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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

HILDA ELIZABETH MARQUEZ, §

§

 Plaintiff, §

§

v. § Civil Action No. 4:22-cv-00319-O

§

QUIKTRIP CORPORATION, §

§

 Defendant. §

OPINION & ORDER

Before the Court are Defendant QuikTrip Corporation’s Motion for Summary Judgment 

(the “Motion”) (ECF No. 17), filed January 27, 2023; Plaintiff Hilda Marquez’s Response (ECF 

No. 21), filed March 3, 2023; and Defendant’s Reply (ECF No. 23), filed March 17, 2023. For the 

following reasons, the Motion is hereby DENIED in part and GRANTED in part.

I. Factual Background1

On October 1, 2021, Plaintiff Hilda Marquez entered a QuikTrip gas station located at 109 

East Northside Drive in Fort Worth, Texas to utilize the women’s restroom. Video surveillance 

shows that upon entering the gas station, Plaintiff walked past several yellow warning cones on 

her way to the restroom, including one located just outside of the restroom’s entrance. Plaintiff 

entered an empty stall and locked the door behind her. As she was standing up from the toilet, 

Plaintiff slipped on a watery substance on the floor. Plaintiff fell backwards and hit her head on 

the toilet. Plaintiff then called her husband for help. 

1 Unless otherwise specified, the Court’s recounting of the facts in this case is drawn from briefing 

submitted by the parties. See generally Def.’s Br. in Supp. of Mot., ECF No. 18; Pl.’s Resp. Br., ECF No. 

22; Def.’s Reply, ECF No. 23.

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Plaintiff filed this lawsuit on November 19, 2021, bringing claims for negligence and 

premises liability.

2 Defendant removed the case to this Court on April 14, 2022. On January 27, 

2023, Defendant filed its Motion for Summary Judgment.3 Plaintiff filed her Response on March 

3, 2023.4 Defendant filed its Reply on March 17, 2023.5 The Motion is now ripe for the Court’s 

review. 

II. Legal Standard

Summary judgment is appropriate only where the pleadings and evidence show “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). Summary judgment is not “a disfavored procedural shortcut, but 

rather . . . an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, 

speedy and inexpensive determination of every action.’” Celotex Corp. v. Catrett, 477 U.S. 317, 

327 (1986) (quoting Fed. R. Civ. P. 1). A genuine dispute of material fact exists “if the evidence 

is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 248 (1986). “[T]he substantive law will identify which facts are 

material.” Id. The movant must inform the Court of the basis for its motion and identify the 

portions of the record that reveal there are no genuine disputes of material fact. Celotex, 477 U.S. 

at 323. 

The Court must view the evidence in the light most favorable to the nonmovant. Ion v. 

Chevron USA, Inc., 731 F.3d 379, 389 (5th Cir. 2013). “Moreover, a court must draw all reasonable 

inferences in favor of the nonmoving party and may not make credibility determinations or weigh 

the evidence.” Id. And if there appears to be some support for disputed allegations, such that 

2 Pl.’s Orig. Petition, ECF No. 1-2. 

3 Def.’s Mot., ECF No. 17. 

4 Pl.’s Resp., ECF No. 21. 

5 Def.’s Reply, ECF No. 23.

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“reasonable minds could differ as to the import of the evidence,” the Court must deny the motion 

for summary judgment. Anderson, 477 U.S. at 250. 

The opposing party must “identify specific evidence in the record and . . . articulate the 

precise manner in which that evidence supports his or her claim.” Ragas v. Tenn. Gas Pipeline 

Co., 136 F.3d 455, 458 (5th Cir. 1998). Therefore, where the opposing party fails to respond to a 

motion for summary judgment, the court may “accept[] as undisputed the facts so listed in support 

of [the] motion.” Eversley v. MBank Dallas, 843 F.2d 172, 174 (5th Cir. 1988). The Court may 

grant the motion if the materials submitted make a prima facie showing that the moving party is 

entitled to judgment. Id.

