MEMORANDUM OPINION and ORDER

JOHN McBRYDE, District Judge.

Before the court for consideration and decision is the motion for summary judgment of defendant, Home Depot U.S.A., Inc. After having considered such motion, the response thereto of plaintiffs, Jose Razo ("Razo"), Individually and as Next Friend of Christina Springfield and Keith Springfield, the entire summary judgment record, and pertinent legal authorities, the court has concluded that the motion is meritorious and that all claims asserted by plaintiffs against defendant should be dismissed.

I.

Background

This action was initiated in the District Court of Tarrant County, Texas, 236th Judicial District, on April 7, 2014, by the filing by plaintiffs of their petition, naming Home Depot U.S.A., Inc., as the defendant. The factual bases for plaintiffs' claims against defendant were, as alleged in their state court pleading, as follows:

Notice of Removal, Ex. B-2 at 2-3, ¶¶ 6-7.

On June 10, 2014, defendant removed the action to this court based on diversity jurisdiction. The court ordered plaintiffs to re-plead by July 18, 2014, in compliance with the federal court pleading standards. Rather than to re-plead by the July 18 deadline, plaintiffs filed a document titled "Agreed Motion for Extension of Time to File Motion for Leave to File First Amended Complaint and Brief in Support." Plaintiffs' description in the Agreed Motion of the occurrence in question was revised as follows:

Agreed Mot, for Ext. at 3, ¶ 10. The motion was accompanied by an appendix containing a proposed first amended complaint naming as an additional defendant, Matthew Matney ("Matney"), the employee of defendant who allegedly instructed Razo to lift the front of the lawn mower up. In that proposed amended complaint plaintiffs' description of the occurrence was the same as the revised version contained in the Agreed Motion except that the words "the mechanic" were replaced each time by the words "Defendant Matney." Id., App. at 3, ¶ 10.

Before the court had ruled on the July 18 Agreed Motion, plaintiffs filed on July 25, 2015, a document titled Motion to Amend Pleadings, Join Party, and Remand, and Brief in Support," which was accompanied by a new version of a first amended complaint, which, this time, alleged plaintiffs' third version of the occurrence as follows:

Mot, to Amend, Ex. A at 3-4, ¶ 10.

Defendant opposed plaintiffs' motion to join Matney as a defendant because such a joinder would defeat diversity jurisdiction. The court agreed, and by memorandum opinion and order signed August 6, 2014, the court denied plaintiffs' motion; and, the court again ordered plaintiffs to file an amended complaint that would be in compliance with the rules of this court.

Such an amended complaint was filed on August 11, 2014. It is the current live pleading of plaintiffs. In it, the description of the occurrence in question was the same as the third revision plaintiffs alleged in their July 25 filing. 1st Am. Compl. at 3, ¶ 9. Plaintiffs alleged that the occurrence was caused by the negligence of defendant in several respects, including negligent hiring, supervision, training, and retention of Matney as an employee. In addition, plaintiffs alleged that the occurrence resulted from gross negligence on the part of defendant.

Razo alleged that his primary language is Spanish, although he understands some English, and that Matney's primary language was English. Id. at 3, ¶ 8.

The motion for summary judgment under consideration was filed by defendant on April 9, 2015.

II.

The Motion and the Response

A. Grounds of Defendant's Motion, and Its Supporting Summary Judgment Evidence

The grounds of defendant's motion were that (1) defendant did not owe Razo a duty to protect him from his own conduct in putting his hand in the blades of a running lawn mower, (2) plaintiffs cannot adduce evidence of probative value that defendant breached any duty owed to Razo, (3) there is no evidence that any conduct on the part of defendant was a proximate cause of Razo's injuries, (4) Razo's own actions were the cause-in-fact of his injuries and were unforeseeable as a matter of law, (5) there is no evidence to support plaintiffs' claims of negligent hiring, supervision, and retention, and (6) there is no evidence to support plaintiffs' claim that defendant was grossly negligent.

