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CAUSE NO. CL-22-2376-B
JUAN HIPOLITO ESPINOZA § IN THE COUNTY COURT
Plaintiff, §
§
v. § AT LAW NO. 2
§
WHATABURGER RESTAURANTS, LLC §
Defendant. § HIDALGO COUNTY, TEXAS
§
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Defendant WHATABURGER RESTAURANTS LLC files this No Evidence Motion
for Summary Judgment and would respectfully show the Court as follows:
I.
INTRODUCTION
Plaintiff alleges he slid without falling in a Whataburger bathroom before he sat
down to eat his meal. He left after eating, without incident or complaint, but returned to
the restaurant hours later claiming he needed an ambulance to get him from the
restaurant to the hospital. He now seeks damages up to $1,000,000 for alleged injuries.
II.
SUMMARY OF ARGUMENT
Plaintiff complains there was water on the floor of the Whataburger bathroom.
Plaintiff does not allege how long the alleged water was present or that any Whataburger
employee was aware of the alleged water. He also does not allege that the water was
obvious or that he could not see the water.
This case has been pending for over a year. Despite this passage of time, Plaintiff
has not presented any evidence that Whataburger had actual or constructive knowledge
of an alleged dangerous condition. Absent evidence of such knowledge, Plaintiff’s claims
cannot survive as a matter of law. Whataburger is entitled to summary judgment under
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the no evidence rules of procedure.
III.
ARGUMENT AND AUTHORITIES
A. A slip and fall (or just slip) based on an allegation of water on
the floor is a premises liability case.
In Texas, a plaintiff may pursue a negligence claim under two theories: general
negligence and premises liability. 1 While premises liability falls under the umbrella of
general negligence claims, this subcategory contains “different elements that define a
property owner or occupant's duty with respect to those who enter the property.” 2
Ordinary negligence principles apply where “the injury is the result of a
contemporaneous, negligent activity on the property.” 3 It thus involves a “malfeasance
theory based on affirmative, contemporaneous conduct by the owner that caused the
injury.” 4 In contrast, the court applies the principles of premises liability if the injury
stems from a condition on the premises rather than an act. 5 Premises liability is a
“nonfeasance theory based on the owner's failure to take measures to make the property
safe.” 6 Accordingly, a plaintiff must proceed under a theory of premises liability where
his or her claim concerns the condition of the premises rather than contemporaneous
negligent acts. 7 A case arising under a theory of premises liability cannot support the
plaintiff's recovery under a theory of general negligence. 8
1Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016) (citing Keetch v. Kroger Co., 845
S.W.2d 262, 264 (Tex. 1992) (“Depending on the circumstances, a person injured on another's property
may have either a negligence claim or a premises-liability claim against the property owner.”).
2 Id. (citing W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005) ).
3 Id. (citing Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992) ).
4 Austin v. Kroger Texas L.P., 746 F.3d 191, 196 (5th Cir. 2014), certified question answered, 465 S.W.3d
193 (Tex. 2015) (internal quotation marks and citation omitted).
5 Id. (citing H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258, 259 (Tex. 1992) ).
6 Austin v. Kroger Texas L.P., 746 F.3d 191, 196 (5th Cir. 2014), certified question answered, 465 S.W.3d
193 (Tex. 2015) (internal quotation marks and citation omitted).
7 Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010).
8 United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 472 (Tex. 2017), reh'g denied; see also H.E. Butt
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Plaintiff is suing Whataburger based on the allegation that he was injured when he
slipped but did not fall on water. 9 Plaintiff presents no factual basis for his general
negligence claims. In support of his premises liability claims, he alleges that Whataburger
breached its duty caused by a condition on the premises. 10 Plaintiff further alleges
Whataburger failed to warn of the alleged dangerous condition or make it safe. Thus,
Plaintiff's suit rests solely on a condition of the premises. 11
The failure to clean the floors, warn or use preventative measures, like mats, is not
analogous to “affirmative, contemporaneous conduct by the owner of the store.” 12
Indeed, Plaintiff's suit relies on alleged “improper maintenance.” 13 His claim clearly
seeks relief for an allegedly defective condition of the premises and thus “encompasses a
nonfeasance theory based on the owner's failure to take measures to make the property
safe.” 14 Accordingly, Plaintiff has not asserted a concurrent claim of general negligence.
