MEMORANDUM OPINION AND ORDER
Before the Court are Defendant Kroger Texas L.P.’s Motion for Summary Judgment (Doc. 96) and Plaintiff Randy J. Austin’s Motion to Reconsider Order Denying Plaintiffs Motion for Leave to File Surre-ply (Doc. 113). For the reasons that follow, the Court GRANTS the Motion for Summary Judgment and DENIES the Motion to Reconsider.
I.
BACKGROUND
This is a negligence case in which Plaintiff Randy J. Austin (“Austin”) is suing his employer Kroger Texas L.P. (“Kroger”) for failing to provide him with an instrumentality necessary to safely perform his job—a cleaning product called Spill Magic. See Doc. 89, Am. Compl. ¶ 10. At the time of his accident, Austin worked as a utility clerk
On July 27, 2009, Austin was inspecting the men’s bathroom when he discovered a “brownie oily looking substance” covering approximately eighty percent of the floor. Doc. 98-1, Ex. E, Austin Dep. 54:18, 57:21. Using the supplies on his utility cart,
Austin originally filed suit in the County Court at Law No. 2 in Dallas County, Texas, seeking damages on negligence, premises liability, and gross negligence theories of liability. Doc. 2, Notice of Removal, Ex. A, Original Pet. 1-4. In June 2011, Kroger removed the case to this Court, where it later obtained summary judgment on all of Austin’s claims. Doc. 2, Notice of Removal; Doc. 67, Mem. Op. & Order. Austin then appealed to the Fifth Circuit, which initially affirmed summary judgment on the gross negligence claim and reversed on the premises liability and ordinary negligence claims. Austin v. Kroger Tex. L.P.,
Kroger has now moved for summary judgment on Austin’s remaining negligence claim. Doc. 96, Def.’s Mot. for Summ. J. Austin responded, and Kroger filed a reply. Doc. 100, Br. in Supp. of PL’s Resp. [hereinafter “PL’s Resp. Br.”]; Doc. 103, Def.’s Reply Br. Austin then moved for leave to file a surreply, arguing that Kroger had raised a new argument in its Reply. Doc. 104, Mot. for Leave to File Surreply. The Court denied that motion, finding that a surreply was unwarranted. Doc. 110, Mem. Op. & Order. Austin now moves the Court to reconsider that decision. Doc. 113, Mot. to Reconsider. As the Court has received Kroger’s Response and Austin’s Reply to the Motion to Reconsider, both motions are ready for review. Doc. 114, Def.’s Resp.; Doc. 115, PL’s Reply Br.
II.
LEGAL STANDARD
A. Reconsideration
The Federal Rules of Civil Procedure do not specifically provide for motions for reconsideration. Shepherd v. Int’l Paper Co.,
A Rule 59(e) motion to alter or amend a judgment challenges the “correctness of a judgment.” In re Transtexas Gas Corp.,
B. Summary Judgment
Federal Rule of Civil Procedure 56(a) provides that 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). The substantive law governing a matter determines which facts are material to a case. Anderson v. Liberty Lobby, Inc.,
Once the summary judgment mov-ant has met this burden, it falls to the non-movant to “go beyond the pleadings and designate specific facts” showing that a genuine issue exists. Little v. Liquid Air Corp.,
III.
ANALYSIS
There are two motions before the Court-^-Austin’s Motion to Reconsider and Kroger’s Motion for Summary Judgment. Because Austin’s Motion concerns his ability to file a surreply to Kroger’s Motion, the Court will address it first.
