MEMORANDUM OPINION AND ORDER – PAGE 1 

 IN THE UNITED STATES DISTRICT COURT 

 NORTHERN DISTRICT OF TEXAS 

 DALLAS DIVISION 

LATARSHIA DELISHE OLIVER, § 

 § 

 Plaintiff, § 

 § 

v. § Civil Action No. 3:22-CV-01529-N 

 § 

WAL-MART STORES TEXAS, LLC § 

et al., § 

 §

 Defendants. § 

 MEMORANDUM OPINION AND ORDER

 This Order addresses Defendants Wal-Mart Stores Texas, LLC’s and Wal-Mart 

Real Estate Business Trust’s (collectively “Walmart”) motion for summary judgment [21]. 

For the reasons below, the Court grants in part and denies in part the motion. 

I. ORIGINS OF THE DISPUTE

 This case arises out of a slip-and-fall incident that occurred in the beverage section 

of a Walmart store in Dallas, Texas. On October 20, 2020, Latarshia Delishe Oliver was 

walking down the cold beverage aisle when she slipped on liquid on the floor. Defs.’ Br. 

2 [22]. The slip caused Oliver to twist her knee. Pl.’s Br. 1–2 [25]. Oliver states that she 

noticed the liquid after she fell. Defs.’ Br. Ex. A at Appx. 13. Additionally, she states that 

there were no warning signs in place, and that she did not hear anybody complain about 

the liquid. Id. at Appx. 13, 21. 

 Oliver filed this lawsuit against Walmart in the 14th Judicial District Court in Dallas 

County, Texas, alleging premises liability, ordinary negligence, and gross negligence. 

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Walmart removed the case to this Court on the basis of diversity jurisdiction. Walmart 

now moves for summary judgment on all claims.

II. LEGAL STANDARD FOR SUMMARY JUDGMENT

 Courts “shall grant summary judgment if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 

FED. R. CIV. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In 

making this determination, courts must view all evidence and draw all reasonable 

inferences in the light most favorable to the party opposing the motion. United States v. 

Diebold, Inc., 369 U.S. 654, 655 (1962). The moving party bears the initial burden of 

informing the court of the basis for its belief that there is no genuine issue for trial. Celotex 

Corp. v. Catrett, 477 U.S. 317, 323 (1986). 

 When a party bears the burden of proof on an issue, “he must establish beyond 

peradventure all of the essential elements of the claim or defense to warrant judgment in 

his favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). When the 

nonmovant bears the burden of proof, the movant may demonstrate entitlement to summary 

judgment either by (1) submitting evidence that negates the existence of an essential 

element of the nonmovant’s claim or affirmative defense, or (2) arguing that there is no 

evidence to support an essential element of the nonmovant’s claim or affirmative defense. 

Celotex, 477 U.S. at 322–25. 

 Once the movant has made this showing, the burden shifts to the nonmovant to 

establish that there is a genuine issue of material fact so that a reasonable jury might return 

a verdict in its favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 

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586–87 (1986). Moreover, “[c]onclusory allegations, speculation, and unsubstantiated 

assertions” will not suffice to satisfy the nonmovant’s burden. Douglass v. United Servs. 

Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc), superseded by statute on other 

grounds, 28 U.S.C. § 636(b)(1). Factual controversies are resolved in favor of the 

nonmoving party “only when an actual controversy exists, that is, when both parties have 

submitted evidence of contradictory facts.” Olabisiomotosho v. City of Houston, 185 F.3d 

521, 525 (5th Cir. 1999) (quoting McCallum Highlands, Ltd. v. Washington Capital Dus, 

Inc., 66 F.3d 89, 92 (5th Cir. 1995)). 

III. THE COURT DENIES SUMMARY JUDGMENT ON OLIVER’S PREMISES 

LIABILITY CLAIM BECAUSE THERE IS A DISPUTE OF FACT

 To prevail on a motion for summary judgment, Walmart, as the movant, must show 

that no genuine issue of material fact exists, and that the undisputed facts entitle it to 

judgment as a matter of law. The Court finds that Walmart has not adequately shown that 

there is no dispute of material fact as to whether the liquid hazard was open and obvious. 

Additionally, the Court finds that Walmart has failed its initial burden to show that there is 

no evidence to support Oliver’s premises liability claim. Accordingly, Walmart is not 

entitled to summary judgment on Oliver’s premises liability claim. 

