                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-07-00337-CV

CHARLOTTE D. COSTLEY,
                                                          Appellant
v.

H.E. BUTT GROCERY COMPANY,
A/K/A H.E. BUTT GROCERY COMPANY, L.P.
D/B/A H.E.B. STORE WACO 06 #11,
                                                          Appellees



                     From the County Court at Law No. 1
                          McLennan County, Texas
                        Trial Court No. 20050071 CV1


                      MEMORANDUM OPINION


      Charlotte Costley sued H.E. Butt Grocery Company (H.E.B.) for personal injuries

under a premises liability theory after she slipped on some grapes in the grocery

checkout line and hurt her ankle. The trial court granted H.E.B.’s no-evidence motion

for summary judgment, and Costley appeals. We will affirm.

      Costley’s first issue asserts that the trial court erred in granting H.E.B.’s no-

evidence motion. We review a trial court’s summary judgment de novo. Provident Life &
Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).

        The four elements of a premises liability cause of action are:

        (1) the owner had actual or constructive knowledge of some condition on the
        premises;
        (2) the condition posed an unreasonable risk of harm;
        (3) the owner did not exercise reasonable care to reduce or eliminate the risk of
        harm; and
        (4) the owner’s failure to use such care proximately caused the plaintiff’s injuries.

LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006).

        H.E.B.’s no-evidence motion was based on the first element. 1                     Costley filed

summary-judgment evidence (her affidavit and deposition testimony) showing that she

was in the checkout line and waited for fifteen to twenty minutes for the customer in

front of her to get checked out. Costley observed that customer’s grocery purchases

and did not see any grapes. After that customer left, Costley stepped and slipped on

some dark red grapes on the floor between the checkout counter on the left and the

display on her right.2 Costley fell backward when she slipped and twisted her ankle,



1 A no-evidence motion for summary judgment is essentially a motion for pretrial directed verdict. Mack
Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581 (Tex. 2006); see also Humphrey v. Pelican Isle Owners Ass’n, 238
S.W.3d 811, 813 (Tex. App.—Waco 2007, no pet.). Once such a motion is filed, the burden shifts to the
nonmoving party to present evidence raising an issue of material fact as to the elements specified in the
motion. Tamez, 206 S.W.3d at 583. A genuine issue of material fact exists if more than a scintilla of
evidence establishing the existence of the challenged element is produced. King Ranch, Inc. v. Chapman,
118 S.W.3d 742, 751 (Tex. 2003). More than a scintilla of evidence exists when the evidence “rises to a
level that would enable reasonable and fair-minded people to differ in their conclusions.” Id. (quoting
Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). On the other hand, the evidence
amounts to no more than a scintilla if it is “so weak as to do no more than create a mere surmise or
suspicion” of fact. Id. When determining if more than a scintilla of evidence has been produced, the
evidence must be viewed in the light most favorable to the nonmovant. Ford Motor Co. v. Ridgway, 135
S.W.3d 598, 601 (Tex. 2004).

2 In her deposition, Costley states that she stepped on the grapes when she turned to reach for some
candy, but her subsequent affidavit states that she stepped on the grapes when she pushed her cart
forward to begin placing her groceries on the checkout counter conveyor. Because of our disposition, this
discrepancy is immaterial.

Costley v. H.E.B.                                                                                   Page 2
but her cart, which was behind her, kept her from falling on the floor. The cashier

noticed and called a manager, who came to the scene and had another employee clean

up the mashed grapes. Costley could not say how many grapes there were, but she

could tell there was more than one from the mess.

         The manager asked Costley if she needed any medical assistance, and Costley

told her that the man who had driven her would take her to the hospital emergency

room. Costley had her groceries checked out, limped out of the store, and went to the

hospital. She received treatment for her ankle, which had begun to swell, was sprained

and remained swollen for a week, and still bothers her.

         Costley contends that her summary-judgment evidence raised a fact issue on

H.E.B.’s constructive knowledge that the grapes were on the floor. Proof of constructive

knowledge requires that the condition last long enough for the possessor to discover it

through reasonable inspection. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 102-03 (Tex.

2000).     When the plaintiff attempts to prove constructive knowledge through

circumstantial evidence, the evidence must establish that it is more likely than not that the

dangerous condition existed long enough to give the possessor a reasonable

opportunity to discover it. Wal-Mart Stores, Inc. v. Gonzales, 968 S.W.2d 934, 936 (Tex.

1998). But evidence that supports only the possibility that a dangerous condition existed

long enough to give the possessor a reasonable opportunity to discover it is insufficient

to prove constructive knowledge. Id.

         Citing a dated plea of privilege case, Costley claims that the proximity of the

grapes on the floor to the checker gave H.E.B. constructive knowledge of the grapes.

Costley v. H.E.B.                                                                      Page 3
See Furr’s Super Market v. Garrett, 615 S.W.2d 280, 281-82 (Tex. Civ. App.—El Paso 1981,

writ ref’d n.r.e.), disapproved by Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 816 n.1 (Tex.

2002). But that case and the notion that employee-proximity alone gives constructive

notice have been disapproved. See Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 816 n.1

(Tex. 2002); see also Wright v. Wal-Mart Stores, Inc., 73 S.W.3d 552, 555-56 (Tex. App.—

Houston [1st Dist.] 2002, no pet.).

        In her affidavit, Costley states that there was one person in the checkout line in

front of her and that Costley waited fifteen to twenty minutes for that person to be

checked out. She states that the person in front of her did not purchase grapes because

she “could see the groceries that customer put out on the checkout booth conveyor belt

and there were no grapes placed there by that customer or purchased by that

customer.” But in her deposition, Costley testified she didn’t “think” the customer had

any grapes, that she spent her time in line observing the magazine rack, and that she

did not know how long the grapes had been on the floor.