A. Motion to Reconsider
Austin’s Motion to Reconsider stems from his motion for leave to file a surreply (the “Surreply Motion”) to Kroger’s Motion for Summary Judgment. In the Surre-ply Motion, Austin argued that Kroger had raised an entirely new argument for summary judgment in its Reply—namely, that
Upon reviewing Kroger’s Motion for Summary Judgment, the Court disagreed with Austin and found that Kroger had properly raised its evidentiary insufficiency argument. Doc. 110, Mem. Op. & Order 3-5. Thus, the Court denied him leave to file a surreply. Austin now requests that the Court reconsider that decision, arguing that equity favors granting him an opportunity to respond to Kroger’s argument. Doc. 113, Mot. to Reconsider ¶¶ 5-12. Specifically, Austin attributes his failure to include evidence with his Response to a good-faith interpretation of the “confu-si[ng]” law regarding when a summary judgment movant has met its burden. Id ¶¶ 6, 9. He has also attached a declaration and expert report from his causation expert to show that the surreply would address matters beyond those presented in his response. Doc. 113-2, Decl. of Charles Koch.
Austin has not presented any grounds meriting reconsideration. Instead, he merely rehashes the same argument he presented in his Surreply Motion—that he relied in good faith on certain case law suggesting that Kroger had not carried its burden—and puts forward evidence that existed at the time he filed that Motion.
B. Motion for Summary Judgment
In its Motion, Kroger argues that it is entitled to summary judgment on Austin’s ordinary negligence claim for three reasons: (1) it owed Austin no duty to provide Spill Magic; (2) it was not negligent as a matter of law because Austin’s injury occurred while he was performing his customary duties; and (3) Austin has insufficient evidence to prove that any negligence on Kroger’s part caused his injury. Doc. 97, Def.’s Br. in Supp. of Its Mot. for
1. Kroger’s Duty to Provide Spill Magic
. There are two aspects to Kroger’s no-duty argument. First, Kroger borrows from a premises liability doctrine to argue that it did not owe Austin a duty to provide him with a necessary instrumentality to confront an open and obvious hazard. Id. at 9-12. Second, Kroger contends that it fulfilled any duty it might have owed by providing Austin with one safe way to perform his job (viz. the dry mop heads). Id. at 12-13. As explained more fully below, although Kroger owed Austin a duty to provide the necessary instrumentalities to clean the spill safely, Austin has failed to demonstrate that Spill Magic was in fact necessary to perform his job. Therefore, summary judgment is appropriate.
i The duty to provide necessary instru-mentalities when encountering an obvious or known hazard
Under Texas premises liability law, an employer owes its employees no duty to warn of or make safe a hazardous condition that is obvious or otherwise known to the employees. Austin,
a. The Texas Supreme Court Has Not Decided Whether an Employer Owes a Duty to Provide Necessary Instru-mentalities For Encountering an Open and Obvious Hazard
Kroger’s first case, Kroger Co. v. Elwood,
The second case Kroger cites does not support its position, either. In Nabors Drilling, U.S.A., Inc. v. Escoto,
At best, these cases stand for the unremarkable premise that, in every negligence case, the plaintiff must prove that the defendant owed him a duty. See Otis Eng’g Corp. v. Clark,
b. The Court’s Erie Guess
In making its Erie guess, the Court “may look to the decisions of intermediate appellate state courts for guidance.” Id. Here, Austin points to two such decisions that he believes are relevant: Kroger Co. v. Milanes and Katy Springs & Manufacturing, Inc. v. Favalora,
Similarly, in Favalora, the Texas Court of Appeals found that an employer had breached its duty to provide its employee with necessary instrumentalities when a bundle of wire that had jammed in a payoff reel on a manufacturing line escaped and hit the employee in the chest, injuring his chest and neck.
