INDEX OF STATE COURT PLEADINGS AND FILING DATES PAGE 1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

MICHELLE FLORES 

PLAINTIFF, 

v. 

WAL-MART STORES TEXAS, LLC 

DEFENDANT. 

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§ 

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CIVIL ACTION NO.__________________ 

INDEX OF STATE COURT PLEADINGS AND FILING DATES 

TAB DOCUMENT DATE 

1. State Court Docket Sheet of the 298th Judicial District, Dallas, County 

Texas; Cause No. DC-22-08753 

09/09/2022 

2. Plaintiff’s Original Petition 07/29/2022 

3. Citation Issued to Defendant Wal-Mart Stores, Texas, LLC 08/04/2022 

4. Jury Fee Paid by Plaintiff 08/04/2022 

5. Defendant’s Wal-Mart Stores Texas, LLC’s Original Answer to 

Plaintiff’s Original Complaint 

09/06/2022 

 

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TAB NO. 1 

 

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TAB NO. 2 

 

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FILED

7/29/2022 2:14 PM

FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS

Ang'e 'na DEPUTY 1CIT ESERVE JURY No DC-22-08753

V'

MICHELLE FLORES IN THE DISTRICT COURT Plaintiff, 298th V. JUDICIAL DISTRICT WAL-MART STORES TEXAS,LLC Defendant. OF DALLAS COUNTY, TEXAS

PLAINTIFF'S ORIGINAL PETITION, REQUEST FOR DISCLOSURES,

INTERROGATORIES, ADMISSIONS AND REQUESTS FOR PRODUCTION

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES MICHELLE FLORES (hereinafter sometimes

"Plaintiff'), complaining of and about WAL—MART STORES TEXAS,

LLC d/b/a and/or a/k/a Wal—Mart Supercenter Store

(hereinafter sometimes called "Defendant" or "WAL—MART"), and

for cause of action would show unto the Court the

following:

I.DISCOVERY CONTROL PLAN LEVEL

Plaintiff intends for discovery to be conducted under Level

1, because this suit involves only monetary relief aggregating

not more than $100,000.00 excluding court cost, prejudgment

interest, and attorney fees. Responses to discovery requests

are due fifty (50) days from the date Defendant is served with this petition.

II. PARTIES AND SERVICE Plaintiff, MICHELLE FLORES, is resident of the State of

Texas. Plaintiff is resident of Texas. The last three digits

of Plaintiffs' social security number and driver's license

Page of 17 Original Petition Michelle Flores

Case 3:22-cv-02009-M Document 1-3 Filed 09/09/22 Page 7 of 37 PageID 18
number will be provided after Defendants produce their written

confidentiality procedures. Defendant WAL—MART STORES TEXAS, LLC d/b/a and/or

a/k/a Wal—Mart Supercenter Store, is Nonresident Limited

Liability Company.

"Walmart Stores" is an assumed name or trade name under which the store does business. Defendant may be served with

process on its registered agent: CT Corporation Systems, 1999

Bryan Street, Suite 900, Dallas, Texas 75201.

RULE 47 STATEMENT OF MONETARY RELIEF SOUGHT

Plaintiff would rather the jury decide what amount of money

that would fairly and reasonably compensate the Plaintiff for

the damages and injuries proven at the time of trial. However, Defendant will likely utilize Rule 47 of the Texas Rules of

Civil Procedure to force Plaintiff to state maximum amount of money claimed.

Plaintiff claims that the maximum amount of money that

should ever be awarded in this case should not exceed One Hundred Thousand DOLLARS ($100,000.00). However, if the jury

chosen in this case should determine that larger sum would be

appropriate to compensate the Plaintiff for injuries and damages

as set forth in Plaintiffs' pleadings, then Plaintiff reserve

their right to amend the petition to carry out the will of the

jury as is their right under the U.S. and Texas Constitutions.

III. JURISDICTION AND VENUE

The subject matter in controversy is within the

Page of 17 Original Petition Michelle Flores

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jurisdictional limits of this Court.

This court has jurisdiction over Defendant WAL—MART

because said Defendant purposefully availed itself of the privilege of conducting activities in the state of Texas

and established minimum contacts sufficient to confer

jurisdiction over said Defendant, and the assumption of

jurisdiction over WAL-MART will not offend traditional

notions of fair play and substantial justice and is

consistent with the constitutional requirements of due

process

Plaintiff would show that Defendant had continuous

and systematic contacts with the state of Texas sufficient

to establish general jurisdiction over said Defendant.