B. Applicable Burden of Proof
The general rule regarding a landowner’s duty to an invitee is “to make safe or warn
against any concealed, unreasonably dangerous conditions of which the landowner is, or
reasonably should be, aware but the invitee is not.” 15 A premises owner’s duty is to
exercise reasonable care. This duty does not make the premises owner an insurer of the
Grocery Co., 845 S.W.2d 258, 259 (Tex. 1992).
9 See Plaintiff’s Original Petition on file with the papers of this Court and incorporated here for all
purposes. Although Plaintiff’s allegations are vague, he clarified his allegations during sworn deposition.
10 See Plaintiff’s Original Petition on file with the papers of this Court and incorporated here for all
purposes.
11 See Plaintiff’s Original Petition on file with the papers of this Court and incorporated here for all
purposes.
12 See United Scaffolding, Inc. v. Levine, 537 S.W.3d at 471.
13 See Plaintiff’s Original Petition on file with the papers of this Court and incorporated here for all
purposes.
14 Austin v. Kroger Texas L.P., 746 F.3d 191, 196 (5th Cir. 2014), certified question answered, 465 S.W.3d
193 (Tex. 2015) (internal quotation marks and citation omitted).
15 Austin, 465 S.W.3d at 203.
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invitee’s safety.
The core of the duty owed by a premises owner depends on evidence of the owner’s
actual or constructive knowledge of a dangerous condition. 16 It is Plaintiff’s burden to
bring forward evidence of knowledge. 17 It is not Whataburger’s burden to disprove
allegations of knowledge. 18
Plaintiff alleges both actual and constructive knowledge. To establish a
constructive knowledge of a hazardous condition, a plaintiff must show that the
hazardous condition existed for some definite length of time. 19 When determining
whether a defendant had constructive knowledge of a hazardous condition, the court must
consider evidence of (1) proximity, (2) conspicuity, and (3) longevity. These allegations
cannot be met by a contention that the defendant created the alleged dangerous
condition. 20
1. Evidence of Proximity.
Plaintiff claims that he was injured in a bathroom. He does not allege that any
Whataburger employee was in the bathroom with or immediately before him.
Moreover, an employee’s proximity to the hazard without evidence of when or how
the hazard was created provides no basis to conclude premises owner had an opportunity
discover and remedy the hazardous condition. Any contention that Whataburger
employees clean or otherwise use the restroom fails in the absence of evidence that the
alleged water was present long enough for an employee to discover and remedy it. 21 In
16 CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000).
17 Id.
18 Id.
19 Reece, 81 S.W.3d at 815.
20 Keetch v. Kroger Co., 845 S.W.2d 262, 265 (Tex. 1992)
21 Wal-Mart Stores, Inc. v. Reece, , 81 S.W.3d at 816.
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the absence of evidence that the alleged water was present long enough for an employee
to discover it, the element of proximity cannot be established. 22
2. Evidence of Conspicuity.
Proof on conspicuity should also be considered in determining whether a
premises owner had knowledge of a condition. 23 The defect alleged in this case was
located in a restroom. Plaintiff does not allege that the water was in the main part of the
restaurant or otherwise visible to Whataburger staff. Water is a bathroom is not
conspicuous to anyone not in the restroom.
3. Evidence of Longevity.
The most important element of a constructive notice analysis is temporal
evidence. 24 In CMH Homes, Inc. v. Daenen, the Supreme Court of Texas declined to
eliminate this requirement simply because it might be impossible for the plaintiff to show
knowledge. 25 The harsh reality is that if a plaintiff cannot prove facts to establish that it
is more likely than not that the dangerous condition existed long enough that a proprietor
should have known of its presence, there is simply no basis for recovery.” 26 When
22 Id; see also Wal–Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex.2006) (holding on summary
judgment that evidence that a hazard existed for at least 30–45 seconds and that an employee was standing
within 3–5 feet of the hazardous condition was not sufficient for constructive notice); H.E.B. Foods, Inc. v.
Moore, 599 S.W.2d 126, 129 (Tex. Civ. App.—Corpus Christi 1980, no writ) (holding that the fact that an
employee was in the immediate vicinity when plaintiff fell is not sufficient to raise an inference that the
premises owner should have discovered the hazard); Furr’s, Inc. v. Sigala, 608 S.W.2d 789, 790 (Tex.