The reasons underlying the no-duty rule in premises liability further bolster the conclusion that it does not carry over into the instrumentalities context. In its opinion in this case, the Texas Supreme Court explained that landowners (and employers) generally owe their invitees (and employees) a duty because they are in a better position to discover hazards on the property, and thus to take steps to either warn of such hazards or make them safe. Austin,
The flaw in Kroger’s position, when applied to an instrumentalities claim, is that it treats the' hazardous condition as the sole component of the risk that the employee faces. But the hazardous condition is really only part of the equation—the adequacy of the instrumentalities the employer provides must also be taken into account. Using the instant case as an example, a large, oily spill on the ground is undeniably a hazardous condition. But when an employer provides an employee like Austin with instrumentalities to encounter the condition, the instrumentalities adjust the apparent risk. That is, if an employee encounters a known or obvious hazard in the reasonable belief that the instrumentalities with which he has been provided are adequate to mitigate the danger that the hazardous condition poses, then the apparent risk diminishes greatly. If, however, the instrumentalities are inadequate for the task, and the employee is not aware of that fact, then the true risk is not “known” in the sense that the employee does not appreciate the- extent of the danger that encountering the hazardous condition actually poses. In short, it is not the employee’s knowledge of the hazardous condition that matters, but rather the employee’s knowledge of the risk of encountering the condition using the in-strumentalities with' which he has been provided.
This outcome is also consistent with Texas’ public policy to encourage landowners to eliminate hazards on their property.
In sum, the Court concludes that the Texas Supreme Court, if faced with the question presented here, would decide that employers have a duty to provide their employees with necessary instrumen-talities even when they encounter known or obvious hazardous conditions.
ii Kroger had no duty to provide an ■ unnecessary instrumentality
Next, Kroger argues that it provided Austin with one safe way to perform his job, and therefore it was under no duty to provide a second (i.e., Spill Magic). Doc. 97, MSJ Br. 12-13. Kroger points out that Austin successfully cleaned a similar spill in the women’s restroom before falling in the men’s room, thereby demonstrating that the dry mop head method was safe. Id. Conversely, Austin asserts that Kroger’s argument “has no basis in Texas law.” Doc. 100, Pl.’s Resp. Br. 11. Instead, Austin argues, Kroger is relying on inap-posite authority and “its own[ ] unattributed, unsupported ipse dixit regarding the effectiveness of [mops].” Id: at 11-17.
Kroger cites several cases to support its position. In Port Terminal Railroad Ass’n v. Ross,
The other eases Kroger cites are from the Texas Courts of Appeal, and they provide some support for the “one safe way” rule. See Town & Country Mobile Homes, Inc. v. Bilyeu,
This case presents a similar situation. The evidence is unclear as to whether Austin requested Spill Magic on the day in question, see Doc. 98-1, Ex. E, Austin Dep. 49:2-14, but he has pointed to nothing that shows he complained that the task was unsafe. In fact, he testified that he did not talk to any other Kroger employees about his duties that day. Id. at 100:7-10. Austin’s testimony also reveals that he safely performed his job using the dry mop heads. Id. at 90:19-92:10. As to the fourth and fifth factors, Austin has presented no evidence that Spill Magic is commonly used in the industry or that a reasonably prudent employer would provide it. Finally, Austin has not timely offered evidence that Spill Magic would have prevented his injury.
2. Employer’s Liability for Employee’s Injuries During the Performance of Customary Work
Even if it owed Austin a duty in this case, Kroger argues, it cannot be held liable because his injury “resulted] from performing the same character of work that employees in that position have always done,” and there is no evidence that Austin’s job was “unusually precarious.” Elwood,
The first case to articulate this limitation on employers’ liability was Great Atlantic & Pacific Tea Co. v. Evans,
Austin argues that the foreseeability issue in Evans was fact-specific, and at least one subsequent opinion is arguably consistent with that interpretation. See W. Union Tel. Co. v. Coker,
To the extent that the “customary work” rule relates to foreseeability, Austin argues that foreseeability is inherently a jury question. Doc. 100, Pl.’s Resp. Br. 19 (citing Hunsucker v. Omega Indus.,
3. Evidence of Causation
Last, Kroger argues that Austin “has no evidence that, more likely than not, Spill Magic would have prevented his fall.” Doc. 97, MSJ Br. 15-16; see also Doc. 103, Def.’s Reply Br. It also points to promotional materials regarding Spill Magic from its own handbook, which it contends disprove causation as a matter of law. Doc. 97, MSJ Br. 16. Austin objects that the material from the handbook is inadmissible and therefore cannot be considered on summary judgment. Doc. 99, Pl.’s Objs. to Def.’s Summ. J. Evid.; Doc. 100, Pl.’s Resp. Br. 20. He further asserts that Kroger has failed to carry its summary judgment burden, meaning that he need not respond with evidence supporting his case. Doc. 100, PL’s Resp. Br. 20.