This court has jurisdiction over Defendants because they

are foreign corporation which at all times conducted

business in the State of Texas and is subject to

jurisdiction in Texas as it has committed tort in Texas.

This satisfies the Texas long-arm statute of Texas Civil

Practice and Remedies code l7.042(2) and makes Defendants

subject to Texas jurisdiction.

Plaintiff would also show that the cause of action

arose from or relates to the contacts of Defendant to the

state of Texas, thereby conferring specific jurisdiction

with respect to said Defendant.

Page of 17 Original Petition Michelle Flores

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Furthermore, Plaintiff would show that Defendant

engaged in activities constituting business in the state of

Texas as provided by Section 17.042 of the Texas Civil

Practice and Remedies Code.

Venue in Dallas County is proper in this cause under

Section 15.002(a)(l) of the Texas Civil Practice and Remedies

Code because all or substantial part of the events or

omissions giving rise to this lawsuit occurred in this

county.

IV. FACTS

l. On or about July 31, 2020, Plaintiff was injured on

premises located at Walmart in Mesquite, Dallas County, Texas.

2. Defendant controlled the premises in which Plaintiffs

injuries occurred and had the exclusive right to control the

property.

3. Plaintiff was an invitee, shopping, at the time of

the injury.

4. Plaintiffs' injuries occurred as she was walking in

the produce area, and she suddenly slipped and fell on grapes

that were on the floor and suffering injury.

5. Walmart Manager began taking pictures.

6. At all times material hereto, there were no signs

or other warnings posted. to alert Michelle of the danger

posed by the slippery food such as grapes on the floor that

caused her to slip and fall.

Page of 17 Original Petition Michelle Flores

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7. As result of the fall, Michelle sustained personal

injuries. Following the fall she sought and. received Inedical

treatment from various medical providers for her personal

injuries, including injuries to her knee, ankle, pinky

finger, and back. Michelle's doctors identified the injuries

suffered by Michelle Flores and created treatment plan and

provided treatments and medical care.

8. At all times material hereto, Defendant was the

owner and/or possessor of the Subject Premises. Further, at

all times material hereto, Defendant's premises were open to

the public for transacting business. As owner and/or

possessor, Defendant owed Plaintiff and others duty to maintain the Subject Premises in condition that would not

pose an unreasonable of harm, including the area where

Plaintiff was injured.

9. Defendant, as owner, possessor, controller,

occupier and/or agent of said owner, possessor, controller

and occupier of the Subject Premises owed Plaintiff duty to

exercise reasonable care for her safety.

lO. All. of' Michelle's injuries occurred. as (direct

result of the slip and fall inside the Wal—Mart Store that

was proximately caused by the dangerous condition described

herein, which, based on information and. belief, Defendant

knew or, ill the exercise of ordinary care, should have

known existed.

Page of 17 Original Petition Michelle Flores

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V. PLAINTIFF‘S CLAIMS OF RESPONDEAT SUPERIOR

ll. Plaintiff realleges and incorporates the facts and

allegations that are set forth in paragraph above as if same

were set forth at length herein.

12. Plaintiff invokes the doctrine of Respondeat

Superior as against Defendant.

l3. At the time of lflichelle’s slip and. fall and. her

resulting injuries and immediately prior thereto, based on

information and belief, various managers and employees were

acting within the course and scope of their employment for Defendant.

l4. At the time of Michelle’s fall and her resulting

injuries and immediately prior thereto, on further

information and belief, various managers and employees were

engaged in the furtherance of Defendant's business.

VI. PLAINTIFF'S CLAIMS OF RES IPSA LOQUITUR

l5. Because Defendants were in exclusive control over the

premises at the time of this injury, Plaintiff relies on the

doctrine of res ipsa loquitur in that Plaintiff will show that

the character of the occurrence giving rise to this litigation

is such that it would not have happened in the absence of

negligence, and that the maintenance and safety of the facility

was within the exclusive control of the Defendants at the time

of the negligence occurred.

l6. Defendant, by and through its agents, servants and

Page of 17 Original Petition Michelle Flores

Case 3:22-cv-02009-M Document 1-3 Filed 09/09/22 Page 12 of 37 PageID 23
employees is liable to Michelle Flores for failing to

remove the dangerous condition or furnish sufficient warnings

to make her aware of the location of the grapes on the floor which caused her to fall inside of the Wal-Mart Store, and for

failing to exercise reasonable care for her safety.

VII.CAUSES OF ACTION

CAUSE 0F ACTION PREMISES LIABILITY

l7. Defendants owned and controlled the premises and/or managed and operated the store where Plaintiff was injured.

