Hileman V Rouse Properties

Case 4:16-cv-00455-RAS-CAN Document 64 Filed 05/30/17 Page 1 of 27 PageID #: 1110
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
GAILE HILEMAN, §
§
Plaintiff, §
§ CIVIL ACTION NO. 4:16-CV-00455-ALM-
v. § CAN
§
ROUSE PROPERTIES, INC., MILLARD §
MALL SERVICES, §
§
Defendants. §
REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Pending before the Court are Defendant Rouse Properties, Inc.’s Motion and Brief in
Support for Summary Judgment [Dkt. 38], Defendant Millard Mall Services’ Motion for Summary
Judgment [Dkt. 39] (collectively, “Defendants’ Motions for Summary Judgment”), Plaintiff Gaile
Hileman’s Motion Objecting to any law firm from being allowed to withdraw from this Lawsuit
[Dkt. 53], Plaintiff’s Motion to Oppose all Motions, Statements, Comments, Request by Robert
Palmer and any other lawyer who attempt [sic] to prevent Relevant and Valuable Information to
be presented to the Court by G. Hileman and Witnesses [Dkt. 54], Plaintiff’s Motion Requesting
the Court to Rule in my favor in this case Gaile Hileman vs. Rouse Properties and Millard Mall
Services [Dkt. 55], and Rouse’s Motion to Strike [Dkt. 59]. After reviewing Defendants’ Motions
for Summary Judgment, the Response [Dkt. 43], the Replies [Dkts. 45-46], Plaintiff’s Motions,
the Response thereto [Dkt. 60], Rouse’s Motion to Strike [Dkt. 59], and all other relevant filings,
the Court recommends that Defendants’ Motions for Summary Judgment [Dkts. 38-39] be
GRANTED, that Rouse’s Motion to Strike [Dkt. 59] be GRANTED IN PART AND DENIED
IN PART as set forth herein, and that each of Plaintiff’s Motions [Dkts. 53-55] be DENIED.
REPORT AND RECOMMENDATION − Page 1

BACKGROUND
This suit arises from Plaintiff’s fall at Vista Ridge Mall, located in Lewisville, Texas,
within the Eastern District of Texas. Defendant Rouse owns and Defendant Millard controls the
mall [Dkt. 16 at 2-3]. Around 11:00 a.m. on July 24, 2014, Plaintiff arrived at Vista Ridge Mall
near the Dillard’s north handicap entrance ramp [Dkt. 39-1 at 3]. Plaintiff uses an electric disability
scooter to ambulate. Plaintiff exited her vehicle (using the vehicle’s disability ramp)
approximately five to eight feet away from the base of the mall’s handicap entrance ramp [Dkt.
39-3 at 3]. Plaintiff alleges there was a hole at the base of the handicap entrance ramp that caused
the front wheel of her electric disability scooter to catch and her to fall [Dkt. 39-1 at 3]. 1 It is
undisputed that the weather was “clear and sunny” at the time of the accident, and no obstruction
prevented Plaintiff from seeing clearly at the time of the accident [Dkt. 39-3 at 3]. As a result of
the fall, Plaintiff allegedly “suffered severe injuries to her head, neck, spine and shoulder”
[Dkt. 39-2 at 3].
On June 3, 2016, Plaintiff filed her Original Petition in the 158th District Court, Denton
County, Texas, in which she asserted a premises liability claim [Dkt. 2]. On June 30, 2016, Rouse
removed the case to the Eastern District of Texas [Dkt. 1]. On September 4, 2016, Millard was
added as a Defendant in the suit [Dkt. 16]. On April 4, 2017, and pursuant to 28 U.S.C. § 636(b),
the District Court referred this matter to the undersigned for consideration and recommended
disposition [Dkt. 41].
On March 31, 2017, Rouse and Millard each filed a Motion for Summary Judgment
[Dkts. 38-39]. On April 10, 2017, Plaintiff filed her Response [Dkt. 43]. On April 18, Rouse filed
1
The incident report filed by Rouse indicates Plaintiff stated on the day of the incident that “the foot rest of her electric
wheel chair had caught onto the pavement of the handicap ramp and that caused her to fall over and scrape her knee”
[Dkt. 38 at 24]. The difference in these narratives do not substantially impact the recommendation herein and, as
such, the Court hereinafter uses those allegations stated by Plaintiff in her Complaint.

its Reply [Dkt. 45], and Millard filed its Reply the following day [Dkt. 46]. 2 Thereafter, on May 11
and 18, 2017, Plaintiff filed three motions [Dkts. 53-55], which the Court construes as opposition
to Defendants’ Motions for Summary Judgment, objections to Defendants’ expert Tony DiNicola
(“DiNicola”), and also as Plaintiff’s own motion for summary judgment. 3 On May 24, 2017,
Defendant Rouse filed a Motion to Strike, seeking to strike each of the motions filed by Plaintiff
on May 11 and 18 [Dkt. 59]; Defendant Millard also filed a response to those motions the same
day [Dkt. 60].
LEGAL STANDARD
The purpose of summary judgment is to isolate and dispose of factually unsupported claims
or defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Summary judgment is proper
if the pleadings, the discovery and disclosure materials on file, and any affidavits “[show] that
there is no genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(a). A dispute about a material fact is genuine “if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The trial court must resolve all reasonable doubts in favor
of the party opposing the motion for summary judgment. Casey Enters., Inc. v. Am. Hardware
Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir. 1981) (citations omitted). The substantive law identifies
which facts are material. Anderson, 477 U.S. at 248.
2
Millard’s Reply includes therein a Motion for Leave to Late File its Reply, alleging that Plaintiff’s Response does
not address Millard’s Motion for Summary Judgment and also that it was never served with the response to its Motion
[Dkt. 46 at 2]. Plaintiff has not opposed Millard’s request. See EASTERN DISTRICT OF TEXAS LOCAL RULE CV-7(d).
To the extent Millard’s Reply is untimely, the Court GRANTS Millard’s Motion for Leave to Late File its Reply, and
considers Millard’s Reply herein.
3
Plaintiff seemingly (untimely) moves for summary judgment in her May 18 Motion [see Dkt. 55]. Defendants
contend Plaintiff’s failure timely to request such relief should preclude the Court’s consideration of Plaintiff’s request
[see Dkt. 59 at 3-4; Dkt. 60 at 7]. Notwithstanding Plaintiff’s alleged dilatoriness, the Court considers Plaintiff’s
request within its analysis of Defendants’ Motions for Summary Judgment.

