                                     In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-12-00566-CV
                           ____________________

                        THERESA WILSON, Appellant

                                        V.

 CBL/PARKDALE MALL GP, LLC A/K/A CBL PARKDALE MALL, LT,
 CBL PARKDALE CROSSING, GP, CBL PARKDALE CROSSING, AND
            CBL & ASSOCIATES, LLP, Appellees
_______________________________________________________        ______________

                   On Appeal from the 136th District Court
                         Jefferson County, Texas
                        Trial Cause No. D-187,035
________________________________________________________        _____________

                         MEMORANDUM OPINION

      Theresa Wilson sued CBL/Parkdale Mall GP, LLC a/k/a CBL Parkdale Mall

LT, CBL Parkdale Crossing, GP, CBL Parkdale Crossing, and CBL & Associates,

LLP (“Parkdale”) for premises liability. Parkdale filed a no-evidence motion for

summary judgment, which the trial court granted. In a single issue on appeal,

Wilson challenges the trial court’s decision to grant Parkdale’s no-evidence

motion. We affirm the trial court’s judgment.

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                                Factual Background

      In her deposition, Wilson testified that she and her daughter were walking

inside Parkdale Mall when she slipped in a red substance on the floor and fell onto

her left side. Wilson testified that she had been looking straight ahead and never

saw the substance before the accident, but that she probably would have seen the

substance had she been looking down. MarKimmbra Smith, Wilson’s daughter,

testified that she saw a “nice size puddle” and stepped over it. She testified that the

substance was “out in the open.” Wilson testified that the substance probably came

from a spilled drink. Smith testified that a custodian asked Wilson, “You didn’t see

that? This is not my area.” According to Smith, Wilson asked the custodian why

she had not cleaned the substance and the custodian replied, “But this is not my

area.” Wilson testified that the custodian cleaned the substance. Smith testified that

the substance was sticky and the custodian had difficulty cleaning the substance.

      Wilson stated that, before the accident, she did not see anyone cleaning the

spill, any warning signs, or any cleaning supplies in the area. Wilson believed that

Parkdale needed to hire more people to help with clean up. Smith did not believe

Wilson could have done anything differently to avoid the accident. Smith felt that

she could have warned Wilson about the liquid. Wilson testified that the fall

injured her left shoulder and hip, both of which required surgery.

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      In its interrogatory responses, Parkdale admitted there were no warning

signs in the area at the time of Wilson’s fall. Parkdale also stated that it had no

notice of the substance on the floor until after the accident. Parkdale explained that

it contracts with a third party janitorial and security service and that party’s

employees cleaned the substance from the floor where Wilson fell and conducted a

post-accident investigation. According to Parkdale, employees continuously patrol

the mall for spills and hazardous conditions, and if any such spill or condition is

observed or brought to the employee’s attention, the area is secured and a warning

sign is placed while the spill or condition is remedied.

      When granting Parkdale’s no-evidence motion, the trial court stated:

              Actual Knowledge: The plaintiff, in an effort to establish
      actual knowledge, present[s] [her] testimony which attributes a
      statement to an unidentified individual who was, purportedly, a
      member of the cleaning crew. According to the plaintiffs, after the
      fall, the slippery area was called to that individual’s attention to which
      she responded “That’s not my area[.]” While this might support a
      plausible inference of prior knowledge on the part of the individual, it
      could, likewise, support equally plausible inferences that would not
      establish actual knowledge. Under those circumstances, it is legally
      insufficient evidence.

             Constructive Knowledge: The only potential evidence of
      constructive knowledge contained in the record before the Court
      would be the proximity of the unidentified member of the cleaning
      crew to the condition in question. While proximity to the alleged
      hazard in question may be considered, it must be considered along
      with the “conspicuity and longevity” of the condition.

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             In the record before the Court, there is insufficient evidence for
      the Court to perform this analysis such that it could conclude that
      there is some evidence of constructive knowledge on the part of the
      defendant. (footnotes omitted).

                                Summary Judgment

      After an adequate time for discovery has passed, a defendant may move for

summary judgment on grounds that there is no evidence of one or more essential

elements of the plaintiff’s claim. Tex. R. Civ. P. 166a(i). The trial court must grant

the motion unless the plaintiff produces summary judgment evidence raising a

genuine issue of material fact. Id.; Timpte Indus. v. Gish, 286 S.W.3d 306, 310

(Tex. 2009). We review the summary judgment evidence in the light most

favorable to the party against whom summary judgment was rendered. Gish, 286

S.W.3d at 310. We credit evidence favorable to that party if reasonable jurors

could and disregard contrary evidence unless reasonable jurors could not. Id.