Plaintiffs would show that at the time of the occurrence in

question, one or more conditions existed on the premises

that posed an unreasonable risk of harm grapes on the floor

were there for period of time sufficient to notice an remove

in one of the high traffic areas of the store. The grapes on

the floor in high traffic area was an unreasonably

dangerous condition. These unreasonably dangerous conditions

caused Plaintiff to slip and fall and suffer serious

injuries. Defendants failed to reduce or eliminate this

unreasonably dangerous condition, or warn Plaintiff about the

condition. Specifically, Defendants failed in their duty to make the condition safe because:

there was no warning of the unreasonably dangerous condition;

there was no attempt to remove the grapes, clean or sweep the area before your customer walked through or entered and attempted to leave the area in question; andpolicies, procedures and employee training regarding

inspection and cleanup of the produce area was not

Page of 17 Original Petition Michelle Flores

Case 3:22-cv-02009-M Document 1-3 Filed 09/09/22 Page 13 of 37 PageID 24
enforced and were violated. Defendant Walmart owned, operated, managed or were in

control of the property in question. Defendant knew or should

have known that Plaintiff, or someone similarly situated to the Plaintiff, would be licensee or invitee on the premises, and

as such, had duty to the Plaintiff.

18. Defendants knew, or in the exercise of reasonable

diligence, should have known of the dangerous conditions

before the accident. Plaintiff had no awareness of the

unreasonably’ dangerous conditions, which. were not open and

obvious to Plaintiff. The Defendant failed to exercise

ordinary care to make the condition reasonably safe or to

adequately warn Plaintiff of the unreasonably dangerous

conditions. The Defendants' failure to exercise ordinary care

proximately caused Plaintiff to suffer injuries and damages.

A. Defendant breached its duty by allowing an unsafe

condition to exist that, through the exercise of ordinary

care, was known or should have been known; B. Defendant breached its duty by failing to warn Plaintiff of an unsafe condition existing on their property; C. Defendant breached its duty by failing to properly maintain the premises; D. Defendant breached its duty by failing to keep the premises reasonably safe; E. Defendant breached its duty by failing to exercise ordinary care; and

F. Defendant breached its duty by failing to inspect the premises to discover latent defects.

CAUSE OF ACTION STRICT LIABILITY

l9. The grapes on the floor were products being

Page of 17 Original Petition Michelle Flores

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offered for sale by Walmart. Walmart sells bags of grapes,

and other fruit in the produce area, as part of its retail

business. Walmart exercised substantial control over the over

the grapes, where they are maintained in the store, how often

the area where the grape are maintained is maintained and the

Plaintiffs' harm. NEGLIGENCE CLAIM AGAINST WALMART

20. Defendant WALMART had duty to exercise the

degree of care that reasonably careful business would use

to avoid harm to others under circumstances similar to those

described herein.

21. Plaintiff's injuries were proximately caused. by Defendant's negligent, careless, and. reckless disregard. of

said duty. NEGLIGENT ACTIVITY

22. Pleading in the alternative, Plaintiff contends

that her injuries were caused by contemporaneous negligent

act on the premises. The negligent activity involved Defendant's employees who failed to remove grapes from the

floor near the area the grapes were kept, where they knew

customers such as the Plaintiff would walk.

22. Plaintiff alleges that, upon the occasion in

question, Defendant, through its agents, servants and/or

employees, failed to use ordinary care by various acts and

omissions in at least the following ways: but is not limited

Page of 17 Original Petition Michelle Flores

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to, the following acts and omissions:

a)Failing to exercise reasonable care to reduce or eliminate the dangerous condition caused by the

contemporaneous negligent activity; b)Failing to exercise ordinary care in maintaining the premises in reasonably safe condition;

c)Failing to warn Plaintiff, of the unreasonably dangerous contemporaneous negligent activity; d)Creating and causing the unreasonably dangerous condition to exist on the subject premises; e)Failure to use reasonable care in training employees how to properly and safely maintain the interior floors of the subject premises; f)A. Defendant failed to keep proper lookout for Plaintiff‘s safety that would have been maintained by business exercising ordinary prudence under the same similar circumstances; g)Defendant failed to inspect the property; and

Failure to use reasonable care in supervising

employees to ensure they are competent cleaning, preventing, removing and/or warning of unreasonably dangerous conditions.

VIII. COMPENSATORY DAMAGES FOR PLAINTIFF MICHELLE FLORES

23. As direct and proximate result of Defendant's

conduct, Plaintiff suffered injuries.

