     Case: 16-11519   Document: 00514077577     Page: 1   Date Filed: 07/18/2017




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

                                 No. 16-11519                          FILED
                                                                   July 18, 2017
                                                                  Lyle W. Cayce
PAMELA MCCARTY; NICK MCCARTY,                                          Clerk

             Plaintiffs - Appellants

v.

HILLSTONE RESTAURANT GROUP, INCORPORATED, doing business as
Houston’s Restaurant,

             Defendant - Appellee




                Appeal from the United States District Court
                     for the Northern District of Texas


Before JOLLY, SMITH, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
      In this appeal, Pamela and Nick McCarty contend the district court erred
by granting summary judgment in favor of Hillstone Restaurant Group, Inc.
(“Hillstone”). We AFFIRM.
                        FACTUAL BACKGROUND
      On February 16, 2014, the McCartys and another couple went to dinner
at Houston’s Restaurant (“Houston’s”), a business operated by Hillstone. Mrs.
McCarty fell while walking to the restrooms, which required her to pass the
restaurant’s kitchen. At the time, Mrs. McCarty was using crutches due to a
recent surgery on her heel. The McCartys allege some substance on the floor
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                                 No. 16-11519
outside the restaurant’s kitchen and restrooms caused Mrs. McCarty’s crutch
to slip from underneath her.
                               JURISDICTION
      Federal subject matter jurisdiction exists based upon diversity of
citizenship. The McCartys are Texas citizens, while Hillstone is a Delaware
corporation with its principal place of business in Atlanta, Georgia.
      This court has appellate jurisdiction over the McCartys’ appeal pursuant
to 28 U.S.C. § 1291.
                          STANDARD OF REVIEW
      “[This court] review[s] ‘a grant of summary judgment . . . de novo,
applying the same standard on appeal that is applied by the district court.’”
Ocwen Loan Servicing, L.L.C. v. Berry, 852 F.3d 469 (5th Cir. 2017) (quoting
Tiblier v. Dlabal, 743 F.3d 1004, 1007 (5th Cir. 2014)) (bracket omitted).
“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.’” Id. (quoting FED. R. CIV. P. 56(a)). “[This court] also
review[s] ‘a district court’s determinations of state law de novo.’” Id. (quoting
Lozovyy v. Kurtz, 813 F.3d 576, 580 (5th Cir. 2015)).
      “Once the moving party has demonstrated the absence of a material fact
issue, the non-moving party must ‘go beyond the pleadings and designate
specific facts showing that there is a genuine issue for trial.’” 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)). “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.’”
Id. (quoting Little, 37 F.3d at 1075). “Rather, the non-moving party must ‘set
forth specific facts showing the existence of a “genuine” issue concerning every
essential component of its case.’” Id. (quoting Morris v. Covan World Wide
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                                   No. 16-11519
Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998)). “A dispute as to a material
fact is ‘genuine’ if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id.
      “When considering summary judgment evidence, [this court] must view
‘all facts and inferences . . . in the light most favorable to the nonmoving party.’”
Id. (quoting Armstrong v. Am. Home Shield Corp., 333 F.3d 566, 568 (5th Cir.
2003)). “[This court] must ‘not weigh the evidence or evaluate the credibility of
witnesses.’” Id. (quoting Morris, 144 F.3d at 380). “[This court] resolve[s]
factual controversies in favor of the nonmoving party, but only where there is
an actual controversy, that is, when both parties have submitted evidence of
contradictory facts.” Id. (quoting Little, 37 F.3d at 1075). “[This court] will not
assume ‘in the absence of any proof . . . that the nonmoving party could or
would prove the necessary facts,’ and will grant summary judgment ‘in any
case where critical evidence is so weak or tenuous on an essential fact that it
could not support a judgment in favor of the nonmovant.’” Id. (quoting Little,
37 F.3d at 1075).
                                   ANALYSIS
      The McCartys assert a premises liability claim. Under Texas law,
“[g]enerally, premises owners . . . have a duty to protect invitees from, or warn
them of, conditions posing unreasonable risks of harm if the owners knew of
the conditions or, in the exercise of reasonable care, should have known of
them.” Henkel v. Norman, 441 S.W.3d 249, 251 (Tex. 2014). “To prevail on a
premises liability claim against a property owner, an injured invitee must
establish four elements:
         (1) the property owner had actual or constructive
         knowledge of the condition causing the injury;
         (2) the condition posed an unreasonable risk of harm;
         (3) the property owner failed to take reasonable care to
         reduce or eliminate the risk; and
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           (4) the property owner’s failure to use reasonable care to
           reduce or eliminate the risk was the proximate cause of
           injuries to the invitee.”
Id. at 251–52.
       This case turns on the knowledge element. The Supreme Court of Texas
has identified three methods by which a plaintiff may satisfy the knowledge
element in a slip-and-fall case. See Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d
812, 814–15 (Tex. 2002). 1 First, a plaintiff may “establish[ ] that . . . the
defendant placed the substance on the floor.” Id. at 814. Second, a plaintiff may
“establish[ ] that . . . the defendant actually knew that the substance was on
the floor.” Id. at 814. Third, a plaintiff may “establish[ ] that . . . it is more
likely than not that the condition existed long enough to give the premises
owner a reasonable opportunity to discover it.” Id. at 814.
       Plaintiffs may rely upon both direct and circumstantial evidence of a
defendant’s knowledge. See Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934,
935–36 (Tex. 1998). Circumstantial evidence must “either directly or by
reasonable inference” support the conclusion that the defendant had
knowledge of the alleged risk. See Sampson v. Univ. of Tex. at Austin, 500
S.W.3d 380, 394 (Tex. 2016) (quoting Suarez v. City of Tex. City, 465 S.W.3d
623, 634 (Tex. 2015)). “An inference is not reasonable if premised on mere
suspicion—‘some suspicion linked to other suspicion produces only more
suspicion, which is not the same as some evidence.’” Id. (quoting Suarez, 465
S.W.3d at 634).
       As discussed below, the McCartys have not identified evidence from
which a jury could, under any of the three methods of proof outlined in Reece,



