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Southern District of Texas Courthouse - Houston, Texas
Case Number: 17-20429
Judge: Jerry E. Smith
Court: United States Court of Appeals for the Fifth Circuit on appeal from the Southern District of Texas (Harris County)
Plaintiff's Attorney: Carlos Alberto Leon and Piero Antonio Garcia
Defendant's Attorney: John A. Ramirez
Description: Leoncio Garcia sued Wal-Mart Stores Texas, L.L.C. (“Wal-Mart”), after he slipped and fell inside the entrance to one of its stores. The district court granted summary judgment for Wal-Mart, reasoning that Garcia had failed to raise a fact issue on Wal-Mart’s knowledge of the spill. Disagreeing, we reverse and remand.
The incident was caught on the store’s video surveillance. At 5:56 a.m.,
United States Court of Appeals
June 18, 2018
Lyle W. Cayce
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a Wal-Mart employee operating an auto-scrubber machine passed over the
area of the accident. The auto-scrubber works by dispensing cleaning solution
on the floor, scrubbing the floor, and squeegeeing the remaining solution. The
machine paused briefly where the floor changes from brown tile to white vinyl
flooring—the spot where Garcia would fall. The auto-scrubber operator then
left the area without checking for wet spots, trail mopping the uneven area, or
posting warning signs of spillage. Garcia claims this was all contrary to Wal-
Mart’s operating procedures and safety policies related to auto-scrubber use,
which require that “Wet Floor” signs be placed in areas “to be scrubbed,” and
that employees “trail mop anything left behind by the scrubber,” “during turns,
along edges, or left in low spots.” (Emphasis added.)
Over the course of the next twenty-five minutes, thirteen customers and
employees walked past or through the accident scene without slipping or
checking for wet spots. At around 6:07, an employee of the McDonald’s
franchise located inside the Wal-Mart pulled a trash bin through the area; and
again at 6:15, another McDonald’s employee dragged a second trash bin over
the spot of the fall. At 6:21, Garcia entered the store and slipped on what he
describes as “the exact spot where the auto scrubber had earlier paused.”
Shortly thereafter, a Wal-Mart employee walked over to the place of the incident
and “put [a] cone down” on “the spot where Mr. Garcia had fallen” because
she “saw a liquid on the floor.” The video is of too low a resolution to show the
Garcia sued in state court, and Wal-Mart removed. Wal-Mart sought
summary judgment on the ground that Garcia had offered no evidence that
Wal-Mart knew of the spill before the incident. Garcia responded that the
video, together with Wal-Mart’s policies, supported the inference that the
spillage came from the auto-scrubber; and under Texas law, evidence that the
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defendant created the spill (“creation evidence”) permits a jury to infer the
requisite knowledge. The district court granted summary judgment.1 Citing
Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002), the court agreed
that Garcia could create a fact issue on knowledge if he could prove the autoscrubber
“caused the condition.” But the court dismissed Garcia’s story as
“merely a possibility, an inference among many other equally plausible, but
opposite inferences.” Accord Flock v. Scripto-Tokai Corp., 319 F.3d 231, 237
(5th Cir. 2003).
Texas requires an invitee to prove four elements on a premises-liability
claim: that “(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 (4) . . . the risk was the proximate cause of injuries to the
invitee.” Henkel v. Norman, 441 S.W.3d 249, 251–52 (Tex. 2014). In Reece,
81 S.W.3d at 814, the Texas Supreme Court explained that a plaintiff can
prove knowledge, the first element, by showing that (a) “the defendant placed
the substance on the floor”; (b) “the defendant actually knew that the substance
was on the floor”; or (c) “it is more likely than not that the condition
existed long enough to give the premises owner a reasonable opportunity to
discover it.” See also McCarty v. Hillstone Rest. Grp., Inc., 864 F.3d 354, 358
(5th Cir. 2017). To prove any of these three propositions, “[p]laintiffs may rely
upon [either] direct [or] circumstantial evidence.” Id. at 358–59 (quotations
and citations omitted).
1 Garcia had moved to compel disclosure of the name of the auto-scrubber’s operator.
The district court never passed on the motion expressly but rejected it implicitly in granting
summary judgment. See Smith v. FTS USA/Unitek Glob. Serv., 676 F. App’x 264, 266 (5th
Cir. 2017). Because we reverse, we need not address the issue.
