Opinion issued March 6, 2014.




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                          ————————————
                              NO. 01-13-00575-CV
                           ———————————
                         LINDA JENKINS, Appellant
                                        V.
     ARLAN’S MARKET, INC., D/B/A ARLAN’S MARKET, Appellee



               On Appeal from the County Court at Law No. 2
                         Galveston County, Texas
                    Trial Court Case No. CV-0067424


                         MEMORANDUM OPINION

      In this slip–and–fall lawsuit, Linda Jenkins has sued Arlan’s Market, Inc. for

personal injuries that she sustained when she slipped on a gel substance and fell,

while shopping at the market. The trial court granted the market’s no–evidence

motion for summary judgment. On appeal, Jenkins contends that the trial court
erred in granting summary judgment, because she raised sufficient evidence to

support a finding that the market’s employees had actual or constructive notice of a

dangerous condition on the premises. Finding no error, we affirm.

                                      Background

      In August 2010, while grocery shopping, Jenkins slipped and fell on a gel

that had leaked onto the floor. The gel had leaked from a bottle in a “reduced

item” basket on one of the market’s aisles. Jenkins averred that the puddle of gel

was “fairly large[,]” moistening a “pretty wide portion of the back of [her] pants”

as well as the bottom of her shoes. Jenkins also averred that the gel was dripping

at a “steady rate” from the basket.

                                      Discussion

      Relying on her affidavit, Jenkins contends that she presented sufficient

evidence to support a finding that Arlan’s Market had actual or constructive notice

of a dangerous condition on its premises.

      Standard of Review

      We review a trial court’s summary judgment de novo. Travelers Ins. Co. v.

Joachim, 315 S.W.3d 860, 862 (Tex. 2010).           When reviewing a summary

judgment, we view the evidence in a light favorable to the nonmovant and indulge

every reasonable inference in the nonmovant’s favor. Valence Operating Co. v.

Dorsett, 164 S.W.3d 656, 661 (Tex. 2005) (citing Provident Life & Accid. Ins. Co.

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v. Knott, 128 S.W.3d 211, 215 (Tex. 2003)).         In a no–evidence motion for

summary judgment, the movant asserts that no evidence supports an essential

element of the nonmovant’s claim on which the nonmovant would have the burden

of proof at trial. See TEX. R. CIV. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523–

24 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). The burden then shifts to

the nonmovant to present evidence raising a genuine issue of material fact as to

each challenged element. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.

2006); Hahn, 321 S.W.3d at 524.

      Analysis

      Arlan’s Market owed Jenkins, its business invitee, a duty to exercise

reasonable care to protect her from dangerous conditions on its premises that were

known or reasonably discoverable; it was not, however, an insurer of her safety.

See Wal–Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002); Wal–Mart

Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). To prevail at trial,

Jenkins had to show, among other elements, that Arlan’s Market had actual or

constructive notice of the spill. See Reece, 81 S.W.3d at 814. To satisfy the notice

element, Jenkins must establish that (1) Arlan’s Market placed the substance on the

floor; (2) Arlan’s Market actually knew the substance was on the floor; or (3) it is

more likely than not that the condition existed long enough to give Arlan’s Market

a reasonable opportunity to discover it. See id.

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      Jenkins contends that Arlan’s Market created the dangerous condition

because one of its employees had placed the leaky bottle of gel in a basket. The

evidence suggests that Arlan’s Market created an antecedent situation that

produced a dangerous condition; however, it does not suggest that the market

created the dangerous condition itself. See Brookshire Grocery Co. v. Taylor, 222

S.W.3d 406, 409 (Tex. 2006) (holding that dispenser that leaked ice onto floor was

not dangerous condition but that ice on floor was dangerous condition); City of San

Antonio v. Rodriguez, 931 S.W.2d 535, 536 (Tex. 1996) (holding that leaky roof

was not dangerous condition but that water on floor was dangerous condition).

Jenkins proffers no evidence to support a finding that Arlan’s Market placed the

gel on the floor. The record also raises no evidence that a market employee

actually knew about the gel puddle.

      But Jenkins further contends that the record supports a finding that Arlan’s

Market had constructive notice of the puddle, given its “fairly large” size and the

“steady rate” at which the gel was dripping from the bottle. Jenkins relies on

Kofahl v. Randall’s Food & Drugs, Inc., 151 S.W.3d 679 (Tex. App.—Waco 2004,

pet. denied). In Kofahl, the plaintiff testified that the edges of the “large” puddle

of liquid that she had slipped in were “very tacky and gummy,” as if the puddle

was “starting to dry up.” Id. at 681. The Waco Court of Appeals held that the




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plaintiff had adduced sufficient evidence of constructive notice to overcome

summary judgment. Id. at 682.

       In Gonzalez, however, the Texas Supreme Court held that a similar level of

circumstantial evidence was not legally sufficient to show constructive notice. 968

S.W.2d at 938. There, the plaintiff proffered evidence that the macaroni that she

had slipped in was contaminated with “a lot of dirt” and had footprints and

shopping cart track marks in it. Id. at 936. The court held that, although the

plaintiff had proven that the macaroni possibly could have been on the floor long

enough to charge the defendant with constructive notice, the plaintiff had not

shown that it was more likely than not that the macaroni had been there for a long

time. Id. at 938. The court explained its reasoning: “That evidence can no more

support the inference that it accumulated dirt over a long period of time than it can

support the opposite inference that the macaroni had just been dropped on the floor

and was quickly contaminated by customers and carts traversing the aisle.” Id. at

937.

       Similarly, Jenkins’ statements support an inference that the gel possibly was

on the floor long enough to charge Arlan’s Market with constructive notice. But

she has failed to show that it was more likely than not that the gel had been there a

long time. The observation that the gel dripped at a “steady” rate at the time of the

accident could equally suggest the possibility that the spill had been on the floor

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for a short time. The record contains no evidence to indicate which circumstance

is more likely—long or short.       When circumstances are consistent with any

possibility, and nothing shows that one is more probable than the other, no fact can

be inferred. Wright v. Wal–Mart Stores, Inc., 73 S.W.3d 552, 555 (Tex. App.—

Houston [1st Dist.] 2002, no pet.) (citing Lozano v. Lozano, 52 S.W.3d 141, 148

(Tex. 2001) (Phillips, C.J., concurring, joined by four justices)). Accordingly, we

hold that the trial court properly granted summary judgment. See id. at 556

(holding that dirty condition of french fry did not demonstrate constructive notice).

                                    Conclusion

      Because the record contains no evidence that Arlan’s Market had actual or

constructive notice of a dangerous condition on its premises, the trial court did not

err in granting the market’s no–evidence motion for summary judgment.

Accordingly, we affirm the judgment of the trial court.




                                              Jane Bland
                                              Justice

Panel consists of Justices Keyes, Bland, and Brown.




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