       1 The Reece court described the first element as the “notice element” rather than the
“knowledge” element, but the court’s discussion suggests no meaningful distinction between
“notice” and “knowledge.” See Reece, 81 S.W.3d at 814 (“To prevail, Reece had to prove, among
other things, that Wal-Mart had actual or constructive notice of the spill.”).
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conclude Hillstone had actual or constructive knowledge of the restaurant
floor’s allegedly dangerous condition. The district court’s summary judgment
dismissal was therefore proper.
            A. Evidence that Hillstone placed a substance on the floor
      Even assuming that Mrs. McCarty slipped on a foreign substance, the
summary judgment record does not contain sufficient evidence for a jury to
conclude Hillstone placed the substance. What evidence the record does
contain about how a foreign substance might have gotten onto the floor is
simply too speculative.
      For example, a restaurant manager acknowledged it is “possible” that
employees tracked food or water from the restaurant’s kitchen floor or spilled
liquid from drinks in the area where Mrs. McCarty fell. Restaurant employees
also testified that, while moving between the kitchen and seating areas, the
wait staff frequently traversed the same area. At best, this evidence raises a
mere suspicion that restaurant employees might have tracked or spilled a
foreign substance where the fall occurred. Mere suspicion is insufficient to
carry the McCartys’ burden of establishing a genuine issue for trial. See
Sampson, 500 S.W.3d at 394.
            B. Evidence that Hillstone actually knew a substance was on the
               floor
      Similarly, the summary judgment record is devoid of any evidence that
any Hillstone employee actually knew a foreign substance was on the floor
where Mrs. McCarty fell. The McCartys rely upon the initial version of a
written statement prepared by a Hillstone employee who saw Mrs. McCarty
fall. In that statement, the employee wrote, “I did see any food/debris, any
water, moist[ure], or other obstacle in which she could have slipped or tripped
on in the area in which she was walking and eventually fell.” Before his
deposition, however, the employee revised the statement to indicate that he