24. As direct and proximate result of the occurrence made the basis of this lawsuit, Plaintiff MARTHA ALVAREZ

suffered serious and painful injuries, and to incur the

following damages:

1. Physical pain in the past and the future 2. Disfigurement in the past and future (scars) and loss of range of motion

3. Physical impairment

in the past and future (enjoyment of

life) 4. Medical expenses in the past and future 5. Other direct economic damages

IX. JURY DEMAND

Plaintiffs demand jury trial.

Page 10 of 17 Original Petition Michelle Flores

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X. REQUEST FOR DISCLOSURE

25. Plaintiff requests Defendants disclose within 50 days

of service of process the information or material described in

Rule 194.2 of the Texas Rules of Civil Procedure.

XI. REQUEST FOR PRODUCTION

22. Plaintiff requests that Defendants, Defendants'

attorneys, and Defendants' insurance carriers, preserve all

documents and evidence related to this accident, including all

photographs, estimates and statements taken in connection with Defendants and Defendants' insurance carrier's investigation of

this accident.

23. Pursuant to Texas Rule of Civil Procedure 196,

Plaintiff demands that Defendant respond and produce within

fifty (50) days of service of this petition all documents

related to the accident that are in the care, control or

possession of Defendants, Defendants' attorneys, and Defendants' insurance carrier including, but not limited to the

following documents:

1.All photographs (produce color photos)involved in

this slip and fall. 2..All documents that Defendant intends to offer at

trial in support of any claim or contention in this matter. 3..All employment records or contracts illustrating

the occupation of any and all employees present on

the scene at the time of the accident.

Page 11 of 17 Original Petition Michelle Flores

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Page 12 of 17

9.

10.

11.

12.

.All documents or manuals pertaining to the training

of Defendant's employees and procedures used.

.All documents relating to any statements made by the Plaintiff regarding the incident or

injuries.

.The entire and complete hxfidau;report.

.All written or recorded statements relating to the accident in question of all persons who have

knowledge of relevant facts. This Request relates

to all written or recorded statements and/or witness interviews and/or notes and memos regarding

the statements.

.All documents relating to or containing information

concerning Defendants' investigation of the accident in question, why and how the accident occurred, and what could have been done to prevent

the accident in question or- what can be done to prevent such an accident in the future. All photos and videos of your customer while in the

store, store parking lot and in the area where the accident occurred on July 31, 2020. All photos and videos of the area where Michelle

Flores fell that were taken on July 31, 2020, by

store cameras, store video equipment. or employee

cameras and video or by any person investigating

the slip and fall. The store's policies and procedures, and

training materials, in effect at the time of the slip and fall that relate to maintaining, cleaning and removing food (like grapes) from the

floor. All changes and/or modifications to the stores policies and procedures, and training materials

that have been used after the slip and fall that

Original Petition Michelle Flores

Case 3:22-cv-02009-M Document 1-3 Filed 09/09/22 Page 18 of 37 PageID 29
relate to slip and fall near the produce area and discovering and locating areas where grapes could fall and cause danger to customers. 13. All drawings, designs, blueprints and specifications, maps or sketches of the scene of

the occurrence in question. 14. All training materials and video and computer based information regarding slip and falls, and

cleaning and safekeeping the Walmart stores. 15. All training materials that teach your employees about the safekeeping and. disposal of all videos

and photos and statements.

XII. INTERROGATORIES

24. Pursuant to Texas Rule of Civil Procedure 197,

demand is now made for Defendant to respond to the

undersigned counsel within fifty (50) days of service of this petition with written answers to the following

interrogatories:

1. Please state the full name, address, telephone

number, date of birth, driver's license number, social security number, and occupation of the person answering these interrogatories. 2. Do you, your attorneys or investigators or

anyone acting on your behalf, have any maps, charts, diagrams, photographs, videos, motion pictures, and/or recordings taken of the scene of

this incident, or of any of the physical or mechanical objects, or of the jperson involved in

this incident? If yes, then please indicate your willingness to allow the Plaintiffs' counsel in

Page 13 of 17 Original Petition Michelle Flores

Case 3:22-cv-02009-M Document 1-3 Filed 09/09/22 Page 19 of 37 PageID 30
Page 14 of 17

this lawsuit to inspect and copy or photograph the

same.

If you contend that the incident in question was

an "unavoidable accident," describe in detail what you believe to be the cause of the accident, to the exclusion of the conduct of the Plaintiffs or you.

If you contend that someone else‘s conduct or

something else is the "sole proximate cause" of the accident in question, describe in detail the identity

of that person, or what exactly caused the accident. Please describe how the accident occurred.