As an initial matter, the Court agrees that the evidence to which Austin objects is inadmissible as hearsay not within any exception. Accordingly, the Court will not consider it in deciding this Motion. See Harris ex rel. Harris v. Pontotoc Cty. Sch. Dist.,
This leaves only Kroger’s evidentiary insufficiency argument. Kroger avers that Austin cannot show that its failure to provide Spill Magic was the cause in fact of his injuries; in other words, “Austin has no evidence to show that Kroger’s failure, to provide him Spill Magic was a substantial factor in his injuries].” Doc. 97, MSJ Br. 16; Doc. 103, Def.’s Reply Br. 6-10. Austin responds that these statements are insufficient to meet Kroger’s summary judgment burden, and therefore he is not obligated to produce evidence demonstrating a genuine dispute of material fact. Doc. 100, Pl.’s Resp. Br. 19-20.
Rule 56 requires a party asserting the absence of a genuine dispute of material fact to support its position in one of two ways: either the party must “cit[e] to particular parts of materials in the record,” or it must “show[ ] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A)-(B) (emphasis added). The second option is disjunctive, allowing the moving party to support its position either by reference to cited material from the record or by “showing” that the other party does not have admissible evidence supporting the fact at issue. Whether Kroger has carried its burden depends on what is required to make this “showing.”
The phrasing of the rule suggests that this latter showing does not require resort to materials in the record. Subsection A requires “citing to particular parts of materials in the record,” and the first half of subsection B refers to “the materials cited.” The second half of subsection B, on the other hand, makes no reference to cited materials. The drafters of the rule clearly knew how to oblige a movant to cite from the record, so the inference to be drawn from the absence of similar language in the second half of subsection B is that it does not require such citations. Cf. United States v. Baker,
This interpretation is consistent with both the rule’s commentary and precedent. In the commentary to the 2010 amendment to Rule 56, the advisory committee noted that “Subdivision (c)(1)(B) recognizes that a party need not always point to specific record materials.” Fed. R. Civ. P. 56(c)
Here, Kroger unquestionably carried its burden. One of the elements of negligence that Austin must prove is proximate cause. W. Invs., Inc. v. Urena,
Austin has not made the required showing. He did not attach any evidence to his response, and the only evidence of causation to which he referred was his own. testimony regarding the efficacy of Spill Magic as a cleaning agent:
Q: Do you believe that [Spill Magic] would have been the most effective way to get [the spill] off the floor?
[[Image here]]
A: Not specifically, but I don’t know for sure because—but it probably would have helped out a whole lot.
Doc. 98-1, Ex: E, Austin Dep. 145:19-24. The proximate cause element of a negligence claim “comprises two elements: cause in fact and foreseeability.” Excel Corp. v. Apodaca,
Leitch itself is illustrative. In that case, the plaintiff, a technical manager for a cable TV servicing company, sued his employer after he suffered an injury while lifting,a 65-pound cable reel. Id. at 116. He alleged that the employer’s failure to provide him with the necessary equipment to safely lift the reel caused his injury. Id. at 118. To show that this failure was the cause in fact of his injury, the plaintiff offered testimony from a co-worker, who “did not witness the incident in question” and was not offered as an expert. Id. at 119. Despite the co-worker’s testimony that “the use of a lift belt would have eliminated [the plaintiffs] injury,” the Texas Supreme Court ruled that such evidence could not sustain a finding of cause in fact as a matter of law. Id. ■
Like the plaintiff in Leitch, Austin has provided only lay opinion testimony.
