Pamela MCCARTY; Nick McCarty, Plaintiffs-Appellants v. HILLSTONE RESTAURANT GROUP, INCORPORATED, doing business as Houston‘s Restaurant, Defendant-Appellee
No. 16-11519
United States Court of Appeals, Fifth Circuit
July 18, 2017
864 F.3d 354
Before JOLLY, SMITH, and GRAVES, Circuit Judges.
Cowin has failed to demonstrate that he was prejudiced by the bankruptcy court entering the Countrywide Adversary Judgment without lifting the automatic stay in his Chapter 7 case. Any error would be harmless, and we affirm the district court on that basis.
VI
We have carefully reviewed the record in light of Cowin‘s remaining arguments on appeal and conclude that that they are also without merit. Accordingly, and for all the foregoing reasons, we AFFIRM the rulings of the district court in the Countrywide Adversary Proceeding and the bankruptcy court in the BANA Adversary Proceeding.
Austin Hinds England, Harris Firm, P.C., Dallas, TX, for Plaintiffs-Appellants.
Joseph A. Barbknecht, Barbknecht Firm, P.C., Plano, TX, for Defendant-Appellee.
JAMES E. GRAVES, JR., Circuit Judge:
In this appeal, Pamela and Nick McCarty contend the district court erred by granting summary judgment in favor of Hillstone Restaurant Group, Inc. (“Hillstone“). We AFFIRM.
FACTUAL BACKGROUND
On February 16, 2014, the McCartys and another couple went to dinner at Houston‘s Restaurant (“Houston‘s“), a business operated by Hillstone. Mrs. McCarty fell while walking to the restrooms, which required her to pass the restaurant‘s kitchen. At the time, Mrs. McCarty was using crutches due to a re-
JURISDICTION
Federal subject matter jurisdiction exists based upon diversity of citizenship. The McCartys are Texas citizens, while Hillstone is a Delaware corporation with its principal place of business in Atlanta, Georgia.
This court has appellate jurisdiction over the McCartys’ appeal pursuant to
STANDARD OF REVIEW
“[This court] review[s] ‘a grant of summary judgment ... de novo, applying the same standard on appeal that is applied by the district court.‘” Ocwen Loan Servicing, L.L.C. v. Berry, 852 F.3d 469 (5th Cir. 2017) (quoting Tiblier v. Dlabal, 743 F.3d 1004, 1007 (5th Cir. 2014)) (bracket omitted). “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.‘” Id. (quoting
“Once the moving party has demonstrated the absence of a material fact issue, the non-moving party must ‘go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial.‘” Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)). “This burden will not be satisfied by ‘some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.‘” Id. (quoting Little, 37 F.3d at 1075). “Rather, the non-moving party must ‘set forth specific facts showing the existence of a “genuine” issue concerning every essential component of its case.‘” Id. (quoting Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998)). “A dispute as to a material fact is ‘genuine’ if the evidence is
“When considering summary judgment evidence, [this court] must view ‘all facts and inferences ... in the light most favorable to the nonmoving party.‘” Id. (quoting Armstrong v. Am. Home Shield Corp., 333 F.3d 566, 568 (5th Cir. 2003)). “[This court] must ‘not weigh the evidence or evaluate the credibility of witnesses.‘” Id. (quoting Morris, 144 F.3d at 380). “[This court] resolve[s] factual controversies in favor of the nonmoving party, but only where there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts.” Id. (quoting Little, 37 F.3d at 1075). “[This court] will not assume ‘in the absence of any proof ... that the nonmoving party could or would prove the necessary facts,’ and will grant summary judgment ‘in any case where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant.‘” Id. (quoting Little, 37 F.3d at 1075).
ANALYSIS
The McCartys assert a premises liability claim. Under Texas law, “[g]enerally, premises owners ... have a duty to protect invitees from, or warn them of, conditions posing unreasonable risks of harm if the owners knew of the conditions or, in the exercise of reasonable care, should have known of them.” Henkel v. Norman, 441 S.W.3d 249, 251 (Tex. 2014). “To prevail on a premises liability claim against a property owner, an injured invitee must establish four elements:
(1) the property owner had actual or constructive knowledge of the condition causing the injury;
(2) the condition posed an unreasonable risk of harm;
(3) the property owner failed to take reasonable care to reduce or eliminate the risk; and
(4) the property owner‘s failure to use reasonable care to reduce or eliminate the risk was the proximate cause of injuries to the invitee.”
This case turns on the knowledge element. The Supreme Court of Texas has identified three methods by which a plaintiff may satisfy the knowledge element in a slip-and-fall case. See Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814-15 (Tex. 2002).1 First, a plaintiff may “establish[ ] that ... the defendant placed the substance on the floor.” Id. at 814. Second, a plaintiff may “establish[ ] that ... the defendant actually knew that the substance was on the floor.” Id. at 814. Third, a plaintiff may “establish[ ] that ... it is more likely than not that the condition existed long enough to give the premises owner a reasonable opportunity to discover it.” Id. at 814.