Identify the highest ranking Walmart officer or

employee who resides and works in the state of Texas, who has oversight and/or decision making

responsibility for multiple Walmart stores in Texas. State the address and county where such person has his

or her primary office, and what said person's

responsibilities consisted of on the date of this accident in question and. the date of your response herein. There can be more than one highest ranking

employee.

Identify the district manager and provide his/her office address who is the district manager of the

store where this accident occurred.

Identify the present and former Walmart employees

and. managers who worked at the store and. who were

responsible for keeping the area where the Plaintiff

fell, free and clear or risks.

Identify all persons, Walmart employees and Walmart managers who placed or saw or walked by the

grapes on the floor near the produce area where the accident occurred on July 31, 2022, before your

customer fell.

Original Petition Michelle Flores

Case 3:22-cv-02009-M Document 1-3 Filed 09/09/22 Page 20 of 37 PageID 31
lO. With regard to the Walmart employee(s) who had

any responsibility for checking the floors of the

store for safety and slip and fall hazards,

including pooled or accumulated water, ice or other

liquids or substances on September l6, 2013,

identify and describe all training that said

employees received prior to and after the accident, whether in written form or otherwise, relating to

checking the floor of the store for safety hazards and slip and full hazards and the correction of the hazards before customer or an employee was injured.

ll. Identify and describe all of Walmart's teaching,

training, education, retraining and corrective measures, whether in written form or otherwise

relating to checking the store for safety hazards,

including without limitation, checking for grapes or

substances on the floor and please identify all

changes made to said. teaching, training, education,

retaining and corrective measures since July 31, 2020.

The time period of interest in from January l, 2020

through the present.

XIII. REQUEST FOR ADMISSIONS

Pursuant to Texas Rule of Civil Procedure 198, demand

is now made upon Defendant to respond to the undersigned counsel within fifty (50) days of service of this petition with written responses to the

following Request for Admissions: 1. Admit that you have been properly named in the

above entitled and numbered cause. 2. Admit that you have been properly served. with

citation in the above entitled and numbered cause. 3. Admit that the incident made the basis of this

suit did not result from an unavoidable accident.

Page 15 of 17 Original Petition Michelle Flores

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Admit that there was no non-human event or

condition that contributed to the incident made the basis of this suit. Admit that there was no non-human event or

condition that was the sole cause of the incident made

the basis of this suit. Admit that the incident made the basis of this

suit was proximately caused, at least in part, by your negligence. Admit that your negligence was the sole cause of

the incident made the basis of this lawsuit. Admit that you had the exclusive care, custody

and control of the premises made the basis of this

lawsuit.

Admit that you failed to exercise ordinary care

in the care, custody, control and maintenance of the premises made the basis of this lawsuit. Admit that incident made the basis of this suit did not occur because of the negligence of the Plaintiff. Admit that that Plaintiffs did not fail to act as persons of ordinary prudence would have done under the

same or similar circumstances in the incident made the basis of this suit Admit that you accept full responsibility for the

lO

ll

incident made the basis of this suit.

XIV. NOTICE PURSUANT TO TRCP 193.7

25. Pursuant to Rule 193.7 of the Texas Rules of Civil

Procedure, Counsel for Plaintiff intends to use Defendants'

discovery responses and any documents produced in discovery

Page 16 of 17 Original Petition Michelle Flores

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in the trial of this cause of action and/or any hearings

before the Court herein.

PRAYERWHEREFORE, PREMISES CONSIDERED, Plaintiff, Michelle Flores,

respectfully prays that the Defendant be cited to appear and

answer herein, and that upon final hearing of the

cause, judgment be entered for the Plaintiff against Defendant for damages in an amount within the jurisdictional

limits of the Court, in an amount less than $100,000.00;

together with pre-judgment interest (from the date of injury

through the date of judgment) at the maximum rate

allowed by law; post-judgment interest at the legal

rate, costs of court; and such other and further relief to which the Plaintiff may be entitled at law or in equity. Respectfully submitted, SMITH LAW

/s/ JOe Smith

Joe A. Smith

joe@slinjury.com

State Bar No. 24041942 P.O. Box 489 Desoto, Texas 75123 Tel: 214.943.0100

Fax: 888.317.8235

ATTORNEY FOR PLAINTIFF

Page 17 of 17 Original Petition Michelle Flores

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TAB NO. 3 

 

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FORM N0. 353—3—CITATION THE STATE OF TEXAS

To: WAL-MART STORES TEXAS, LLC

REGISTERED AGENT CT CORPORATION SYSTEMS

1999 BRYAN STREET STE 900 DALLAS TX 75201 GREETINGS: You have been sued. You may employ an attorney. If you or your attorney do not file written

answer with the clerk who issued this citation by 10 o'clock am. of the Monday next following the expiration of twenty days after you were served this citation and petition, default judgment may be taken against you. In addition to filing written answer with the clerk, you may be required to make initial disclosures to the other parties ofthis suit. These disclosures generally must be made no later than 30 days after you file your answer with the clerk. Find out more at TexasLawHelp.org. Your answer should be addressed to the clerk ofthe 298th District Court at 600 Commerce Street, Dallas, Texas 75202.