App.—El Paso 1980, no writ) (holding that the mere fact that an employee was in the same aisle when and
where the accident occurred is not sufficient to prove constructive notice); Wal-Mart Stores, Inc. v. Rosa,
52 S.W.3d 842, 844 (Tex. App.—San Antonio 2001, pet. denied) (holding that the proximity of three
employees to the area where plaintiff fell before plaintiff slipped on a banana did not tend to prove how
long the condition had existed for purposes of charging constructive notice).
23 Reece, 81 S.W.3d at 813
24 Reece, 81 S.W.3d at 815 (“The rule requiring proof that a dangerous condition existed for some length
of time before a premises owner may be charged with constructive notice is firmly rooted in our
jurisprudence.”).
25 See CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 102–03 (Tex.2000).
26 Threlkeld v. Total Petroleum, Inc., 211 F.3d 887, 893 (5th Cir.2000) (citing Wal-Mart Stores, Inc. v.
Gonzalez, 968 S.W.2d 934, 938 (Tex.1998)); see also, Henderson v. Pipkin Grocery Co., 268 S.W.2d 703,
705 (Tex. Civ. App.—El Paso 1954, writ dism’d w.o.j.) (“This rule, while harsh and demanding on plaintiffs,
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circumstantial evidence is relied upon to prove constructive notice, evidence which
supports only the possibility that the dangerous condition existed long enough to give a
premises owner or occupier a reasonable opportunity to discover it, is not legally
sufficient to establish constructive notice. 27
C. An adequate time for discovery has passed.
A no evidence motion for summary judgment is timely if the non-movant has had
an adequate time for discovery. 28 An adequate time for discovery does not mean that
discovery must be completed before a party may file a no evidence motion for summary
judgment. 29 Rather, courts look to the following factors to determine if the non-movant
has had an adequate time for discovery: (1) the nature of the claim; (2) the evidence
necessary to controvert the motion; (3) the length of time the case was on file; (4) the
length of time the no evidence motion was on file; (5) whether the movant requested
stricter deadlines for discovery; (6) the amount of discovery already conducted; and (7)
whether the discovery deadlines in place were specific or vague. 30
This is a simple slip (and not fall) case. Plaintiff filed suit on June 27, 2022, over a
year ago. Whataburger deposed Plaintiff providing him an opportunity to present his
theories and claims. Plaintiff has been significantly unresponsive to Whataburger’s
discovery requests but has made no claim or allegation that he has had insufficient time
to conduct discovery or that Whataburger was nonresponsive to his limited requests.
is well established and plaintiffs must always discharge the burden of proving that the dangerous condition
was either known to the defendant or had existed for such a length of time that he should have known it.”).
27 See Wal–Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex.1998) (emphasis in original).
28 Tex. R. Civ. P. 166a(i); Restaurant Teams, Int’l v. MG Sec. Corp., 95 S.W.3d 336, 339 (Tex. App.—Dallas
2002, no pet.) (holding that seven months was an adequate amount of time to conduct discovery); Wolfe v.
Fairbanks Capital Corp., No. 2 03 100 CV, 2004 WL 221212, at *1 (Tex. App.—Fort Worth Feb. 5, 2004, no
pet.) (holding that eleven months was an adequate amount of time to conduct discovery).
29 Id.
30 Id.; Larue v. Chief Oil & Gas, LLC, 167 S.W.3d 866, 872 (Tex. App.—Fort Worth 2005, no pet.).
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Plaintiff has had adequate time to seek discovery and develop his case sufficiently to
respond to this no evidence motion for summary judgment.
D. There is no evidence of Premises Liability on the part of
Whataburger.
To succeed on a premises liability claim, an invitee must prove the following
elements: (1) actual or constructive knowledge of a condition on the premises by the
owner or occupier; (2) that the condition posed an unreasonable risk of harm; (3) that the
owner or occupier did not exercise reasonable care to reduce or eliminate the risk; and
(4) that the owner or occupier's failure to use such care proximately caused the plaintiff's
injury. 31
Plaintiff did and cannot not bring forward evidence to support the essential
elements of his premises liability claim. Specifically, Plaintiff did not produce any
evidence that: (1) Whataburger created a dangerous condition on its premises; (2)
Whataburger had actual knowledge of a condition on its premises; (3) Whataburger had
constructive knowledge of a condition on its premises; (4) the condition on the premises
posed an unreasonable risk of harm; (5) Whataburger did not exercise reasonable care to
reduce or eliminate the risk of harm; or (6) that Whataburger’s failure to exercise such
care caused Plaintiff’s alleged injuries. In the absence of the essential elements of
Plaintiff’s claims, Whataburger is entitled to summary judgment as a matter of law on all
of Plaintiff’s claims of premises liability.