        Costley’s evidence supports only the possibility that a dangerous condition

existed long enough to give H.E.B. a reasonable opportunity to discover it and is

insufficient to prove constructive knowledge; such circumstantial evidence from which

equally plausible but opposite inferences may be drawn is speculative and thus legally

insufficient. See Gonzales, 968 S.W.2d at 936; see also Lozano v. Lozano, 52 S.W.3d 141, 148

(Tex. 2001) (Phillips, C.J., concurring). Accordingly, Costley’s evidence does not rise

above the level of mere suspicion, and Costley has failed to raise more than a scintilla of




Costley v. H.E.B.                                                                        Page 4
evidence that H.E.B. had constructive notice of the grapes. See Wright, 73 S.W.3d at 555-

56. We overrule the first issue.

        Costley’s second issue asserts that summary judgment was improper because

H.E.B. failed to preserve the cash register receipts for the day in question and those

receipts would show when grapes were purchased and thus how long they had been on

the floor when Costley slipped on them. Costley thus contends that she is entitled to a

spoliation presumption that the grapes were on the floor for a sufficient amount of time

for H.E.B. to have constructive knowledge.          In response to Costley’s spoliation

assertion, H.E.B. presented evidence that it did not “destroy” the receipts; rather, after

two days, its computer system automatically transfers register transactions to a general

ledger that shows by code only what products were purchased and their prices. The

data showing the transaction times and register information is not retained.

               Spoliation is the improper destruction of evidence, proof of which
        may give rise to a presumption that the missing evidence would be
        unfavorable to the spoliator. Brumfield v. Exxon Corp., 63 S.W.3d 912, 919
        n.3, 920 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). To raise the
        spoliation issue, the party seeking the presumption bears the burden of
        establishing that the alleged spoliator had a duty to preserve the evidence
        in question. Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 722 (Tex.
        2003). This duty to preserve evidence arises when a party knows or
        reasonably should know that (1) there is a substantial chance that a claim
        will be filed, and (2) evidence in its possession or control will be material
        and relevant to that claim. Id. When a party demonstrates an entitlement
        to a spoliation presumption, the presumption precludes a court from
        granting a summary judgment. Aguirre, 2 S.W.3d at 457.

Garcia v. Sellers Bros., Inc., No. 14-05-00954-CV, 2006 WL 3360473, at *2 (Tex. App.—

Houston [14th Dist.] Nov. 21, 2006, no pet.) (mem. op.); see also Flournoy v. Wilz, 201

S.W.3d 833, 837-38 (Tex. App.—Waco 2006), rev’d on other grounds, 228 S.W.3d 674 (Tex.

Costley v. H.E.B.                                                                       Page 5
2007); Martinez v. Abbott Laboratories, 146 S.W.3d 260, 270 (Tex. App.—Fort Worth 2004,

pet. denied). Because Costley raised spoliation in the summary-judgment proceeding

and the trial court nevertheless granted summary judgment, we presume that the trial

court considered and rejected her spoliation allegation because a spoliation

presumption would have precluded summary judgment. See Martinez, 146 S.W.3d at

269; Aguirre v. South Tex. Blood & Tissue Ctr., 2 S.W.3d 454, 457 (Tex. App.—San Antonio

1999, pet. denied). We review the trial court’s decision for abuse of discretion. See

Martinez, 146 S.W.3d at 269 (citing Johnson, 106 S.W.3d at 722-23).

         We look at whether Costley met her burden of showing that H.E.B. had a duty to

preserve the register receipts for the day in question. She asserts that, because H.E.B.’s

manager came to the scene and made an incident report,3 H.E.B. knew or reasonably

should have known that there was a substantial chance that Costley would file a claim

and that H.E.B. had evidence in its possession or control that would be material and

relevant to that claim.

         We begin with the premise that, absent extraordinary circumstances, the mere

occurrence of an accident is not sufficient to trigger the duty to preserve. See Johnson,

106 S.W.3d at 722 (citing National Tank Co. v. Brotherton, 851 S.W.2d 193, 204 (Tex. 1993)).

That premise, the circumstances of Costley’s accident, and the uncontroverted fact that

H.E.B. did not maintain individual register receipts for more than two days and merged

3   That incident report states:
           CUSTOMER CLAIMS SHE “TWISTED BACK AND SIDE WHEN SHE TURNED
           AROUND FROM LOOKING AT BATTERIES ON PEG STRIP. SAYS THE GRAPES
           WERE THE REASON FOR HER TWISTING HER FOOT. SHE IS ALREADY LIMPING.
           H [sic] THERE WAS NO OBVIOUS SWEELING [sic] IN HER FOOT. IT WAS HER
           RIGHT ANKE [sic].

Costley v. H.E.B.                                                                     Page 6
them into a general ledger in the normal course of business, lead us to conclude that

H.E.B. had no duty to preserve the register receipts for the day in question. See Johnson,

106 S.W.3d at 723; Garcia, 2006 WL 3360473, at *3-5; Martinez, 146 S.W.3d at 269-71; Doe

v. Mobile Video Tapes, Inc., 43 S.W.3d 40, 55 (Tex. App.—Corpus Christi 2001, no pet.)

(videos recorded over in normal course of business and before notice of claim provided

no basis for exclusion of evidence based on alleged spoliation); Aguirre, 2 S.W.3d at 457

(destruction of records in regular course of business and without notice of their

relevance to future litigation did not raise spoliation presumption). Because the trial

court did not abuse its discretion, we overrule Costley’s second issue.

        Having overruled both of Costley’s issues, we affirm the trial court’s judgment.



                                                 REX D. DAVIS
                                                 Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed July 29, 2009
[CV06]




Costley v. H.E.B.                                                                    Page 7
