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IN
THE SUPREME COURT OF TEXAS
 
════════════
No.
04-1046
════════════
 
Wal-Mart Stores, Inc., Petitioner,
 
v.
 
Kathy Spates, Respondent
 
════════════════════════════════════════════════════
On
Petition for Review from the
Court
of Appeals for the Thirteenth District of Texas
════════════════════════════════════════════════════
 
PER CURIAM
 
            In
Wal-Mart Stores, Inc. v. Reece, this Court unanimously held that the
mere proximity of an employee to a spill, without evidence of when or how it
came to be on the floor, was legally insufficient to
charge a premises owner with constructive notice of the hazard. 81 S.W.3d 812, 816-17 (Tex.
2002). Five months later, the 149th District Court
 of Brazoria
 County granted summary
judgment in a similar case involving the same retailer, in which the only
evidence of constructive notice was the proximity of an employee to a hazard,
again with no evidence of when or how it came to be on the floor.
            The
appeal was transferred to the Thirteenth Court of Appeals, which reversed. 144 S.W.3d 657 (Tex.
App. - Corpus Christi 2004). Although citing our opinion in Reece,
the court chose to rely instead on one of the cases we specifically disapproved
in that opinion. Id.
at 660 (citing Wal-Mart Stores, Inc. v. Garcia, 30 S.W.3d 19 (Tex.
App. - San Antonio 2000, no pet.), disapproved, Reece, 81 S.W.3d at 816
n.1. Accordingly, we reverse.
            In
her summary judgment affidavit, Kathy Spates avers that while shopping in the
soft-drink aisle at a Wal-Mart in Lake Jackson, “her toe and sandal became
entangled in an empty plastic six-pack ring,” causing her to go down on one
knee and extend her shoulder upward, injuring the latter. The ring “was directly
behind” a Wal-Mart employee, “within 3-5 feet of her.” “At no time was there
any other person on the aisle [other than the employee] for at least 30-45
seconds.” 
            Spates concedes there is no evidence that Wal-Mart created
or knew of the hazard. Instead, she relies on constructive notice, which
requires proof that an owner had a reasonable opportunity to discover the
defect. Reece, 81 S.W.3d at 813. As we
explained in Reece, that question requires analyzing the combination of
proximity, conspicuity, and longevity:
[I]f the dangerous
condition is conspicuous as, for example, a large puddle of dark liquid on a
light floor would likely be, then an employee's proximity to the condition
might shorten the time in which a jury could find that the premises owner
should reasonably have discovered it. Similarly, if an employee was in close
proximity to a less conspicuous hazard for a continuous and significant period
of time, that too could affect the jury’s consideration of whether the premises
owner should have become aware of the dangerous condition.
 
Id. at 816.
            While
a Wal-Mart employee was near this clear plastic ring, the only evidence is that
it was behind her as she worked on the shelves. Thus, the sole question is
whether Spates’s testimony that the plastic ring “had
to have been on the floor” for 30 to 45 seconds establishes the employee’s
proximity for “a continuous and significant period of time.” We hold it does
not.
            We
review a summary judgment for evidence that would enable reasonable and
fair-minded jurors to differ in their conclusions. See City of Keller v. Wilson, 168 S.W.3d 802, 822 & 823 (Tex. 2005). The only evidence here is that
the alleged hazard was behind an employee’s back for 30 to 45 seconds. To find
constructive knowledge, jurors would have to find the employee should have
noticed the plastic ring behind her. Had there been evidence it had been on the
floor for an extended period of time, reasonable jurors might assume that the
employee should have seen it unless she sidled into the aisle or never took her
eyes off the shelves. But on this record, that would be pure speculation. 
            Accordingly,
we hold the summary judgment record contained no evidence that Wal-Mart should
have discovered the six-pack ring Spates alleges was hazardous. Consistent with
Reece, the Thirteenth Court of Appeals should have affirmed. As it did
not, we reverse the latter’s judgment and reinstate the trial court’s summary
judgment.
 
OPINION
DELIVERED: February 24, 2006

