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No Constructive Notice in Texas Slip and Fall Case

colourful-tops-2-1392566-m-2In Young v. Wal-Mart Stores Texas, LLC, a plaintiff appealed the trial court’s grant of summary judgment in a slip and fall case. The case arose when the plaintiff went through the self-checkout lane to buy ice cream. While leaving, she slipped in clear liquid and hurt her knee, ankle and hip. A cashier came over and asked if she was all right and left to get paper towels. The plaintiff wasn’t sure how much water she had slipped on, but later testified it took the cashier two trips to get enough paper towels to mop it up. After falling, the plaintiff talked to employees that came up to her.

She said that none of the employees said they knew there was a water puddle on the floor before she fell. The ambulance took her to the hospital. Later, the cashier testified that she was working in the self-checkout area for half an hour before the plaintiff fell. She said that she glimpsed the accident from the corner of her eye and then saw the plaintiff on the floor. The cashier went over to help the plaintiff and saw a puddle of water six inches in diameter. She had a paper towel in her hand and wiped up the puddle with the towel. The cashier said she hadn’t seen a substance there before the fall and didn’t know how long it was there, though she didn’t think it was there long because she had been walking around in that location and would have cleaned it if she had seen it.

The plaintiff sued the store for premises liability. The store filed a motion for traditional and no-evidence summary judgment, arguing that there wasn’t any evidence it knew or should have known about the dangerous condition. The store attached the plaintiff’s deposition as evidence and the plaintiff responded with both her deposition transcript and the cashier’s. The trial court granted the motion and rendered a take-nothing judgment.

The appellate court explained the store owed the plaintiff as its invitee a duty to use reasonable care to protect her from dangerous conditions that were known or reasonably could have been discovered. In order to recover from the store, the plaintiff had to prove that the store had actual or constructive notice of the dangerous condition before she fell. In general, a plaintiff in a slip and fall case can show notice by proving: (1) the defendant put the slippery substance on the floor, (2) the defendant actually knew it was there or (3) more likely than not the substance was there long enough to give the owner of the premises a reasonable chance to discover it before the fall.

The plaintiff argued that she raised an issue of fact on actual and constructive knowledge. She pointed to the fact that the cashier was in the area for up to half an hour, not far from the site of the fall, that she readily identified the substance as a water spill, had paper towels and used them to clean up. In the plaintiff’s view the cashier having paper towels raised an inference that she knew the substance was there and was ready to clean it but hadn’t cleaned it.

The court disagreed that the plaintiff raised a factual issue. It explained there was no evidence the store created the spill or knew of the spill. The only evidence in the record was that the cashier testified she didn’t know about the water being on the floor beforehand. The cashier had testified she was holding paper towels because she was cleaning conveyor belts, and the court found this equally plausible as the plaintiff’s belief she was holding the paper towels in preparation to clean the spill.

The plaintiff had also argued that the store should have known of the puddle because it was in a high traffic area and the cashier was in the area. The court explained that under the 2006 Texas Supreme Court case Wal-Mart Stores, Inc. v. Kathy Spates, constructive knowledge is analyzed by looking at longevity, proximity and conspicuity. In this case, there was no evidence from which an inference could be made about how long the spill had been there or whether the store had an opportunity to discover it. The trial court’s decision was affirmed.

Proving liability in a slip and fall case can challenging. The experienced San Antonio premises liability attorneys at Carabin & Shaw may be able to help. Call our office for more information at 1-800-862-1260.

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