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The parties agree that Keetch v. Kroger Co., 845 S.W.2d 262, 265 (Tex.
1992), provides the starting point. Before Keetch, “a plaintiff [in Texas] could
prove actual or constructive knowledge of the dangerous conditions by showing
only that the owner/operator created the dangerous condition.”2 Keetch modified
that rule and explained,
The fact that the owner or occupier of a premises created a condition
that posed an unreasonable risk of harm may support an inference of
knowledge. However, the jury still must find that the owner or occupier
knew or should have known of the condition. Making the inference as
a matter of law is improper unless knowledge is uncontroverted. [The
owner] denied knowledge of the condition so the inference of knowledge
could not be made as a matter of law.
845 S.W.2d at 265 (emphasis added, footnote and citation omitted).
Wal-Mart reads Keetch for the broad proposition that circumstantial creation
evidence never suffices to create a fact issue on notice of the spill where
the defendant denies knowledge. But Keetch does not say that. The court held
only that the inference cannot be made as a matter of law. Id.
Wal-Mart’s gloss finds support in one unpublished decision: Wal-Mart
Stores, Inc. v. Barrera, No. 04-00-00002-CV, 2001 WL 121176, at *1 (Tex.
App.―San Antonio Feb. 14, 2001, no pet.).3 The plaintiff was injured while
dismounting a display bike that suddenly began to disassemble. Id. The plaintiff
claimed Wal-Mart’s knowledge could be inferred from its employees’ defective
assembly. Id. at *2. The Court of Appeals disagreed, citing Keetch:
In this case, Wal-Mart denied knowing the exercise bike posed an
unreasonable risk of harm. Consequently, knowledge is controverted.
2 Richardson v. Wal-Mart Stores, Inc., 963 S.W.2d 162, 165 (Tex. App.—Texarkana
1998, no pet.) (emphasis added) (citing Safeway Stores Inc. v. Bozeman, 394 S.W.2d 532, 537
(Tex. Civ. App.—Tyler 1965, writ ref’d n.r.e.)).
3 Wal-Mart also cites Cooley v. Home Depot, U.S.A., Inc., No. 04-00-00373-CV, 2001
WL 322163, at *1 (Tex. App.―San Antonio Apr. 4, 2001, pet. denied) (unpublished), but that
case is inapposite because it was a no-evidence summary judgment.
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The inference of knowledge does not apply, and Barrera is required to
produce evidence demonstrating Wal-Mart had actual or constructive
knowledge of the unreasonable risk of harm.
Barrera does not identify and we have been unable to find any evidence
in the record tending to show Wal-Mart either knew or should
have known of the condition of the exercise bike. Although the evidence
that the handle bars and a pedal became disconnected or came off at
the time of the accident may suggest the bike was improperly assembled,
it does not address Wal-Mart’s knowledge of the bike’s condition.
Id. (emphasis added, citation omitted). Wal-Mart suggests, per Barrera, that
where a defendant denies knowledge of the hazard, a plaintiff must present
additional, non-speculative evidence of knowledge—beyond creation
evidence—to have a fact issue.
But published decisions after Barrera establish that it was wrongly
decided. In Reece, for example, the Texas Supreme Court recognized, without
Barrera’s qualification, that a plaintiff can prove knowledge by showing “the
defendant placed the substance on the floor.” Reece, 81 S.W.3d at 814–15; see
also McCarty, 864 F.3d at 358. And several unpublished decisions likewise
suggest that creation evidence always constitutes a fact issue on knowledge,
appropriate for jury resolution.4 It is therefore inaccurate for Wal-Mart to say
that its disclaimer of knowledge somehow saps Garcia’s creation evidence of
probative value under Texas law.5
4 See, e.g., Stewart v. Wal-Mart Stores, Inc., 120 F.3d 266, 1997 WL 420283, at *2 (5th
Cir. July 3, 1997) (unpublished) (“Under Texas law, the jury may infer that the owner or
occupier knew or should have known of a dangerous condition if there is evidence that the
dangerous condition was created by the owner or occupier.”); Richardson, 963 S.W.2d at 165
(“The court held that if an owner/operator created a condition that posed an unreasonable
risk of harm, that fact alone could authorize a jury to find an inference of knowledge, but
such an inference cannot be made as a matter of law unless knowledge is uncontroverted.”