      To establish a premises liability claim, Wilson must show that (1) Parkdale

had “actual or constructive knowledge of some condition on the premises,” (2) “the

condition posed an unreasonable risk of harm,” (3) Parkdale “did not exercise

reasonable care to reduce or eliminate the unreasonable risk of harm,” and (4)

Parkdale’s “failure to use reasonable care to reduce or eliminate the unreasonable

risk of harm proximately caused [Wilson’s] injuries.” LMB, Ltd. v. Moreno, 201

S.W.3d 686, 688 (Tex. 2006). Because Wilson was an “invitee”, Parkdale owed “a
                                          4
duty to use ordinary care to reduce or eliminate an unreasonable risk of harm

created by a premises condition about which [it] knew or should have known.”

Del Lago Partners v. Smith, 307 S.W.3d 762, 767 (Tex. 2010). In its no-evidence

motion, Parkdale argued that Wilson could present no evidence to prove any of the

above elements.

      The threshold question that we must answer is whether Parkdale had actual

or constructive knowledge of a dangerous condition on the premises. See Motel 6

G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996). A slip-and-fall plaintiff satisfies

the notice element by showing that “(1) the defendant placed the substance on the

floor, (2) the defendant actually knew that the substance was on the floor, 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 v. Reece, 81

S.W.3d 812, 814 (Tex. 2002). Wilson contends that (1) the custodian’s statement

that the liquid was not in her area constitutes evidence of actual knowledge; and

(2) the liquid had existed for such a length of time that Parkdale had constructive

knowledge of the liquid.

      Actual knowledge requires knowledge that the dangerous condition existed

at the time of the accident, while constructive knowledge can be established by

facts or inferences that a dangerous condition could develop over time. City of

                                         5
Corsicana v. Stewart, 249 S.W.3d 412, 414-15 (Tex. 2008). When addressing

actual knowledge, courts generally consider whether the premises owner received

reports of prior injuries or the potential danger presented by the condition. Univ. of

Tex.-Pan Am. v. Aguilar, 251 S.W.3d 511, 513 (Tex. 2008). Circumstantial

evidence establishes actual knowledge only when it directly or by reasonable

inference supports that conclusion. Stewart, 249 S.W.3d at 415. When

circumstantial evidence is used to prove constructive knowledge, the evidence

must show that it is more likely than not that the dangerous condition existed long

enough to give the premises owner a reasonable opportunity to discover it. Wal-

Mart Stores v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998).

      An employee’s proximity to a condition, without evidence of how long the

condition existed, merely indicates that it was possible for the premises owner to

discover the condition, not that the premises owner reasonably should have

discovered it. Reece, 81 S.W.3d at 816. If the condition is conspicuous, such as a

large puddle of dark liquid on a light floor, an employee’s proximity to the

condition might shorten the time in which a factfinder could determine that the

premises owner should reasonably have discovered it. Id. That an employee was in

close proximity to a less conspicuous condition for a continuous and significant

period of time could also affect the factfinder’s consideration of whether the

                                          6
premises owner should have become aware of the dangerous condition. Id. In

either case, there must be some proof of how long the condition was present before

liability can be imposed on the premises owner for failing to discover, rectify, or

warn of the dangerous condition. Id.

      The record does not indicate that Parkdale had received reports of prior

injuries or the potential danger presented by the spilled substance. See Aguilar, 251

S.W.3d at 514. The custodian’s statement that the spill was not in her assigned area

could mean that she was aware of the spilled substance, but did not clean up the

substance because she was not assigned to that area. The statement could also give

rise to the equal inference that she was unaware of the spilled substance because

she was not assigned to that area. A factfinder cannot infer an ultimate fact from

such meager circumstantial evidence that gives rise to a number of inferences,

none more probable than the other. Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d

387, 392 (Tex. 1997); see Gonzalez, 968 S.W.2d at 936; see also Univ. of Tex. at

El Paso v. Muro, 341 S.W.3d 1, 5-6 (Tex. App.—El Paso 2009, no pet.).

Moreover, testimony that the substance was sticky and difficult to clean merely

indicates that the substance possibly existed long enough for Parkdale to notice it.

See Gonzalez, 968 S.W.2d at 938. Absent evidence demonstrating how long the




                                         7
condition had existed, the custodian’s proximity to the substance does not indicate

that Parkdale reasonably should have discovered it. See Reece, 81 S.W.3d at 816.

      Viewing the evidence in the light most favorable to Wilson, we conclude

that Wilson did not produce summary judgment evidence raising a genuine issue of

material fact to support the knowledge element of her premises liability claim. See

Tex. R. Civ. P. 166a(i); see also Gish, 286 S.W.3d at 310. Accordingly, the trial

court properly granted Parkdale’s no-evidence motion for summary judgment

disposing of Wilson’s claim against Parkdale. We overrule Wilson’s sole issue and

affirm the trial court’s judgment.

      AFFIRMED.



                                     ________________________________
                                               STEVE McKEITHEN
                                                   Chief Justice


Submitted on April 22, 2013
Opinion Delivered May 9, 2013
Before McKeithen, C.J., Kreger and Horton, JJ.




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