Further, without waiving the foregoing, Plaintiff did not bring forward any
evidence (1) establishing the cause of the water on the floor; (2) how long the water was
on the floor; (2) whether Whataburger had actual knowledge of the water; (3) or that the
31 CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000).
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water was conspicuous for purposes of establishing constructive knowledge.
Without proof of these facts which are vital to establishing the essential elements
of Plaintiff’s claims, Whataburger is entitled to summary judgment as a matter of law on
all of Plaintiff’s claims of premises liability. As set forth above, Plaintiff did not state a
claim for general negligence. Therefore, Whataburger is entitled to summary judgment
on all of Plaintiff’s claims.
PRAYER
WHEREFORE, WHATABURGER RESTAURANTS LLC respectfully requests that
this Court grant this Motion for Summary Judgment. In the alternative, Defendant
WHATABURGER RESTAURANTS LLC requests summary judgment on any claims that
are barred as a matter of law or for which Plaintiff fails to produce admissible summary
judgment evidence. Defendant also seeks any further relief to which it may be entitled.
Respectfully submitted,
GERMER PLLC
1826 North Loop 1604 West, Suite 300
San Antonio, Texas 78248
Telephone (210) 640-1650
By: /s/ Roland F. Gonzales
ROLAND F. GONZALES
SBN: 24049431
Email: rgonzales@germer-sa.com
JAVIER T. DURAN
SBN: 2402568
Email: jduran@germer-sa.com
ATTORNEYS FOR DEFENDANT
MOTION FOR SUMMARY JUDGMENT Page 8
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CERTIFICATE OF SERVICE
I certify that a true and correct copy of the above and foregoing has been forwarded
to the following attorneys of record in accordance with the Texas Rules of Civil Procedure
on the 21st day of August, 2023:
Via Email: MLPerezAttorney@gmail.com
MDLawLitigation@gmail.com
Martin L. Perez
LAW OFFICES OF MARIO DAVILA, PLLC
P.O. Box 3726
McAllen, Texas 78502
Telephone: (956) 322-8997
Facsimile: (956) 682-3550
ATTORNEY FOR PLAINTIFF
/s/ Roland F. Gonzales
ROLAND F. GONZALES
MOTION FOR SUMMARY JUDGMENT Page 9
109346
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The filer served this document via email generated by the efiling system
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certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Maria Gomez on behalf of Roland Gonzales
Bar No. 24049431
mgomez@germer-sa.com
Envelope ID: 78759843
Filing Code Description: Motion (No Fee)
Filing Description: 20230821 Def WBs MSJ
Status as of 8/22/2023 8:34 AM CST
Associated Case Party: JUAN HIPOLITO ESPINOZA
Name BarNumber Email TimestampSubmitted Status
Martin L.Perez mlperezattorney@gmail.com 8/21/2023 5:11:06 PM SENT
Patricia Saenz PSaenzMDLaw@gmail.com 8/21/2023 5:11:06 PM SENT
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Associated Case Party: WHATABURGER RESTAURANTS, LLC
Name BarNumber Email TimestampSubmitted Status
Roland Gonzales rgonzales@germer-sa.com 8/21/2023 5:11:06 PM SENT
Javier Duran jduran@germer-sa.com 8/21/2023 5:11:06 PM SENT
Emily Cox ecox@germer-sa.com 8/21/2023 5:11:06 PM SENT
Dominique Banda dbanda@germer-sa.com 8/21/2023 5:11:06 PM SENT
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Preview
Electronically Submitted 8/21/2023 5:11 PM Hidalgo County Clerk Accepted by: Alejandra Lara CAUSE NO. CL-22-2376-B JUAN HIPOLITO ESPINOZA § IN THE COUNTY COURT Plaintiff, § § v. § AT LAW NO. 2 § WHATABURGER RESTAURANTS, LLC § Defendant. § HIDALGO COUNTY, TEXAS § DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant WHATABURGER RESTAURANTS LLC files this No Evidence Motion for Summary Judgment and would respectfully show the Court as follows: I. INTRODUCTION Plaintiff alleges he slid without falling in a Whataburger bathroom before he sat down to eat his meal. He left after eating, without incident or complaint, but returned to the restaurant hours later claiming he needed an ambulance to get him from the restaurant to the hospital. He now seeks damages up to $1,000,000 for alleged injuries. II. SUMMARY OF ARGUMENT Plaintiff complains there was water on the floor of the Whataburger bathroom. Plaintiff does not allege how long the alleged water was present or that any Whataburger employee was aware of the alleged water. He also does not allege that the water was obvious