     Case: 18-10157      Document: 00514824491         Page: 1    Date Filed: 02/06/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                      No. 18-10157                       February 6, 2019
                                                                           Lyle W. Cayce
ALICE TOWNSON; JOSEPH H. TOWNSON,                                               Clerk


              Plaintiffs - Appellants

v.

WAL-MART STORES, INCORPORATED; WAL-MART STORES TEXAS,
L.L.C.,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:15-CV-3808


Before CLEMENT, OWEN, and HO, Circuit Judges.
PER CURIAM:*
       Alice Townson tripped and fell over a carpet mat in the entrance to the
auto department of a Texas Wal-Mart. Townson brought a claim for premises
liability against Wal-Mart. The district court granted summary judgment in
favor of Wal-Mart and we AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                  No. 18-10157
      Security footage established that the mat’s end became folded over by
the wind less than two minutes before Townson entered the store. No Wal-
Mart employees can be seen in the entry area during the eighty-second period
between the mat’s flipping and Townson’s fall. But the security tape does show
employees swiftly coming to Townson’s aid after she fell. And the footage
reveals that the mat had previously flipped about thirty minutes before
Townson’s accident, that it remained flipped for roughly twenty minutes, and
that an employee kicked the fold out of the mat about eight minutes prior to
Townson entering.
      The district court held that Wal-Mart did not have actual or constructive
knowledge of the dangerous condition. “Under Texas law, a premises liability
plaintiff must show, among other things, that the premises owner or occupier
had actual or constructive knowledge of a condition on the premises.” Murray
v. Chick-Fil-A, Inc., 626 F. App’x 515, 516–17 (5th Cir. 2015) (per curiam)
(citing Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998)). As
relevant here, the plaintiff can meet that burden by establishing that: (1) “the
defendant actually knew” of the condition; or (2) “it is more likely than not that
the condition existed long enough to give the premises owner a reasonable
opportunity to discover it.” Wal–Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814
(Tex. 2002).
      The district court correctly found that Townson introduced no evidence
that Wal-Mart had actual knowledge of the condition that caused her injury.
The end of the mat had been flipped for less than two minutes before Townson
tripped over it, and no Wal-Mart employees enter the camera frame during
that period. No Wal-Mart employee testified that he had seen the mat flipped
in the two minutes preceding the accident. Townson herself testified that she
did not recall seeing any Wal-Mart employees as she walked through the auto


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                                 No. 18-10157
department entrance. Although Townson attempts to use Wal-Mart employee
testimony to establish that Wal-Mart was aware that the mat placed at the
entrance to the store was repeatedly affected by the wind, Wal-Mart’s
knowledge of the mat’s tendency to flip would not establish Wal-Mart’s actual
knowledge of the second folding of the mat. “Ordinarily, an unreasonably
dangerous condition for which a premises owner may be liable is the condition
at the time and place injury occurs, not some antecedent situation that
produced the condition.” Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406, 407
(Tex. 2006). Even assuming Townson could show that Wal-Mart knew its use
of the mat might possibly become dangerous over time, actual knowledge
requires the storeowner to know that the mat was in a dangerous condition at
the time the accident occurred. See Univ. of Tex. at Austin v. Hayes, 327 S.W.3d
113, 117 (Tex. 2010).
      Townson also argues that Wal-Mart had constructive knowledge of the
condition because the condition existed long enough for Wal-Mart to discover
it through reasonable inspection. But, again, the condition that Townson must
prove Wal-Mart had knowledge of is the condition that injured her—the second
flipping of the mat. Knowledge that the mat was consistently crooked with
respect to the entryway or that it may have been continuously buckled in its
center does not automatically impute knowledge of the specific condition that
caused Townson’s injury. See Cartwright v. Pinnacle Entm’t, Inc., 2011 WL
193495, at *7–8 (Tex. App. Jan. 20, 2011) (mem. op.) (focusing on the “specific
wrinkle in the mat” that caused a fall).
      To establish constructive knowledge, Texas courts apply a “time-notice
rule” because “temporal evidence best indicates whether the owner had a
reasonable opportunity to discover and remedy a dangerous condition.” Reece,
81 S.W.3d at 816. The mat was flipped for less than ninety seconds before