A. There Is a Dispute of Fact as to Whether the 

Liquid Was an Open and Obvious Hazard 

 

 Under Texas law, a landowner has a general duty towards invitees to either make 

safe or warn against dangerous conditions on the premises. Austin v. Kroger Tex., L.P., 

465 S.W.3d 193, 203 (Tex. 2015). This duty stems from the idea that the landowner is 

“typically in a better position than the invitee to be aware of hidden hazards on the 

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premises.” Id. However, where a dangerous condition is open and obvious, the landowner 

is not in a better position to discover it, and thus owes no duty to invitees. Id. Whether a 

condition is open and obvious is a question of law and is determined under an objective 

test. Los Compadres Pescadores, L.L.C. v. Valdez, 622 S.W.3d 771, 788 (Tex. 2021). This 

inquiry is “not controlled by whether the invitee had personal, subjective knowledge or 

awareness” of the dangerous condition. Martin v. Gehan Homes Ltd., 2008 WL 2309265, 

at *2 (Tex. App. – Austin 2008, no pet.) (mem. op.). 

 A condition is open and obvious when the evidence “conclusively establishes” that, 

under a totality of the circumstances, a reasonably prudent invitee would have knowledge 

and a full appreciation of the nature and extent of the danger. Los Compadres, 622 S.W.3d 

at 788–89. A condition that would “not be obvious to someone pushing a shopping cart 

and looking at eye-level merchandise ‘in the manner contemplated that shoppers would 

do’” is not open and obvious. Armendariz v. Wal-Mart Stores, Inc., 721 F. App’x 368, 371 

(5th Cir. 2018) (quoting Safeway Stores, Inc. v. Leck, 543 S.W.2d 207, 210 (Tex. App. – 

Waco 1976, no writ)). 

 Upon evaluation of the record, the Court holds that Walmart has not met its 

summary judgment burden to show a lack of genuine dispute as to whether the liquid on 

the floor was an open and obvious hazard. At the time of the incident, Oliver was pushing 

a shopping cart loaded with “two or three pumpkins” while looking for products in a 

beverage aisle. Defs.’ Br. Ex. A at Appx. 10–11. After having walked down the aisle once, 

Oliver turned around, walked back down the aisle, and then proceeded to slip. Id. at Appx. 

11. After she slipped, Oliver noticed that the floor was wet. Id. at Appx. 13. Further, 

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Oliver noted that no warning signs were present in the aisle and that she did not hear 

anybody warn or complain about liquid in the aisle. Id. at Appx. 13, 21. These facts tend 

to show the existence of a genuine issue for trial. 

 While there were no warning signs at the scene before Oliver fell, Walmart points 

out that there was a cleaning cart located in the aisle at that time. Id. at Appx. 19. However, 

this cart alone does not serve the same function as a warning sign—intentionally informing 

customers of a hazard. At the time of Oliver’s fall, the cart was standing, unattended, in 

the aisle. See Defs.’ Br. Ex. A-1 at Appx. 34. A reasonable shopper would not necessarily 

interpret the presence of an unattended cleaning cart as signifying danger. Walmart also 

points out that Oliver did not slip until the second time she walked down the beverage aisle. 

Id. at Appx. 11. However, this indicates that, even given the “obviously filthy” condition 

of the floors, Defs.’ Br. Ex. A at Appx. 26, Oliver did not have full knowledge and 

appreciation of the danger. Of course, Oliver’s subjective lack of awareness of the danger 

does not control. But it does still call into question whether the danger presented by the 

liquid was open and obvious. 

 Further, “Texas courts have consistently found that indoor wet floors can pose an 

unreasonably dangerous condition.” Wal-Mart Stores, Inc. v. Sparkman, 2014 WL 

6997166, at *3 (Tex. App. – Fort Worth 2014, pet. denied) (mem. op.) (collecting cases); 

see also Rosas v. Buddies Food Store, 518 S.W.2d 534, 538 (Tex. 1975) (holding that a 

wet floor on a rainy day just inside the grocery store’s entrance was not an open and 

obvious condition). Walmart, in turn, points out that the “danger associated with water on 

a floor is commonly known and obvious to anyone.” Defs.’ Reply 3 [27] (quoting Aleman 

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v. Ben E. Keith Co., 227 S.W.3d 304, 313 (Tex. App. – Houston [1st Dist.] 2007, no pet.)). 

However, this only applies once a reasonably prudent invitee would have noticed the 

presence of liquid. If the presence of liquid is not open and obvious, then the obviousness 

of the danger associated with it is not relevant. 