or that he could not see the water. This case has been pending for over a year. Despite this passage of time, Plaintiff has not presented any evidence that Whataburger had actual or constructive knowledge of an alleged dangerous condition. Absent evidence of such knowledge, Plaintiff’s claims cannot survive as a matter of law. Whataburger is entitled to summary judgment under MOTION FOR SUMMARY JUDGMENT Page 1 109346 Electronically Submitted 8/21/2023 5:11 PM Hidalgo County Clerk Accepted by: Alejandra Lara the no evidence rules of procedure. III. ARGUMENT AND AUTHORITIES A. A slip and fall (or just slip) based on an allegation of water on the floor is a premises liability case. In Texas, a plaintiff may pursue a negligence claim under two theories: general negligence and premises liability. 1 While premises liability falls under the umbrella of general negligence claims, this subcategory contains “different elements that define a property owner or occupant's duty with respect to those who enter the property.” 2 Ordinary negligence principles apply where “the injury is the result of a contemporaneous, negligent activity on the property.” 3 It thus involves a “malfeasance theory based on affirmative, contemporaneous conduct by the owner that caused the injury.” 4 In contrast, the court applies the principles of premises liability if the injury stems from a condition on the premises rather than an act. 5 Premises liability is a “nonfeasance theory based on the owner's failure to take measures to make the property safe.” 6 Accordingly, a plaintiff must proceed under a theory of premises liability where his or her claim concerns the condition of the premises rather than contemporaneous negligent acts. 7 A case arising under a theory of premises liability cannot support the plaintiff's recovery under a theory of general negligence. 8 1Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016) (citing Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992) (“Depending on the circumstances, a person injured on another's property may have either a negligence claim or a premises-liability claim against the property owner.”). 2 Id. (citing W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005) ). 3 Id. (citing Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992) ). 4 Austin v. Kroger Texas L.P., 746 F.3d 191, 196 (5th Cir. 2014), certified question answered, 465 S.W.3d 193 (Tex. 2015) (internal quotation marks and citation omitted). 5 Id. (citing H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258, 259 (Tex. 1992) ). 6 Austin v. Kroger Texas L.P., 746 F.3d 191, 196 (5th Cir. 2014), certified question answered, 465 S.W.3d 193 (Tex. 2015) (internal quotation marks and citation omitted). 7 Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010). 8 United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 472 (Tex. 2017), reh'g denied; see also H.E. Butt MOTION FOR SUMMARY JUDGMENT Page 2 109346 Electronically Submitted 8/21/2023 5:11 PM Hidalgo County Clerk Accepted by: Alejandra Lara Plaintiff is suing Whataburger based on the allegation that he was injured when he slipped but did not fall on water. 9 Plaintiff presents no factual basis for his general negligence claims. In support of his premises liability claims, he alleges that Whataburger breached its duty caused by a condition on the premises. 10 Plaintiff further alleges Whataburger failed to warn of the alleged dangerous condition or make it safe. Thus, Plaintiff's suit rests solely on a condition of the premises. 11 The failure to clean the floors, warn or use preventative measures, like mats, is not analogous to “affirmative, contemporaneous conduct by the owner of the store.” 12 Indeed, Plaintiff's suit relies on alleged “improper maintenance.” 13 His claim clearly seeks relief for an allegedly defective condition of the premises and thus “encompasses a nonfeasance theory based on the owner's failure to take measures to make the property safe.” 14 Accordingly, Plaintiff has not asserted a concurrent claim of general negligence. B. Applicable Burden of Proof The general rule regarding a landowner’s duty to an invitee is “to make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is, or reasonably should be, aware but the invitee is not.” 15 A premises owner’s duty is to exercise reasonable care. This duty does not make the premises owner an insurer of the Grocery Co., 845 S.W.2d 258, 259 (Tex. 1992). 