UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MOSES SIMPKINS,

Plaintiff,

VS.

WAL-MART STORES TEXAS, LLC,

Defendant.

)

)

)

) CIVIL ACTION NO.

)

) 3:22-CV-0571-G

)

)

)

MEMORANDUM OPINION AND ORDER

Before the court is Wal-Mart Stores Texas, LLC’s (the “defendant” or “WalMart”) motion for summary judgment pursuant to Federal Rule of Civil Procedure

56. Defendant Wal-Mart Stores Texas LLC’s Motion for Summary Judgment

(“Motion”) (docket entry 15). For the reasons set forth below, Wal-Mart’s motion

for summary judgment is GRANTED in part and DENIED in part. The court

GRANTS Wal-Mart’s motion as to the plaintiff Moses Simpkins’ (the “plaintiff” or

“Simpkins”) premises liability claim. The court DENIES Wal-Mart’s motion as to

Simpkins’ negligence and gross negligence claims.

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I. BACKGROUND

This case arises out of an incident that occurred while Simpkins was shopping

for a television at a Wal-Mart supercenter on November 27, 2020. Defendant WalMart Stores Texas LLC’s Brief in Support of Its Motion for Summary Judgment

(“Brief in Support of Motion”) (docket entry 16) at 1. When Simpkins found a 65-

inch television to purchase, he asked a Wal-Mart associate for help getting a cart to

carry the television. Plaintiff’s Brief in Support of His Response to Defendant WalMart Stores Texas, LLC’s Motion for Summary Judgment and Brief in Support

Thereof (“Brief in Support of Response”) (docket entry 29) at 5. 

What occurred next is disputed by the parties. Simpkins alleges that he asked

the Wal-Mart associate for a flatbed cart to carry the television, that the associate

brought out a flatbed cart that televisions are usually supposed to go on, and that the

associate refused to let Simpkins use the flatbed cart because Wal-Mart only gives

customers flatbed carts for televisions that are 70 inches or more and Simpkins was

purchasing a 65-inch television. Brief in Support of Response at 5. Subsequently,

the Wal-Mart associate personally helped Simpkins put the 65-inch television into a

standard shopping cart with a basket. Id. at 6. On the other hand, Wal-Mart alleges

that Simpkins found a 65-inch television to purchase and decided, on his own, to put

the television in a standard shopping cart. Brief in Support of Motion at 1. WalMart avers that Simpkins made this decision because a Wal-Mart associate was using

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the only flatbed cart in the television section and he was unable to find another one. 

Id. at 1-2. Wal-Mart further asserts that outside of asking one woman for a flatbed

cart, Simpkins did not personally do anything to find an available flatbed cart nor

inform any Wal-Mart associates that he was using a standard shopping cart to carry

the television to checkout. Id. at 2.

What happened after Simpkins received the standard shopping cart to carry

the 65-inch television is mostly undisputed. Simpkins carried the television in the

shopping cart for about ten minutes, turned a corner while walking, and the shopping

cart fell over causing the television to fall off the cart. Brief in Support of Response at

5-6. Consequently, Simpkins fell and allegedly hurt his back. Id. at 7.

Simpkins filed his original complaint in the 95th Judicial District Court of

Dallas County, Texas, on January 13, 2022. See Plaintiff’s Original Petition,

Defendant Wal-Mart Stores Texas LLC’s First Amended Appendix in Support of its

Motion for Summary Judgment (“Appendix”), Exhibit A (docket entry 25-1). In the

complaint, Simpkins asserts claims for premises liability, negligence, and gross

negligence against Wal-Mart based on his fall at the Wal-Mart store. Id. at 3-6. WalMart removed this case to federal court on March 10, 2022. See Notice of Removal

(docket entry 1).

On January 3, 2023, Wal-Mart filed the instant motion for summary judgment

under Federal Rule of Civil Procedure 56. See Motion. First, Wal-Mart argues that

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Simpkins’ negligence claim fails because he has not provided sufficient evidence to

support his claim and any evidence demonstrates that Simpkins himself was actually

the proximate cause of his injury. Brief in Support of Motion at 3-4. Second, WalMart avers that Simpkins’ gross negligence claims fails because negligence is a

prerequisite for gross negligence and Simpkins’ negligence claim is deficient, and

regardless, Simpkins cannot satisfy the remaining gross negligence elements. Id. at 5. 