The party moving for summary judgment has the burden to show that there is no genuine
issue of material fact and that it is entitled to judgment as a matter of law. Id. at 247. If the movant
bears the burden of proof on a claim or defense on which it is moving for summary judgment, it
must come forward with evidence that establishes “beyond peradventure all of the essential
elements of the claim or defense.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986).
But if the nonmovant bears the burden of proof, the movant may discharge its burden by showing
that there is an absence of evidence to support the nonmovant’s case. Celotex, 477 U.S. at 325;
Byers v. Dall. Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000). Once the movant has carried
its burden, the nonmovant must “respond to the motion for summary judgment by setting forth
particular facts indicating there is a genuine issue for trial.” Byers, 209 F.3d at 424
(citing Anderson, 477 U.S. at 248-49). The nonmovant must adduce affirmative evidence.
Anderson, 477 U.S. at 257. And the Court need only consider the record materials actually cited
by the parties, though the Court may consider the entire record. FED. R. CIV. P. 56(c)(3).
DEFENDANTS’ OBJECTIONS/MOTIONS TO STRIKE PLAINTIFF’S SUMMARY

JUDGMENT EVIDENCE
Before turning to the Motions for Summary Judgment, the Court addresses Rouse’s and
Millard’s objections and request to strike certain of Plaintiff’s summary judgment evidence
[Dkts. 45-46; 59]. 4 When material cited to support or dispute a fact cannot be presented in a form
4
The Court notes that neither Plaintiff’s Response [Dkt. 43] nor Plaintiff’s Motions [Dkts. 53-55] contain any sworn
or verified evidence. Defendants argue, inter alia, that Plaintiff fails to carry her burden of proof to avoid summary
judgment as a result. To the extent Defendants argue Plaintiff’s purported failure to respond with competent evidence
to their respective Motions for Summary Judgment alone merits dismissal, the Court rejects such argument. A court
may not grant a motion for summary judgment for the sole reason that the non-movant fails to file an appropriate
opposition. John v. La. (Bd. of Trustees), 757 F.2d 698, 708 (5th Cir. 1985); see also Littlefield v. Forney Indep. Sch.
Dist., 268 F.3d 275, 282 (5th Cir. 2001) (noting the movant must first bear the initial burden of establishing an absence
of evidence to support the nonmovant’s claims). Rather, “[a] summary judgment nonmovant who does not respond
to the motion is relegated to her unsworn pleadings, which do not constitute summary judgment evidence[,]” and a
court “would be permitted [in such circumstances] to accept [the movant’s] evidence as undisputed.” Bookman v.
Schubzda, 945 F. Supp. 999, 1002 (N.D. Tex. 1996) (citing Solo Serve Corp. v. Westowne Assocs., 929 F.2d 160, 165
(5th Cir. 1991)).

that would be admissible in evidence, a party may object to the materials offered. FED. R. CIV. P.
56(c)(2). Summary judgment evidence must be competent and admissible at trial. Bellard v.
Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012). Affidavits offered to support or oppose a motion
must (1) have a basis in the affiant’s personal knowledge, (2) set out facts that would be admissible
in evidence, and (3) show that the affiant is competent to testify on the matters stated. FED. R. CIV.
P. 56(c)(4). The admissibility of summary judgment evidence is subject to the same standards and
rules that govern the admissibility of evidence at trial. Donaghey v. Ocean Drilling & Expl. Co.,
974 F.2d 646, 650 n.3 (5th Cir. 1992). Rouse and Millard each object to all of Plaintiff’s summary
judgment evidence contained in the Response [Dkt. 43] and to the additional evidence Plaintiff
attaches to her recent Motions [Dkts. 53-55], including specifically: (1) the sections of Plaintiff’s
Response entitled “What I Want the Court to Do” and “Statement of Claim”; (2) Plaintiff’s
photographs of the ramp; (3) the letter from Liberty Mutual; (4) the photograph of four binders;
(5) the Affidavit of Cindy Bryan; (6) the “MRI’s and Scans” section of the Response and the
medical expenses spreadsheets; and (7) internet printouts.
I. “What I Want” and “Statement of Claim” Sections
Rouse and Millard each object to the “What I Want the Court to Do” and “Statement of
Claim” sections of Plaintiff’s Response [Dkt. 43], arguing such sections contain unsworn
statements not made under penalty of perjury that constitute hearsay.
28 U.S.C. § 1746 provides that a matter may be
evidenced, established, or proved by the unsworn declaration . . . in writing of such

person which is subscribed by him, as true under penalty of perjury, and dated, in
substantially the following form:
(1) If executed without the United States: “I declare (or certify, verify, or state)
under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct. Executed on (date).(Signature)”.

(2) If executed within the United States, its territories, possessions, or

commonwealths: “I declare (or certify, verify, or state) under penalty of perjury that
the foregoing is true and correct. Executed on (date).(Signature)”.
28 U.S.C. § 1746. No section of Plaintiff’s Response includes any affirmation or oath indicating
the statements contained therein are sworn, much less one “in substantially the . . . form”
prescribed by § 1746. See id.; Sukup v. Martin, No. 1:10-CV-190, 2012 WL 929058, at *1 (E.D.
Tex. Mar. 16, 2012) (finding 28 U.S.C. § 1746 satisfied when respondent’s motion for summary
judgment included the statement, “I declare under penalty of perjury that the foregoing is true and
correct to the best of my knowledge and belief”). Notwithstanding this defect, the Court notes that
Plaintiff is proceeding pro se and the allegations within the “What I Want the Court to Do” and
“Statement of Claim” sections are Plaintiff’s own observations; Plaintiff could offer foundation
for such statements (and would be sworn in doing so) at trial. Accordingly, the Court declines to
strike those sections entitled “What I Want the Court to Do” and “Statement of Claim.” See
Williams v. Thrift Store, No. 4:14CV101, 2015 WL 5578322, at *2 (E.D. Tex. Sept. 22, 2015)
(declining to strike unauthenticated letter that could be proven up at trial given the plaintiff’s pro se
status, despite finding that the letter did not create a fact issue).
II. Photographs of Ramp
Defendants next object to Plaintiff’s two photographs of the handicap entrance ramp
attached to the Response [Dkt. 43], as well as those photographs attached to Plaintiff’s Motions
[Dkts. 53-55]. Defendants contend Plaintiff has failed to demonstrate the photographs truly and
accurately represent the handicap entrance ramp at issue here—i.e., Defendants argue the
photographs are unauthenticated. Specifically, Defendants argue that there is (1) no reliable link
to suggest the photographs attached to Plaintiff’s Response were taken by Cindy Bryan, Plaintiff’s

stepdaughter, (2) no indication of when the photographs were taken, and/or (3) no demonstration
that the ramp in the photographs is in fact the ramp at issue.
To satisfy the requirement of authenticating or identifying an item of evidence, the
proponent must produce evidence sufficient to support a finding that the item is what the proponent
claims it is. FED. R. EVID. 901(a). Plaintiff states in her “What I Want the Court to Do” section
that “Cindy Bryan, my stepdaughter[,] took 26 photos of the accident area showing massive
deterioration and pot holes of an area adjacent to the ramp” [Dkt. 43 at 2]. Plaintiff also alleges
that “I suspect that [DiNicola] was the one that was responsible for informing Rouse . . . of the
dangerous condition of the landing area. . . . I have the photos to prove it and I have provided a
few with this request” [Dkt. 42 at 3]. Plaintiff’s Motions similarly assert Cindy Bryan took each
of the photographs and also indicates the time, date, and location of many of the photographs [e.g.,
Dkt. 55]. Though Plaintiff fails to provide any sworn averments to this effect, testimony from
Cindy Bryan and/or Plaintiff at trial could serve to authenticate the photographs. Accordingly,
and in light of Plaintiff’s pro se status, the Court declines to strike the photographs allegedly
depicting the ramp at issue attached to the Response [Dkt. 43] and/or to Plaintiff’s Motions
[Dkts. 53-55]. See Williams, 2015 WL 5578322, at *2.
III. Liberty Mutual Letter
Defendants next seek the exclusion of Plaintiff’s letter from Liberty Mutual as irrelevant.
Evidence is relevant only if it has any tendency to make a fact of consequence in determining the
action more or less probable than it would be without the evidence. FED. R. EVID. 401. The letter
contains a discussion of statute of limitations for any claim against Rouse; however, no Party
argues that the statute of limitations precludes Plaintiff’s claims in this suit. Accordingly, the