9 See Plaintiff’s Original Petition on file with the papers of this Court and incorporated here for all purposes. Although Plaintiff’s allegations are vague, he clarified his allegations during sworn deposition. 10 See Plaintiff’s Original Petition on file with the papers of this Court and incorporated here for all purposes. 11 See Plaintiff’s Original Petition on file with the papers of this Court and incorporated here for all purposes. 12 See United Scaffolding, Inc. v. Levine, 537 S.W.3d at 471. 13 See Plaintiff’s Original Petition on file with the papers of this Court and incorporated here for all purposes. 14 Austin v. Kroger Texas L.P., 746 F.3d 191, 196 (5th Cir. 2014), certified question answered, 465 S.W.3d 193 (Tex. 2015) (internal quotation marks and citation omitted). 15 Austin, 465 S.W.3d at 203. MOTION FOR SUMMARY JUDGMENT Page 3 109346 Electronically Submitted 8/21/2023 5:11 PM Hidalgo County Clerk Accepted by: Alejandra Lara invitee’s safety. The core of the duty owed by a premises owner depends on evidence of the owner’s actual or constructive knowledge of a dangerous condition. 16 It is Plaintiff’s burden to bring forward evidence of knowledge. 17 It is not Whataburger’s burden to disprove allegations of knowledge. 18 Plaintiff alleges both actual and constructive knowledge. To establish a constructive knowledge of a hazardous condition, a plaintiff must show that the hazardous condition existed for some definite length of time. 19 When determining whether a defendant had constructive knowledge of a hazardous condition, the court must consider evidence of (1) proximity, (2) conspicuity, and (3) longevity. These allegations cannot be met by a contention that the defendant created the alleged dangerous condition. 20 1. Evidence of Proximity. Plaintiff claims that he was injured in a bathroom. He does not allege that any Whataburger employee was in the bathroom with or immediately before him. Moreover, an employee’s proximity to the hazard without evidence of when or how the hazard was created provides no basis to conclude premises owner had an opportunity discover and remedy the hazardous condition. Any contention that Whataburger employees clean or otherwise use the restroom fails in the absence of evidence that the alleged water was present long enough for an employee to discover and remedy it. 21 In 16 CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000). 17 Id. 18 Id. 19 Reece, 81 S.W.3d at 815. 20 Keetch v. Kroger Co., 845 S.W.2d 262, 265 (Tex. 1992) 21 Wal-Mart Stores, Inc. v. Reece, , 81 S.W.3d at 816. MOTION FOR SUMMARY JUDGMENT Page 4 109346 Electronically Submitted 8/21/2023 5:11 PM Hidalgo County Clerk Accepted by: Alejandra Lara the absence of evidence that the alleged water was present long enough for an employee to discover it, the element of proximity cannot be established. 22 2. Evidence of Conspicuity. Proof on conspicuity should also be considered in determining whether a premises owner had knowledge of a condition. 23 The defect alleged in this case was located in a restroom. Plaintiff does not allege that the water was in the main part of the restaurant or otherwise visible to Whataburger staff. Water is a bathroom is not conspicuous to anyone not in the restroom. 3. Evidence of Longevity. The most important element of a constructive notice analysis is temporal evidence. 24 In CMH Homes, Inc. v. Daenen, the Supreme Court of Texas declined to eliminate this requirement simply because it might be impossible for the plaintiff to show knowledge. 25 The harsh reality is that if a plaintiff cannot prove facts to establish that it is more likely than not that the dangerous condition existed long enough that a proprietor should have known of its presence, there is simply no basis for recovery.” 26 When 22 Id; see also Wal–Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex.2006) (holding on summary judgment that evidence that a hazard existed for at least 30–45 seconds and that an employee was standing within 3–5 feet of the hazardous condition was not sufficient for constructive notice); H.E.B. Foods, Inc. v. Moore, 599 S.W.2d 126, 129 (Tex. Civ. App.