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Case 4:16-cv-00001-RC Document 15 Filed 10/25/16 Page 1 of 8 PageID #: 231

** NOT FOR PRINTED PUBLICATION **

IN THE UNITED STATES DISTRICT COURT


FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

ISABEL MILLER, §
§
Plaintiff, §
§ CIVIL ACTION No. 4:16-CV-001
v. §
§ JUDGE RON CLARK
24 HOUR FITNESS USA, INC., §
§ AFC
Defendant. §

ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Plaintiff Isabel Miller claims that she slipped and fell while using a steam room owned by

Defendant 24 Hour Fitness USA, Inc. Defendant argues that it is entitled to summary judgment

because Plaintiff has no evidence identifying the substance on which she slipped and because

Plaintiff has no evidence showing that Defendant actually knew or had constructive knowledge

that there was a dangerous condition in the steam room. Plaintiff has produced evidence tending

to show that the steam room was dangerously designed and that Defendant had constructive

knowledge of the dangerous condition of the steam room. For these reasons, the court DENIES

Defendant’s Motion for Summary Judgment (DOC. # 11).

I. FACTUAL BACKGROUND

The following facts are taken in the light most favorable to Plaintiff. Defendant owns the

24 Hour Fitness Plano Super Sport Club (“Club”). Plaintiff’s son, Andrew Miller, is a member of

the Club. On January 9, 2014, Plaintiff visited the Club as her son’s guest. Plaintiff used the

Club’s steam room for approximately seven minutes during this visit. The steam room is tiled

and includes three rows of benches. Def.’s Exh. H, DOC. # 11-8. There are no mats or other
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floor coverings in the steam room, nor are there any railings on to which visitors can hold.

Def.’s Exh. H, DOC. # 11-8. Plaintiff was sitting on the top bench of the steam room. When she

got up to leave, Plaintiff slipped and fell allegedly causing injuries to her head, neck, and ankle.

Plaintiff filed suit against Defendant on December 4, 2015, claiming that Defendant

allowed an unreasonably dangerous condition to exist on its premises. Petition, DOC. # 2. On

January 4, 2016, Defendant removed the case to this court. Notice of Removal, DOC. # 1. On

August 28, 2016, Defendant filed the present Motion for Summary Judgment. DOC. # 11.

II. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 56, the party moving for summary judgment has

the initial burden of demonstrating that there is no genuine issue as to any material fact and that

it is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256,

106 S. Ct. 2505, 2514 (1986). The movant may meet his burden by establishing that the other

party has the burden of proof at trial and has failed to Amake a showing sufficient to establish the

existence of an element essential to [its] case.@ Nebraska v. Wyoming, 507 U.S. 584, 590, 113 S.

Ct. 1689 (1993), (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S. Ct. 2548, 2522

(1986)). In order to avoid summary judgment, the party opposing the motion must come forward

with competent summary judgment evidence of the existence of a genuine fact issue. See

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585–86, 106 S. Ct. 1348, 1335

(1986). Federal Rule of Civil Procedure 56 requires that the nonmoving party set forth specific

facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 256, 106 S. Ct. at

2514. Only a genuine dispute over a material fact (a fact which might affect the outcome of the

suit under the governing substantive law) will preclude summary judgment. Anderson, 477 U.S.

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at 248, 106 S. Ct. at 2510. The dispute is genuine if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party on the issue. Id.

Federal Rule of Civil Procedure 56(c) requires the court to look at the full record. All

reasonable inferences to be drawn from the underlying facts must be viewed in the light most

favorable to the party opposing the motion, and any doubt must be resolved in its favor.

Matsushita, 475 U.S. at 587, 106 S. Ct. at 1356. However, only reasonable inferences in favor

of the nonmoving party can be drawn from the evidence. Eastman Kodak Co. v. Image Tech.

Servs., Inc., 504 U.S. 451, 468, 112 S. Ct. 2072, 2083 (1992).

III. PLAINTIFF’S UNTIMELY RESPONSE

On August 29, 2016, Defendant filed its Motion for Summary Judgment (DOC. # 11).