 At the time of the incident, Oliver was walking with a shopping cart and looking for 

specific items of merchandise. In this way she was acting in a “manner contemplated that 

shoppers would do.” Safeway, 543 S.W.2d at 210. The fact that she was pushing a loaded 

cart and searching for specific items, there were no warning signs, and there was no verbal 

warning or complaint about the status of the floors all could support an inference that the 

hazard was not open and obvious. 

 Based on the summary judgment record, the Court concludes that Walmart has 

failed to show the absence of a genuine dispute of material fact as to whether the liquid on 

the floor was an open and obvious hazard. Accordingly, summary judgment is not 

appropriate as to this issue. 

B. Walmart Does Not Show a Lack of Genuine 

Dispute of Material Fact for Premises Liability 

 Walmart further asks the Court to grant summary judgment on Oliver’s premises 

liability claim, even if the hazard is not found to be open and obvious, because Oliver 

cannot establish the elements of premises liability. Defs.’ Br. 6. In response, Oliver argues 

that Walmart’s “no evidence” challenge is not recognized in federal court. Pl.’s Br. 5–6. 

Because the Court finds that Walmart has not met its initial burden to show a lack of a 

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dispute of material fact as to the elements of premises liability, the Court denies summary 

judgment on this claim. 

 While Texas courts recognize two types of summary judgment—traditional and noevidence—there is only one summary judgment in federal court. See Royal Surplus Lines 

Ins. Co. v. Brownsville Indep. Sch. Dist., 404 F. Supp. 2d 942, 948 (S.D. Tex. 2005) (“[T]he 

concept of a ‘no evidence’ summary judgment neither accurately describes federal law nor 

has any particular import in the vernacular of federal summary judgment procedure.”). 

Where, as here, the movant does not bear the burden of proof at trial, the movant can meet 

its summary judgment burden by either submitting evidence that negates an essential 

element of the nonmovant’s claim or by showing that the record contains no evidence 

necessary to support an essential element of the nonmovant’s claim. Celotex, 477 U.S. at 

322–25. However, conclusory statements that make no reference to the record are 

insufficient for a movant to meet its burden of showing a lack of evidence to support a 

claim. See Ashe v. Corley, 992 F.2d 540, 543 (5th Cir. 1993) (“It is not enough for the 

moving party to merely make a conclusory statement that the other party has no evidence 

to prove his case.”). 

 Here, Walmart recites the elements of a premises liability claim and then states that 

Oliver cannot establish these elements by competent evidence. Defs.’ Br. 6. In doing so, 

Walmart makes a conclusory statement and fails to show a lack of evidence to support the 

premises liability claim. As such, Walmart has failed to meet its summary judgment burden 

to show a lack of genuine dispute for trial on this issue. 

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 Because there is a fact issue as to whether the liquid hazard was open and obvious 

and because Walmart failed to meet its summary judgment burden of showing a lack of 

evidence as to the elements of premises liability, the Court denies summary judgment to 

Walmart on Oliver’s premises liability claim. 

IV. THE COURT GRANTS SUMMARY JUDGMENT ON 

OLIVER’S NEGLIGENT ACTIVITY CLAIM

 Walmart next moves for summary judgment on Oliver’s negligence claim. Walmart 

argues that Oliver’s injury could not have resulted from any contemporaneous activity. 

Because the Court agrees that there was no contemporaneous activity that caused the 

accident, the Court grants summary judgment on Oliver’s negligence claim. 

 “Under the general umbrella of negligence, there are distinct species of 

claims . . . .” Odom v. Kroger Tex., L.P., 2014 WL 585329, at *3 (N.D. Tex. 2014). 

Negligent action and premises liability are two distinct claims under Texas law. Allen v. 

Wal-Mart Stores Tex., LLC, 2015 WL 1955060, at *5 (S.D. Tex. 2015). “Negligent activity 

encompasses a malfeasance theory based on affirmative, contemporaneous conduct by the 

owner that caused the injury, while premises liability encompasses a nonfeasance theory 

based on the owner's failure to take measures to make the property safe.” Austin v. Kroger 

Tex. L.P., 746 F.3d 191, 196 (5th Cir. 2014) (alteration omitted) (quoting Del Lago 

Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010)); see also Keetch v. Kroger Co., 

845 S.W.2d 262, 264 (Tex. 1992) (“Recovery on a negligent activity theory requires that 

the person have been injured by or as a contemporaneous result of the activity itself rather 

than by a condition created by the activity.”); Barron v. United States, 111 F.4th 667, 672 

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(5th Cir. 2024) (affirming grant of summary judgment where the plaintiff’s “claim in this 

case sounds in premises liability and not negligence.”). 