III. Analysis

Under Texas law, a premises owner “has a duty to exercise reasonable care to make the 

premises safe for invitees.” Seigler v. Wal-Mart Stores Texas, L.L.C., 30 F.4th 472, 478 (5th Cir. 

2022) (quoting Austin v. Kroger Texas, L.P., 465 S.W.3d 193, 202 (Tex. 2015)). To prevail on a 

premises liability claim, a plaintiff must prove four elements: “(1) Actual or constructive 

knowledge of some condition on the premises by the owner/operator; (2) That the condition posed 

an unreasonable risk of harm; (3) That the owner/operator did not exercise reasonable care to 

reduce or eliminate the risk; and (4) That the owner/operator’s failure to use such care proximately 

caused the plaintiff’s injuries.” Id. at 479 (quoting Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 

934, 936 (Tex. 1998)). 

Defendant argues for summary judgment against Plaintiff’s premises liability claim on 

three grounds. First, that Defendant lacked actual or constructive notice of the particular hazardous 

condition that injured Plaintiff. Second, that Defendant adequately warned Plaintiff of the hazard. 

And third, that the hazard that injured Plaintiff was open and obvious. Because a reasonable jury 

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may find in Plaintiff’s favor on each of these issues, the Court must deny Defendant’s Motion as 

to Plaintiff’s premises liability claim. The Court also dismisses Plaintiff’s negligence claim

because she has waived it.

1. Actual or Constructive Notice 

Defendant first contends that Plaintiff’s premises liability claim fails because Plaintiff 

cannot establish Defendant’s actual or constructive notice as she testified during her deposition 

that she does not know: (1) where the liquid she slipped on came from; (2) how long the liquid had 

been on the ground before she slipped; (3) whether anyone knew about the liquid before she 

slipped; and (4) when Defendant last inspected the area where Plaintiff slipped before she slipped.6

However, the Court cannot grant summary judgment based on this factor, since the nature of the 

wet hazard that Plaintiff slipped on is a disputed material fact.

In a slip and fall case, a plaintiff can establish a defendant’s actual notice by proving that: 

“(1) the defendant put the foreign substance on the floor or that (2) the defendant knew that the 

foreign substance was on the floor and failed to remove it.” Murray v. Chick-fil-A, Inc., No. 9-14-

CV-11, 2014 WL 11282893, at *2 (E.D. Tex. Dec. 17, 2014), aff'd, 626 F. App’x 515 (5th Cir. 

2015) (citing Keetch v. Kroger Co., 845 S.W.2d 262, 265 (Tex. 1992)).

Alternatively, to prove constructive notice, “there must be some proof of how long the 

hazard was there before liability can be imposed on the premises owner for failing to discover and 

rectify, or warn of, the dangerous condition.” Seigler, 30 F.4th at 479 (quoting Wal-Mart Stores, 

Inc. v. Reece, 81 S.W.3d 812, 816 (Tex. 2002)). In determining whether a premises owner had 

constructive knowledge, a court may consider the combination of (1) the length of the time the 

hazard existed, (2) the proximity of employees to the hazard, and (3) the conspicuousness of the 

6 Def.’s App. 023–24, ECF No. 18-2. 

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hazard. Id. (citing Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 567–68 (Tex. 2006)). “[M]ere 

proximity of an employee to a spill, without evidence of when or how it came to be on the floor, 

[is] legally insufficient to charge a premises owner with constructive notice of the hazard.” Id.

(quoting Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d at 567). 

Plaintiff contends that Defendant had actual notice because Defendant’s employee Ms. 

Alexis Oakes stated in her deposition that she mopped the floor and verbally warned other 

customers that the restroom floor was wet.

7 Defendant counters that it is equally likely the liquid 

on the floor was caused by something other than the act of mopping.8 Further, Defendant highlights 

that Plaintiff testified to slipping on a single “small puddle” of liquid at the base of the toilet, not 

on a freshly-mopped floor.9

Looking at Ms. Oakes’ deposition, she states that she “probably mopped the whole 

bathroom” less than twenty minutes before Plaintiff’s slip and fall.

