Seigler v. Wal-Mart Stores TX

Case: 20-11080 Document: 00516267889 Page: 1 Date Filed: 04/05/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 5, 2022
No. 20-11080
Lyle W. Cayce
Clerk
Maria Seigler,
Plaintiff—Appellant,
versus
Wal-Mart Stores Texas, L.L.C., doing business as
Walmart Supercenter #963,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CV-998
Before Dennis, Higginson, and Costa, Circuit Judges.
James L. Dennis, Circuit Judge:
In this slip-and-fall case governed by Texas premises-liability law,
plaintiff Maria Seigler appeals the district court’s decisions to (1) exclude her
affidavit from consideration under the sham-affidavit doctrine, and (2) grant
summary judgment to defendant Wal-Mart Stores Texas, L.L.C. For the
following reasons, we reverse the district court and remand for further
proceedings.
Case: 20-11080 Document: 00516267889 Page: 2 Date Filed: 04/05/2022
No. 20-11080
I.
While shopping at a Wal-Mart Supercenter retail store in
Weatherford, Texas, Seigler slipped and fell in the store’s deli section. Her
amended complaint referred to the cause of her fall as “grease or a similar
slick substance.” She alleged that Wal-Mart had either actual or constructive
knowledge of the spilled grease, yet failed to clean it up or warn her of the
hazardous condition, and claimed she suffered unspecified personal injuries
as a result. Seigler initially filed her lawsuit in Texas state court. Wal-Mart
removed the case to federal court on the basis of diversity jurisdiction.
During discovery, Seigler and multiple Wal-Mart employees were
deposed. At her deposition, Seigler was asked to describe the cause of her
fall. She answered, “some sort of greasy liquid.” When asked about its color,
she answered “yellowish.” When asked again about the cause of her fall,
Seigler described the spill as a “liquid” that “smelled like chicken or like
something baked or cooked” and said the substance was “greasy.” She also
testified that the substance “was on my tennis shoe.” When asked if any
other part of her body or clothes was “touched by” the substance, Seigler
answered, “I don’t know.” Seigler also answered “no” when asked if she
had “personal knowledge” or “evidence” of either how the grease got on the
floor or how long it was on the floor.
A Wal-Mart employee similarly testified that the cause of Seigler’s fall
was “a brown substance that appeared to be chicken grease” or “an oily
substance.” Wal-Mart employees also testified that rotisserie chickens are
displayed in plastic containers placed on a heated shelf in the deli counter,
also referred to as a “hot case,” and that Seigler fell in front of the counter.
At least one Wal-Mart employee testified that she was working the deli
counter at the time of Seigler’s fall.
2
Case: 20-11080 Document: 00516267889 Page: 3 Date Filed: 04/05/2022
No. 20-11080
Relying largely on Seigler’s deposition testimony, Wal-Mart moved
for summary judgment. Wal-Mart argued that Seigler’s testimony showed
that she had no evidence that it had actual or constructive knowledge of the
spill, a required element of a premises-liability claim.
With her response to Wal-Mart’s motion for summary judgment,
Seigler submitted an affidavit. The affidavit included the following:
On January 25, 2018, I fell in front of the deli counter at the
Walmart Supercenter in Weatherford, Texas. I was in front of
the hot case where the hot rotisserie chickens were displayed,
when I suddenly fell.
After falling, I noticed that some of the greasy residue that
caused me to slip was on my shoe and also on the ground next
to me. The substance appeared to be chicken grease or chicken
residue. When I touched it, the residue was cold, and
congealed, appearing like it had been there long enough to cool
off and thicken up. The residue was not clear, but appeared
yellowish brown.
In its reply, Wal-Mart objected that Seigler’s affidavit “lack[ed] credibility”
and was a “self-serving sham” that should be stricken from the record.
Three days later, without any response by Seigler to the evidentiary
objection, the district court granted Wal-Mart’s motion for summary
judgment, and dismissed Seigler’s claim with prejudice. The district court
ruled that Seigler had not carried her burden of showing a genuine dispute of
material fact regarding whether the spill had been on the floor long enough
for Wal-Mart to have constructive knowledge of the hazardous condition.