 Here, Oliver slipped in a liquid substance on the floor. While some type of activity 

may have caused the liquid to be present on the floor, Oliver’s injuries do not stem from 

that activity but instead result from the hazardous condition of the wet floor. Indeed, Oliver 

admits in her response that “this is a premises liability case, and not a matter involving a 

contemporaneous activity.” Pl.’s Br. 2. Accordingly, the Court grants summary judgment 

to Walmart on Oliver’s negligence claim. 

V. THE COURT DENIES SUMMARY JUDGMENT ON OLIVER’S GROSS 

NEGLIGENCE CLAIM BECAUSE THERE IS A DISPUTE OF FACT

 Finally, Walmart moves for summary judgment on Oliver’s gross negligence claim. 

Because the Court finds that Walmart has failed to show the absence of a genuine issue of 

material fact on this issue, the Court denies summary judgment on Oliver’s gross 

negligence claim. 

 Under Texas law, a plaintiff can recover for gross negligence by satisfying the 

elements of either ordinary negligence or premises liability and by demonstrating gross 

negligence’s two additional elements by clear and convincing evidence. Austin, 746 F.3d 

at 196 n.2 (citing State v. Shumake, 199 S.W.3d 279, 287 (Tex. 2006)); Castro v. Wal-Mart 

Real Estate Bus. Tr., 645 F. Supp. 3d 638, 650 (W.D. Tex. 2022). First, the plaintiff must 

establish that the act or omission of the defendant involved an extreme degree of risk. TEX.

CIV. PRAC. & REM. CODE § 41.001(11)(A); Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 

778, 785–86 (Tex. 2001). Second, the plaintiff must establish that the defendant had an 

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actual, subjective awareness of the risk involved but still proceeded with conscious 

indifference to the rights, safety, or welfare of others. TEX. CIV. PRAC. & REM. CODE § 

41.001(11)(B); U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012). 

 A corporation can be held liable for gross negligence only if the corporation itself 

commits gross negligence. Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998). 

Because a corporation can only act via its agents, it is liable for gross negligence only if it 

(1) authorizes or ratifies an agent’s gross negligence, (2) is grossly negligent in hiring an 

unfit agent, or (3) commits gross negligence through the actions of a vice principal. Id. at 

921–22. A “vice principal” encompasses four categories of corporate agents: 

(a) Corporate officers; (b) those who have authority to employ, 

direct, and discharge servants of the master; (c) those engaged 

in the performance of nondelegable or absolute duties of the 

master; and (d) those to whom a master has confided the 

management of the whole or a department or division of his 

business. 

Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 391 (Tex. 1997) (quoting Fort Worth 

Elevators Co. v. Russell, 70 S.W.2d 397, 406 (Tex. 1934), overruled on other grounds by 

Wright v. Gifford-Hill & Co., 725 S.W.2d 712, 714 (Tex. 1987)). 

 In this case, the evidence indicates that a Walmart employee may have noticed the 

liquid on the floor prior to Oliver’s fall but delayed in placing a warning sign or cleaning 

it up. At the time of Oliver’s fall, there was an unattended cleaning cart near the area of 

the liquid. See Defs.’ Br. Ex. A-1 at Appx. 34. Additionally, Oliver’s testimony suggests 

that the employee who had been tasked with cleaning the liquid went to lunch and could 

not be found after Oliver slipped. Pl.’s Br. Ex. A at 107–08. Oliver also recalls that there 

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was a Walmart employee stocking shelves near the liquid. Id. at 57. These facts, taken 

together, are enough to create an issue of fact as to whether Walmart had an actual, 

subjective awareness of the liquid. 

 At this summary judgment stage, Walmart has failed to show a lack of dispute of 

material fact as to the elements of gross negligence. Accordingly, the Court denies 

summary judgment to Walmart on Oliver’s gross negligence claim. 

CONCLUSION

 Because Oliver’s claim for ordinary negligence fails as a matter of law, the Court 

grants summary judgment as to that claim. However, because genuine issues of material 

fact exist as to whether the hazard that caused Oliver’s injury was open and obvious and 

whether Walmart had an actual, subjective awareness of the hazard, the Court denies 

summary judgment on Oliver’s premises liability and gross negligence claims. 

 Signed September 9, 2024. 

 ___________________________ 

 David C. Godbey 

 Chief United States District Judge 

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