     Case: 15-10837      Document: 00513574666         Page: 1    Date Filed: 06/30/2016




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

                                    No. 15-10837
                                                                                 Fifth Circuit

                                                                               FILED
                                  Summary Calendar                         June 30, 2016
                                                                          Lyle W. Cayce
MARIA GRANADOS,                                                                Clerk


                                                 Plaintiff–Appellant,

v.

WAL-MART STORES, INCORPORATED; WAL-MART STORES TEXAS,
L.L.C., doing business as Wal-Mart Stores Texas 2007, L.L.C.,

                                                 Defendants–Appellees.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:14-CV-3860


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Maria Granados appeals the district court’s grant of summary judgment
in favor of Wal-Mart on her premises liability cause of action. Because we
conclude that the district court properly held that Granados failed to establish
a triable issue as to whether Wal-Mart knew or should have known about the
puddle in which Granados slipped, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 15-10837    Document: 00513574666     Page: 2   Date Filed: 06/30/2016


                                 No. 15-10837

                                       I
      On August 3, 2013, Maria Granados visited a store owned and operated
by Wal-Mart Stores Texas, L.L.C. (Wal-Mart) for a routine shopping trip. Near
the end of her visit, after walking into a checkout aisle, Granados slipped in a
puddle of clear liquid and injured herself. A Wal-Mart employee described the
puddle as being approximately six inches in diameter, though Granados
asserts that the amount of paper towels used to clean the puddle suggests it
was larger.
      Prior to the slip, a Wal-Mart employee named Mercedes Acosta had been
mopping the store’s checkout area. According to video surveillance of the
incident, she briefly mopped the entrance of the aisle in which Granados
slipped about five minutes prior to the incident, coming within approximately
five feet of the puddle’s location with her torso generally facing it. At her
deposition, Acosta testified that although she normally looks for puddles and
other hazards while cleaning, she did not see the puddle in which Granados
slipped when she mopped the aisle. No other witness testified to seeing the
puddle. However, an assistant manager at the store who viewed the puddle
after Granados slipped testified that someone actively looking for hazards
“should have” noticed the puddle from approximately five feet away if it were
present.
      After the incident, Granados brought a premises liability suit against
Wal-Mart in Texas state court. Wal-Mart removed the case to the Northern
District of Texas, where Granados filed an amended complaint. After the close
of discovery, Wal-Mart filed a motion for summary judgment. The district
court granted the motion in full, holding that Granados failed to offer any
evidence that the spill in which Granados slipped had been present long




                                       2
    Case: 15-10837      Document: 00513574666        Page: 3    Date Filed: 06/30/2016


                                    No. 15-10837

enough that Wal-Mart reasonably should have discovered and corrected it.
Granados timely appealed.
                                          II
      “We review a grant of summary judgment de novo, applying the same
standard as the district court and viewing the evidence in the light most
favorable to the non-moving party.” 1 Summary judgment is appropriate “if the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” 2
                                          III
      The parties agree that Texas substantive law governs this case. 3 Under
Texas law, Wal-Mart owed Granados, its invitee, “a duty to exercise reasonable
care to protect her from dangerous conditions in the store known or
discoverable to it.” 4 To recover damages on a slip-and-fall claim, an invitee
plaintiff must establish:
      (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. 5
Wal-Mart asserts that that Granados failed to put forth evidence as to either
of the first two elements. The district court agreed as to the first element and
did not reach the second. We do the same.



      1  Am. Family Life Assurance Co. of Columbus v. Biles, 714 F.3d 887, 895 (5th Cir.
2013) (per curiam).
       2 FED. R. CIV. P. 56(a).
       3 See Dixon v. Wal-Mart Stores, Inc., 330 F.3d 311, 314 (5th Cir. 2003).
       4 Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998).
       5 Id.




                                           3
    Case: 15-10837         Document: 00513574666         Page: 4    Date Filed: 06/30/2016


                                       No. 15-10837

      Granados may satisfy the knowledge element “by establishing that
(1) the defendant placed the substance on the floor, (2) the defendant actually
knew that the substance was on the floor, or (3) it is more likely than not that
the condition existed long enough to give the premises owner a reasonable
opportunity to discover it.” 6 Granados claims that she has put forth evidence
of both actual and constructive knowledge.
      As to actual knowledge, we need not reach Wal-Mart’s contention that
Granados waived her knowledge argument by failing to present it in the
district court because we conclude that even if Granados did preserve the
argument, she offered no evidence to support it. Granados argues that she put
forth sufficient evidence to raise a triable issue as to whether two Wal-Mart
employees saw the puddle. First, she cites Acosta, who can be seen in the video
of the incident mopping the Wal-Mart checkout area five minutes before
Granados slipped. In the video, Acosta, head down and looking at the floor,
pushes her mop into the aisle in which Granados slipped. She comes within
about five feet of the location of the slip. According to Granados, the fact that
Acosta came so close to the spill’s location demonstrates that she must have
seen the puddle, especially in light of her testimony that looking for such spills
is part of her job while cleaning. Additionally, Granados argues that Acosta’s
testimony that she “would have seen” a spill if one were present, and testimony
from Wal-Mart’s assistant manager that the spill would have been noticeable
to a person looking for spills from three and one half feet away, demonstrate
that Acosta actually saw the spill.
      However, Acosta’s mere proximity to the spill cannot alone support a
reasonable inference that Acosta saw the spill in the face of her denial and of
the inconspicuousness of the puddle, even if, as the district court accepted, the


      6   Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002).