While Seigler’s affidavit did provide potential evidence on this element, the
district court ruled that “it contradicts plaintiff’s sworn testimony and
should be disregarded.” Alternatively, the district court stated that, even if
it were to consider Seigler affidavit as competent evidence, summary
judgment for Wal-Mart would still be granted because “plaintiff’s
3
Case: 20-11080 Document: 00516267889 Page: 4 Date Filed: 04/05/2022
No. 20-11080
speculative testimony about the length of time the substance was on the floor
based on its looks does not create a fact issue.” Seigler appealed.
II.
We “review a district court’s exclusion or admission of evidence”—
including application of the sham-affidavit doctrine—“for an abuse of
discretion,” subject to harmless-error review. Guillory v. Domtar Indus. Inc.,
95 F.3d 1320, 1329 (5th Cir. 1996). “[E]ven if a district court has abused its
discretion, this court will not reverse unless the error affected the substantial
rights of the parties.” Winzer v. Kaufman Cty., 916 F.3d 464, 473 (5th Cir.
2019) (cleaned up).
“This court reviews de novo a district court’s grant of summary
judgment, applying the same standard as the district court.” Austin v. Kroger
Tex., L.P., 864 F.3d 326, 328 (5th Cir. 2017) (citing Ford Motor Co. v. Tex.
Dep’t of Trans., 264 F.3d 493, 498 (5th Cir. 2001). Summary judgment is
appropriate “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). “A genuine issue of material fact exists when the
evidence is such that a reasonable jury could return a verdict for the non-
moving party.” Austin, 864 F.3d at 328 (internal quotation marks and
citation omitted). On summary judgment, all facts and reasonable inferences
are construed in favor of the nonmovant, and the court should not weigh
evidence or make credibility findings. Deville v. Marcantel, 567 F.3d 156, 163–
64 (5th Cir. 2009).
III.
Seigler challenges both (1) the district court’s evidentiary ruling to
exclude her affidavit under the sham-affidavit doctrine, and (2) the district
court’s granting of summary judgment to Wal-Mart.
4
Case: 20-11080 Document: 00516267889 Page: 5 Date Filed: 04/05/2022
No. 20-11080
A.
“In considering a motion for summary judgment, a district court must
consider all the evidence before it and cannot disregard a party’s affidavit
merely because it conflicts to some degree with an earlier deposition.”
Kennett-Murray Corp. v. Bone, 622 F.2d 887, 893 (5th Cir. 1980). However,
the “sham-affidavit doctrine” is an exception to this general rule by which
“this court does not allow a party to defeat a motion for summary judgment
using an affidavit that impeaches, without explanation, sworn testimony.”
S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996). “This
authority stands for the proposition that a nonmoving party may not
manufacture a dispute of fact merely to defeat a motion for summary
judgment.” Doe ex rel. Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380, 386 (5th
Cir. 2000). “If a party who has been examined at length on deposition could
raise an issue of fact simply by submitting an affidavit contradicting his own
prior testimony, this would greatly diminish the utility of summary judgment
as a procedure for screening out sham issues of fact.” Id. (quoting Perma
Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969)).
However, not every discrepancy in an affidavit justifies disregarding it
when evaluating summary judgment evidence. See Winzer, 916 F.3d at 472.
Instead, the bar for applying the doctrine is a high one, typically requiring
affidavit testimony that is “inherently inconsistent” with prior testimony.
See id.; see also Clark v. Resistoflex Co., A Div. of Unidynamics Corp., 854 F.2d
762, 767 (5th Cir. 1988) (characterizing the sham-affidavit doctrine as
“denying credence to an affidavit so markedly inconsistent with the affiant’s
prior deposition as to constitute an obvious sham”). An affidavit that
“supplements rather than contradicts prior deposition testimony” falls
outside the doctrine’s ambit. S.W.S. Erectors, Inc., 72 F.3d at 496. In other
words, the sham-affidavit doctrine is not applicable when discrepancies
between an affidavit and other testimony can be reconciled such that the
5
Case: 20-11080 Document: 00516267889 Page: 6 Date Filed: 04/05/2022
No. 20-11080
statements are not inherently inconsistent. Winzer, 916 F.3d at 472–73.