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                                  No. 18-10157
Townson fell. That was insufficient time for Wal-Mart to have a reasonable
opportunity to discover it under these facts. See Murray, 626 F. App’x at 518
(finding summary judgment appropriate because the presence of liquid on floor
for “a few minutes” was insufficient to impart constructive notice); Wal-Mart
Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006) (finding summary
judgment appropriate because the existence of a hazard for 30 to 45 seconds
was insufficient to impute constructive knowledge); Sturdivant v. Target Corp.,
464 F. Supp. 2d 596, 603 (N.D. Tex. 2006) (refusing to find a fact issue of
constructive notice under Texas precedent when water had been on the floor
for five minutes).
      Wal-Mart’s knowledge that the mat had blown over in the past does not
change this result. “An owner’s or occupier’s knowledge of prior incidents of
damage to a premises would bear on the reasonableness of inspections and the
reasonableness of the care exercised by the owner or occupier to make the
premises safe. But a premises owner or occupier is not strictly liable for defects
on its premises.” CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000).
Eight minutes passed between the initial straightening of the mat by an
employee and its flipping again, and the mat remained in that state for less
than two minutes before the accident. While Wal-Mart’s knowledge of the
previous condition may have obligated Wal-Mart to inspect the area more
frequently than it otherwise would have, that knowledge did not require Wal-
Mart to check the entryway every ninety seconds. The district court did not err
in concluding that Wal-Mart did not have a reasonable opportunity to discover
and remedy the dangerous situation.
      Townson argues that testimony offered by three of Wal-Mart’s own
witnesses create a fact issue as to Wal-Mart’s knowledge of the condition. She
argues that the court should have credited the testimony of three Wal-Mart


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                                 No. 18-10157
employees who—although they did not personally observe the accident when
it occurred—later watched the security footage and then opined that Wal-Mart
should have known about the danger the mat posed. The district court did not
address their testimony in its discussion of actual knowledge, but called the
testimony “speculative” as to constructive knowledge without explicitly
excluding it. Townson urges on appeal that the witnesses’ particularized
knowledge of the premises and of Wal-Mart safety practices, coupled with their
viewing of the footage, qualified them to offer lay opinion testimony under Rule
701 of the Federal Rules of Evidence.
      As to actual knowledge, Wal-Mart is correct that the testimony is
speculative. Rule 701 permits a lay witness to give opinion testimony when it
is “rationally based on the witness’s perception.” FED. R. EVID. 701. But
testimony by the Wal-Mart auto department supervisor, automotive
technician, and corporate representative regarding what Wal-Mart actually
knew based on the conditions on the day of the accident was not based on their
personal perceptions. See Granados v. Wal-Mart Stores, Inc., 653 F. App’x 366,
368 (5th Cir. 2016) (per curiam) (assistant manager’s testimony that someone
on the lookout for hazards would have noticed the spill was speculation as to
actual knowledge). Watching the security footage did not enable absent
employees to opine on what other employees actually knew at the time of the
accident. Townson cannot use Wal-Mart employees’ subsequent viewing of a
video tape to establish Wal-Mart’s actual knowledge of the dangerous
condition.
      And while the testimony of the Wal-Mart employees was relevant to
constructive knowledge—bearing on whether Wal-Mart should reasonably
have discovered the folded mat before Townson fell—the district court was also
correct that the testimony was insufficient to create a fact issue. To overcome


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                                 No. 18-10157
summary judgment, Townson was required to present evidence that, if
credited, would support the reasonable inference that the mat had been flipped
long enough that Wal-Mart should have discovered it. See Murray, 626 F. App’x
at 518. Collectively, the witness testimony offered evidence of Wal-Mart safety
practices, Wal-Mart’s knowledge that the mat had occasionally flipped before
in windy conditions, and the opinion that Wal-Mart should have discovered the
defect in the mat on this instance before Townson fell. But even crediting these
witnesses’ opinions on the constructive knowledge question, the time period
the mat was flipped prior to Townson’s fall was simply too short in duration to
impute knowledge of the condition to Wal-Mart. See id. at 517–18; Spates, 186
S.W.3d at 568; Sturdivant, 464 F. Supp. 2d at 603.
      Finally, Townson argues that, even if Wal-Mart did not have actual or
constructive knowledge of the dangerous condition, Wal-Mart is liable because
the mat was an unreasonably dangerous condition from the inception of its use.
See Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983) (holding
that a slip-and-fall plaintiff may recover by showing that the storeowner failed
to use reasonable care to protect customers from conditions which were
dangerous from the inception of their use, as opposed to becoming dangerous
over time). The facts of this case do not support such a theory.
      The Supreme Court of Texas clarified that the Corbin theory of recovery
applies only to an “exceptional case.” Brookshire, 222 S.W.3d at 408. As this
court has explained, “Corbin applies only to conditions that are dangerous from
the inception of their use,” not “to conditions that become dangerous over time,
even if they frequently do become dangerous.” Murray, 626 F. App’x at 517.
There must be evidence the mat presented unusually high risks. See Crosby v.
Minyard Food Stores, Inc., 122 S.W.3d 899, 901–02 (Tex. App. 2003) (mat was




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                                No. 18-10157
unsafe from the moment it was put on the floor due to evidence that store
personnel straightened it between 48 and 86 times during an eight-hour shift).
      The Wal-Mart mat had “kicked up” due to wind about three times the
previous year, as well as a handful of times the day in question. That the mat
was infrequently affected by the wind did not render it dangerous from the
moment of its inception. There was nothing inherently dangerous about the
Wal-Mart mat.
      AFFIRMED.




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