                  UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT


                           No. 00-41319
                         Summary Calendar



                           NETTIE SIPES,

                                               Plaintiff-Appellee,


                              VERSUS


                       WAL-MART STORES INC,

                                               Defendant-Appellant.




           Appeal from the United States District Court
                 for the Eastern District of Texas
                           (6:99-CV-722)
                           June 5, 2001
Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.

PER CURIAM:*

      In this premises liability case, Defendant-Appellant Wal-Mart

Stores, Inc. appeals from the district court’s judgment awarding

Nettie Sipes damages for injuries related to her fall in a Wal-Mart

Supercenter.   Wal-Mart contends that the district court erred by



  *
   Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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denying its motion for judgment as a matter of law because there

was insufficient evidence to create a jury question concerning

whether    Wal-Mart   had   constructive   knowledge    of   the    slippery

substance that caused Mrs. Sipes’s accident.

                                     I.

      Shortly before 5:00 p.m. on August 5, 1998, Plaintiff Nettie

Sipes and her husband arrived at the Wal-Mart Supercenter in Mount

Pleasant, Texas.      As the couple backed their vehicle behind a

trailer in the parking lot, they met Arlander (“Lan”) Buford, a

Wal-Mart employee.      Buford assisted Mr. Sipes while Mrs. Sipes

shopped for garden supplies.       Mrs. Sipes entered the store through

the outdoor section of the garden department and immediately walked

through the doorway leading to the indoor section.             Mrs. Sipes

browsed through the garden department for approximately thirty

minutes.    As she walked through an aisle, she slipped and fell on

a cream-colored, oily substance.

      When Buford finished helping Mr. Sipes, he returned to the

cash register where Mrs. Sipes stood waiting.            After Mrs. Sipes

informed him of her accident, Buford called the assistant manager

and cleaned up the mess.     The assistant manager asked Mrs. Sipes to

fill out an accident report, which specified 5:30 p.m. as the time

of   her   fall.   After    an   investigation,   the   assistant    manager

identified the source of the substance as a bottle of sun tan

lotion misplaced on a shelf in another aisle. Mrs. Sipes testified

that she was certain that there were no other shoppers in the

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garden department from the time she entered the indoor section to

the time of her accident.

     Wal-Mart requires its employees to check for safety hazards in

each department every thirty minutes.      Lan Buford testified that

before meeting the couple outside the store, he conducted a routine

safety sweep of the garden department.     Buford claimed that he did

not notice the spill during his inspection.        After finishing the

safety sweep, he walked to the department cash register to relieve

the another employee. Buford was the only Wal-Mart employee in the

garden department when Mrs. Sipes fell.          The area of the aisle

where Mrs. Sipes fell could not be seen from the cash register.

     Mrs. Sipes filed suit against Wal-Mart in the District Court

of Titus County, Texas on November 16, 1999.       Wal-Mart removed the

case to the District Court for the Eastern District of Texas

pursuant to 28 U.S.C. § 1332.   At the close of Mrs. Sipes’s case,

Wal-Mart moved for judgment as a matter of law, which the judge

denied.   Wal-Mart did not present any witness on its behalf.         The

jury apportioned sixty percent of the fault to Wal-Mart and awarded

$204,600.30   plus   post-judgment    interest    and   costs   for   the

Plaintiff. Wal-Mart renewed its motion for judgment as a matter of

law and moved for a new trial, remittitur, or for a modification of

the judgment.   The district court denied Wal-Mart’s motions for

post-trial relief, and Wal-Mart appealed.

                                II.

     We review the denial of a motion for judgment as a matter of

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law de novo.   See Threlkeld v. Total Petroleum, Inc., 211 F.3d 887,

891 (5th Cir. 2000).        A challenge to the legal sufficiency of the

evidence supporting a jury’s verdict invokes the standard set forth

in Boeing v. Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc),

overruled on other grounds by, Gautreaux v. Scurlock Marine, Inc.,

107 F.3d 331 (5th Cir. 1997) (en banc).         We recited the appropriate

Boeing standard in Gaia Technologies, Inc. v. Recycled Prods.

Corp., 175. F.3d 365, 374 (5th Cir. 1999):

     Under Boeing, we must find a conflict in substantial

     evidence to create a jury question. Substantial evidence

     is defined as evidence of such quality and weight that

     reasonable   and    fair-minded      men   in   the   exercise   of

     impartial judgment might reach different conclusions.

     Consequently,      a     mere   scintilla       of    evidence   is

     insufficient to present a question for the jury. Even if

     the evidence is more than a scintilla, Boeing assumes

     that some evidence may exist to support a position which

     is yet so overwhelmed by contrary proof as to yield to a

     [motion for judgment as a matter of law].

Id. (quotations and citations omitted). “We consider all evidence,

drawing all reasonable inferences and resolving all credibility

determinations in the light most favorable to the non-moving

party.” Threlkeld, 211 F.3d at 891 (citing Rhodes v. Guiberson Oil

Tools, 74 F.3d 989, 993 (5th Cir. 1996) (en banc)).


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     In a diversity action such as this, we apply Texas premises

liability law to the underlying facts.           See id. (citing Powers v.

Vista Chem. Co., 109 F.3d 1089, 1093 (5th Cir. 1997).              A merchant

in Texas owes its invitees a duty to exercise reasonable care to

protect them from dangerous conditions that are either known to the

merchant, or reasonably discoverable. See Wal-Mart Stores, Inc. v.

Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998).          A plaintiff must prove

the following elements to recover damages in a slip and fall case:

     (1) Actual or constructive knowledge of some condition on

     the premises by the owner/operator;

     (2) That the condition posed an unreasonable risk of

     harm;

     (3) That the owner/operator did not exercise reasonable

     care to reduce or eliminate the risk; and

     (4) That the owner/operator’s failure to use such care

     proximately caused the plaintiff’s injuries.

Id. (citing Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992);

Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983)).

Wal-Mart’s   only   issue   on    appeal    is   whether   the    evidence   is

sufficient   to   support   the    jury’s    finding   that      Wal-Mart    had

constructive knowledge of the substance that caused the Plaintiff’s

fall.

     In order to impose constructive knowledge of a dangerous

condition on a defendant, a plaintiff must demonstrate that the


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condition    continued   for    “so      long   that    it   should    have    been

discovered and removed in the exercise of ordinary care.”                   Keetch,

845 S.W.2d at 265.     In Gonzalez, the Texas Supreme Court held that

evidence supporting the mere possibility that a dangerous condition

existed for a long period of time is not sufficient to establish

constructive knowledge.       See Gonzalez, 968 S.W.2d at 938.              Rather,

a plaintiff must establish that it was “more likely than not that

the [condition] had been there . . . long enough to make [the

defendant] responsible for noticing it.”               Id.

     Texas    courts   have    recognized       two    categories     of   evidence

sufficient to establish a merchant’s constructive knowledge of a

dangerous condition. See Wal-Mart Stores, Inc. v. Reece, 32 S.W.3d

339, 343 (Tex. App.–-Waco 2000, no pet. h.).                 The first category

includes circumstantial evidence tending to show that a dangerous

condition    was   present    for   an   extended      period   of    time.     See

Gonzalez, 968 S.W.2d at 936-38; Richardson v. Wal-Mart Stores,

Inc., 963 S.W.2d 162, 165-66 (Tex. App.–-Texarkana 1998, no pet.).

The second category includes evidence demonstrating that store

employees were in sufficient proximity to the condition that the

employees should have discovered and removed the danger.                        See

Reece, 32 S.W.3d at 343; H.E.B. Food Stores v. Slaughter, 484

S.W.2d 794, 797 (Tex. Civ. App.–-Corpus Christi 1972, writ dism’d).

Cf. Wal-Mart Stores, Inc. v. Garcia, 30 S.W.2d 19 (Tex. App.–-San

Antonio 2000, no pet. h.) (holding that evidence of proximity of

                                         6
employees to a snack bar combined with testimony that no other

customer had eaten the food spilled on the floor for a period of

time was sufficient to support a jury finding of constructive

knowledge).    This case falls into the first category.

     The Texas Supreme Court has continually rejected evidence such

as footprints, cart tracks, and discoloration of fruit to establish

that a dangerous condition on a store’s floor was present for a

sufficient period of time to impose constructive knowledge on the

merchant.     See Gonzalez, 968 S.W.2d at 936-38; Corbin v. Safeway

Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983). Unlike footprint or

cart track evidence, Mrs. Sipes testified that she was the only

person in the garden department from the time she entered the

enclosed area at 5:00 p.m. until her fall at 5:30 p.m.                       She

contends that Lan Buford either failed to perform his inspection of

the aisles     shortly   before   5:00   p.m.   or    performed    the     search

negligently.    She argues that since no one else was in the garden

department, the liquid on the floor must have been there before

Buford’s inspection.       If the substance was present before the

routine     scheduled    safety   inspection,        Wal-Mart     should    have

discovered the condition and removed it.

     Wal-Mart contends that Mrs. Sipes could not have known how

many people were in the garden department.           Wal-Mart suggests that

the layout of the store prevents a person in one aisle from seeing

other aisles. In addition, Wal-Mart claims that Mrs. Sipes did not


                                     7
know how many people walked through the aisles of the garden

department when she and her husband met Buford outside the store.

Mrs. Sipes did not explain how she knew that there were no other

customers in the garden department.

     In an appeal from a district court’s denial of a motion for

judgment as a matter of law, we defer to the jury’s determination

of credibility by reviewing the witness’s testimony in the light

most favorable to the non-moving party.    See Rhodes v. Guiberson

Oil Tools, 75 F.3d 989, 993 (5th Cir. 1996) (en banc).   However, if

self-serving testimony is naturally impossible, we may disregard

the testimony in deciding whether the evidence was sufficient to

support the jury verdict.    See Ralston Purina Co. v. Hobson, 554

F.2d 725 (5th Cir. 1977).   Although it may have been difficult for

Mrs. Sipes to discover that there were no other persons in the

garden department, it was not naturally impossible for her to do

so. See Miller v. Butcher Distributors, 89 F.3d 265, 267 (5th Cir.

1996).

     Under Texas law, the evidence must demonstrate that it was

more likely than not that the dangerous condition that caused Mrs.

Sipes’s fall was on the floor long enough for a Wal-Mart employee

to discover the condition.    See Gonzalez, 968 S.W.2d at 936-38.

Based on Mrs. Sipse’s testimony that she was the only person in the

garden department from 5:00 p.m. until 5:30 p.m., a reasonable jury

could find that it was more likely than not that the liquid spilled


                                 8
on the floor had been there long enough for Buford or another

employee      to   discover   the   substance   during   a   routine    safety

inspection.        We therefore conclude that a reasonable jury could

find   that    Wal-Mart   had   constructive    knowledge    of   the   spill.

Accordingly, we affirm the district court’s judgment.

AFFIRMED




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