Typically, then, “‘[i]n light of the jury’s role in resolving questions of
credibility, a district court should not reject the content of an affidavit even
if it is at odds with statements made’ earlier.” Id. at 472 (quoting Kennett-
Murray, 622 F.3d at 893).
The district court identified four discrepancies between Seigler’s
deposition testimony and affidavit pertaining to (1) the substance’s color,
(2) its temperature and consistency, (3) its size, and (4) whether she touched
the substance. Seigler argues that none of her affidavit testimony is
inherently inconsistent with her deposition testimony, but rather that it is
supplementary. Wal-Mart argues that the affidavit testimony either
contradicts the deposition testimony or offers new testimony, without
explanation, on a topic that was explored during Seigler’s deposition but that
she claimed to have no knowledge of at that time. Wal-Mart is correct that
Seigler’s affidavit does not include an explanation for the additional
testimony. However, an explanation is not required unless the affidavit
contradicts, rather than supplements, the deposition testimony. See S.W.S.
Erectors, Inc. v. Infax, Inc., 72 F.3d at 495.
We easily conclude that two of the discrepancies identified by the
district court—testimony regarding the substance’s color and size of the
spill—present no contradiction or inconsistency that would justify
application of the sham-affidavit doctrine. Seigler’s deposition testimony
that the spill was “yellowish” is easily reconcilable with her affidavit
testimony that it was “yellowish brown.” And while the district court
correctly noted that Seigler testified at her deposition that she did not know
the size of the spill, her affidavit did not contradict her deposition because
the affidavit included no testimony on the size of the spill either.
6
Case: 20-11080 Document: 00516267889 Page: 7 Date Filed: 04/05/2022
No. 20-11080
The next discrepancy, regarding the temperature and consistency of
the substance, requires more attention. Wal-Mart argues that Seigler’s
affidavit testimony that the substance was “cold,” “congealed,” and
“thicken[ed] up” contradicted her deposition testimony because Seigler
testified at her deposition that (1) she had no “personal knowledge” or
“evidence” of how long the grease had been on the floor and (2) that the
substance was “liquid.” However, we disagree that there was a
contradiction. First, we agree with Seigler that a non-lawyer deponent is not
expected to understand the legal significance of the terms “personal
knowledge” and “evidence.” Second, while the discrepancies between
Seigler’s deposition and affidavit may call her credibility into question, we do
not think they rise to the level of a contradiction or an inherent inconsistency,
because the testimony can be reconciled. See Winzer, 916 F.3d at 472–73.
Seigler described the substance as “some sort of greasy liquid” at her
deposition, but she was not asked questions about its temperature or
consistency. Later, in her affidavit, she described the grease as “cold,”
“congealed,” and “thicken[ed] up.” These descriptions are not mutually
exclusive, nor are they necessarily contradictory. In other words, it is
possible that “some sort of greasy liquid” could also be “cold,” “congealed”
and “thicken[ed] up.” Thus, we think the proper course in this case is to
allow a jury to evaluate the testimony’s credibility. “‘In light of the jury’s
role in resolving questions of credibility, a district court should not reject the
content of an affidavit even if it is at odds with statements made’ earlier.” Id.
at 472 (quoting Kennett-Murray, 622 F.3d at 893).
Last, after testifying at her deposition that some of the grease got on
her shoe, Seigler was specifically asked, “[d]id any other part of your body or
clothes get—get touched by the—by the condition or did you get it on you?”
She answered “I don’t know” to that specific question, which was phrased
in the passive voice. While her failure to volunteer at her deposition the
7
Case: 20-11080 Document: 00516267889 Page: 8 Date Filed: 04/05/2022
No. 20-11080
additional testimony that she actively touched the grease may call her
credibility into question, again, her affidavit does not inherently contradict
her deposition as the testimony can be reconciled.
In sum, Seigler’s affidavit testimony did not inherently contradict her
deposition testimony, and the district court abused its discretion in applying
the sham-affidavit rule.
B.
Having established that Seigler’s affidavit testimony is competent
summary judgment evidence, we next consider whether the district court
erred in granting summary judgment for Wal-Mart.