Third, Wal-Mart contends that Simpkins’ premises liability claim fails because the

claim is mischaracterized and is actually a negligence claim, and regardless, Simpkins

failed to present evidence proving the premises liability elements. Id. at 7-9.

Simpkins filed his response on January 24, 2023. See Plaintiff’s Response to

Defendant Wal-Mart Stores Texas, LLC’s Motion for Summary Judgment

(“Response”) (docket entry 28). First, Simpkins waives and withdraws his premises

liability claim and does not contest the court dismissing the claim with prejudice. Id.

at 1-2. Second, Simpkins argues that he has presented sufficient evidence to support

a prima facie negligence claim, determinations of proximate cause or contributory

negligence are usually left for a jury to decide, and Wal-Mart has provided no

evidence or legal justification for the court to grant summary judgment on his

negligence claim. Brief in Support of Response at 12-15. Third, Simpkins contends

that Wal-Mart bears the burden of proving any affirmative defenses, such as

contributory negligence, and it has failed to provide any evidence to support such an

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argument. Id. at 15-16. Fourth, Simpkins argues that he has presented sufficient

evidence to support a prima facie gross negligence claim, Wal-Mart has provided the

court with a no-evidence motion for summary judgment that merely provides the

elements for gross negligence without further evidence to support the motion, and at

the summary judgment stage Simpkins does not bear the burden of proving anything

but only need provide some evidence to support his case. Id. at 16-20.

Wal-Mart did not file a reply.

II. ANALYSIS

A. Summary Judgment Standard

Summary judgment is proper when the pleadings and evidence on file show

that no genuine issue exists as to any material fact, and that the moving party is

entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). “[T]he substantive law

will identify which facts are material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). The movant makes such a showing by informing the court of the basis

of its motion and by identifying the portions of the record which reveal there are no

genuine material fact issues.1 See Celotex Corporation v. Catrett, 477 U.S. 317, 323

1 A defendant’s motion for summary judgment will fail if the movant’s

brief consists of only conclusory statements that the record lacks evidence as to the

elements of the plaintiff’s claim. See St. Paul Mercury Insurance Company v.

Williamson, 224 F.3d 425, 440 (5th Cir. 2000). “[B]efore the non-moving party is

required to produce evidence in opposition to the motion, the moving party must first

satisfy its obligation of demonstrating that there are no factual issues warranting

trial.” Id. (internal quotation omitted).

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(1986). An issue as to a material fact is genuine “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S.

at 248. 

Once the movant makes this showing, the nonmovant must then direct the

court to evidence in the record sufficient to establish that there is a genuine issue of

material fact for trial. Celotex Corporation, 477 U.S. at 323-24. To carry this burden,

the “opponent must do more than simply show that there is some metaphysical doubt

as to the material facts.” Matsushita Electric Industrial Company, Limited v. Zenith Radio

Corporation, 475 U.S. 574, 586 (1986). Instead, he must show that the evidence is

sufficient to support a resolution of the factual issue in his favor. Anderson, 477 U.S.

at 249. All of the evidence must be viewed, however, in a light most favorable to the

motion’s opponent. Id. at 255 (internal citation omitted).

Furthermore, the court cannot, in the absence of proof, “assume that the

nonmoving party could or would prove the necessary facts.” Little v. Liquid Air

Corporation, 37 F.3d 1069, 1075 (5th Cir. 1994) (per curiam) (en banc) (citing Lujan

v. National Wildlife Federation, 497 U.S. 871, 889 (1990) (“It will not do to ‘presume’

the missing facts because without them the affidavits would not establish the injury

that they generally allege.”)). Additionally, when conflicting evidence is presented,

the court is not permitted to make credibility determinations regarding the evidence. 

See Lindsey v. Prive Corporation, 987 F.2d 324, 327 (5th Cir. 1993).

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B. Application2

Wal-Mart contends that the court should grant it summary judgment on

Simpkins’ negligence and gross negligence claims because Simpkins has presented

insufficient “summary judgment evidence of each element for which he bears the

burden of proof at trial.” Motion at 2. Wal-Mart, however, failed to meet its initial

summary judgment burden in identifying for the court the portions of the record

which reveal there are no genuine material fact issues. See Celotex Corporation, 477

U.S. at 323. Instead, Wal-Mart’s brief typically relies on conclusory statements that

lack evidence in the record, and when Wal-Mart does cite to the record to support

one of its contentions, it completely mischaracterizes the evidence it argues supports

its motion. Consequently, Wal-Mart not only fails to show an absence of genuine

issues of material fact but also highlights for the court that this case hinges on a

material factual dispute: whether a Wal-Mart associate refused to let Simpkins use a

flatbed cart or if Simpkins personally chose to use a standard cart over a flatbed cart.