—Corpus Christi 1980, no writ) (holding that the fact that an employee was in the immediate vicinity when plaintiff fell is not sufficient to raise an inference that the premises owner should have discovered the hazard); Furr’s, Inc. v. Sigala, 608 S.W.2d 789, 790 (Tex. App.—El Paso 1980, no writ) (holding that the mere fact that an employee was in the same aisle when and where the accident occurred is not sufficient to prove constructive notice); Wal-Mart Stores, Inc. v. Rosa, 52 S.W.3d 842, 844 (Tex. App.—San Antonio 2001, pet. denied) (holding that the proximity of three employees to the area where plaintiff fell before plaintiff slipped on a banana did not tend to prove how long the condition had existed for purposes of charging constructive notice). 23 Reece, 81 S.W.3d at 813 24 Reece, 81 S.W.3d at 815 (“The rule requiring proof that a dangerous condition existed for some length of time before a premises owner may be charged with constructive notice is firmly rooted in our jurisprudence.”). 25 See CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 102–03 (Tex.2000). 26 Threlkeld v. Total Petroleum, Inc., 211 F.3d 887, 893 (5th Cir.2000) (citing Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 938 (Tex.1998)); see also, Henderson v. Pipkin Grocery Co., 268 S.W.2d 703, 705 (Tex. Civ. App.—El Paso 1954, writ dism’d w.o.j.) (“This rule, while harsh and demanding on plaintiffs, MOTION FOR SUMMARY JUDGMENT Page 5 109346 Electronically Submitted 8/21/2023 5:11 PM Hidalgo County Clerk Accepted by: Alejandra Lara circumstantial evidence is relied upon to prove constructive notice, evidence which supports only the possibility that the dangerous condition existed long enough to give a premises owner or occupier a reasonable opportunity to discover it, is not legally sufficient to establish constructive notice. 27 C. An adequate time for discovery has passed. A no evidence motion for summary judgment is timely if the non-movant has had an adequate time for discovery. 28 An adequate time for discovery does not mean that discovery must be completed before a party may file a no evidence motion for summary judgment. 29 Rather, courts look to the following factors to determine if the non-movant has had an adequate time for discovery: (1) the nature of the claim; (2) the evidence necessary to controvert the motion; (3) the length of time the case was on file; (4) the length of time the no evidence motion was on file; (5) whether the movant requested stricter deadlines for discovery; (6) the amount of discovery already conducted; and (7) whether the discovery deadlines in place were specific or vague. 30 This is a simple slip (and not fall) case. Plaintiff filed suit on June 27, 2022, over a year ago. Whataburger deposed Plaintiff providing him an opportunity to present his theories and claims. Plaintiff has been significantly unresponsive to Whataburger’s discovery requests but has made no claim or allegation that he has had insufficient time to conduct discovery or that Whataburger was nonresponsive to his limited requests. is well established and plaintiffs must always discharge the burden of proving that the dangerous condition was either known to the defendant or had existed for such a length of time that he should have known it.”). 27 See Wal–Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex.1998) (emphasis in original). 28 Tex. R. Civ. P. 166a(i); Restaurant Teams, Int’l v. MG Sec. Corp., 95 S.W.3d 336, 339 (Tex. App.—Dallas 2002, no pet.) (holding that seven months was an adequate amount of time to conduct discovery); Wolfe v. Fairbanks Capital Corp., No. 2 03 100 CV, 2004 WL 221212, at *1 (Tex. App.—Fort Worth Feb. 5, 2004, no pet.) (holding that eleven months was an adequate amount of time to conduct discovery). 29 Id. 30 Id.; Larue v. Chief Oil & Gas, LLC, 167 S.W.3d 866, 872 (Tex. App.—Fort Worth 2005, no pet.). MOTION FOR SUMMARY JUDGMENT Page 6 109346 Electronically Submitted 8/21/2023 5:11 PM Hidalgo County Clerk Accepted by: Alejandra Lara Plaintiff has had adequate time to seek discovery and develop his case sufficiently to respond to this no evidence motion for summary judgment. D. There is no evidence of Premises Liability on the part of Whataburger. To succeed on a premises liability claim, an invitee must prove the following elements: (1) actual or constructive knowledge of a condition on the premises by the owner or occupier; (2) that the condition posed an unreasonable risk of harm; (3) that the owner or occupier did not exercise reasonable care to reduce or eliminate the risk; and (4) that the owner or occupier's failure to use such care proximately caused the plaintiff's injury. 