(emphasis added)); Grayson v. Anselmo, No. 14-06-01073-CV, 2008 WL 660433, at *3–4 (Tex.
App.—Houston [14th Dist.] Mar. 11, 2008, no pet.) (unpublished) (“It is within the fact
finder’s province to decide whether the circumstances justify inferring actual knowledge
against the creator of a dangerous condition.”).
5 Wal-Mart’s position does, however, highlight the fact that Texas courts have never
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Having surmounted Wal-Mart’s threshold challenge, Garcia must still
show that his circumstantial evidence is sufficiently non-speculative to create
a fact issue. His position is that the video and Wal-Mart policies together suggest
that (a) Wal-Mart used the machine to place slippery liquid on the floor,
(b) the liquid was likely to collect in low-lying areas, (c) the machine paused
over a low-lying area, (d) no Wal-Mart personnel checked for or took the
requisite steps to remove it, and (e) Garcia slipped just where the machine had
paused. This plausibly suggests the spill came from the auto-scrubber.
Wal-Mart replies that Garcia’s theory is no more likely than its proposed
alternatives (e.g., fluid from McDonald’s garbage or other passersby).6 First,
Garcia’s theory assumes, without evidence, that “the auto scrubber had water
and/or cleaning solution in it” and “was in clean mode when it passed through
the area of incident.” Second, if the auto-scrubber created the puddle, surely
one of other thirteen individuals would likely have slipped before Garcia did.
Additionally, Wal-Mart emphasizes that, as a matter of law, its internal policies
are irrelevant to the standard of care. See, e.g., FFE Transp. Servs., Inc.
explained how creation evidence is probative of knowledge or the kind of knowledge—actual
or constructive—it tends to show. Compare Hall v. Sonic Drive-In of Angleton, Inc.,
177 S.W.3d 636, 644–46 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (considering creation
evidence in a section titled “actual knowledge” and holding, based on intentional creation
evidence, “that the summary judgment evidence did not conclusively establish that Sonic
did not have actual knowledge of the condition”); with Keetch, 845 S.W.3d at 264 (“The fact
that the [defendant] created a condition . . . may support an inference of knowledge. However,
the jury still must find [the defendant] knew or should have known of the condition.”
(emphasis added)); see also McCarty, 864 F.3d at 358 n.1. Louisiana law provides an illustrative
contrast: “[P]laintiffs [in Louisiana] must prove either creation of the hazard or actual
or constructive notice thereof. There is no requirement of notice when it comes to creation of
the hazard.” Deshotel v. Wal-Mart La., L.L.C., 850 F.3d 742, 748 (5th Cir. 2017).
6 See, e.g., Summers v. Fort Crockett Hotel, Ltd., 902 S.W.2d 20, 25 (Tex. App.—Houston
[1st Dist.] 1995, writ denied) (“When circumstances are consistent with either of two
facts and nothing shows that one is more probable than the other, neither fact can be
inferred.” (citing Litton Indus. Prods. Inc. v. Gammage, 668 S.W.2d 319, 324 (Tex. 1984));
Flock, 319 F.3d at 237.
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v. Fulgham, 154 S.W.3d 84, 92 (Tex. 2004)).
None of these rebuttals succeeds. Garcia uses the policy to corroborate
his narrative (that Wal-Mart created the spill), not to escalate the standard of
care. See id. And as between the parties’ divergent stories, Garcia’s is easily
the most plausible. Certainly, his version of events requires some uncorroborated
assumptions, but that is true of any explanation conceivably consistent
with the video.
The real question is whether Garcia’s entire story, uncorroborated
assumptions and all, is more plausible than Wal-Mart’s proposed alternatives.
The answer to that question is clearly yes. Garcia’s is the only explanation
supported by multiple, particularized indicia: The auto-scrubber pauses where
the level of the floor changes; liquid tends to accumulate in uneven areas; and,
per the post-slip cleanup effort, the spill was a concentrated puddle (rather
than a trail created by a leaking garbage bin). Accord Stewart, 120 F.3d 266,
1997 WL 420283, at *2.
Outcome: Because Wal-Mart’s shot-in-the-dark conjectures are not equal inferences,
the summary judgment is REVERSED, and the case REMANDED. We
place no limitation on the matters that the district court can address and
decide on remand.