The motion was accompanied by excerpts of Razo's oral deposition taken December 8, 2014, in which Razo made the following admissions:

He works as a mechanic with industrial machinery. Mot., App. at 10. From all the work he had done as a mechanic in his career, he knew better than to stick his fingers under a lawn mower while the blades were spinning. Id. at 15.

He gave the following description of the occurrence:

Id. at 10-11. And, as to what the employee of defendant said to him just before he put his fingers into the moving blades, he testified:

Id. at 11-12 (emphasis added). The attorney for plaintiffs interrupted Razo to prevent him from finishing his answer. That, understandably, led to an exchange between the attorneys concerning the inappropriateness of the conduct of plaintiffs' attorney. Id. at 12. The attorney's interruption apparently worked, because when again asked to explain what was said by the employee of defendant before Razo reached down and put his hands into the spinning blades, Razo added that the employee told him to "pick it up," saying:

Id. at 13 (emphasis added).

Also included in the appendix to the motion was a disk containing the video of the events leading up to the accident, and the occurrence of the accident itself. It started showing Matney bending down, while in front of the mower, working to his right on the left side of the mower. Razo appears to be situated on his knees to Matney's right, apparently watching what Matney was doing. Next, Razo stands up and goes back behind the handle of the mower, where the controls are, and apparently starts the mower by pulling the starter cord. Then Matney stands up and goes to the back of the mower and holds the handle as Razo moves to the left side of the mower and immediately stoops down on the left side of the mower and puts his hands under the left side of the mower. As soon as he does that, he jumps back, obviously having been injured.

The appendix also contained admissions made by Razo in response to requests for admissions served on him by defendant. Included were admissions that (1) Razo knew the lawn mower engine was on when he put his fingers where they were at the time the accident happened, Mot., App. at 19; (2) he could hear the sound being made by the lawn mower engine just before he put his fingers where they were at the time the accident happened, id. at 20; (3) he was the last person to start the lawn mower prior to the accident; (4) the lawn mower continued to run between the time he last started it and the time the accident happened; (5) before the occurrence of the accident he had experience operating gas-powered lawn mowers generally, id. at 21; and (6) the lawn mower involved in his accident was a gas-powered lawn mower; id. at 19.

B. Plaintiffs' Response to the Motion and Its Supporting. Summary Judgment Evidence

Plaintiffs responded to the grounds of defendant's motion that defendant owed a duty to exercise reasonable care to protect Razo from known or discoverable dangerous conditions in the store and the duty to exercise reasonable care to avoid foreseeable injury to Razo, and that defendant breached that duty, and that defendant's negligence proximately caused Razo's injuries. As to plaintiffs' negligent hiring, supervision, and retention claims, plaintiffs maintained in their response that Matney was not competent to handle lawn mower repairs when he was hired, he was not properly trained, and he was not adequately supervised on the date of the occurrence and, Razo responded as to his gross negligence claim that he has raised a fact issue as to that claim.

Plaintiffs argued that the Texas proportionate liability statute, sections 33.001 through 33.003 of the Texas Civil Practice & Remedies Code, is applicable to this case, Pls.' Br. in Supp. of Resp. at 14; and, plaintiffs contended that "[t]herefore, Home Depot's argument that Mr. Razo was, in effect, the sole cause or totally at fault in the incident fails given the evidence of Home Depot's negligence," id.

The appendix to the response contained a declaration of Razo that advanced yet another version of the occurrence, stating that:

Resp., App. at 2 (emphasis added).1

Two statements that Matney gave pertaining to the occurrence, one on the date of the occurrence and the other the following day, were included in the appendix. In his first statement, Matney described what happened immediately before and at the time of the accident by saying:

Resp., App. at 36-37 (errors in original). In the statement he gave the following day, Matney elaborated to an extent, saying:

Id. at 40-41 (errors in original).

Plaintiffs' appendix also contained pages from an oral deposition given by Matney in January 2015. Those pages appear not to have included Matney's full description of the events that occurred immediately prior to and at the time of the accident. However, they included the following explanatory testimony:

Id. at 17-19.

