     Case: 17-20298      Document: 00514215015         Page: 1    Date Filed: 10/30/2017




             IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                    No. 17-20298                                    FILED
                                  Summary Calendar                            October 30, 2017
                                                                               Lyle W. Cayce
                                                                                    Clerk
ELIZABETH SHIREY,

                                                 Plaintiff–Appellant,

v.

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

                                                 Defendant–Appellee.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:15-CV-3368


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
         Elizabeth Shirey was injured after slipping on a single green grape while
shopping at a store operated by Wal-Mart Stores Texas, L.L.C. (Wal-Mart).
After she brought suit, the district court granted summary judgment for Wal-
Mart. For the following reasons, we AFFIRM the judgment of the district
court.




         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. 17-20298

                                              I
       A video of activity on the aisle in the Wal-Mart store where Shirey fell
reflects that the green grape at issue fell from another shopper’s cart onto the
off-white floor. Thirty seconds later, a Wal-Mart employee walked past the
grape but did not notice it. Wal-Mart employees are trained to perform visual
“sweeps” for hazards while walking through the store.                    About seventeen
minutes later, Shirey slipped on the grape. Her resulting injuries required
surgery and she sought damages in state court from Wal-Mart for negligence
and premises liability based on constructive knowledge. Wal-Mart removed
the case to federal court and, after discovery, moved for summary judgment.
In response, Shirey acknowledged that she could not simultaneously maintain
negligence and premises liability causes of action, but otherwise opposed
summary judgment. The district court dismissed Shirey’s negligence claim
and granted summary judgment for Wal-Mart on the premises liability claim.
This appeal followed.
                                             II
       We review a district court’s grant of summary judgment de novo. 1
“Summary judgment is required when ‘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 “A fact is ‘material’ if its resolution in favor of one party
might affect the outcome of the lawsuit,” 3 and a genuine dispute as to such a
fact exists if the “evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” 4

       1 See, e.g., BP Oil Int’l., Ltd. v. Empresa Estatal Petroleos de Ecuador, 332 F.3d 333,
336 (5th Cir. 2003).
       2 Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015) (quoting FED. R. CIV. P. 56(a)).
       3 Sossamon v. Lone Star State of Tex., 560 F.3d 316, 326 (5th Cir. 2009) (quoting

Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000) (per curiam)).
       4 Nola Spice Designs, LLC v. Haydel Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015)

(quoting Royal v. CCC & R Tres Arboles, LLC, 736 F.3d 396, 400 (5th Cir. 2013)).


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       “Where the non-movant bears the burden of proof at trial, ‘the movant
may merely point to the absence of evidence and thereby shift to the non-
movant the burden of demonstrating . . . that there is an issue of material fact
warranting trial.’” 5 The non-movant must then “go beyond the pleadings” and
point to “specific facts showing that there is a genuine issue for trial.” 6 “This
burden will not be satisfied by ‘some metaphysical doubt as to the material
facts, by conclusory allegations, by unsubstantiated assertions, or by only a
scintilla of evidence.’” 7 We “view[] the evidence in the light most favorable to
the nonmoving party.” 8
       Under Texas law, a premises liability plaintiff must show that (1) the
property owner or occupier had “[a]ctual or constructive knowledge” of the
condition; (2) “the condition posed an unreasonable risk of harm;” (3) “the
owner or occupier did not exercise reasonable care to reduce or eliminate the
risk;” and (4) that this failure caused the plaintiff’s injuries. 9 Wal-Mart moved
for summary judgment on the grounds that Shirey cannot show that it had
constructive knowledge of the grape.
       To prove constructive knowledge, Shirey must show that Wal-Mart had
time to discover and remove the grape. 10 How much time is sufficient to impute
knowledge to a defendant depends on the circumstances, and Texas courts
examine (1) the proximity of employees to the hazard; (2) the conspicuousness
of the hazard; and (3) how long the hazard was in place in order to make this




       5 Id. (quoting Transamerica Ins. Co. v. Avenell, 66 F.3d 715, 718-19 (5th Cir. 1995)
(per curiam)).
       6 Id. (quoting EEOC v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014)).
       7 Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005) (quoting Little v.

Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)).
       8 Connors v. Graves, 538 F.3d 373, 376 (5th Cir. 2008).
       9 CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000).
       10 See Wal-Mart Stores, Inc. v. Reece, 81 S.W3d 812, 816 (Tex. 2002).




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                                        No. 17-20298

determination. 11     For instance, a particularly conspicuous hazard, or an
employee’s close proximity to an inconspicuous hazard for a “continuous and
significant period of time,” may reduce the amount of time within which a
“premises owner should have become aware of the dangerous condition.” 12
                                            III
       The district court correctly determined that Shirey did not raise a fact
issue as to whether Wal-Mart had constructive knowledge of the grape.
Shirey’s evidence fails to establish that the grape was conspicuous.
Photographic and video evidence demonstrate that the grape was, as the
district court noted, almost invisible on the off-white floor. The evidence also
fails to establish that any Wal-Mart employee was in proximity to the grape
for a sufficient period of time. The few seconds during which the employee
passed by the grape did not provide an objectively reasonable opportunity for
him to see it, notwithstanding his employer’s policy that he perform visual
“sweeps” for hazards.       Under these circumstances, the seventeen minutes
during which the inconspicuous grape was on the floor did not afford Wal-Mart
a reasonable time to discover and remove the hazard. Shirey’s evidence was
therefore insufficient to impute constructive knowledge of the grape to Wal-
Mart, and summary judgment was proper.
                                    *        *         *
       For these reasons, the judgment of the district court is AFFIRMED.




       11 See Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 567 (Tex. 2006) (per curiam)
(requiring courts to analyze “the combination of proximity, conspicuity, and longevity”).
       12 Reece, 81 S.W.3d at 816.




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