Court sustains Defendants’ objection as to the letter from Liberty Mutual and strikes such from
the summary judgment record.
IV. Photograph of Binders
Defendants also seek the exclusion of the photograph of four binders with a caption
reading, “[t]he four binders that were provided to Crockett Law Firm as evidence” [Dkt. 43-4 at
7]. The covers of the binders purport to describe the content therein; the binders allegedly hold
evidence of Plaintiff’s physical condition before the accident, Medicare and United of Omaha
Insurance documents, CD-ROMs of MRI’s, Scans, and X-Rays, and treatment records of various
doctors [Dkt. 43-4 at 7]. Plaintiff states in her “What I Want the Court to Do” section that she
“provided [her] lawyers Crockett Law Firm with 4 binders of [her] materials” and that another
attorney stated “he had never received such well documented materials by a client” after receiving
Plaintiff’s “materials and evidence” [Dkt. 43 at 4]. Plaintiff seemingly provides the photograph of
these binders to persuade the Court that her assertions are more credible than Defendants’
assertions [see Dkt. 43 at 4]; however, a credibility determination by the Court is inappropriate at
this stage of the proceedings. TiVo Inc. v. EchoStar Commc’ns Corp., No. 2:04-CV-1-DF, 2006
WL 8409111, at *1 (E.D. Tex. Mar. 15, 2006) (“When determining whether to grant summary
judgment, the Court is merely determining whether a factual dispute exists as opposed to weighing
the evidence or engaging in credibility determinations.”). Accordingly, the Court sustains
Defendants’ objection as to the photograph of the four binders.

V. Affidavit of Cindy Bryan
Defendants next object to the Affidavit of Cindy Bryan on the grounds that it fails to
conform to the requirements for an affidavit. Specifically, Defendants object that Bryan’s affidavit
is not based on Bryan’s personal knowledge and constitutes inadmissible hearsay, as Bryan makes
no averment in the Affidavit that her statements are sworn or made under the penalty of perjury
[Dkt. 43-2]. Rather, the Affidavit is merely signed by Bryan and notarized. The notary stamp
states the notary’s name and the expiration date of her commission but does not include any
statement that the Affidavit was sworn [Dkt. 43-2 at 3]. The mere signing of a statement in the
presence of a notary, or a notary’s placement of an “acknowledgment” on a statement, does not
alone transform the out-of-court statement into a sworn statement or affidavit. See Nissho-Iwai
Am. Corp. v. Kline, 845 F.2d 1300, 1305-06 (5th Cir. 1988) (disregarding as summary judgment
evidence a notarized, self-styled “affidavit” that was “neither sworn nor its contents stated to be
true and correct nor stated under penalty of perjury” so as to bring unsworn statement into
compliance with 28 U.S.C. § 1746); Schelsteder v. Montgomery Cty., No. CIV.A. H-05-0941,
2006 WL 1117883, at *3, n.5 (S.D. Tex. Apr. 21, 2006) (excluding from summary judgment
evidence witness statements characterized as affidavits but not sworn or made under penalty of
perjury). Even if the Court were to relax the § 1746 requirements in light of Plaintiff’s pro se
status and Bryan’s statements related to her care of Plaintiff after the accident, several of Bryan’s
statements would not be admissible at trial (in their present form) because they lack basis in
Bryan’s personal knowledge, and/or constitute hearsay as well as improper opinion testimony. 5
Specifically, Bryan does not aver that she personally observed Plaintiff’s fall, thus the statement
“the accident Gaile had at the mall” and “[t]he accident happened on the extreme right side of the
5
The Court notes that Defendants do not specifically identify the portions of the Affidavit they seek to have the Court
strike, but rather generally move to strike the entire document.

ramp” cannot be traced to Bryan’s personal knowledge and/or observations. Further, Bryan does
not aver that she helped Plaintiff speak with Dr. Lieberman’s office, thus any averments regarding
Plaintiff’s conversations with Dr. Lieberman’s office are out-of-court statements offered for the
truth of the matter asserted constituting hearsay. The Court accordingly strikes the fourth
paragraph of Bryan’s affidavit and Bryan’s statements that “the accident Gaile had at the mall,”
and that “[t]he accident happened on the extreme right side of the ramp.” Defendants’ objection
to Bryan’s affidavit is sustained in part and overruled in part.
VI. “MRI’s and Scans” Section and Medical Expenses Spreadsheets
Defendants next object to the “MRI’s and Scans” section of Plaintiff’s Response as
unverified and irrelevant [Dkt. 45]; Defendants also object to the medical expenses spreadsheets
attached to Plaintiff’s Motions as unverified and because they contain “no proof . . . the[] amounts
were paid for medical expenses related to the treatment of [Plaintiff’s] alleged injuries” [Dkt. 60
at 8]. Neither the MRI’s and Scans section nor the medical expenses spreadsheets are sworn or
contain any statement indicating they were made under the penalty of perjury. But in reading these
documents in a light most favorable to Plaintiff, the Court finds the MRI’s and scans section of
Plaintiff’s Response and the medical expenses spreadsheets contain measures and/or
representations of Plaintiff’s alleged damages following the accident. 6 Plaintiff could testify to
the accuracy and relevancy of these documents at trial, and in light of her pro se status, the Court
declines to exclude them at this time. Defendants’ objections to the MRI’s and Scans section of
Plaintiff’s Response and the medical expenses spreadsheets attached to Plaintiff’s Motions
[Dkt. 53] are accordingly overruled.
6
The Court expresses no opinion here about whether Plaintiff could use these documents to establish anything other
than the measure of her damages, if any. In other words, the Court does not find that these documents have any
relevance to the question of whether Plaintiff’s fall caused her alleged damages.