10 Upon being shown 

surveillance footage of herself speaking to a woman immediately after mopping the restroom, Ms. 

Oakes was asked if she warned the woman about the wet floor in the restroom, to which Ms. Oakes 

replied, “I believe so, yes.”11 She further stated that, not long before the Plaintiff’s accident, she 

was aware the restroom floor was wet.12 Therefore, Defendant’s employee had actual knowledge 

that the restroom floor was wet minutes before Plaintiff’s accident. The issue is whether the liquid 

Plaintiff slipped on came from the mopping, or rather, whether it came from some other source. 

7 Pl.’s Resp. Br. 13, ECF No. 22.

8 Def.’s Reply 4, ECF No. 23.

9

Id. at 4–5; Def.’s App. 017, ECF No. 18-2. 

10 Pl.’s App. 18, ECF No. 22-2. Specifically, Ms. Oakes went to the restroom to mop the floor around 

1:42 p.m. Id. at 20. Plaintiff was recorded entering the restroom around 1:57 p.m. Def.’s App. 021–022, 

ECF No. 18-2.

11 Pl.’s App. 20, ECF No. 22-2.

12 Id. at 21. 

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Overall, the Court finds there is a genuine fact issue as to whether Defendant had actual 

notice of the particular source of the wetness on the floor that caused Plaintiff’s fall. It is not for 

the Court to decide whether the “small puddle” of liquid Plaintiff slipped on was caused by Ms. 

Oakes’ mopping or whether it came from some other unknown source. Therefore, summary 

judgment on such grounds is DENIED. 

2. Adequate Warning

Defendant next contends that summary judgment is warranted as to Plaintiff’s premises 

liability claim because Plaintiff was adequately warned.13 Specifically, the video surveillance 

footage shows that Plaintiff passed three warning cones on her way to the restroom, including one 

located just outside the restroom’s entrance.14 Plaintiff counters that the placement of the warning 

cones does not conclusively satisfy Defendant’s duty to warn especially because the cones were 

placed in a different room than where the dangerous condition was located.15 On these facts, the 

Court cannot grant summary judgment on this issue in favor of Defendant.

“Under Texas law, the adequacy of a warning generally presents a question of fact, but it 

can be considered as a matter of law if the evidence conclusively establishes that the property 

owner adequately warned of the condition.” Estes v. Wal-Mart Stores Texas, L.L.C., No. 3:16-CV02057-M, 2017 WL 2778108, at *3 (N.D. Tex. June 27, 2017). “If the evidence conclusively 

establishes that the property owner adequately warned the injured party of the condition, then the 

property owner was not negligent as a matter of law.” Bisacca v. Pilot Travel Centers, LLC, 476 

F. Supp. 3d 429, 435 (N.D. Tex. 2020) (quoting Henkel v. Norman, 441 S.W.3d 249, 252 (Tex. 

2014)). To be adequate, a warning must be more than a general instruction such as “be careful”; 

13 Def.’s Br. in Supp. of Mot. 14, ECF No. 18. 

14 Id. at 16. 

15 Pl.’s Resp. Br. 14–15, ECF No. 22. 

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the warning must notify of the particular hazardous condition. Id. (quoting Henkel, 441 S.W.3d at 

252). 

This case is similar to another case within the Fifth Circuit, King v. Kroger Texas L.P., No. 

3:14-CV-2905-D, 2015 WL 1823042 (N.D. Tex. Apr. 22, 2015). In King, due to snowy weather, 

defendant Kroger placed a carpeted mat over the tile flooring situated where the automatic double 

doors opened from the breezeway to the main store floor. Id. at *2. Kroger also placed a yellow 

cone at the automatic double doors. Id. Video surveillance footage showed the plaintiff stepping 

from the carpeted mat onto the linoleum tile flooring, and immediately slipping and falling. Id.

The court found that the cone did not conclusively establish that Kroger adequately warned the 

plaintiff of the condition. Id. at *3. The court focused on the fact that the warning cone was located 

in the breezeway, not at the point where the mat ended and the linoleum tile began, finding it 

reasonable that an invitee might not have understood where the dangerous condition was situated. 

