HOUSTON – A federal magistrate judge has dismissed through summary judgment a lawsuit brought by a woman who allegedly slipped on floor cleaning solution inside a Walgreen’s store and suffered a variety of injuries in the fall.
U.S. Magistrate Judge Peter Bray issued a memorandum opinion to that effect on Aug. 4, in Elizabeth Caballero’s litigation against Walgreen, Co.
“This premises liability case arises from plaintiff Elizabeth Caballero’s slip and fall in defendant Walgreen Co.’s store. According to Caballero, a Walgreen employee ‘doused a concentrated ‘super slick’ floor cleaning solution from a ‘squirt top like a lighter fluid bottle’ on the floor and then left the area unattended. Caballero claims that she did not see the cleaning solution or the warning sign placed in the aisle before she slipped and fell. It is undisputed that the Walgreen employee placed a warning sign a few feet from where the substance was sprayed. Among other injuries, Caballero suffered injuries to her head, neck, back and tailbone,” Bray stated.
“During her deposition, Caballero testified that she did not see the warning sign before she slipped because it was not in the middle of the aisle. Nonetheless, Caballero saw the sign directly to her right after she fell. As confirmed by Caballero’s deposition testimony, the video footage capturing the incident accurately reflects the location of the warning sign. Walgreen now moves for summary judgment. Walgreen argues that it is not liable for Caballero’s injuries because it adequately warned its customers of the condition with the yellow wet floor sign that was ‘mere inches’ from where Caballero fell. Caballero disagrees and argues that, because the sign was not placed directly over the slippery substance, there is a question of fact as to whether the warning was adequate as a matter of law.”
Bray found that Walgreen’s warning sign “was adequate as a matter of law and that Walgreen is entitled to summary judgment…the undisputed facts demonstrate that a conspicuous warning sign was placed within a few feet of the slippery area. It is undisputed that the sign was visible and within Caballero’s line of sight.”
“It is undisputed that Walgreen placed a warning sign a few feet from the dangerous condition. Caballero testified that ‘there was a warning [sign] on the side of the aisle’ in which she fell but she did not see it because it was not placed in the middle of the aisle. Caballero did not testify to any obstruction preventing her from seeing the warning sign. Caballero testified that she saw the warning sign to her right after she fell. The photographs and video footage submitted by the parties confirm that a large, yellow warning sign was within Caballero’s and the slippery substance’s immediate vicinity. There is no evidence that the sign was not within Caballero’s line of sight. Accordingly, Walgreen’s warning was adequate as a matter of law,” Bray said.
“Caballero argues that this case is more akin to Longoria v. Hobby Lobby. In that case, the court denied summary judgment because there was a fact issue as to the adequacy of the defendant’s warning sign. Longoria is distinguishable, however, because evidence showed that the warning sign was outside of the plaintiff’s line of sight based on her entrance point into the store and the foot traffic of other patrons. Here, the evidence shows that the warning sign was unobstructed, was placed immediately to the side of the dangerous condition, and that Caballero simply did not notice the warning sign because it was placed ‘on the side next to the products’ rather than in the middle of the aisle. Caballero also seems to argue that the substance on which she slipped was more slippery than an average wet floor. She cites no authority for the proposition that the court must weigh the relative slipperiness of a substance in the analysis. The bright yellow warning sign was adequate to warn of any slippery condition. For the foregoing reasons, defendant’s motion for summary judgment, is granted. A separate final judgment will be entered dismissing Caballero’s case with prejudice.”FEdera
The plaintiff was represented by John T. McDowell of McDowell Law Group and Kacy Joy Shindler of Kacy Law, both in Houston.
The defendant was represented by John Philip Griffis of the Law Office of Phil Griffis, also in Houston.
U.S. District Court for the Southern District of Texas case 4:23-cv-01169
From the Southeast Texas Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com