Under Local Rule CV-7(e), Plaintiff had fourteen days in which to file a response. Local Rule

CV-6(a) adds an additional three days to the response deadline.1 This means that Plaintiff’s

deadline to respond was September 15, 2016. Plaintiff’s response was not filed until September

28, 2016—thirteen days after the deadline had expired. Plaintiff did not ask for an extension of

the deadline and did not seek leave of court before filing her response.

Defendant has not moved to strike Plaintiff’s response. However, in its reply, Defendant

stated that “[t]he Court should reject Plaintiff’s tardy response.” Reply, DOC. # 14, pg. 3. At

least one other district court has declined to strike a plaintiff’s response just because it was

untimely. Guilbeaux v. 3927 Found., Inc., 177 F.R.D. 387, 389–90 (E.D. Tex. 1998) (concluding

that it will entertain the plaintiff’s response even though it was filed ten days late). Many courts

1
General Order 16-06 amends the local rules of the Eastern District of Texas to remove
CV-6(a). However, that amendment does not take effect until December 1, 2016. General Order
16-06, pg. 2.
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have required a showing from the moving party that it was prejudiced by the non-movant’s

failure to timely respond. See Guilbeaux, 177 F.R.D. at 390; Energy Prod. Corp. v. Northfield

Ins., Civil Action No. 10–0933, 2010 WL 2854296, at *2 (E.D. La. July 15, 2010) (“Therefore,

the Court finds that there is no prejudice to [plaintiff] caused by [defendant’s] failure to timely

file.”).

Since Defendant has not expressly moved to strike Plaintiff’s response and has not

provided any evidence that it was unfairly prejudiced by Plaintiff’s untimeliness, the court will

consider Plaintiff’s response when ruling on Defendant’s Motion.

IV. DISCUSSION

Plaintiff claims that the steam room at Defendant’s club was an unreasonably dangerous

condition because the steps were too high, there were no railings that a falling person could grab

or hold, visibility in the steam room was low, and there were no mats or other floor coverings

that would have negated the slipperiness of the floor. This is a premises liability claim that arises

under Texas law and the court will look to Texas law when analyzing Plaintiff’s claim. Erie R.

Co. v. Tompkins, 304 U.S. 64, 78 (1938). Defendant does not dispute that Plaintiff is an invitee

for purposes of her premises liability claim. Mot. for Sum. Judgment, DOC. # 11, pg. 10 n.33. To

succeed on her claim, Plaintiff must show:

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.”

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CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000). Defendant’s Motion only addresses

the first and second elements of Plaintiff’s premises liability claim. For this reason the court

assumes that a genuine issue of material fact exists in regards to the third and fourth elements of

Plaintiff’s claim and will not discuss those further. The court will only address Defendant’s

arguments that Plaintiff has no evidence to prove the first two elements.

A. Defendant has the initial burden of showing that no genuine issue of material fact exists as to
Plaintiff’s premises liability claim.

Defendant largely bases its Motion on the “no evidence” standard of review. Federal

courts apply the federal summary judgment standard to no-evidence motions for summary

judgment. See, e.g., Cardner v. Home Depot U.S.A., Inc., 561 F. Supp. 2d 640, 643 (E.D. Tex.

2006) (“A no evidence motion for summary judgment is only available in the Texas state courts

. . . . Accordingly, the court will apply the appropriate federal standard to the Defendant’s motion

for summary judgment.”); In re Hydro-Action, Inc., 341 B.R. 186, 193 (E.D. Tex. 2006) (“While

federal law clearly contemplates summary judgment in circumstances where there is truly no

evidence of an essential element . . . the party moving for summary judgment must make some

showing that evidence on an essential point is wholly lacking.”).

Defendant cannot meet its burden of showing that there is no genuine issue of material

fact merely by stating that Plaintiff has no evidence of her claims. Although the federal summary

judgment standard does not require Defendant to produce evidence negating Plaintiff’s claims,

Defendant nevertheless “bears the initial responsibility of informing the district court of the basis

for its motion, and identifying those portions of the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, which it believes

demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323

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(internal quotations and citations omitted). The court therefore must determine whether

Defendant has successfully shown that no genuine issue of material fact exists in regards to

Plaintiff’s premises liability claim.

B. Defendant has not shown that no genuine issue of material fact exists as to whether Defendant
had actual or constructive knowledge of the allegedly dangerous steam room.