VII. Internet Printouts
Lastly, Defendants challenge several internet printouts attached to Plaintiff’s Response
[Dkt. 43] and to Plaintiff’s Motions [Dkt. 55] detailing certain ADA standards and the methods by
which hospitals treat wheelchair-related injuries. Defendants object to these attachments as
irrelevant without an expert’s opinion that they apply in this case and that the wheelchair ramp at
issue did not comply with these standards [Dkt. 45], and further that they are unauthenticated and
constitute hearsay [Dkt. 60]. Regarding the ADA information, the Fifth Circuit has previously
taken judicial notice of information posted on a government website. See, e.g., Jaso v. Coca Cola
Co., 435 F. App’x 346, 354 n.5 (5th Cir. 2011) (per curiam) (citing Kitty Hawk Aircargo, Inc. v.
Chao, 418 F.3d 453, 457 (5th Cir. 2005)). Further, a court may sua sponte take judicial notice of
a document at any stage of the proceeding. FED. R. EVID. 201(c)-(d). Here, the internet printouts
describing ADA standards are publicly available through the Federal Highway Administration’s
and the United States Access Board’s websites. 7 Likewise, the internet printout discussing
wheelchair-related injuries is available online through a peer-reviewed journal’s website. 8 Cf.
Palmetto Pharm. LLC v. AstraZeneca Pharm. LP, No. 2:11–807–SB, 2014 WL 1334215, at *11
n.9 (D.S.C. Apr. 2, 2014) (admitting peer-reviewed journal where proffering party “could use the
article to cross-examine experts at trial”). Defendants’ objections to the internet printouts are
overruled.
7
The internet printouts provided in Plaintiff’s Response [Dkt. 43] and in Plaintiff’s Motion [Dkt. 55] are available
online at https://www.fhwa.dot.gov/environment/bicycle_pedestrian/publications/sidewalk2/sidewalks207.cfm and
https://www.access-board.gov/guidelines-and-standards/buildings-and-sites/about-the-ada-standards/guide-to-the-
ada-standards/chapter-4-ramps-and-curb-ramps.
8
The internet printout provided in Plaintiff’s May 18 Motion [Dkt. 55] related to wheelchair-related injuries is
available online at http://injuryprevention.bmj.com/content/12/1/8.

PLAINTIFF’S OBJECTION/MOTION TO STRIKE DEFENDANTS’ EXPERT

WITNESS DINICOLA
Plaintiff’s Motions [Dkts. 54-55] contain various and sundry objections to Defendants’
expert, Tony DiNicola, and his expert report attached to each of Defendants’ respective Motions
for Summary Judgment [Dkts. 38-39]. Plaintiff seemingly requests through her Motions that the
Court strike DiNicola’s report in its entirety from the summary judgment record [see Dkts. 54-55].
Specifically, Plaintiff challenges the accuracy of DiNicola’s report, DiNicola’s methodology, and
DiNicola’s qualifications. Defendants contend in response that DiNicola has the requisite
qualifications to provide expert testimony in this case and that his report provides relevant and
reliable information for the Court’s consideration [Dkts. 59-60]. Defendants argue that Plaintiff
lacks the qualifications to rebut the contents of DiNicola’s report and further that Plaintiff’s
deadline to designate any rebuttal expert has long since elapsed. Although Defendants are correct
that Plaintiff’s deadline to designate any experts has elapsed (on November 1, 2016, while Plaintiff
still was represented by counsel), Plaintiff’s deadline to object to Defendants’ proffered expert
witnesses has not yet lapsed [Dkts. 15; 30]. Accordingly, the Court construes Plaintiff’s objections
to DiNicola’s report as a timely filed motion to strike DiNicola (or portions of his testimony) from
this case.
The Federal Rules of Civil Procedure set forth the procedures litigants must follow in
designating expert witnesses. Rule 26(a)(2)(B) provides in pertinent part:
Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or

ordered by the court, this disclosure must be accompanied by a written report—
prepared and signed by the witness—if the witness is one retained or specially
employed to provide expert testimony in the case ... The report must contain:
(i) a complete statement of all opinions the witness will express and the basis and
reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;

(iv) the witness's qualifications, including a list of all publications authored in the
previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified
as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the
case.
In the Fifth Circuit, an expert report must be “detailed and complete” when submitted under Rule
26(a)(2)(B) to “avoid the disclosure of ‘sketchy and vague’ expert information.” Sierra Club, Lone
Star Chapter v. Cedar Point Oil Co., 73 F.3d 546, 571 (5th Cir. 1996). Expert reports that do not
provide the basis and reasons for the stated opinions, or that refer to the basis for the opinions only
in vague terms, are insufficient under Rule 26(a)(2)(B). See id. “To satisfy Federal Rule of Civil
Procedure 26(a)(2)(B), the report must provide the substantive rationale in detail with respect to
the basis and reasons for the proffered opinions. It must explain factually why and how the witness
has reached them.” Hilt v. SFC Inc., 170 F.R.D. 182, 185 (D. Kan. 1997). The purpose of this
requirement is to allow parties to prepare effectively for cross examination of expert witnesses
and, if necessary, to arrange for testimony by additional expert witnesses. FED. R. CIV. P.
26(a)(2)(B) advisory committee's note to 1993 amendments.
Further, Federal Rule of Evidence 702 governs testimony by expert witnesses and provides
as follows:
A witness who is qualified as an expert by knowledge, skill, experience, training,

or education may testify in the form of an opinion or otherwise if:(a) the expert's
scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;(b) the testimony is based
on sufficient facts or data;(c) the testimony is the product of reliable principles and
methods; and(d) the expert has reliably applied the principles and methods to the
facts of the case.
FED. R. EVID. 702. The U.S. Supreme Court has held that Rule 702, distilled, requires that courts
“ensure that [expert] testimony is both reliable and relevant.” Johnson v. Arkema, Inc., 685 F.3d
452, 459 (5th Cir. 2012) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993)).

An expert establishes “reliability” where the “expert[’s] opinion ‘[is] grounded in the methods and
procedures of science and . . . [is] more than unsupported speculation or subjective belief.’” Id.
(quoting Curtis v. M & S Petroleum, Inc., 174 F.3d 661, 668 (5th Cir. 1999)). A court must satisfy
itself that the party proffering the expert’s testimony demonstrates the expert’s reliability by a
preponderance of the evidence. Id. Notwithstanding this duty to “ensure that an expert[’s]
testimony rests upon a reliable foundation[,]” courts generally should find expert testimony
admissible for, “as a general rule, questions relating to the bases and sources of an expert’s opinion
affect the weight to be assigned that opinion rather than its admissibility and should be left for the
jury’s consideration.” Primrose Op. Co. v. Nat’l Am. Ins. Co., 382 F.3d 546, 561-62 (5th Cir.
2004) (citations and internal quotations omitted).
In the present case, the Court finds Plaintiff’s objections to DiNicola’s report unfounded.
As an initial matter, Plaintiff seemingly attacks DiNicola’s qualifications and/or his competency
due to his age [see Dkt. 55 at 3 (noting DiNicola “is a few months younger than [Plaintiff], also
70 years old” and describing various instances of what Plaintiff perceives as DiNicola’s “cognitive
impairment”)]. Plaintiff speculates that DiNicola’s advanced age has caused him to provide
“numerous entries of the same page . . . with different page numbers” and to include “comments
[in his report] that don’t have anything to do with the issue regarding the [ramp]” but provides no
evidence (other than her own speculation) that such perceived gaffs relate in any way to DiNicola’s
mental or cognitive status [see Dkt. 55 at 3]. Further, as reflected in the record, DiNicola’s report
does not contain “numerous entries of the same page . . . with different page numbers” or
comments wholly unrelated to this case [see Dkt. 39-5]. Moreover, Plaintiff cites no authority for
her apparent proposition that a person’s age has bearing on and/or diminishes his or her reliability