Said Plaintiff being MICHELLE FLORES

Filed in said Court 29th day 0f July, 2022 against WAL-MART STORES TEXAS, LLC

For Suit, said suit being numbered DC—22-08753, the nature ofwhich demand is as follows: Suit on PROPERTY etc. as shown on said petition REQUEST FOR DISCLOSURE, PRODUCTION, INTERROGATORIES AND ADMISSIONS copy of which accompanies

this citation. If this citation is not served, it shall be returned unexecuted. WITNESS: FELICIA PITRE, Clerk of the District Courts of Dallas, County Texas. Given under my hand and the Seal of said Court at office 0n this the 4th day 0f August, 2022

ATTEST: FELICIA PITRE, Clerk of the District Courts ofDallas County, Texas

By [[jkilébfl NW5,” Deputy MEDELIN NAVARRETE

ESERVE CITATION

No.: DC-22-08753

MICHELLE FLORES

LS- WAL—MART STORES TEXAS LLC

ISSI‘JED

on this the 4th day of August, 2022

FELICIA PITRE Clerk District Courts, Dallas County, Texas

By: MEDELIN NAVARRETE, Deputy

Attorney for Plaintiff

JOE SMITH

SMITH LAW

PO BOX 489 DESOTO TX 75123 214-943 -0100

joe@slinjury.com

DALLAS COUNTY SERVICE FEES NOT PAID

(avg ifi3:...

Case 3:22-cv-02009-M Document 1-3 Filed 09/09/22 Page 25 of 37 PageID 36
OFFICER'S RETURN

Cause No. DC-22-0875

Court No.2 298th District Court

Style: MICHELLE FLORES

vs. WAL-MART STORES TEXAS, LLC

Came to hand on the day of 20 at o'clock .M. Executed at within the County of at o'clock .M. on the day of 20 by delivering to the within named

each, in person, true copy of this Citation together with the accompanying copy of this pleading, having first endorsed on same date of

delivery. The distance actually traveled by me in serving such process was miles and my fees are as follows: To certify which witness my hand.

For serving Citation

For mileage of County, For Notary By Deputy

(Must be verified if served outside the State of Texas.)

Signed and sworn to by the said before me this day of

20 to certify which witness my hand and seal of office.

Notary Public County

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TAB NO. 4 

 

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FELICIA PITRE DALLAS COUNTY DISTRICT CLERK

NINA MOUNTIQUE CHIEF DEPUTY

CAUSE NO. DC-22-08753

MICHELLE FLORES

VS. WAL-MART STORES TEXAS, LLC

298th District Court

ENTER DEMAND FOR JURY

JURY FEE PAID BY: MICHELLE FLORES

FEE PAID: 10

600 COMMERCE STREET DALLAS, TEXAS 75202 (214) 653-7261 FAX (214)653-7781 E-mail: Felicia.Pitre@da11ascounty.org Web site: http://www.dallascounty.org/distclerk/index.html

flag:

lovk‘i

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TAB NO. 5 

Case 3:22-cv-02009-M Document 1-3 Filed 09/09/22 Page 29 of 37 PageID 40
FILED

9/6/2022 10:02 AM

FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS

Loaidi Grove DEPUTY

CAUSE N0. DC-22-08753 MICHELLE FLORES, 1N THE DISTRICT COURT PLAINTIFF,

298m JUDICLAL DISTRICT WAL-MART STORES TEXAS, LLC DEFENDANT. DALLAS COUNTY, TEXAS

DEFENDANT WAL-MART STORES TEXAS, LLC’S ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, WAL-MART STORES TEXAS, LLC (“Defendant”)

in the abovestyled and numbered cause, and files this Original Answer to Plaintiff’s Original Petition, and in

support hereof would respectfully show the Court the following.

I. GENERAL DENIAL

l. Defendant denies each and every, all and singular, the material allegations made

and contained in the Original Petition and any petition which Plaintiff may hereinafter file by

way of amendment or supplement, and, in accordance with Texas law, demands that Plaintiff

prove by preponderance of the credible evidence each and every such allegation made and

contained therein, or the prevailing standard ofproofrequired by applicable law.