In sum, Kroger is entitled to summary judgment -on Austin’s necessary instrumentality claim for three reasons: first, Kroger owed him no duty -to provide an iristrumentality that he cannot prove was necessary to the safe performance of his job; second, Kroger cannot be liable for Austin’s injuries because they occurred during the performance of his customary work; and third, Austin lacks sufficient evidence to prove that Kroger’s failure to provide Spill Magic proximately caused his injuries. Austin’s claim fails as a matter of law.
IV.
CONCLUSION
Based on the foregoing, the Court DENIES Austin’s Motion to Reconsider (Doc. 113) and' GRANTS Kroger’s Motion for Summary Judgment (Doc. 96).
SO ORDERED.
Notes
. Austin also identifies his job title as "Floor Clean-Up Person.” Doc. 89, Am. Compl. ¶ 5. The Court finds that there is no distinction between the two terms, and so will refer to Austin as a "utility clerk.”
. These included “[a] dust mop, broom, safety cones, mop and mop bucket and paper towels and gloves.” Doc. 98-1, Ex. E, Austin Dep. 38:1-2.
. The Court originally treated Austin’s ordinary negligence claim as one based on a negligent activity, rather than a negligent failure to provide a necessary instrumentality. See Doc. 67, Mem. Op. & Order 5.
. Notably, it also existed at the time Austin filed his response to Kroger's summary judgment Motion, . - ,
. The Declaration of Charles Koch, which Austin attached to his Motion to Reconsider, was executed on April 8, 2016. Doc. 113-2, Decl. of Charles Koch 3. While new evidence is grounds for reconsidering an order, the Declaration is not “new” evidence for that purpose. The expert report appended to the Declaration clearly demonstrates that Koch was available to Austin before he filed his Surreply Motion, and Austin has not suggested that he could not have obtained this Declaration before that time. In fact, it appears that it took only three days (at most) for Austin to acquire the Declaration. For reasons known only to him, Austin waited until after the Court ruled on his Surreply Motion to obtain evidence that he now says justifies granting it. This is not proper motion practice, and the Court will not indulge it.
.As an aside, it appears that Austin, despite the "confusion” surrounding summary judgment burden-shifting (to which he has referred repeatedly),' elected to put all his eggs in one basket and argue only that Kroger had not shifted the burden to him to produce evidence. That was a strategic decision, and it is not this. Court’s job to relieve him of its consequences.
. The Texas Supreme Court has previously disapproved of this section of the Restatement. See Del Lago Partners, Inc. v. Smith,
. Milams and Favalora can be read as going even further, in that the Court of Appeals appeared to impose a duty even when the employees were aware of the inadequacy of the instrumentalities.
. Furthermore, the Texas Supreme Court based the "one safe way” rule in Ross on a Texas Court of Civil Appeals opinion that the United States Supreme Court later reversed.
. As mentioned previously, Austin submitted an expert report on the issue of causation for the first time as an attachment to his Motion to Reconsider. Although this report was generated on February 9, 2016, Austin did not attach it to either his Response to Kroger's Motion for Summary Judgment (filed on March 8, 2016) or his Motion for Leave to File Surreply (filed on March 30, 2016). He has offered no excuse for not doing so, nor did he request that the Court defer adjudication of the summary judgment motion or grant him more time to obtain evidence. See Fed. R. Civ. P, 56(d). The Court therefore exercises its discretion and declines to consider the untimely evidence. See Martin v. Lennox Int'l, Inc.,
. In Snellenberger, the Texas Supreme Court affirmed the trial court’s grant of summary judgment on grounds that the decedent’s inju
. Again, the Court will not consider Austin's belatedly-submitted expert report.