and/or qualification as an expert and, in any event, points to no evidence of any cognitive
“impairment” on DiNicola’s part.
Additionally, and as to Plaintiff’s other objections regarding the accuracy of and/or
methodology underlying DiNicola’s report, DiNicola’s curriculum vitae establishes his credentials
and documents his experience in evaluating buildings for compliance with accessibility standards
[Dkt. 39-5]. DiNicola explains that his “opinions are based on [his] education, training,
experience, practice, knowledge and skill[,]” and clearly outlines the information he considered in
compiling his report [Dkt. 39-5 at 2, 23-24]. DiNicola also thoroughly outlines and applies the
relevant legal standards governing building accessibility to the information presented to him about
this case, and provides explanations and diagrams clarifying his methodology in so doing [see
Dkt. 39-5]. Though Plaintiff objects to DiNicola’s methodology—specifically, to his use of a
measuring tape alone, rather than a measuring tape and electronic level—Plaintiff provides no
basis for challenging DiNicola’s methodology in this regard apart from her own opinion and
interpretation of a “Best Practices Tool Kit” document [see Dkt. 55]. If anything, Plaintiff’s
concern with DiNicola’s use of a measuring tape goes to the weight of his report in evidence, not
to its admissibility. Cf. Dixon v. Int’l Harvester Co., 754 F.2d 573, 580 (5th Cir. 1985) (finding
“[i]t was for the jury to decide which [party proffered] . . . the more reliable data”).
Plaintiff also challenges the report as “fraudulent” because it contains photographs from
2017 in addition to photographs from 2014 or because certain of the photographs on which
DiNicola relies allegedly obscure any gap between the ramp and parking lot. DiNicola’s inclusion
of photographs taken contemporaneously with the alleged incident (2014) alongside photographs
taken more recently (2017) clearly is for the purpose of drawing a comparison. DiNicola opines
after comparing the various photographs that the “change in level” between the end of the ramp

and the beginning of the parking lot complied with accessibility standards at the time of the
incident as well as more recently, in 2017 [Dkt. 39-5 at 4-8 (collecting the various photographs),
10 (asserting compliance with Texas Accessibility standards at time of incident), 11 (asserting
compliance with Texas Accessibility standards in 2017), 13 (asserting compliance with ADA
standards at time of incident), 14 (asserting compliance with ADA standards in 2017)]. DiNicola
does so to show that “[t]he change in level was less than 1/2" [contemporaneous with the incident]”
as well as in 2017, when the ramp was in apparently worse condition [see, e.g., Dkt. 39-5 at 10].
DiNicola also places large red circles over the top of certain of the photographs to draw attention
to certain areas in the photographs [see Dkt. 39-5]. Although Plaintiff asserts DiNicola placed
these circles in an attempt to obscure important features of the ramp about which Plaintiff
complains, Plaintiff provides no evidence to show such intent, nor does she allege specifically
what the circles purportedly obscure. Accordingly, the Court overrules Plaintiff’s objections
regarding the “fraudulent” nature DiNicola’s report. The Court further finds DiNicola’s report
relevant and reliable, and finds the report admissible. To the extent Plaintiff’s objections implicate
the weight properly accorded DiNicola’s report, the Court considers those in its analysis of the
evidence for purposes of resolving Defendants’ Motions for Summary Judgment infra.
MOTIONS FOR SUMMARY JUDGMENT
The Court turns now to the Motions for Summary Judgment. Plaintiff’s sole cause of
action is for “Negligence: Premises Liability.” Texas law distinguishes between a landowner’s
negligent activity that causes a person injury, on the one hand, and “a premises defect claim[,]”
pleaded by Plaintiff here, which “is based on the property itself being unsafe[,]” on the other. State
v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). 9 Because the Parties do not dispute Plaintiff was
9
Although a plaintiff may present facts to support a “negligent activity theory of liability” in addition to a premises
liability theory, Plaintiff neither alleges nor shows facts that would support such a theory in this case. See Keetch v.

an invitee while on Defendants’ premises, or that Defendants owned and/or operated the premises,
the Court assumes for the purposes of resolving the instant motions that (a) Plaintiff was an invitee
at the time of the incident and (b) Defendants owned and/or operated the mall at the time of the
incident [see Dkts. 38-39]. Under a premises liability theory of liability, a defendant-landowner
owes a plaintiff-invitee a duty “to exercise reasonable care to protect against danger from a
condition on the land that creates an unreasonable risk of harm of which the owner or occupier
knew or by the exercise of reasonable care would discover.” CMH Homes, Inc. v. Daenen, 15
S.W.3d 97, 101 (Tex. 2000).
Texas courts have defined this duty—and its breach—by reference to four essential
elements, namely (1) the landowner’s actual or constructive knowledge of some condition on the
premises (2) that posed an unreasonable risk of harm (3) that the landowner did not exercise
reasonable care to reduce or eliminate, and (4) such failure to use reasonable care to reduce or
eliminate the unreasonable risk of harm proximately caused the plaintiff’s damages. Dolgencorp
of Tex., Inc. v. Vision Bank, N.A., No. 4:14-CV-00376, 2016 WL 4131614, at *3 (E.D. Tex. Aug.
3, 2016) (citing LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006)). Stated simply, Plaintiff
must show Defendants’ owed Plaintiff a duty—because Defendants knew (or reasonably should
have known) of an unreasonably dangerous condition on the premises—that Defendants
breached—by failing to use reasonable care to eliminate or reduce the dangerous condition—
proximately causing Plaintiff’s injuries.
Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992) (noting the “distinction between premises conditions and negligent
activities” as the bases for a defendant’s liability). The facts of this case restrict Plaintiff to a premises liability theory
of liability. See TXI Ops., L.P. v. Perry, 278 S.W.3d 763, 765 (Tex. 2009) (folding the general negligence inquiry
into the premises liability inquiry where an alleged defect in the premises, and not a contemporaneous activity on the
part of the defendant, served as the basis for the plaintiff’s complaint).

