Date: 03-30-2023

Case Style:

Stephanie Britt v. Walgreen Company

Case Number: 1:19-CV-781

Judge: Robert Pitman

Court: United States District Court for the Western District of Texas

Plaintiff's Attorney:

Defendant's Attorney: Charles Hayes and Cynthia Day Grimes

Description: Austin, Texas personal injury lawyer represented Plaintiff, who sued Defendant on a premises liability slip and fall negligence theory.

This case is about a slip and fall that happened at a Walgreen's store in Kyle, Texas. Britt allegedly sustained injuries from her fall and sued Walgreen's for damages on July 15, 2019. (Orig. Pet., Dkt. 1-2). On August 2, 2019, Walgreen's removed the case to federal court. (Dkt. 1). With leave from the Court, Britt filed her first amended complaint on June 8, 2020. (Dkt. 23). A few months later, Walgreen's filed a motion for summary judgment.

To establish her claim for premises liability, Plaintiff must prove four elements: “(1) the property owner had actual or constructive notice 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 property owner's failure to use reasonable care to reduce or eliminate the risk was the proximate cause of injuries to the invitee”. McCarty v. Hillstone Rest. Group, Inc., 864 F.3d 354, 358 (5th Cir. 2017) (quoting Henkel v. Norman, 441 S.W.3d 249, 251-52 (Tex. 2014)). A threshold requirement in a premises liability case is that a plaintiff must show the landowner had actual or constructive notice of the premises defect. See, e.g., Beavers v. Flying J Inc., 1:05-CV-244, 2006 WL 8440669, at *6 (E.D. Tex. May 25, 2006) (citing Cadenhead v. Hatcher, 13 S.W.3d 861, 864 (Tex. App.-Fort Worth 2000, no pet.) and Richardson v. Wal-Mart Stores, Inc., 963 S.W.2d 162, 165 (Tex. App.-Texarkana 1998, no pet.)). In this case, since Walgreen's did not have actual notice of the water on the floor, Britt must establish that Walgreen's had constructive notice.

To establish a property owner's constructive notice of an unreasonable risk of harm, a plaintiff must show that “it is more likely than not that the condition existed long enough to give the premises owner a reasonable opportunity to discover it.” Garcia v. Wal-Mart Stores Texas, L.L.C., 893 F.3d 278, 279 (5th Cir. 2018) (quoting Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002)). Texas adopted the “time-notice” rule because “temporal evidence best indicates whether the owner had a reasonable opportunity to discover and remedy a dangerous condition.” Reece, 81 S.W.3d at 816. “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.” Id. “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.” Reece, 81 S.W.3d at 816. Moreover, proximity alone cannot establish constructive notice because it only indicates “that it was possible for the owner of the premises to discover the dangerous condition, not that the owner reasonably should have discovered it.” Pena v. Home Depot U.S.A., Inc., 32 F.Supp.3d 792, 797 (S.D. Tex. 2013) (citing Reece, 81 S.W.3d at 816) (emphasis in original). Thus, when determining whether a defendant had constructive knowledge of a hazardous condition, a court must consider evidence of (1) longevity; (2) proximity, and (3) conspicuity. Pena, 32 F.Supp.3d at 797 (citing Reece, 81 S.W.3d at 815-17).

When, as here, a plaintiff relies on circumstantial evidence to prove constructive notice, “the evidence must establish that it is more likely than not that the dangerous condition existed long enough to give the proprietor a reasonable opportunity to discover the condition.” Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). If circumstantial evidence “supports only the possibility that the dangerous condition existed long enough to give [the premises owner] a reasonable opportunity to discover it,” the premises owner cannot be liable based on such evidence. Id. A plaintiff must demonstrate that the circumstantial evidence “is sufficiently non-speculative to create a fact issue.” Garcia, 893 F.3d at 281. In determining whether the premises owner had a reasonable opportunity to discover the hazard, courts analyze “the combination of proximity, conspicuity, and longevity.” Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 567-68 (Tex. 2006).

Outcome: Judgment in favor of Defendant affirmed on appeal.

Plaintiff's Experts:

Defendant's Experts:

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