Defendant’s arguments for summary judgment on the knowledge element of Plaintiff’s

claim largely rely on cases where the plaintiff slipped because of a substance that was not a

permanent fixture of the premises. See, e.g., Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934,

936 (Tex. 1998) (the allegedly dangerous condition was some macaroni salad that was spilled on

the floor). Defendant argues vehemently that, as a matter of law, the dangerous condition was the

substance on the floor that Plaintiff slipped on and not the design of the steam room. This is not a

case where the plaintiff slipped on some spilled food or a puddle. Plaintiff testified in her

deposition that the floor in Defendant’s steam room was always slippery. Depo. of Isabel Miller,

DOC. # 12-1, 45:14–20. Taking this testimony as true for the purpose of this Order, it is possible

that the slipperiness of the floor in the steam room was not a temporary occurrence but instead

the room’s natural state. If the steam room is always slippery, then the steam room would not be

“some antecedent situation that produced the condition” but instead could be a dangerous

condition in and of itself. Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406, 407 (Tex. 2006).

The court cannot conclude at this time that the actual substance Plaintiff slipped on was the only

dangerous condition. For this reason, Plaintiff does not have to identify the exact substance on

which she slipped, prove that Defendant knew of the substance on the floor, or show how long

the substance had been present in the steam room in order to survive summary judgment on the

first element of her claim.

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C. Defendant has not shown there is no genuine issue of material fact as to whether the steam
room posed an unreasonable risk of harm.

“A condition poses an unreasonable risk of harm for premises-defect purposes when there

is a sufficient probability of a harmful event occurring that a reasonably prudent person would

have foreseen it or some similar event as likely to happen.” Cohen v. Landry’s, Inc., 442 S.W.3d

818, 828 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). When deciding whether a

condition poses an unreasonable risk of harm, Texas courts have considered “(1) whether the

condition was clearly marked; (2) the height of the condition; and (3) whether the condition met

applicable safety standards.” Id. Texas courts have also considered whether other people have

been injured by the condition, whether other people have complained about the condition,

whether the condition was unusual compared to other similar conditions, and whether the

plaintiff had the ability to avoid the condition. See, e.g., Brinson Ford, Inc. v. Alger, 228 S.W.3d

161 (Tex. 2007) (concluding that a ramp did not pose an unreasonable risk of harm in part

because no customer had complained about it and there had been no other injuries reportedly

caused by the ramp); Martin v. Chik-Fil-A, No. 14–13–00025–CV, 2014 WL 465851, at *4 (Tex.

App.—Houston [14th Dist.] Feb. 4, 2014, no pet.).

As stated above, Defendant has merely stated that Plaintiff has no evidence that the steam

room was a dangerous condition. However, Defendant admits that each bench in the steam room

is several inches high. Mot. for Sum. Judgment, DOC. # 11, pg. 6. The steam room also does not

have shorter steps by which a person can get up or down the benches. Def.’s Exh. H, DOC. # 11-

8. Plaintiff testified that the steps in Defendant’s steam room were higher than in other steam

rooms and that the floor was normally slippery. Depo. of Isabel Miller, DOC. # 12-1, 34:13–20,

45:14–20. Plaintiff’s son gave similar testimony at his deposition. Depo. of Andrew Miller,

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DOC. # 11-4, 59:16–60:6. Although Plaintiff has not designated a safety expert who will testify

about the dangerousness of the steam room, Defendant has not pointed the court to any case law

suggesting that expert testimony is necessary. Taking the facts in the light most favorable to

Plaintiff, the court cannot conclude from the limited record that Defendant has shown that

Defendant’s steam room did not pose an unreasonable risk of harm as a matter of law.

V. CONCLUSION

Defendant has largely based its motion on the argument that Plaintiff has no evidence to

support her premises liability claim. Defendant has failed to show that no genuine issue of

material fact exists as to whether the steam room posed an unreasonable risk of harm and

whether Defendant had actual or constructive knowledge of the dangerous condition. The court

denies Defendant’s Motion for Summary Judgment.

IT IS THEREFORE ORDERED that Defendant 24 Hour Fitness USA, Inc.’s Motion for

Summary Judgment (DOC. # 11) is DENIED.

So ORDERED and SIGNED this 25 day of October, 2016.

___________________________________
Ron Clark, United States District Judge