Defendants argue Plaintiff proves none of these essential elements. After careful review
of the record and the arguments presented, the Court finds Plaintiff fails to raise a genuine issue
of material fact as to Defendants’ actual or constructive knowledge of the alleged unreasonably
dangerous defect at the base of the handicap entrance ramp. This finding alone compels judgment
as a matter of law in Defendants’ favor.
I. Defendants’ Actual or Constructive Knowledge of the Alleged Dangerous Condition

(Duty)
At the threshold of any Texas premises liability claim, a plaintiff must demonstrate the
defendant’s actual or constructive knowledge of the condition the plaintiff alleges poses an
unreasonable risk of harm. Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996) (citing Corbin
v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983), for the proposition that “the existence
of actual or constructive knowledge of a premises defect is a threshold requirement for such a
claim”); see also Richardson v. Wal-Mart Stores, Inc., 963 S.W.2d 162, 165 (Tex. App.—
Texarkana 1998, no pet.) (“An invitee must prove that the owner/operator either knew, or after
reasonable inspection should have known, of an unreasonably dangerous condition before arguing
that the owner/operator has breached a duty by failing to take any one of several precautions.”)
Neu v. Home Depot U.S.A., Inc., No. 4:04CV390, 2005 WL 2656115, at *2-3 (E.D. Tex. Oct. 18,
2005) (noting “[t]he actual or constructive knowledge requirement of a premises liability claim is
essential to recovery” and finding that the plaintiff’s failure to show the defendant knew or
reasonably should have known of the alleged premises defect fatal to the plaintiff’s claim).
To show a landowner actually knew of an alleged defect, a plaintiff must demonstrate the
landowner knew of the dangerous defect itself, not merely of a condition that caused the dangerous
defect to develop. See City of San Antonio v. Rodriguez, 931 S.W.2d 535, 536-37 (Tex. 1996)
(city knew of leaky roof that created puddle in which the plaintiff slipped, but not of the condition

of puddle itself). Courts use no single test in making this determination, but do “generally consider
whether the [landowner] had received reports of prior injuries or reports of the potential danger
presented by the condition.” E.g., Smith v. Mohawk Mills, Inc., 260 S.W.3d 672, 675 (Tex. App.—
Dallas 2008, no pet.) (quoting Univ. of Tex.-Pan Am. v. Aguilar, 251 S.W.3d 511, 513 (Tex. 2008)
(per curiam)); Zook v. Brookshire Grocery Co., 302 S.W.3d 452, 455 (Tex. App. 2009).
With respect to constructive knowledge, a plaintiff may prove a landowner should have
known of a premises defect by “establish[ing] that it is more likely than not that the dangerous
condition existed long enough to give the [landowner] a reasonable opportunity to discover the
condition.” Weldon v. Wal-Mart Stores Tex., No. 1:15-CV-62, 2016 WL 4248931, at *7 (E.D.
Tex. Aug. 11, 2016). In determining whether the landowner had a reasonable opportunity to
discover the hazard, courts will analyze “the combination of proximity, conspicuity, and
longevity.” Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 567-68 (Tex. 2006). Where the
record contains no evidence indicating how long the hazard existed on a property, the mere fact
that a premises owner’s agent was near the hazard indicates only that it was possible for the
premises owner to discover the condition, not that the premises owner reasonably should have
discovered it. Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 816 (Tex. 2002). Critically here, a
landowner’s failure to discover and rectify, or warn of, an alleged dangerous condition, cannot
serve as a basis for the landowner’s liability without some proof of how long the hazard existed.
Id.
Moreover, the alleged premises defect must pose an unreasonable risk of harm for liability
to inhere as against the landowner. See Wal-Mart Stores, Inc. v. Diaz, 109 S.W.3d 584, 587 (Tex.
App.—Fort Worth 2003, no pet.). For a condition to pose an unreasonable risk of harm, there
must be “sufficient probability of a harmful event occurring that a reasonably prudent person

would have foreseen it or some similar event as likely to happen.” Cty. of Cameron v. Brown, 80
S.W.3d 549, 556 (Tex. 2002). When determining whether a condition poses an unreasonable risk
of harm, such that a harmful event resulting from a condition was probable and foreseeable, courts
often have considered, among other things, (1) the height of the condition; (2) whether any injuries
have occurred in the past; and (3) whether the condition meets applicable safety standards. Martin
v. Chick-Fil-A, No. 14-13-00025-CV, 2014 WL 465851, at *3-4 (Tex. App.—Houston [14th Dist.]
Feb. 4, 2014, no pet.) (mem. op.); see also Brinson Ford, Inc. v. Alger, 228 S.W.3d 161, 163 (Tex.
2007) (finding pedestrian ramp not unreasonably dangerous because it was outlined in yellow
stripping, which was a common method to indicate elevation change). Significantly, “a condition
is not unreasonably dangerous simply because it is not foolproof.” Alger, 228 S.W.3d at 163
(citing Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406, 410 (Tex. 2006)).
In the present case, Plaintiff alleges a hole and/or gap at the base of the Dillard’s north
handicap entrance ramp constituted a premises defect posing an unreasonable risk of harm that
Defendants knew about or in the exercise of ordinary care should have known about. Defendants
contend that Plaintiff presents no evidence whatsoever to support her allegations: specifically,
Defendants argue there is an absence of any evidence showing that an unreasonably dangerous
condition existed on the premises at the time of the incident or that Defendants had actual or
constructive knowledge of such condition. 10
The Court assumes without deciding that an unreasonably dangerous condition existed for
the purposes of its analysis herein. Defendants’ expert, DiNicola, concludes from his review of
the various photographs (some taken in 2014, around the time of the incident, and some taken in
10
Defendant Rouse further alleges (but does not show) there are no reports of prior incidents involving the Dillard’s
north handicap entrance ramp, whether police reports, incident reports, lawsuits, or any other allegations regarding
accidents or injuries on the ramp [Dkt. 38 at 13; Dkt. 39 at 10-11].

2017) as well as his own visit to and examination of the premises that the ramp at issue complied
with all applicable handicap accessibility requirements at the time of the incident. DiNicola
explains that the standards applicable to the ramp (specifically, the Texas Accessibility Standards
and the Americans Disability Act), each require a beveled edge with a slope no greater than 1:2
for changes in elevation between one-quarter inch and one-half inch, whereas changes in level
greater than one-half inch require a ramp [Dkt. 39-5 at 10, 13, 16]. DiNicola opines from his
review of the photographs and his examination of the premises that the alleged gap at the base of
the ramp measured less than one-half inch. However, Plaintiff argues to the contrary that “the
change in level was far greater than a half of inch [sic]” [Dkt. 43 at 3] (and thus did not comply
with the requisite standards), and proffers photographs of the ramp from 2014 and from 2017 to
illustrate the size of the gap. In light of Plaintiff’s allegations regarding the measurements and
photographs submitted (and giving full benefit to her pro se status), the Court will assume a fact
question exists as to whether an unreasonably dangerous condition existed. See, e.g., Gilbert v.
Eckerd Drugs, No. CIV. A. 97-3118, 1998 WL 388567, at *3 (E.D. La. July 8, 1998) (concluding
summary judgment as to property’s ADA compliance improper where non-expert plaintiff alleged
the property did not comply and defendant submitted averments to the contrary); Pipkin v. Kroger
Tex., L.P., 383 S.W.3d 655, 671 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) (noting
“whether a condition is unreasonably dangerous may be determined as a matter of law” but finding
conflicting evidence precluded judgment as a matter of law on this element).
Nevertheless, even assuming an unreasonably dangerous condition, the Court agrees that
Plaintiff wholly fails to present any evidence of Defendants’ actual or constructive knowledge of
such condition. See Smith, 260 S.W.3d at 675 (noting plaintiff bears the burden of producing
evidence of a premises owner/occupier’s actual or constructive knowledge of an unreasonably