Under Texas law, a premises owner “has a duty to exercise reasonable
care to make the premises safe for invitees.” 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.” Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936
(Tex. 1998); see also Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992);
Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983). This appeal
involves only the “constructive knowledge” element; i.e., whether “the
condition existed long enough to give the premises owner a reasonable
opportunity to discover it.” Wal Mart Stores, Inc. v. Reece, 81 S.W.3d 812,
814 (Tex. 2002).
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.” Id.8
Case: 20-11080 Document: 00516267889 Page: 9 Date Filed: 04/05/2022
No. 20-11080
at 816. 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 hazard. Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d
566, 567–68 (Tex. 2006) (referring to “analyzing the combination of
proximity, conspicuity, and longevity” when determining constructive
notice). “[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. at 567 (citing
Reece, 81 S.W.3d at 816–87). Evidence of the changed condition of a
substance, however, may be sufficient on its own to show that the substance
existed for long enough to result in constructive knowledge by the premises
owner. See Kofahl v. Randall’s Food & Drugs, Inc., 151 S.W.3d 679, 681 (Tex.
App. 2004); Kroger Stores, Inc. v. Hernandez, 549 S.W.2d 16, at 16–17 (Tex.
Civ. App. 1977); Furr’s, Inc. v. Bolton, 333 S.W.2d 688, 689–690 (Tex. Civ.
App. 1960).
In Hernandez, for example, the plaintiff slipped in vomit and fell. 549
S.W.2d at 16. The “only evidence . . . of how long the substance had been on
the floor” was the plaintiff’s testimony that the vomit appeared “already
dried where it looks like cake. It wasn’t just where you could rub your hands
on it and it would splash all over you. It was just drying.” Id. Based on this
testimony, the appellate court affirmed a judgment entered on a jury verdict
for plaintiff. Id. The court stated that “[n]o expert testimony was produced
to estimate how long a period would be required for the substance to reach
this condition, but we conclude that the jury was properly allowed to make
its own estimate, based on its general experience and plaintiff’s description
of what he saw.” Id. at 17. “Our question is whether reasonable minds could
draw the inference that regurgitated food which was ‘already dried where it
looks like cake’ had been on the floor for a sufficient length of time that it
9
Case: 20-11080 Document: 00516267889 Page: 10 Date Filed: 04/05/2022
No. 20-11080
should have been discovered and removed. We conclude that reasonable
minds could draw this inference.” Id.; see also Kofahl, 151 S.W.3d at 681
(testimony that edges of puddle of liquid were “very tacky and gummy” as if
the puddle was “starting to dry up” was evidence of show constructive
knowledge), Bolton, 333 S.W.2d at 690 (testimony that grape juice appeared
dried around the edges permitted inference that spill had been on the floor
long enough to result in constructive notice).
Here, the summary judgment evidence, viewed in the light most
favorable to Seigler, shows that the “cold,” “congealed” and “thicken[ed]
up” chicken grease was on the floor right next to the “hot case” where hot
rotisserie chickens are displayed. On these facts, it is reasonable to infer that
the chicken grease was hot at the time that it spilled on the floor, given its
proximity to the “hot case,” and that the grease had been on the floor long
enough for Wal-Mart to have had an opportunity to discover it, given that it
had cooled and congealed by the time of Seigler’s fall. Further, a jury could
use its general experience to make its own estimate of how long it takes hot
chicken grease to cool and congeal without the need for expert testimony.
See Hernandez, 549 S.W.2d at 17. Because the evidence shows a genuine
dispute of material fact regarding whether Wal-Mart had constructive notice
of the spilled chicken grease, the district court erred in granting summary
judgment.
Wal-Mart argues that Seigler is not entitled to an inference that the
chicken grease was hot when it spilled because there is no evidence that the
chicken grease fell from the hot case, and maintains that it is equally plausible
that the grease fell from a customer’s shopping cart in front of the hot case
only after the chicken had been removed from the counter and carried around
for long enough to have cooled down. We disagree. That there may be other
conceivable possibilities does not change that it is reasonable, given the
10
Case: 20-11080 Document: 00516267889 Page: 11 Date Filed: 04/05/2022
No. 20-11080
location of the spill directly in front of the hot case, to infer that the grease
was hot when it fell on the floor.
IV.
For the foregoing reasons, the district court’s grant of summary
judgment to Wal-Mart is REVERSED and the case is REMANDED for
further proceedings.
11