug. 4, in Francis Silva’s litigation against Fiesta Mart, LLC.
“On April 21, 2022, plaintiff went shopping in a Fiesta Mart store. While walking through an aisle, she slipped on an ‘unmarked grape,’ fell to the floor, and allegedly suffered serious bodily injuries. She filed suit against defendant Fiesta Mart, LLC in state court asserting claims for premises liability and negligence and seeking between $250,000 and $1,000,000 in damages. Defendant removed the case to this Court on Aug. 18, 2023. Discovery closed on June 21, 2024. Defendant filed a motion for summary judgment on June 24, 2024. Then, on July 15, 2024, Plaintiff filed her response and Rule 56(d) request to continue the discovery deadline,” Ellison stated.
Ellison first turned his attention to the plaintiff’s request for a continuance.
“Plaintiff requests additional time to depose defendant’s corporate representative and possibly additional witnesses in order to determine what defendant’s floor maintenance and inspection policies are, as well as how they were carried out on the date of the incident. She also wishes to determine if there is video footage of the area where the incident took place. She contends that such evidence can negate defendant’s assertion that its employees had no actual or constructive knowledge of the fact that a grape was on the floor. As discussed in more detail below, knowledge is a necessary element of plaintiff’s premises liability claim, and so the evidence plaintiff seeks – if it exists – would be key to opposing defendant’s motion,” Ellison said.
“However, plaintiff makes no effort to establish that she has diligently pursued discovery. She filed this suit in August 2023. Discovery closed on June 21, 2024. Plaintiff had several months to depose defendant’s corporate representative, and to seek out video footage or other relevant evidence. Defendant’s motion did not reveal a previously unknown need for this evidence – it is clear from plaintiff’s complaint that such evidence, if it exists, would be crucial to proving her claims. Thus, the Court finds that plaintiff is not entitled to a Rule 56(d) continuance.”
Ellison pointed out the plaintiff may only pursue a premises liability claim, since in Texas, a plaintiff injured by a condition on a defendant’s premises – rather than a contemporaneous activity – cannot bring claims for negligence and premises liability.
“The line between claims properly asserted as negligent activity versus premises liability is ‘sometimes unclear, since almost every artificial condition can be said to have been created by an activity.’ But it is well-established that a claim arising from slipping on a substance or object left on the floor is properly pled as premises liability claims. Here, plaintiff alleged in her complaint and testified in her deposition that she slipped on a grape that was left on the floor. She has not alleged that she was injured by any contemporaneous activity. Accordingly, to the extent that she brings a separate negligence claim, that claim fails as a matter of law,” Ellison stated.
“To prevail upon her premises liability claim, plaintiff must show: (1) the defendant had actual or constructive knowledge of some condition on the premises; (2) the condition posed an unreasonable risk of harm; (3) the defendant failed to exercise reasonable care to reduce or eliminate the risk, or to warn the plaintiff about the condition; and (4) defendant’s failure proximately caused plaintiff’s injuries. To establish actual or constructive knowledge, a plaintiff must show that (1) the defendant placed the substance on the floor, (2) the defendant actually knew that the substance was on the floor, or (3) it is more likely than not that the condition existed long enough to give the premises owner a reasonable opportunity to discover it. Here, there is no evidence that defendant placed the grape on the floor or knew that the grape was on the floor. Indeed, Silva testified that she did not know whether Fiesta Mart employees knew that the grape was on the floor. Accordingly, plaintiff has not shown that defendant had actual knowledge.”
Ellison added that the plaintiff “has not shown that defendant had constructive knowledge that that grape was on the floor”, such as “evidence of the length of time the substance or object was on the floor prior to the slip-and-fall incident.”
“Here, Silva testified that she did not know where the grape came from or how long it had been on the ground. She has put forth no evidence of how long the grape was on the floor prior to her fall. Without this evidence, she cannot establish constructive notice. Without any facts in the record indicating that defendant had actual or constructive notice of the condition, plaintiff cannot satisfy the first element of her premises liability claim. Her claim therefore fails as a matter of law,” Ellison concluded.
“Ultimately, the Court finds that there is no genuine issue of material fact and that defendant is entitled to judgment as a matter of law. Accordingly, the Court grants defendant’s motion and denies plaintiff’s request. Plaintiff’s claims are dismissed with prejudice.”
The plaintiff was represented by Ynhi Thi Huynh of The Huynh Law Firm, in Houston.
The defendant was represented by Maryalyce Walsh Cox of Mehaffy Weber, also in Houston.
U.S. District Court for the Southern District of Texas case 4:23-cv-03059
190th District Court, Harris County, Texas case 2023-43986
From the Southeast Texas Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com