II. AFFIRMATIVE DEFENSES

2. Pleading further, and in the affirmative, Defendant asserts the doctrine of

comparative causation as set forth in Chapter 33 of the TEXAS CIVIL PRACTICE REMEDIES

CODE, which may bar any recovery by Plaintiff, or may

in the alternative reduce the amount of

recovery by Plaintiffbased on the Plaintiff‘s own percentage of fault.

DEFENDANT’S ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION PAGE OF D/1046373V1

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3. Pleading further, if necessary, Plaintiff failed to mitigate Plaintiff’s damages which may have resulted from the occurrence made the basis ofthis lawsuit.

4. In the alternative, and without waiving the foregoing, Defendant affirmatively

pleads

the defense set forth in TEXAS CIVIL PRACTICE REMEDIES CODE 18.091, requiring

Plaintiff to prove Plaintiff’s loss of earning and/or loss of earning capacity in the form which

represents Plaintiffs net loss after reduction for income tax payments or unpaid tax liability on

said loss or earning claim pursuantto any federal income tax law. Id. Additionally, Defendant

requests the Court to instruct the jury as to whether any recovery for compensatory damages

sought by the Plaintiff, if any, is subject

to federal to state income taxes.

5. Additionally, to the extent Plaintiff‘s medical expenses exceed the amount

actually paid on Plaintiff’s behalf to Plaintiff‘s medical providers, Defendant asserts the statutory

defense set forth in 41.0105 of the TEXAS CIVIL PRACTICE REMEDIES CODE. Thus, recovery

of medical or health care expensesincurred by Plaintiff, if any, are limited to the amount actually

paid or incurred by or on behalf of Plaintiff.

6. Pleading further, Defendant would show that it is entitled to credit or offset

equal to the amount of any and all sums that the Plaintiff has received, or may hereinafter

receive, by way of settlement with any person or party. Alternatively, pursuant

to Rule 48 of the

TEXAS RULES OF CIVIL PROCEDURE, Defendant contends that it is entitled to proportionate

reduction of any damagesfound againstit based upon the percentage of negligence attributable

to the settling tortfeasor, cross claimant, designated third party, or other party to this case.

7. Pleading further, and in the affirmative, Defendant alleges Plaintiff’ claims for

pre-judgment

interest are limited by the dates and amounts set forth in 304.101 of the TEXAS

FINANCE CODE and 41.007 of the TEXAS CIVIL PRACTICE REMEDIES CODE.

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8. Pleading further, and in the affirmative, Defendant invokes §41.0105 of the

TEXAS CIVIL PRACTICE REMEDIES CODE concerning Plaintiff’s claim for the recovery of health

care expenses and other related damages, past and future.

9. Pleading further, and in the affirmative, Defendant asserts the doctrine of

proportionate responsibility of TEXAS CIVIL PRACTICE REMEDIES CODE Chapter 33, which may bar any recovery by Plaintiff, or may in the alternative, reduce the amount of recovery by

Plaintiffbased on Plaintiff’s own percentage of fault.

10. Pleading further, and in the affirmative, Defendant would show that the alleged

occurrence made the basis of this lawsuit was the result of circumstances and/or events that were

not of Defendant’s own creation. Defendant would further show that it acted just as similar

situated reasonable premises owner would have acted under the same or similar circumstances

surrounding the matters made the basis of this lawsuit.

11. Pleading further, and in the affirmative, Defendant allegesthat the injuries and

damages alleged by Plaintiff may be due to Plaintiff‘ own negligence and recklessness in that

Plaintiff’s failure to exercise ordinary care proximately caused, in whole or in part, the alleged

injuries and damages complained of by Plaintiff. Plaintiff‘s acts and omissions, whether taken

together or separately, may be the sole proximate cause, or proximate cause of the injuries and

damages Plaintiff has alleged in this lawsuit. Any recovery by Plaintiff is therefore barred, or

alternatively should be reduced in accordance with the applicable law.

12. Pleading further, and in the affirmative, the injuries pled by Plaintiff may have

been caused, in whole or in part, by superseding and/or intervening causes, including preexisting

conditions and/or injuries and subsequently occurring injuries and/or conditions that were not

Defendant’s own creation.

DEFENDANT’S ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION PAGE OF D/1046373V1

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13. Pleading further, if necessary, Plaintiff‘s claims may have been caused by an

unavoidable accident, Act of God, or an occurrence without any fault on the part of Defendant.