Plaintiffs may rely upon both direct and circumstantial evidence of a defendant‘s knowledge. See Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 935-36 (Tex. 1998). Circumstantial evidence must “either directly or by reasonable inference” support the conclusion that the defendant had knowledge of the alleged risk. See Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 394 (Tex. 2016) (quoting Suarez v. City of Tex. City, 465 S.W.3d 623, 634 (Tex. 2015)).
As discussed below, the McCartys have not identified evidence from which a jury could, under any of the three methods of proof outlined in Reece, conclude Hillstone had actual or constructive knowledge of the restaurant floor‘s allegedly dangerous condition. The district court‘s summary judgment dismissal was therefore proper.
A. Evidence that Hillstone placed a substance on the floor
Even assuming that Mrs. McCarty slipped on a foreign substance, the summary judgment record does not contain sufficient evidence for a jury to conclude Hillstone placed the substance. What evidence the record does contain about how a foreign substance might have gotten onto the floor is simply too speculative.
For example, a restaurant manager acknowledged it is “possible” that employees tracked food or water from the restaurant‘s kitchen floor or spilled liquid from drinks in the area where Mrs. McCarty fell. Restaurant employees also testified that, while moving between the kitchen and seating areas, the wait staff frequently traversed the same area. At best, this evidence raises a mere suspicion that restaurant employees might have tracked or spilled a foreign substance where the fall occurred. Mere suspicion is insufficient to carry the McCartys’ burden of establishing a genuine issue for trial. See Sampson, 500 S.W.3d at 394.
B. Evidence that Hillstone actually knew a substance was on the floor
Similarly, the summary judgment record is devoid of any evidence that any Hillstone employee actually knew a foreign substance was on the floor where Mrs. McCarty fell. The McCartys rely upon the initial version of a written statement prepared by a Hillstone employee who saw Mrs. McCarty fall. In that statement, the employee wrote, “I did see any food/debris, any water, moist[ure], or other obstacle in which she could have slipped or tripped on in the area in which she was walking and eventually fell.” Before his deposition, however, the employee revised the statement to indicate that he “did not see” (emphasis added) any such substances or obstacles. We share the district court‘s conclusion that the employee simply corrected a typographical error.
C. Evidence that a substance was on the floor long enough to give Hillstone a reasonable opportunity to discover it
The McCartys acknowledge that, even assuming a foreign substance was on the floor where Mrs. McCarty fell, no evidence tends to establish how long the substance was there. Without such evidence, the McCartys cannot establish Hillstone‘s constructive knowledge of the alleged dangerous condition.
“Constructive knowledge is a substitute in the law for actual knowledge.” CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 102 (Tex. 2000). “In premises cases constructive knowledge can be established by showing that the condition had existed long enough for the owner or occupier to have discovered it upon reasonable inspection.” Id. at 102-03. “What constitutes a reasonable time for a premises owner to discover a dangerous condition will, of course, vary depending upon the facts and circumstances presented.” Reece, 81 S.W.3d at 816.
In all cases, however, “there must be some proof of how long the hazard
The McCartys’ reliance upon Beach Bait & Tackle v. Bull is unavailing. See 82 S.W.3d 663 (Tex. App.—San Antonio 2002). In Beach Bait & Tackle, the court held a jury could infer the premises owner knew “there would be water on the floor ... after it rained” due to undisputed evidence that “water seeped under the back wall” of the premises after hard rains. Id. at 666. The Beach Bait & Tackle court‘s analysis of this issue relied upon City of San Antonio v. Rodriguez, 931 S.W.2d 535 (Tex. 1996) and Wal-Mart Stores, Inc. v. Tinsley, 998 S.W.2d 664 (Tex. App.—Texarkana 1999, pet. denied). Id. The evidence in each of these cases provided context for how long the hazardous condition had existed, in the form of either a discrete and readily documented antecedent event (e.g., a rainfall) or an attribute of the hazard (e.g., a puddle‘s size, from which the jury could reasonably infer how long the puddle had been growing).2 In this case, by contrast, no evidence would permit the jury to trace the alleged slip risk to a particular antecedent event. Nor could a jury infer from any attributes of the alleged hazard that it had been growing over any length of time.
At oral argument, the McCartys candidly admitted that no evidence gives any temporal context to the alleged dangerous condition. As they acknowledged, no evidence in the summary judgment record addresses the question of whether the alleged condition existed for mere seconds or several hours. Given the absence of any temporal context for the alleged hazard, Hillstone may not be charged with constructive knowledge of the alleged slip risk.
CONCLUSION
For the foregoing reasons, we AFFIRM.