                                               4
     Case: 15-10837       Document: 00513574666         Page: 5    Date Filed: 06/30/2016


                                      No. 15-10837

spill was present at the time Acosta cleaned the area. Nor can the assistant
manager’s testimony that someone looking for hazards “would [have] notice[d]”
the puddle. These arguments are mere speculation as they pertain to actual
knowledge, and are therefore insufficient to defeat summary judgment. 7
       Granados also references as supporting actual knowledge a second
Wal-Mart employee who appears in the video about ten seconds before the slip,
walks to an area near the puddle, then turns around and walks away.
According to Granados, this second employee was in the aisle of the puddle
with cleaning tools, and the fact that she looked to the ground and then turned
around and walked away is evidence that she saw the spill. However, even if
this employee’s presence in the aisle could conceivably support an inference of
actual knowledge, the video demonstrates clearly that she was not in the aisle
in which Granados slipped, but the aisle next to it, and was not looking in the
direction of the puddle at all. “When opposing parties tell two different stories,
one of which is blatantly contradicted by the record, so that no reasonable jury
could believe it, a court should not adopt that version of the facts for purposes
of ruling on a motion for summary judgment.” 8 Thus, we need not credit
Granados’s contention that this second employee was in the aisle containing
the spill, and this employee’s appearance in the video does not support
Granados’s argument that Wal-Mart had actual knowledge.
       Accordingly, we turn to constructive notice. Constructive notice under
Texas law is evaluated pursuant to the “time-notice” rule, which requires that
Granados “prove that the spill had been on the floor for a sufficient period of



       7 Lawrence v. Fed. Home Loan Mortgage Corp., 808 F.3d 670, 673 (5th Cir. 2015) (“A
non-movant will not avoid summary judgment by presenting ‘speculation, improbable
inferences, or unsubstantiated assertions.’” (quoting Likens v. Hartford Life & Accident Ins.
Co., 688 F.3d 197, 202 (5th Cir. 2012))).
       8 Scott v. Harris, 550 U.S. 372, 380 (2007).




                                             5
    Case: 15-10837       Document: 00513574666         Page: 6     Date Filed: 06/30/2016


                                     No. 15-10837

time that Wal-Mart had a reasonable opportunity to discover it.” 9 The rule “is
based on the premise that temporal evidence best indicates whether the owner
had a reasonable opportunity to discover and remedy a dangerous condition.” 10
      In Wal-Mart Stores, Inc. v. Reece, the Supreme Court of Texas held that
“some proof of how long the hazard was there [is necessary] before liability can
be imposed on the premises owner for failing to discover and rectify, or warn
of, the dangerous condition.” 11 That court also made clear that individual facts
and circumstances are relevant to determining what constitutes a reasonable
amount of time in which the premises owner should have discovered the
condition in a given case. For example, the court noted:
      [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. 12
Still, “temporal evidence, not proximity evidence, is the sine qua non of a
premises owner’s constructive knowledge.” 13
      Here, Granados has offered no evidence regarding how long the spill was
present before she slipped in it. Instead, she speculates from the lack of
affirmative video evidence of a cause for the puddle in the five minutes before
she slipped that it must have been present for at least five minutes, and was
therefore on the ground when Acosta cleaned the area. But even if we accept



      9 Reece, 81 S.W.3d at 814.
      10 Id. at 816.
      11 Id.
      12 Id.
      13 Dixon v. Wal-Mart Stores, Inc., 330 F.3d 311, 315 (5th Cir. 2003).




                                             6
     Case: 15-10837        Document: 00513574666           Page: 7     Date Filed: 06/30/2016


                                        No. 15-10837

this premise, as the district court did despite acknowledging its “weaknesses,”
Texas courts consistently reject as a matter of law that a period of such short
duration is long enough to give a premises owner a “reasonable opportunity to
discover and remedy a dangerous condition.” 14
       This conclusion is unchanged by the fact that Acosta was in the vicinity
of the spill and looking for dangerous conditions five minutes before Granados
slipped. 15   Although Granados cites testimony from a Wal-Mart employee
suggesting that someone looking for hazards five to ten feet from the puddle
“should have” seen it, she does not argue that it was conspicuous in the manner
contemplated by Reece, which hypothesized that a “large puddle of dark liquid
on a light floor” might shorten the amount of time in which a premises owner
should reasonably have discovered a spill. 16 Rather, it is undisputed that the
spill was clear, on a light-colored floor, and not particularly large. Nor does
Acosta’s presence in the area of the spill qualify as “continuous and significant”
in a manner that would shorten the amount of time necessary under Reece—
surveillance video demonstrates that she was mopping at the entrance of the
relevant aisle for less than five seconds.
       In sum, Granados failed to raise a triable issue as to whether the spill in
which Granados slipped was in existence for long enough that Wal-Mart
reasonably should have discovered it.




       14 Reece, 81 S.W.3d at 816; accord Brookshire Food Stores, L.L.C. v. Allen, 93 S.W.3d
897, 901 (Tex. App.—Texarkana 2002, no pet.) (rejecting constructive notice where “available
evidence suggest[ed] [that] grapes were not on the floor longer than fifteen minutes”); see also
Murray v. Chick-Fil-A, Inc., 626 F. App’x 515, 518 (5th Cir. 2015) (per curiam) (“Murray’s
evidence at most allows an inference that the liquid on the floor existed for a few minutes. . . .
Such a short amount of time is insufficient to impart constructive notice.”).
       15 Dixon, 330 F.3d at 315 (“Reece mandates the conclusion that the accident’s

occurrence just two feet from a cashier is, by itself, nondeterminative of Wal-Mart’s
constructive knowledge.” (internal quotation marks omitted)).
       16 Reece, 81 S.W.3d at 816.




                                                7
   Case: 15-10837   Document: 00513574666          Page: 8   Date Filed: 06/30/2016


                                No. 15-10837

                            *        *         *
    For the reasons set forth above, the district court’s judgment is
AFFIRMED.




                                     8