14. Pleading further and in the alternative, Defendant allegesthat any claims for or

recovery of exemplary damages against

it violates the Fifth, Eighth, and Fourteenth Amendments

to the United States Constitution, and Sections 3, 13 and 19 of Article of the Texas

Constitution, because such claims as made are arbitrary, unreasonable, and Violate Defendant’s

rights

to due process and equal protection of the laws.

15. Pleading further and in the alternative, to the extent any recovery of exemplary

damages

is found to be constitutional, Defendant invokes all the limitations upon damages and

exemplary damages contained in Chapter 41 of the Texas Civil Practice Remedies Code, both

in terms of the maximum amount of damages that can be awarded pursuant

to that statute and the

procedural safeguards guaranteed by the referenced provisions.

16. Pleading further and in the alternative, Defendant also invokes all other applicable

state law, federal law, statutory and/or common-law caps or limitations on exemplary damages.

17. Pleading further and in the alternative, Defendant affirmatively asserts that

Plaintiff did not exercise due diligence to effectively “bring suit” within the two-yeartime statute

oflimitation period prescribed by Chapter 16 of the Texas Civil Practice Remedies Code. See

also Grant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990).

III. NOTICE OF INTENT

18. Defendant further places Plaintiff on notice pursuantto TEXAS RULE OF CIVIL

PROCEDURE 193.7 that may use in pretrial proceedings or at trial any and all documents and

tangible things produced in discovery by plaintiff.

DEFENDANT’S ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION PAGE OF D/1046373V1

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IV. DEMAND FOR JURY TRIAL

19. In accordance with Rule 216 of the TEXAS RULES 0F CIVIL PROCEDURE,

Defendant hereby demands trial by jury.

WHEREFORE, PREMISES CONSIDERED, Defendant prays

that Plaintiff take

nothing by this suit against Defendant, that Defendant be discharged, and that the Court grant

such other and further relief, both general and special, at law and in equity to which Defendant may be justly entitled.

Respectfiilly submitted,

COOPER SCULLY, P.C.

By: /s/Derek S. Davis DEREK S. DAVIS

Texas Bar No. 00793 591 Email: Derek.DaVis@CooperScully.com

JAMES N. KURITZKES

Texas Bar No. 24120956 Email:

James.Kuritzkes@CooperScully.com

900 Jackson Street, Suite 100 Dallas, Texas 75202

Telephone: (214) 712-9500

Facsimile: (214) 712-9540

ATTORNEY FOR DEFENDANT WAL-MART STORES TEXAS, LLC

DEFENDANT’S ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION PAGE OF D/1046373V1

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CERTIFICATE OF SERVICE

hereby certify that on the 6th day of September, 2022, true and correct copy of the

foregoing document was served on counsel of record via the Court’s ECF filing service as

follows:

Joe A. Smith

Smith Law

P.O. Box 489 Desoto, Texas 75123

Telephone: (214) 943-0100

Facsimile: (888) 317-8235

Email:

joe@slinjury.com

ATTORNEY FOR PLAINTIFF

/s/Derek S. Davis DEREK S. DAVIS

DEFENDANT’S ORIGINAL ANSWER TO PLAINTIFF’S ORIGINAL PETITION PAGE OF D/ 046373V1

Case 3:22-cv-02009-M Document 1-3 Filed 09/09/22 Page 35 of 37 PageID 46
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 certificate of service that complies with all applicable rules.

Heather Savant on behalf of Derek Davis Bar No. 793591 heather.savant@cooperscully.com

Envelope ID: 67963080

Status as of 9/7/2022 10:34 AM CST

Associated Case Party: MICHELLE FLORES Name BarNumber Email TimestampSubmitted Status

JOE SMITH joe@slinjury.com 9/6/202210:02:01 AM SENT

Case 3:22-cv-02009-M Document 1-3 Filed 09/09/22 Page 36 of 37 PageID 47
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 certificate of service that complies with all applicable rules.

Heather Savant on behalf of Derek Davis Bar No. 793591 heather.savant@cooperscully.com

Envelope ID: 67963080

Status as of 9/7/2022 10:34 AM CST

Associated Case Party: WAL-MART STORES TEXAS, LLC

Name BarNumber Email TimestampSubmitted Status

James Kuritzkes james.kuritzkes@cooperscully.com 9/6/2022 10:02:01 AM SENT

Kim Denton kim.denton@cooperscully.com 9/6/2022 10:02:01 AM SENT Heather Savant heather.savant@cooperscully.com 9/6/2022 10:02:01 AM SENT

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