31 Plaintiff did and cannot not bring forward evidence to support the essential elements of his premises liability claim. Specifically, Plaintiff did not produce any evidence that: (1) Whataburger created a dangerous condition on its premises; (2) Whataburger had actual knowledge of a condition on its premises; (3) Whataburger had constructive knowledge of a condition on its premises; (4) the condition on the premises posed an unreasonable risk of harm; (5) Whataburger did not exercise reasonable care to reduce or eliminate the risk of harm; or (6) that Whataburger’s failure to exercise such care caused Plaintiff’s alleged injuries. In the absence of the essential elements of Plaintiff’s claims, Whataburger is entitled to summary judgment as a matter of law on all of Plaintiff’s claims of premises liability. Further, without waiving the foregoing, Plaintiff did not bring forward any evidence (1) establishing the cause of the water on the floor; (2) how long the water was on the floor; (2) whether Whataburger had actual knowledge of the water; (3) or that the 31 CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000). MOTION FOR SUMMARY JUDGMENT Page 7 109346 Electronically Submitted 8/21/2023 5:11 PM Hidalgo County Clerk Accepted by: Alejandra Lara water was conspicuous for purposes of establishing constructive knowledge. Without proof of these facts which are vital to establishing the essential elements of Plaintiff’s claims, Whataburger is entitled to summary judgment as a matter of law on all of Plaintiff’s claims of premises liability. As set forth above, Plaintiff did not state a claim for general negligence. Therefore, Whataburger is entitled to summary judgment on all of Plaintiff’s claims. PRAYER WHEREFORE, WHATABURGER RESTAURANTS LLC respectfully requests that this Court grant this Motion for Summary Judgment. In the alternative, Defendant WHATABURGER RESTAURANTS LLC requests summary judgment on any claims that are barred as a matter of law or for which Plaintiff fails to produce admissible summary judgment evidence. Defendant also seeks any further relief to which it may be entitled. Respectfully submitted, GERMER PLLC 1826 North Loop 1604 West, Suite 300 San Antonio, Texas 78248 Telephone (210) 640-1650 By: /s/ Roland F. Gonzales ROLAND F. GONZALES SBN: 24049431 Email: rgonzales@germer-sa.com JAVIER T. DURAN SBN: 2402568 Email: jduran@germer-sa.com ATTORNEYS FOR DEFENDANT MOTION FOR SUMMARY JUDGMENT Page 8 109346 Electronically Submitted 8/21/2023 5:11 PM Hidalgo County Clerk Accepted by: Alejandra Lara CERTIFICATE OF SERVICE I certify that a true and correct copy of the above and foregoing has been forwarded to the following attorneys of record in accordance with the Texas Rules of Civil Procedure on the 21st day of August, 2023: Via Email: MLPerezAttorney@gmail.com MDLawLitigation@gmail.com Martin L. Perez LAW OFFICES OF MARIO DAVILA, PLLC P.O. Box 3726 McAllen, Texas 78502 Telephone: (956) 322-8997 Facsimile: (956) 682-3550 ATTORNEY FOR PLAINTIFF /s/ Roland F. Gonzales ROLAND F. GONZALES MOTION FOR SUMMARY JUDGMENT Page 9 109346 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Maria Gomez on behalf of Roland Gonzales Bar No. 24049431 mgomez@germer-sa.com Envelope ID: 78759843 Filing Code Description: Motion (No Fee) Filing Description: 20230821 Def WBs MSJ Status as of 8/22/2023 8:34 AM CST Associated Case Party: JUAN HIPOLITO ESPINOZA Name BarNumber Email TimestampSubmitted Status Martin L.Perez mlperezattorney@gmail.com 8/21/2023 5:11:06 PM SENT Patricia Saenz PSaenzMDLaw@gmail.com 8/21/2023 5:11:06 PM SENT MARIO DAVILA MDLawLitigation@gmail.com 8/21/2023 5:11:06 PM SENT Jenna Juarez jennamdlaw@gmail.com 8/21/2023 5:11:06 PM SENT Associated Case Party: WHATABURGER RESTAURANTS, LLC Name BarNumber Email TimestampSubmitted Status Roland Gonzales rgonzales@germer-sa.com 8/21/2023 5:11:06 PM SENT Javier Duran jduran@germer-sa.com 8/21/2023 5:11:06 PM SENT Emily Cox ecox@germer-sa.com 8/21/2023 5:11:06 PM SENT Dominique Banda dbanda@germer-sa.com 8/21/2023 5:11:06 PM SENT Karen Landinger klandinger@germer-sa.com 8/21/2023 5:11:06 PM SENT Maria Gomez mgomez@germer-sa.com 8/21/2023 5:11:06 PM SENT