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                                   No. 16-11519
“did not see” (emphasis added) any such substances or obstacles. We share the
district court’s conclusion that the employee simply corrected a typographical
error.
               C. Evidence that a substance was on the floor long enough to give
                  Hillstone a reasonable opportunity to discover it
         The McCartys acknowledge that, even assuming a foreign substance was
on the floor where Mrs. McCarty fell, no evidence tends to establish how long
the substance was there. Without such evidence, the McCartys cannot
establish Hillstone’s constructive knowledge of the alleged dangerous
condition.
         “Constructive knowledge is a substitute in the law for actual knowledge.”
CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 102 (Tex. 2000). “In premises cases
constructive knowledge can be established by showing that the condition had
existed long enough for the owner or occupier to have discovered it upon
reasonable inspection.” Id. at 102–03. “What constitutes a reasonable time for
a premises owner to discover a dangerous condition will, of course, vary
depending upon the facts and circumstances presented.” Reece, 81 S.W.3d at
816.
         In all cases, however, “there must be some proof of how long the hazard
was there before liability can be imposed on the premises owner for failing to
discover and rectify, or warn of, the dangerous condition.” Id. (emphasis
added). “Otherwise, owners would face strict liability for any dangerous
condition on their premises, an approach [the Texas Supreme Court has]
clearly rejected.” Id. Moreover, “when circumstantial evidence is relied upon to
prove constructive notice, the evidence must establish that it is more likely
than not that the dangerous condition existed long enough to give the
proprietor a reasonable opportunity to discover the condition.” Gonzalez, 968
S.W.2d at 936. If circumstantial evidence “supports only the possibility that

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                                        No. 16-11519
the dangerous condition existed long enough to give [the premises owner] a
reasonable opportunity to discover it,” the premises owner cannot be charged
with constructive notice. Id.
        The McCartys’ reliance upon Beach Bait & Tackle v. Bull is unavailing.
See 82 S.W.3d 663 (Tex. App.—San Antonio 2002). In Beach Bait & Tackle, the
court held a jury could infer the premises owner knew “there would be water
on the floor . . . after it rained” due to undisputed evidence that “water seeped
under the back wall” of the premises after hard rains. Id. at 666. The Beach
Bait & Tackle court’s analysis of this issue relied upon City of San Antonio v.
Rodriguez, 931 S.W.2d 535 (Tex. 1996) and Wal-Mart Stores, Inc. v. Tinsley,
998 S.W.2d 664 (Tex. App.—Texarkana 1999, pet. denied). Id. The evidence in
each of these cases provided context for how long the hazardous condition had
existed, in the form of either a discrete and readily documented antecedent
event (e.g., a rainfall) or an attribute of the hazard (e.g., a puddle’s size, from
which the jury could reasonably infer how long the puddle had been growing). 2
In this case, by contrast, no evidence would permit the jury to trace the alleged
slip risk to a particular antecedent event. Nor could a jury infer from any
attributes of the alleged hazard that it had been growing over any length of
time.
        At oral argument, the McCartys candidly admitted that no evidence
gives any temporal context to the alleged dangerous condition. As they



        2 In City of San Antonio v. Rodriguez, the Texas Supreme Court held a jury could infer
“the person in charge of [a] recreation center . . . knew that there would be water on the floor
. . . [when] there was evidence that the person in charge . . . knew of the leaks in the roof and
knew that it had been raining.” 931 S.W.2d at 537. In Tinsley, the Court of Appeals held that
the large size of a puddle inside the premises, coupled with the lack of evidence that “any
leak [from the ceiling] was sudden or of a large quantity at any time,” provided a sufficient
basis for the jury to deem it more likely than not that water had dripped from the ceiling
“over an extended period of time.” See 998 S.W.2d at 669.

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acknowledged, no evidence in the summary judgment record addresses the
question of whether the alleged condition existed for mere seconds or several
hours. Given the absence of any temporal context for the alleged hazard,
Hillstone may not be charged with constructive knowledge of the alleged slip
risk.
                               CONCLUSION
        For the foregoing reasons, we AFFIRM.




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