Id. at 19-20.

III.

Analysis

A. Pertinent Summary Judgment Principles

Rule 56(a) of the Federal Rules of Civil Procedure provides that the court shall grant summary judgment on a claim or defense if 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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The movant bears the initial burden of pointing out to the court that there is no genuine dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986). The movant can discharge this burden by pointing out the absence of evidence supporting one or more essential elements of the nonmoving party's claim, "since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323.

Once the movant has carried its burden under Rule 56(a), the nonmoving party must identify evidence in the record that creates a genuine dispute as to each of the challenged elements of its case. Id. at 324; see also Fed. R. Civ. P. 56(c) ("A party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record. . . ."). If the evidence identified could not lead a rational trier of fact to find in favor of the nonmoving party as to each essential element of the nonmoving party's case, there is no genuine dispute for trial and summary judgment is appropriate. Matsushita Elec. Indus, Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 597 (1986). In Mississippi Prot. & Advocacy Sys. v. Cotten, the Fifth Circuit explained:

929 F.2d 1054, 1058 (5th Cir. 1991).

The standard for granting a motion for summary judgment is the same as the standard for rendering judgment as a matter of law.2 Celotex Corp., 477 U.S. at 323. If the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial. Matsushita, 475 U.S. at 597; see also Mississippi Prot. & Advocacy Sys., 929 F.2d at 1058.

B. As a Matter of Law Plaintiffs Have No Right of Recovery Against Defendant

"It is common knowledge by every user of a lawn mower that serious injury will result if a hand or foot comes in contact with the blades while the mower is in operation." Blackwell Burn Co., Inc. v. Cerda, 644 S.W.2d 512, 516 (Tex. App.-San Antonio 1982, writ ref'd n.r.e.). As a consequence, tort claims brought by such a user frequently end with adverse rulings as a matter of law. See Kuras v. International Harvester Co., 820 F.2d 15, 17-18 (1st Cir. 1987)(directed verdict upheld); Mele v. Turner, 720 P.2d 787, 790-91 (Wash. 1986)(affirming summary judgment on duty and breach issues); Ragsdale v. K-Mart Corp., 468 N.E.2d 524, 527 (Ind. App. 1984); Myers v. Montgomery Ward & Co., 252 A.2d 855, 862-63 (Md. App. 1969); Kientz v. Carlton, 96 S.E.2d 14, 20 (N.C. 1957)(involuntary nonsuit affirmed); Murphy v. Cory Pump Supply Co., 197 N.E.2d 849, 858 (Ill. App. 1964). In the instant action, Razo admitted he had that knowledge when he intentionally put his hands under the side of the lawn mower while the blades were spinning. In other words, he intentionally engaged in conduct that he knew to be dangerous. Accepting at face value Razo's testimony, he did what he knew to be dangerous because he simply was not thinking. Immediately before his attorney interrupted his answer, Razo even went so far on his deposition to admit "I knew I might cut my fingers." Mot., App. at 12.

Under Texas law, "[n]egligence rests primarily upon two elements: (1) reason to anticipate injury, and (2) failure to perform the duty on account of that anticipation," and "[t]he ability to have foreseen and prevented the harm is determinative of responsibility." Houston Lighting & Power Co. v. Brooks, 336 S.W.2d 603, 606-07 (Tex. 1960). For the court to conclude that defendant is liable to plaintiffs under the facts of this case the court would have to arbitrarily and improperly impute foresight to defendant. Brooks, 336 S.W.2d at 606. The summary judgment record contains no evidence that would provide basis for a finding that defendant should have foreseen that Razo would have done what he did when he went to the side of the running lawn mower and put his fingers up under the side into the spinning blades.

