     Case: 15-40058      Document: 00513210034         Page: 1    Date Filed: 09/28/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-40058                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                        September 28, 2015
CYNTHIA MURRAY,                                                            Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

CHICK-FIL-A, INCORPORATED,

              Defendant - Appellee




                   Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 9:14-CV-11


Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Cynthia Murray appeals the district court’s grant of summary judgment
dismissing her premises liability claim for personal injuries suffered in a slip-
and-fall accident at a Chick-fil-A restaurant. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40058
              FACTUAL AND PROCEDURAL BACKGROUND
      Cynthia Murray and two of her co-workers visited a Chick-fil-A
restaurant in Nacogdoches, Texas, on the morning of May 9, 2012. Murray
claims that while in the restroom she slipped on liquid on the floor and fell,
causing extensive injuries.
      Murray brought suit against Chick-fil-A, Inc., a Georgia corporation,
which Murray sued as the owner or operator of the restaurant where she fell.
She filed her action in the United States District Court for the Eastern District
of Texas. She asserted claims for premises liability, negligence, and gross
negligence. Chick-fil-A moved for summary judgment on all claims, which the
district court granted. Murray timely appealed only on her premises liability
claim. She now argues that the district court erroneously applied a “hardline
temporal requirement” and determined Murray had not shown a genuine issue
of material fact as to Chick-fil-A’s constructive notice.


                                 DISCUSSION
      We review a district court’s grant of summary judgment de novo. Rogers
v. Bromac Title Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 2014). Summary
judgment is granted if “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).
There is a sufficient dispute “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Rogers, 755 F.3d at 350 (citation
and quotation marks omitted). We “construe[] all facts and inferences in the
light most favorable to the nonmoving party.” Id. (citation and quotation
marks omitted).      Nonetheless, a nonmovant cannot survive summary
judgment by offering “[conclusory] allegations, unsupported assertions, or [by]
present[ing] [] only a scintilla of evidence.” Id. (citation and quotation marks
omitted).
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                                  No. 15-40058
 I.     The Temporal Evidence Requirement
       Murray argues that the district court erred by applying a “hardline
temporal requirement” for evidence of constructive notice. Murray contends
the temporal requirement is “neither dispositive nor the sole standard to
establish constructive notice” for premises liability.
       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. Wal-Mart Stores, Inc. v. Gonzalez,
968 S.W.2d 934, 936 (Tex. 1998). To prove such knowledge, the plaintiff can
establish: (1) the defendant caused the condition; (2) the defendant actually
knew of the condition; 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.” Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002).
Murray attempts to show constructive knowledge only with evidence it was
more likely than not that the liquid was on the floor long enough to give Chick-
fil-A a reasonable opportunity to discover it.
       In Reece, the Texas Supreme Court emphasized that “[w]ithout some
temporal evidence, there is no basis upon which the factfinder can reasonably
assess the opportunity the premises owner had to discover the dangerous
condition.” Id. at 816. The Reece decision expressly disapproved of those Texas
appellate court decisions allowing an employee’s proximity to a dangerous
condition to show constructive notice. Id. at 815, 816 & n.1. An employee’s
proximity or a condition’s conspicuity would often be “relevant” to the analysis
of how long a condition could exist before a premises owner should reasonably
have discovered it. Id. at 816. Proximity or conspicuity on their own, however,
are insufficient to show constructive notice under Reece. Id.
       Following Reece, Texas courts have granted summary judgment motions
when the plaintiff did not offer sufficient temporal evidence to establish
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                                  No. 15-40058
constructive notice. See Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566 (Tex.
2006); Gillespie v. Kroger Texas, L.P., 415 S.W.3d 589 (Tex. App.—Dallas 2013,
no pet.); Mendoza v. Fiesta Mart, Inc., 276 S.W.3d 653 (Tex. App.—Houston
[14th Dist.] 2008, no pet.).
      Murray cites a few decisions that she argues support relaxing the
temporal evidence rule.        In one, the Texas Supreme Court recognized
constructive notice existed when a premises owner knew the design and
maintenance of a grape display made it unreasonably dangerous at all times.
Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983). In the other,
an intermediate appellate court held that under Corbin, a mat buckled so
frequently as to make it dangerous from the moment it was placed on the floor.
Crosby v. Minyard Food Stores, Inc., 122 S.W.3d 899, 901–02 (Tex. App.—
Dallas 2003, no pet.). These decisions are inapposite.     Even if a restroom is
an area likely to have hazardous spills, we see no basis to eliminate the
temporal requirement. Corbin applies only to conditions that are dangerous
from the inception of their use in contrast to conditions that become dangerous
over time, even if they frequently do become dangerous. See CMH Homes, Inc.
v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000); see also Crosby, 122 S.W.3d at 901–
02. For conditions that become dangerous over time, a premises owner has to
have actual or constructive knowledge of the particular danger that has arisen.
See CMH Homes, 15 S.W.3d at 101. Here, Chick-fil-A’s restroom is not a
dangerous condition from the inception of its use; it only becomes dangerous
over time if not properly maintained.
      Thus, Murray must show that Chick-fil-A had constructive notice of this
particular hazardous condition, not just a general awareness that hazards
could arise. To show constructive notice, evidence must make it more likely
than not that this hazardous condition existed long enough that Chick-fil-A
should have discovered it. See id. at 102–03.
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                                   No. 15-40058
 II.     Murray’s Evidence of Chick-fil-A’s Constructive Notice
       We now turn to the evidence that Murray asserts created a genuine issue
of material fact as to Chick-fil-A’s constructive knowledge.
        Preliminarily, we reject the argument that constructive notice is a
question of fact solely for the jury because it concerns state of mind. To survive
summary judgment on this question, Murray must show some evidence that
would enable a reasonable jury to find it was more likely than not that the
condition existed long enough that Chick-fil-A should have discovered it. See
Sturdivant v. Target Corp., 464 F. Supp. 2d 596, 600–01 (N.D. Tex. 2006).
        Murray’s evidence at most allows an inference that the liquid on the floor
existed for a few minutes. When Murray arrived at Chick-fil-A with her two
co-workers, one of them, Leigh Stewart, used the restroom first. Her affidavit
does not suggest that the liquid was present at that time because she did not
state that she saw liquid on the floor when she used the restroom. The other
co-worker, Scharla Hayley, then entered the restroom and saw a “fairly large”
puddle on the floor. Hayley was washing her hands when Murray entered the
restroom and slipped on the liquid. Such a short amount of time is insufficient
to impart constructive notice on Chick-fil-A. See Sturdivant, 464 F. Supp. 2d
at 603 (refusing to find a fact issue of constructive notice under Texas
precedent when water had been on the floor for five minutes).
        Murray also offered the testimony of former Chick-fil-A employees who
said they check the restrooms every ten minutes during peak hours and every
ten to thirty minutes otherwise.       Murray’s evidence would not enable a
reasonable jury to find the liquid on the floor had existed long enough that
Chick-fil-A employees would have discovered it in a regular restroom check.
Murray also offers no evidence that this policy was not followed in her case.
Murray’s evidence does not support a reasonable inference that it was more


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                                 No. 15-40058
likely than not that the liquid existed long enough that Chick-fil-A should have
discovered it.
      Murray did not meet her burden as a nonmovant to offer some evidence
showing a genuine issue of material fact as to Chick-fil-A’s constructive notice.
      AFFIRMED.




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