dangerous condition). Crucially, Plaintiff has failed to proffer any evidence showing the alleged
hole or gap at the base of the ramp existed for any period of time prior to the incident, much less
long enough to give Defendants time to discover it, or that the alleged gap previously caused any
other injuries. See, e.g., Weldon, 2016 WL 4248931, at *7; Smith, 260 S.W.3d at 675; Zook, 302
S.W.3d at 455. Indeed, Plaintiff’s own interrogatory answers establish the opposite: Plaintiff
admits she “routinely shopped at the mall about once a month” but that, despite this, “she never
noticed the hole that cause[d] her to fall” [Dkt. 39-3 at 4]. In her (unsworn) allegations, Plaintiff
further avers she shopped consistently “at Dillards [sic] at this mall since the year 2000[,]” has
used a motorized scooter since 2008, and “always go[es] up the right side of the ramp [at issue] to
enter the doors on the right side” [Dkt. 43 at 3-4; 43-5 at 1]. Moreover, notably, Plaintiff claims
she visited the mall the night before the incident, and had gone up and down the ramp at issue with
no incident, and without noticing (or discovering) at any time the alleged hole/gap [see Dkt. 43 at
2]. Plaintiff’s own statements therefore reflect the alleged condition had not existed for a lengthy
period of time and/or that it was not conspicuous enough that Defendants should have discovered
it. See Garza v. Home Depot U.S.A., Inc., No. 1:14-cv-54, 2014 WL 12606312, at *2 (S.D. Tex.
June 25, 2014) (finding a plaintiff’s representations in his answers to interrogatories would prevail
over his unsworn allegations where the two were inconsistent). Accordingly, though the record
evidence could potentially raise a fact question as to the existence of a dangerous condition when
read to resolve all doubts in favor of Plaintiff (and giving substantial deference due to her pro se
status), Plaintiff fails to show Defendants actually knew about the condition and neither alleges
nor shows how long the condition existed, or whether the deterioration existed long enough for
Defendants to have discovered it through reasonable inspection. See, e.g., CMH Homes, Inc. v.
Daenen, 15 S.W.3d 97, 102-03 (Tex. 2000); Klinger v. Wal-Mart Stores, Inc., No. CV H-15-999,

2016 WL 541082, at *4 (S.D. Tex. Feb. 11, 2016) (finding pro se plaintiff failed to produce any
summary judgment evidence establishing defendant’s constructive knowledge of the dangerous
condition); Stone v. United States, No. 1:09-CV-427, 2011 WL 3652758, at *6 (E.D. Tex. July 22,
2011), report and recommendation adopted, No. 1:09-CV-427, 2011 WL 3652599 (E.D. Tex.
Aug. 18, 2011) (finding summary judgment appropriate against pro se plaintiff’s premises liability
claim where plaintiff failed to provide evidence showing defendant’s actual or constructive
knowledge of the floor mat she tripped over—how long the mat was rippled, how long the mat
presented the alleged unreasonably dangerous condition, or the proximity of the rippled mat to the
defendant’s premises); cf. Dietz v. Hill Country Rests., Inc., 398 S.W.3d 761, 767-68 (Tex. App.—
San Antonio 2011, no pet.) (finding summary judgment against plaintiff on premises liability claim
appropriate where plaintiff “testified that she had walked on the walkway on several prior
occasions, and did not have a problem with the walkway in the past”). Accordingly, the Court
finds Plaintiff has failed to produce evidence establishing a genuine issue of material fact as to
Defendants’ knowledge (actual or constructive) of the alleged defect in the ramp. Absent such
evidence—proof of an essential element of her premises liability claim is lacking—and Plaintiff’s
lawsuit cannot proceed. As a result, the Court recommends summary judgment in favor of
Defendants be granted. Nevertheless, the Court briefly examines the law applicable to each of the
remaining elements of Plaintiff’s premises liability claim for the benefit of pro se Plaintiff.
II. Defendants’ Reasonable Care (Breach)
Defendants also contend Plaintiff cannot prove any breach of their duty of care. The
standard of care required of the owner-operator toward its invitees is the ordinary care that a
reasonably prudent person would exercise under the same or similar circumstances. Corbin v.
Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983). While a premises owner-operator is not

an insurer of its invitees’ safety, it must protect invitees from conditions on the property that
present an unreasonable risk of harm. Alger, 228 S.W.3d at 163 (citing Daenen, 15 S.W.3d at
101). But “the core of the duty depends on actual or constructive knowledge of a dangerous
condition that a reasonable inspection would reveal,” such “that an owner or occupier is not liable
for deterioration of its premises unless it knew of or by reasonable inspection would have
discovered the deterioration.” Daenen, 15 S.W.3d at 101; see also Gillespie v. Kroger Tex., L.P.,
415 S.W.3d 589, 592 (Tex. App.—Dallas 2013, pet. denied) (“An owner/occupier cannot breach
a duty that it does not owe, and it does not owe a duty to correct an alleged dangerous condition
of which it is not aware.”). As noted, because Plaintiff was an invitee on Defendants’ premises,
Defendants owed Plaintiff a duty to exercise reasonable care to protect her from known or
reasonably discoverable dangerous conditions on the property. See Wal-Mart Stores, Inc. v.
Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). However, as discussed supra, no evidence shows
Defendants had actual knowledge of the alleged condition or that a factfinder could imply such
knowledge. See, e.g., Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983) (finding
jury could imply defendant had actual knowledge of dangerous condition where defendant placed
out a mat to prevent patrons from slipping on grapes as a matter of course but had not on the day
the plaintiff slipped and fell). Furthermore, Plaintiff presents no evidence that would indicate
Defendants would have upon “reasonable inspection” discovered the alleged condition. See
Garcia v. Ross Stores, Inc., 896 F. Supp. 2d 575, 580 (S.D. Tex. 2012) (citing Keetch, 845 S.W.2d
at 264, for the proposition that “proof that employees caused the harmful condition; . . . proof that
employees either saw or were told of the harmful condition prior to the plaintiff's injury; or . . .
proof that the harmful condition was present for so long that it should have been discovered in the
exercise of reasonable care” necessary to establish such knowledge). In sum, Plaintiff does not

