                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                 February 19, 2002 Session

              MARGARET PARKER v. THE KROGER COMPANY

                 A Direct Appeal from the Circuit Court for Shelby County
                 No. 95499-2 T.D.   The Honorable James F. Russell, Judge



                  No. W2002-02279-COA-RM-CV - Filed October 11, 2002


         The Circuit Court, Shelby County, granted summary judgment for Defendant in a slip and
fall case. The Court of Appeals reversed and remanded the case. The Supreme Court granted appeal
and remanded the case by Order dated September 23, 2002 to the Court of Appeals for the sole
purpose of determining the applicability, if any, of the Texas Supreme Court opinion in Wal-Mart
Stores, Inc. v. Reece, 81 S.W.3d 812 (Tex. 2002). On remand, the Court of Appeals withdrew the
Court’s previously filed opinion and affirms the Trial Court’s grant of summary judgment.

      Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER ,
J. and HOLLY KIRBY LILLARD, J., joined.

Marshall L. Gerber, Memphis, For Appellant, Margaret Parker

Minton P. Mayer, Memphis, For Appellee, The Kroger Company

                                           OPINION

        This slip and fall case is before the Court on remand from the Supreme Court for this Court
to determine the applicability, if any, of Texas Supreme Court opinion in Wal-Mart Stores, Inc. v.
Reece, 81 S.W.3d 812 (Tex. 2002). The Court, pursuant to the Supreme Court's mandate, withdrew
its Opinion filed March 19, 2002 and has reconsidered the case.

        Plaintiff, Margaret Parker (“Ms. Parker”), appeals from an order granting summary judgment
to Defendant, The Kroger Company (“Kroger”). Ms. Parker, a resident of Shelby County,
Tennessee, slipped in a Kroger store located in Flower Mound, Texas on a “dark object like a grape
or a piece of vegetable” that had been mashed. Ms. Parker injured her knee in the fall.

       Ms. Parker filed a complaint in this action in Shelby County Circuit Court on June 26, 1998.
Kroger then filed a Motion to Dismiss on the grounds of forum non conveniens, which the trial
court granted. This Court reversed the trial court and remanded the case to the circuit court. Upon
remand, Kroger filed a Motion for Summary Judgment, which the trial court granted on July 24,
2001.

       Ms. Parker appeals and presents one issue on appeal: Whether the trial court erred in
granting Kroger summary judgment. For the following reasons, we affirm the trial court and hold
that summary judgment was appropriate in this case.

        Although the parties agree that the substantive law of Texas applies, the procedural aspects
of the case are governed by Tennessee law. See Standard Fire Ins. Co. v. Chester-O’Donley &
Assocs., 972 S.W.2d 1 (Tenn. Ct. App. 1998); State ex rel. Smith v. Early, 934 S.W.2d 655 (Tenn.
Ct. App. 1996).

        A motion for summary judgment should be granted when the movant demonstrates that there
are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter
of law. Tenn. R. Civ. P. 56.03. The party moving for summary judgment bears the burden of
demonstrating that no genuine issue of material fact exists. See Bain v. Wells, 936 S.W.2d 618, 622
(Tenn.1997). On a motion for summary judgment, the court must take the strongest legitimate view
of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that
party, and discard all countervailing evidence. See id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn.
1993), our Supreme Court stated:

               Once it is shown by the moving party that there is no genuine issue
               of material fact, the nonmoving party must then demonstrate, by
               affidavits or discovery materials, that there is a genuine, material fact
               dispute to warrant a trial. In this regard, Rule 56.05 provides that the
               nonmoving party cannot simply rely upon his pleadings but must set
               forth specific facts showing that there is a genuine issue of material
               fact for trial.

Id. at 210-11 (citations omitted) (emphasis in original).

         Summary judgment is only appropriate when the facts and the legal conclusions drawn from
the facts reasonably permit only one conclusion. See Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.
1995). Since only questions of law are involved, there is no presumption of correctness regarding
a trial court's grant of summary judgment. See Bain, 936 S.W.2d at 622. Therefore, our review of
the trial court’s grant of summary judgment is de novo on the record before this Court. See Warren
v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).

      Texas law requires the plaintiff in a slip and fall case to prove four elements to recover
damages:




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               (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 damages.

Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 935 (Tex. 1998). The issue before us involves
the first element, actual or constructive knowledge of some condition on the premises by the
owner/operator. Constructive knowledge may be established by showing “more likely than not that
the dangerous condition existed long enough to give the proprietor a reasonable opportunity to
discover the condition.” Id. at 936.

        In Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812 (Tex. 2002), the Texas Supreme Court
was faced with the question of whether “evidence that the premises [sic] owner’s employee was in
close proximity to the dangerous condition right before the plaintiff fell, without more, is legally
sufficient to charge the premises [sic] owner with constructive notice.” Id. at 813. The Court noted
that there was a split in the intermediate appellate courts regarding the import of proximity evidence.
The Court noted that some courts have held that proximity evidence alone is insufficient to establish
constructive notice, citing Wal-Mart Stores v. Rosa, 52 S.W.3d 842, 844 (Tex. App. San Antonio
2001); Furr’s, Inc. v. Sigala, 608 S.W.2d 789, 790 (Tex. App. El Paso 1980); H. E. B. Foods, Inc.
v. Moore, 599 S.W.2d 126, 129 (Tex. Civ. App. Corpus Christi 1980). Other Courts of Appeals
have held that evidence of an employee’s proximity to a dangerous condition can establish
constructive notice. See Wal-Mart Stores, Inc. v. Garcia, 30 S.W.3d 19, 23 (Tex. App. San Antonio
2000); Duncan v. Black-Eyed Pea U.S.A., Inc., 994 S.W.2d 447, 449-50 (Tex. App. Beaumont
1999); Furr’s Super Market v. Garrett, 615 S.W.2d 280, 281-82 (Tex. Civ. App. El Paso 1981).

       In Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812 (Tex. 2002), the Court said:

               Constructive notice demands a more extensive inquiry. Without
               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.

                       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. And proximity evidence will
               often be relevant to the analysis. Thus, if 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


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               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. But in either case, 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. at 816, (emphasis added).

         In the case at bar, Ms. Parker fell on a “dark object. . . that had been mashed” in the area
where customers exit the checkout lines and the store. Ms. Parker opines that the object “had been
there for some time.” She argues that the proximity of the area where she fell to the checkout
counter with Kroger employees on duty is sufficient to establish that Kroger had constructive
knowledge that a dangerous or defective condition existed. Ms. Parker has produced no credible
evidence of how long the object she slipped on had been on the floor, but has only presented
evidence that the area in which she slipped was close to the Kroger checkout counters with
employees present and that the condition of the offending object gave the appearance of having been
mashed. In the absence of any temporal evidence of how long the object had been on the store’s
floor, there is no proof that more likely than not the condition existed long enough to give Defendant
a reasonable opportunity to “discover and rectify it, or to warn about it.” Id. at 817.

       Accordingly, the order of the trial court granting summary judgment is affirmed. Costs of
the appeal are assessed to the appellant, Margaret Parker, and her surety.

                                               __________________________________________
                                               W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




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