For example, in arguing that the court should grant its motion for summary

judgment on Simpkins’ negligence claim, Wal-Mart contends that “the evidence

indicates that [Simpkins] himself proximately caused the injuries of which he

complained.” Brief in Support of Motion at 3-4. Wal-Mart then concludes, without

2 Because Simpkins waives his premises liability claim and does not

contest the court dismissing it with prejudice, Response at 1-2, Wal-Mart’s motion

for summary judgment as to Simpkins’ premises liability claim is granted.

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citing any verifiable evidence in the record, that Simpkins’ actions superseded

anything Wal-Mart did because Wal-Mart made both standard and flatbed carts

available to customers and “[i]t was [Simpkins’] decision to use a standard shopping

cart that caused the harm complained of, not the associates assertion that the flatbed

in the television section was not available for immediate use.” Id. at 4.

Furthermore, the one time Wal-Mart cites to the record to support its

argument regarding Simpkins’ negligence claim, it avers that Simpkins stated in his

deposition that “he ‘had to do what he had to do’ and opted for convenience over

safety by choosing to use the first cart he could find.” Brief in Support of Motion at

4 (quoting Remote Videotaped Deposition of Moses Evaster Simpkins August 22,

2022 Volume 1 (“Deposition”), Appendix, Exhibit B at 41:1-5) (emphasis added). 

This, however, is a gross mischaracterization and clear misquotation of the record.

Reading Simpkins’ entire answer at this part of his deposition illustrates that

Simpkins directly contradicts Wal-Mart’s characterization of the record. When asked

why he used a standard shopping cart instead of a flatbed cart, when he knew the

flatbed cart was safer to use, Simpkins explained how that question is better suited

for the Wal-Mart associate who would not give him the flatbed cart, because he does

not “know why [she didn’t] give me the cart. You know, I asked for it, and it was

right there . . . I couldn’t go and make no demands. So . . . you know, you have to do

what you got to do sometimes.” Deposition, Appendix, Exhibit B at 40:18-41:3

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(emphasis added). Moreover, it does not take long for the court to look five pages

back in the same deposition and see that Simpkins stated that he asked a Wal-Mart

associate for a flatbed cart, that the Wal-Mart associate brought a flatbed cart out,

and that the associate refused to give Simpkins the flatbed cart for the 65-inch

television because Wal-Mart only gives flatbed carts for televisions that are “70 inches

and up.” Id. at 36:6-37:2.

Wal-Mart’s argument that the court should grant it summary judgment on

Simpkins’ gross negligence claim is even more deficient than its assertion regarding

Simpkins’ negligence claim. Outside of contending that the court must grant

summary judgment on the gross negligence claim if the court grants summary

judgment on the negligence claim, Wal-Mart states that summary judgment is proper

because “there is no evidence for either element of the gross negligence claim.” Brief

in Support of Motion at 5. Wal-Mart then proceeds to provide the court with a

lengthy recitation of each gross negligence element before concluding that Simpkins

“cannot meet either element.” Id. at 5-6. Throughout its entire argument regarding

the gross negligence claim, Wal-Mart fails to cite to the record once and, therefore,

does not show that there is an absence of genuine material fact issues. See id. at 5-7.

In sum, Wal-Mart has failed to offer any evidence whatsoever that there are no

genuine material fact issues, and outside of occasional citations, its brief contains only

conclusory statements that the record lacks evidence as to the elements of Simpkins’

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claims. Furthermore, where Wal-Mart does occasionally cite to the record, it typically

mischaracterizes what the record states. Moreover, Wal-Mart chose not to file a

reply, indicating a conscious decision not to cure the conspicuous defects in its initial

motion. Ultimately, Wal-Mart fails to understand that the initial burden is on itself

to show that there are no genuine material fact issues, and not on Simpkins to have

preemptively provided enough evidence proving his claims before Wal-Mart even

filed this motion. Therefore, Wal-Mart’s motion for summary judgment on

Simpkins’ claims for negligence and gross negligence is denied.

III. CONCLUSION

For the reasons stated above, Wal-Mart’s motion for summary judgment is

GRANTED in part and DENIED in part.

SO ORDERED.

February 24, 2023.

___________________________________

A. JOE FISH

Senior United States District Judge

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