Id.

Likewise, in this case, while Plaintiff passed three warning cones on her way to the 

QuikTrip restroom, none of them were located in the restroom where Plaintiff fell. The Court finds 

it is reasonable that an invitee such as Plaintiff might not, based on the cones’ location elsewhere 

in the store, have understood that the restroom floor could be wet. Therefore, the Court cannot say 

that the evidence conclusively establishes that Defendant adequately warned Plaintiff of the 

condition. Summary judgment on such grounds is DENIED. 

3. Open and Obvious

Defendant next contends that summary judgment is warranted because Plaintiff had as 

much opportunity as any of Defendant’s employees to observe the liquid on the floor before she 

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slipped.16 Plaintiff counters that she did not notice the wet floor until after she fell, and that 

Defendant’s employee Ms. Oakes clearly did not believe the wet floor in the restroom was open 

and obvious since she warned another customer about the condition.17 Once again, on these facts, 

the Court must deny Defendant’s Motion as to this issue.

Under Texas law:

When the condition is open and obvious or known to the invitee, however, the 

landowner is not in a better position to discover it. When invitees are aware of 

dangerous premises conditions—whether because the danger is obvious or because 

the landowner provided an adequate warning—the condition will, in most cases, no 

longer pose an unreasonable risk because the law presumes that invitees will take 

reasonable measures to protect themselves against known risks, which may include 

a decision not to accept the invitation to enter onto the landowner’s premises.

Ille v. Lowe’s Home Centers, LLC, No. 1:20-CV-143-H, 2021 WL 6063112, at *4 (N.D. Tex. Dec. 

20, 2021) (quoting Austin v. Kroger Texas, L.P., 465 S.W.3d 193, 203 (Tex. 2015)). 

“Whether a danger is open and obvious is a question of law determined under an objective 

test.” Id. (quoting Los Compadres Pescadores, L.L.C. v. Valdez, 622 S.W.3d 771, 788 (Tex. 

2021)). “The question is whether the danger is ‘so open and obvious that as a matter of law [the 

plaintiff] will be charged with knowledge and appreciation thereof.’” Id. (quoting Los Compadres 

Pescadores, L.L.C., 622 S.W.3d at 788) (alterations in original). “Under the objective standard, 

the question is not what the plaintiff subjectively or actually knew but what a reasonably prudent 

person would have known under similar circumstances.” Id. (citation omitted). Typically, a 

condition is found to be open and obvious where there are “distinctive, conspicuous features 

inherent in the condition relative to its surroundings, the extent to which the condition is 

unobscured from view,” and “the plaintiff was, or a reasonable person—with plaintiff’s degree of 

familiarity under similar circumstances—would have been, aware of the condition.” Id.

16 Def.’s Br. in Supp. of Mot. 18, ECF No. 18. 

17 Pl.’s Resp. Br. 17, ECF No. 22.

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In this case, the Court finds that fact issues exist at this stage as to whether the dangerous 

condition of the liquid on the restroom floor was open and obvious. Defendant has not provided 

evidence that the “small puddle” of liquid Plaintiff slipped on was distinctive or conspicuous 

relative to its surroundings or that a reasonably prudent person under the circumstances would 

have been aware of the liquid. Therefore, summary judgment based on the open and obvious nature 

of the liquid is DENIED. 

4. Negligence

Defendant lastly contends that Plaintiff cannot maintain a negligence claim under Texas 

law.

18 Plaintiff states that she no longer wishes to pursue her claim for negligence.19 Accordingly, 

Plaintiff’s negligence claim is DISMISSED. 

IV. Conclusion

For the reasons listed above, Plaintiff’s negligence claim is DISMISSED and summary 

judgment as to Plaintiff’s premises liability claim is DENIED.

SO ORDERED on this 6th day of April, 2023.

18 Def.’s Br. in Supp. of Mot. 19–20, ECF No. 18. 

19 Pl.’s Resp. Br. 19, ECF No. 22. 

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