Sam A. Lindsay, United States District Judge Before the court is Defendant's Unopposed Motion for Leave to File Amended Expert Designation (Doc. 34), filed April 7, 2020; and Defendant Pilot Travel Centers d/b/a Pilot Travel Centers #433's ("Pilot" or "Defendant") Motion for Summary Judgment ("Motion") (Doc. 35), filed April 17, 2020. For the reasons herein explained, the court grants Defendant's Motion for Summary Judgment (Doc. 35); denies the request by Plaintiff included in his summary judgment response to further amend his pleadings (Doc. 38); dismisses with prejudice this action; strikes Plaintiff's First Amended Designation of Expert Witnesses (Doc. 33), which was filed on April 3, 2020, without leave of court; and denies as moot Defendant's Unopposed Motion for Leave to File Amended Expert Designation (Doc. 34).
In this premises liability case, Alfonso Bisacca ("Plaintiff" or "Mr. Bisacca"), a commercial truck driver, seeks to recover for injuries he allegedly sustained from a slip-and-fall accident on October 31, 2015, near one of the entrances to Pilot's convenience store or "truck stop" located at 8787 South Lancaster Road, Dallas, Texas 75241 (the "Premises" or "Pilot Store"). Pl.’s App., Ex. 3 at 23 (Bisacca dep).1 Plaintiff also asserts in his most recent pleadings that Pilot is responsible for its employees’ negligence and omissions under the doctrine of respondeat superior.
According to the undisputed summary judgment evidence, Mr. Bisacca met another driver in the parking lot of the Pilot Store to exchange truck loads before pulling around to the area where the diesel fuel pumps are located. After pumping diesel fuel, Mr. Bisacca entered the Pilot Store using the "driver entrance" on the diesel side to get a receipt for the fuel, purchase a drink, and warm up some soup. Id. at 26; Def.’s App. 15. The parties’ summary judgment evidence also refers to this entrance as the "diesel entrance," "diesel side," and "diesel ramp." Pl.’s App., Ex. 1 at 117 (Mark Nichols dep.); Pl.’s App., Ex. 4 (Feb. 5, 2015 e-mail). Mr. Bisacca exited the Pilot Store the same way he entered, and fell near the concrete handicap ramp that leads up to the diesel entrance. Pilot presented evidence establishing that, at the time of Mr. Bisacca's accident, there was a yellow cone on the diesel ramp that said "CAUTION Wet Floor" in Spanish and English and also included a diagram of a person slipping and falling. Mr. Bisacca acknowledges that he saw the yellow cone and warning and attempted to avoid the area where the cone was located on the concrete ramp by taking a narrow path to the side of the ramp, where he fell.
Pilot moved for summary judgment on April 17, 2020, contending that it did not breach any duty owed to Plaintiff as the owner and operator of the Premises because its placement of the yellow cone in front of the diesel entrance was adequate under Texas law to warn Plaintiff regarding the condition of the ramp, and Plaintiff admitted to seeing the yellow wet floor cone positioned on the handicap ramp on his way into and out the store. Pilot further asserts that it cannot be held liable under a theory of respondeat superior because Plaintiff was not injured as a result of the action or omissions of any employee or agent of Pilot.
Plaintiff disagrees and responds that the warning provided by Pilot in the form of a yellow "caution wet floor" cone on the entrance ramp was inadequate under the circ*mstances. Pl.’s Resp. 8. Additionally, even if adequate, Plaintiff contends that Pilot owed him a duty under Texas's necessary-use exception to make the diesel entrance safe because "it was necessary for [him] to use the ramp to return to his commercial vehicle after leaving the store," and "[he] was not able to walk around the ramp, without incident." Id. at 10. Plaintiff argues that, "[b]ecause th[is] was the only point of entry on the north side of the Premises reserved for commercial drivers," Pilot could not discharge its duty under the necessary-use exception by the mere placement of a yellow "caution wet floor" cone "near the area where it knew a danger existed." Id. at 8, 10, 11. Instead of addressing Defendant's contention that he is not entitled to recover under the theory of respondeat superior , Plaintiff clarifies that he is only seeking to recover damages for his premises liability claim, and, to the extent this is not clear from his pleadings, he seeks leave to amend his pleadings.
The court addresses both of these premises liability arguments in turn. Although the court's determination regarding Defendant's summary judgment motion moots Pilot's request to amend its expert designations, it addresses this issue separately to explain briefly why it is striking Plaintiff's First Amended Expert Designations, which prompted Pilot to seek leave to amend its own expert designations. The court also addresses separately Plaintiff's belated request to amend his pleadings.
Summary judgment shall be granted when the record shows that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) ; Celotex Corp. v. Catrett , 477 U.S. 317, 323-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Ragas v. Tennessee Gas Pipeline Co. , 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When ruling on a motion for summary judgment, the court is required to view all facts and inferences in the light most favorable to the nonmoving party and resolve all disputed facts in favor of the nonmoving party. Boudreaux v. Swift Transp. Co., Inc. , 402 F.3d 536, 540 (5th Cir. 2005). Further, a court "may not make credibility determinations or weigh the evidence" in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ; Anderson , 477 U.S. at 254-55, 106 S.Ct. 2505.
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine dispute of material fact. Matsush*ta Elec. Indus. Co. v. Zenith Radio , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). On the other hand, "if the movant bears the burden of proof on an issue, either because he is the plaintiff or as a defendant he is asserting an affirmative defense, he must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor." Fontenot v. Upjohn Co. , 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis in original). "[When] the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine [dispute] for trial.’ " Id. (citation omitted). Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler , 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr , 19 F.3d 1527, 1533 (5th Cir. 1994).
The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his or her claim. Ragas , 136 F.3d at 458. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id. ; see also . "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson , 477 U.S. at 248, 106 S.Ct. 2505. Disputed fact issues that are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex , 477 U.S. at 322-23, 106 S.Ct. 2548.
Under Texas law, property owners generally "have a duty to protect invitees from, or warn them of, conditions posing unreasonable risks of harm if the owners knew of the conditions or, in the exercise of reasonable care, should have known of them." Henkel v. Norman , 441 S.W.3d 249, 251 (Tex. 2014) (citing TXI Operations, L.P. v. Perry , 278 S.W.3d 763, 764-65 (Tex. 2009) ). This general rule is consistent with the Texas Supreme Court's "recognition that a landowner's duty to invitees is not absolute. A landowner ‘is not an insurer of [a] visitor's safety.’ Instead, a landowner's premises-liability duties, like its negligence duties, are limited to a duty to exercise ordinary, reasonable care." Austin v. Kroger Texas, L.P. , 465 S.W.3d 193, 203 (Tex. 2015). To establish a premises liability claim, an invitee must prove:
(1) the property owner had actual or constructive knowledge of the condition
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