Allen v. Sherman Operating Co.

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

SEAN D. JORDAN UNITED STATES DISTRICT JUDGE

Came on for consideration the report of the United States Magistrate Judge in this action, this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636. On July 9, 2021, the Magistrate Judge entered a Report and Recommendation (“Report”). (Dkt. #68). In the Report, the Magistrate Judge recommended that Defendant Sherman Operating Company, LLC's (“Sherman Operating”) First Amended Motion for Summary Judgment (“Motion”), (Dkt. #36), be granted. Plaintiffs Carolyn Sue Allen and Christopher James Allen (collectively, the “Allens”) filed Objections, (Dkt. #69), to which Sherman Operating filed a response, (Dkt. #71).

The Court has conducted a de novo review of the Objections and the portions of the Report to which the Allens specifically object, and the Court is of the opinion that the findings and conclusions of the Magistrate Judge are correct and that the Objections are without merit as to the ultimate findings of the Magistrate Judge. The Court hereby adopts the findings and conclusions of the Magistrate Judge as the findings and conclusions of the Court.

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I. Background

In 2018, Carol Allen allegedly tripped and fell over an eighteen-foot-long phone cord and sustained injuries. See (Dkt. #17 ¶¶ 13-15); (Dkt. #36-2 at 2-3). She then filed a claim for benefits under Sherman Operating's Employee Injury Benefit Plan (“Plan”), which Sherman Operating offered under the Employee Retirement Income Security Act (“ERISA”). (Dkt. #36-8). Sherman Operating, through the Plan Administrator and Appeals Committee, rendered two adverse decisions. The first adverse decision partially denied Carolyn Allen's claim, as some of the injuries she identified were pre-existing conditions, and the second adverse decision terminated Carolyn Allen's benefits under the Plan, as the Plan Administrator concluded she had reached her maximum level of recovery, had not complied with the Plan's provisions, and had abandoned her employment. See (Dkt. #36-8 at 29-30, 32-35); (Dkt. #59-1). Subsequently, the Allens initiated this lawsuit, wherein they assert three causes of action: (1) premises liability, (2) loss of household services, and (3) violations of ERISA. See (Dkt. #17 at 3-4). Sherman Operating moved for summary judgment on all three claims. (Dkt. #36).

Based on the summary judgment evidence, the Report recommended the following: (1) summary judgment should be granted as to the premises liability claim, as the phone cord was an open and obvious condition; (2) summary judgment should be granted as to the loss of household services claim, as there was no underlying tort to which it could attach; and (3) summary judgment should be granted as to the ERISA claims, as the Plan Administrator and Appeals Committee did not abuse their discretion when they partially denied Carolyn Allen's claim and terminated her

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benefits under the Plan. (Dkt. #68). The Allens then filed Objections, (Dkt. #69), to which Sherman Operating filed a response, (Dkt. #71).

II. Discussion

The Allens raise three objections to the Report: (1) the Magistrate Judge erroneously found the phone cord an open and obvious danger as a matter of law; (2) even if the phone cord was an open and obvious danger, the “necessary-use exception” precludes summary judgment; and (3) the Magistrate Judge erroneously reviewed the Plan Administrator's and Appeals Committee's adverse decisions under an abuse of discretion standard of review instead of a de novo standard, leading the Magistrate Judge to erroneously uphold the termination of Carolyn Allen's benefits. (Dkt. #69).

A. Open and Obvious

The Allens argue the Magistrate Judge erred in concluding the phone cord was an open and obvious danger. See (Dkt. #69 at 1-5). However, the Aliens' argument in their Objections is a nearly verbatim recitation of the arguments raised before the Magistrate Judge. Compare (Dkt. #37 at 5-9) with (Dkt. #69 at 1-5). The Allens fail to identify how the Magistrate Judge erred in her legal reasoning and how her assessment of the case law was incorrect. “Objections that simply rehash or mirror the underlying claims addressed in the Report are not sufficient to entitle the party to de novo review.” Tilley v. Director, TDCJ-CID, No. 618-cv-163, 2020 WL 5534537, at *1 (E.D. Tex. Sept. 14, 2020). Nonetheless, the Court has conducted a careful de novo review of the record and the Report and has determined that the Magistrate Judge

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correctly determined the phone cord was an open and obvious condition. Accordingly, this objection is OVERRULED.

B. Necessary Use

Next, the Allens argue that even if the phone cord was an open and obvious dangerous condition, the necessary-use exception precludes summary judgment.^[1] See (Dkt. #69 at 5-7). Having conducted a de novo review, the Court disagrees.

Under Texas law, “[a]n employer may owe a duty to warn of open and obvious dangers when ‘it is necessary that the employee use the dangerous premises and the employer should anticipate that the employee is unable to take measures to avoid the risk.'” Prado v. Lonestar Res., Inc., - S.W.3d -, No. 04-19-00543-CV, 2021 WL 3173931, at *7 (Tex. App.-San Antonio July 28, 2021, no pet.) (footnote omitted) (quoting Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 210 (Tex. 2015)). “This ‘necessary use' duty is ‘specific and narrow.'” Id. In instances where this exception applies, neither the obviousness of the danger nor the employee's awareness of the risk will relieve a property owner of the duty to make the premises reasonably safe. Bisacca v. Pilot Travel Ctrs., LLC, 476 F.Supp.3d 429, 436 (N.D. Tex. Aug. 5, 2020) (citing Austin, 465 S.W.3d at 204).

The necessary-use exception does not apply in this case. Although Carolyn Allen claimed in her affidavit that she had no choice but to use the walkway in front

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of the phone and its cord, (Dkt. #37-4 at 3), there is no evidence that Sherman Operating “should have anticipated that [s]he was unable to avoid the alleged unreasonable risk associated with the condition despite [her] awareness.” Simpson v. Orange Cnty. Bldg. Materials, Inc., No. 09-18-00240-CV, 2019 WL 470090, at *5 (Tex. App.-Beaumont Feb. 7, 2019, no pet.) (mem. op.). There is no genuine dispute that Carolyn Allen could have watched where she was walking and taken measures to avoid tripping over the phone cord. Cf. Kennedy v. Wal-Mart Stores Tex., LLC, No. 03-19-00587-CV, 2020 WL 1943357, at *3 (Tex. App.-Austin Apr. 23, 2020, no pet.) (mem. op.) (finding necessary use exception inapplicable where plaintiff could have spun carousel clockwise, not spun carousel at all, or asked checker to hand bottle to her to avoid wine bottle falling on her foot).

Carolyn Allen did not provide any evidence that Sherman Operating “assigned [a] task that...