Plaintiffs and their attorney have sought to overcome the obvious lack of foreseeability on defendant's part by a creative description of the occurrence. They started by maintaining in their state court pleading that Matney started the lawn mower without Razo's knowledge and then instructed Razo to "lift the front of the lawn mower up," and that as he was doing so the blades of the mower cut his fingers. Supra at 2. Their initial pleading implied that Razo was unaware that the lawn mower was running when he stuck his hands into the blades. Id. Plaintiffs' next version had Matney and Razo both trying to start the lawn mower when Matney told Razo to pick the lawn mower up, an instruction that Razo said Matney repeated after Razo did not understand the first time, and that Razo "was not aware the lawn mower was running when he did as instructed by the mechanic." Supra at 3.

Razo's fourth revision of his version of the occurrence, which is found in the declaration his attorney put in the appendix in support of plaintiffs' response to the motion for summary judgment, included Razo's statement that "I did not believe that picking up the lawn mower at the spot where I picked it up would result in injuries." Resp., App. at 2. He thus represented that he made a conscious decision to pick the lawn mower up at a spot where he did not believe he would be injured. This is quite a contrast with his deposition testimony that "I didn't have time to think anything. I just lift the machine. That's it. I didn't think," Mot., App. at 7, and, when asked if he was "trying to do it in a way where [his] fingers . . . would not touch the blades," he answered "I was not thinking of that. I just lift it," id. at 35.

Not until Razo and his attorney were shown the video that depicted the occurrence did they admit that Razo was the one who started the lawn mower, supra at 4, and that he knew that the mower was running when he put his hand into the blades, id. at 9.

The video of the incident is telling. It shows that after watching the mechanic do the repair work, Razo went behind the lawn mower, started it, and then, in a matter of just a few seconds, went to the left side of the lawn mower (not the front, as he first pleaded), and put his hands under the lawn mower into its blades. The video is incontrovertible evidence that Razo's conduct was unforeseeable to Matney; and, the video evidence confirms the total lack of credibility of Razo in his description of the events leading to his injury. Apropos is the ruling of the Supreme Court in Scott v. Harris that "[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for the purposes of ruling on a motion for summary judgment." 550 U.S. 372, 380 (2007). The only credible version of the occurrence is that given by the video evidence, as confirmed by the statements of Matney. While resolution of a credibility issue is not normally the function of a court at the summary judgment stage, there can be circumstances when the court can properly conclude that no reasonable fact finder would accept the version of events espoused by the summary judgment opponent. This is one of those cases.

Even if the court were to assume, for the sake of discussion, that defendant bears a degree of responsibility for Razo's injuries, the court would agree with plaintiffs that sections 33.001-33.003 of the Texas Civil Practice & Remedies Code apply to this case.3 Pls.' Br. in Supp. of Resp. at 14. Those sections provide that in actions to which they apply "a claimant may not recover damages if his percentage of responsibility is greater than 50 percent." Tex. Civ. Prac. & Rem. Code § 33.001. No rational finder of fact would find that Razo's percentage of responsibility for his injuries is not greater than fifty percent. Put another way, any reasonable finder of fact would find that Razo's responsibility for his injury is greater than fifty percent.4 Therefore, in any event, none of the plaintiffs may recover damages in this action. The bystander grandchildren do not have any cause of action if Razo does not have one. See Estate of Barrera v. Rosamond Village Ltd., 983 S.W.2d 795, 799 (Tex. App.-Houston [14th Dist.] 1998, no pet.); Dawson v. Garcia, 666 S.W.2d 254, 261 (Tex. App.-Dallas 1984, no writ).

In view of the decisions the court has announced above, the court is not required separately to decide viability in the summary judgment context of plaintiffs' claims of negligent hiring, supervision, training, and retention of Matney as an employee or plaintiffs' gross negligence claim. Suffice to say, the court is satisfied that the summary judgment evidence does not raise a fact issue in support of any of those claims.

IV.

Order

For the reasons stated above,

The court ORDERS that defendant's motion for summary judgment be, and is hereby, granted and that all claims and causes of action asserted by plaintiffs against defendant be, and are hereby, dismissed.