show either that Defendants (or any of Defendants’ agents) were told of, saw, or caused the alleged
dangerous condition, or that Defendants reasonably could have discovered it. Instead, Plaintiff
merely asserts Defendants should have known that the dangerous condition existed at the time of
the incident. This is insufficient. The Court finds Plaintiff fails to raise a genuine issue of material
fact as to breach.
III. Proximate Cause
Defendants lastly contend that any alleged breach did not proximately cause Plaintiff’s
injuries. “To prove an action for premises defect, the invitee must establish that the defendant’s
lack of care proximately caused his injuries.” Reynolds, 127 S.W.3d at 32 (citations omitted).
“The components of proximate cause are (1) cause-in-fact and (2) foreseeability.” Id. (citing
Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992)). “The test for cause-in-fact is whether
the negligent act or omission was a substantial factor in bringing about the injury and without
which the injury would not have occurred.” Id. (citation omitted). A plaintiff fails to establish
cause-in-fact where the defendant’s negligence does no more than furnish the condition that made
the injury possible. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995).
“To prove foreseeability, the plaintiff must establish that a person of ordinary intelligence should
have anticipated the danger created by the negligent act or omission.” Reynolds, 127 S.W.3d at
32-33 (citing Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549-50 (Tex. 1985)). Courts
consider general experience in determining foreseeability, utilizing “a practical inquiry based on
‘common experience applied to human conduct’”—i.e., “whether the injury might reasonably have
been anticipated as a result of the defendant’s conduct.” Id. at 33 (quoting City of Gladewater v.
Pike, 727 S.W.2d 514, 518 (Tex. 1987)). Plaintiff cannot establish proximate cause on the present

record; Plaintiff does not raise a genuine issue of fact as to whether Defendants owed Plaintiff any
duty (or breached any such duty). Thus, the Court does not reach the question of proximate cause.
The Court accordingly recommends Defendants’ Motions for Summary Judgment be
granted.
CONCLUSION AND RECOMMENDATION
Based on the foregoing, the Court recommends that each of Defendant Rouse Properties,
Inc.’s Motion and Brief in Support for Summary Judgment [Dkt. 38] and Defendant Millard Mall
Services’ Motion for Summary Judgment [Dkt. 39] be GRANTED, and Plaintiff’s claims should
be dismissed. The Court further recommends that Defendant Rouse’s Motion to Strike [Dkt. 59]
be GRANTED IN PART AND DENIED IN PART, and that each of Plaintiff’s Motions
[Dkt. 53-55] be DENIED.
Within fourteen (14) days after service of the magistrate judge’s report, any party must
serve and file specific written objections to the findings and recommendations of the magistrate
judge. 28 U.S.C. § 636(b)(1)(C). In order to be specific, an objection must identify the specific
finding or recommendation to which objection is made, state the basis for the objection, and
specify the place in the magistrate judge’s report and recommendation where the disputed
determination is found. An objection that merely incorporates by reference or refers to the briefing
before the magistrate judge is not specific.

Failure to file specific, written objections will bar the party from appealing the unobjected-
to factual findings and legal conclusions of the magistrate judge that are accepted by the district
court, except upon grounds of plain error, provided that the party has been served with notice that
such consequences will result from a failure to object. See Douglass v. United Servs. Auto. Ass’n,
79 F.3d 1415, 1417 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C.
§ 636(b)(1) (extending the time to file objections from ten to fourteen days).
SIGNED this 30th day of May, 2017.
___________________________________
Christine A. Nowak
UNITED STATES MAGISTRATE JUDGE

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Case 4:16-cv-00455-RAS-CAN Document 64 Filed 05/30/17 Page 1 of 27 PageID #: 1110

IN THE UNITED STATES DISTRICT COURT

REPORT AND RECOMMENDATION − Page 1

[Dkt. 39-2 at 3].

disposition [Dkt. 41].

REPORT AND RECOMMENDATION − Page 2

day [Dkt. 60].

which facts are material. Anderson, 477 U.S. at 248.

REPORT AND RECOMMENDATION − Page 3

DEFENDANTS’ OBJECTIONS/MOTIONS TO STRIKE PLAINTIFF’S SUMMARY

REPORT AND RECOMMENDATION − Page 4

medical expenses spreadsheets; and (7) internet printouts.

I. “What I Want” and “Statement of Claim” Sections

statements not made under penalty of perjury that constitute hearsay.

28 U.S.C. § 1746 provides that a matter may be

evidenced, established, or proved by the unsworn declaration . . . in writing of such

REPORT AND RECOMMENDATION − Page 5

(2) If executed within the United States, its territories, possessions, or

II. Photographs of Ramp

REPORT AND RECOMMENDATION − Page 6

that the ramp in the photographs is in fact the ramp at issue.

To satisfy the requirement of authenticating or identifying an item of evidence, the

[Dkts. 53-55]. See Williams, 2015 WL 5578322, at *2.

III. Liberty Mutual Letter

REPORT AND RECOMMENDATION − Page 7

the summary judgment record.

IV. Photograph of Binders

the evidence or engaging in credibility determinations.”). Accordingly, the Court sustains

Defendants’ objection as to the photograph of the four binders.

REPORT AND RECOMMENDATION − Page 8

V. Affidavit of Cindy Bryan

presence of a notary, or a notary’s placement of an “acknowledgment” on a statement, does not

REPORT AND RECOMMENDATION − Page 9

to Bryan’s affidavit is sustained in part and overruled in part.

VI. “MRI’s and Scans” Section and Medical Expenses Spreadsheets

[Dkt. 53] are accordingly overruled.

REPORT AND RECOMMENDATION − Page 10

VII. Internet Printouts

Lastly, Defendants challenge several internet printouts attached to Plaintiff’s Response

which hospitals treat wheelchair-related injuries. Defendants object to these attachments as

wheelchair-related injuries is available online through a peer-reviewed journal’s website. 8 Cf.

REPORT AND RECOMMENDATION − Page 11

PLAINTIFF’S OBJECTION/MOTION TO STRIKE DEFENDANTS’ EXPERT

designating expert witnesses. Rule 26(a)(2)(B) provides in pertinent part:

Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or

REPORT AND RECOMMENDATION − Page 12

26(a)(2)(B) advisory committee's note to 1993 amendments.

A witness who is qualified as an expert by knowledge, skill, experience, training,

REPORT AND RECOMMENDATION − Page 13

2004) (citations and internal quotations omitted).

REPORT AND RECOMMENDATION − Page 14

“impairment” on DiNicola’s part.

Additionally, and as to Plaintiff’s other objections regarding the accuracy of and/or

Dkt. 39-5]. Though Plaintiff objects to DiNicola’s methodology—specifically, to his use of a

REPORT AND RECOMMENDATION − Page 15

10 (asserting compliance with Texas Accessibility standards at time of incident), 11 (asserting

MOTIONS FOR SUMMARY JUDGMENT

REPORT AND RECOMMENDATION − Page 16

S.W.3d 97, 101 (Tex. 2000).

have known) of an unreasonably dangerous condition on the premises—that Defendants

proximately causing Plaintiff’s injuries.

REPORT AND RECOMMENDATION − Page 17

of material fact as to Defendants’ actual or constructive knowledge of the alleged unreasonably