Duncan v. Black-Eyed Pea U.S.A., Inc.

I must dissent, respectfully of course. The majority has chosen to base its reversal of summary judgment on the factually dissimilar federal district court case, Stoner v. Wal-Mart Stores, Inc., 35 F.Supp.2d 958 (S.D.Tex.1999). Although the majority pays “lip service” to our Texas Supreme Court decisions in Rosas v. Buddies Food Store, 518 S.W.2d 534, 536-37 (Tex.1975) and Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex.1998), it ignores the fundamental requisite requirements of Gonzalez in evaluating our present case.

In reviewing the record in this appeal and determining that…