there were factual disputes as to whether a wal mart moved to dangerous condition and specifically because it created a dangerous condition and whether there are genuine fact issues as to whether the condition is open and obvious so begin with warm marks knowledge of the condition of course an element of a premises liability suit in texas is the premise owners actual or constructive knowledge of the dangerous condition that's often shown in texas by showing that the condition existed for a sufficient period of time that a reasonable on premises owner would have known that's the direction the district court went and in the opinion in order granting summary judgment that's not the theory ms armin terrifies upon in this case in this case it's our position that there is evidence raising the fact issue as to whether wal mart knew of this condition because wal mart created this condition and under texas law evidence that a premise owner created the condition allows a jury to find that the owner knew of that condition of course actual knowledge can be shown b put it that way there is there is testimony the photographs were taken of the situation at the time but that that is not the photograph so whether those me being covered with further discovery somehow or maybe they're mis placed on will be found i can't answer that but as of now there's no other photographic record well what i didn't understand how the injury even if the how we're trying to get an angle somehow  the cart would not have gotten caught there instead of as certainly the the car was between her and the pallet at some point in obscure her vision of it and at some point  either she turned a cart sideways or turn to the other direction towards the display with the with the idea of putting it in front of the display to get i mean i'm speculating to that to judge you know i don't think proximate cause ation is but but obviously her foot got caught in that in the palette and i don't think that's really disputed either how it came to be that the cart was no longer between her and the palate i can't answer that for you display merchandise that it carries them out of the sale floor and i think significantly that it does so using how it jacks that's a page nineteen of the record of a pallet jack is a yeah it's daughter beyond that i can't i can't speak to what are your age or age i can speak her age i can tell you she has an adult daughter but i can't remember how old she is old enough to have adult daughters is as close as i can get you north of fifty or sixty you're a judge i just don't know the answer to that question i would say north of fifty is is reasonable to believe north of sixty i don't know that  yes now whether or not they put it caddick or it when they when they installed the display we don't know whether or not wal mart did that i think it's unreasonable to believe that wal mart did not do that all right so what i'm saying we don't know whether or not there's no moved it then one mark put it there so there would be actual constructive knowledge of it being in that position that's my point exactly yes and and on this record i think the jury could reasonably find that wal mart put that there reason why the jury could find that wal mart created this dangerous condition apart from what is what precisely is the danger will that get it misaligned or the fact that it's sticking out from under the nail polish  are two one is the one we've been talking about that it's that it's i think the same things as misaligned to sticking out from under so person walking down the aisle looking at the nail polish display would not expect to trip over those things to right and that's a separate issue and should i address that now person is charged with full knowledge of the danger it's not the opposite of concealed or invisible it's just the opposite is just not obvious and then determining whether a condition is open and obvious under texas no they said it was not opened up yes so in this case we have his arm and there is testimony that you know again it was low to the ground she was pushing her cart she was looking at the merchandise she was keeping a proper lookout as well as her daughter's testimony that any person walking through the store looking at the merchandise would not have seen those things sticking out from the side of the merchandise display there's a case that's like this is the texas court of appeals opinion safeway versus let that case involved produce trimmings there on the floor of a grocery store and the grocery store said hey these things are open and obvious they're scattered across the floor and the court of appeals wrote in his opinion that the they consider the fact that the shopper was pushing her cart and looking a merchandise in the manner contemplated shoppers would do and upheld the jury verdict finding that the condition was not open and obvious and i think this is same here and we don't expect every reasonable shopper to walk around the store looking at the footing of the displays to make sure they don't trip over anything and in fact that is why wal mart and its policies trains its workers they have exposed corners can be trip to this moment only just touched on it that there is a a second reason why the pallet was a an unreasonably dangerous condition aside from the fact that was sticking out sideways it was an open sided pal formerly actually worked as a manager for wal mart was trained and trained to workers though we don't use these open sided pellets on the sales floor because they create a hazard they cause accidents i experience where the pilot or whatever is holding up the display is several it's like several inches but the display sticks out from whatever the supported is right so anybody could stick their  with what may not be a small of maybe a problem for a large you know it was so the prudent thing to do is don't create that's the prudent thing to do is testimony that you haven't cited powers word that wal mart employees were trained not to use them because they cause accidents ok well i think unless you have something else we thank you  argument in this case that wal mart failed to meet its initial summary judgment burden particularly on the actual notice element so really it's undisputed that the burden of proof shifted to the plaintiff to show why summary judgment shouldn't be granted at least on that element and there's also no argument in this case that by the plaintiff that she needed more time to conduct discovery or further develop the evidence so the only question today for this court is whether there is enough evidence on file to overcome summary judgment and the answer to that question is there enough evidence is known or double no since there's actually two independent grounds on which the summary judgment can be affirmed in this case so the first round is the actual notice element and what plaintiff claims is that wal mart had actual notice because it created the misalignment of the palette and so our question is what's the evidence and as as  counsel has already discussed part of that evidence is that the display was placed on the floor with a pallet jack and it's undisputed it is undisputed that that's how merchandise is placed on the floors with a pallet jack but there's no evidence in this case that that this particular pallet was crooked while it was being carried out or that it was put down on the floor procrit there's there's simply no evidence there's just speculation that that's that that's actually what happened  way we don't know that that is that is exactly true and is probably one of two most of the most important points about this case what we do believe we know wal mart put the display the we know that wal mart put the display there but we don't know what it looks like we don't know that it was crooked and we don't know that a customer or a vendor or someone else comes in we wondered we could reasonably absolutely absolutely no we don't know that and i think that's the most important point about this case because wal mart's motion for summary judgment was based on there not being evidence of how the pallet got in that condition and one way the plain of correct and the reason that that's true is because anything you can look by by you can see by looking at the photograph this is a nail polish display according to the plaintiff it's almost empty or at least some sides of it are almost empty when she comes up to it it's made out of cardboard all you've got is an almost empty cardboard display on top of a wooden pallet which if you bump or or push those things around they they move pretty easily and i don't want to be testifying book before the court to that because i'm not a witness in this case and none of the judges are a witness in this case nobody in this room is a witness in the case and that's what we're missing from the plaintiff's evidence is somebody to say that thing was so heavy there's no way you could bump into it with a car there's no way you could kick it you couldn't have some kids engaging in horseplay that that bump into that thing and move it askew that's the evidence they need to get to the reasonable inference well if that thing is so heavy only wal mart with its pallet jack and and equipment could have done that that there's no evidence of that in this case the scene of the accident i'm sorry there are no photos of the scene of the accident well there are photos of the scene of the accident and the photo that the court has before is is an accident scene photo now there's a dispute between the plaintiff and wal mart and perhaps if this  go to trial we're going to have to get get into all that about what was what was the accurate depiction of that display at the time of the accident and after the accident the plaintiff says that it was catty  corner that the platform is catty corner nobody from walmart's of testified to that or recall that being the case what might have happened is the plaintiff simply tripped on that pallet and maybe it was very slightly askew as maybe that's it could be in that photograph and the plaintiff has misremembered it as being completely catty corner i don't know but if there is there may be a dispute of the you know it at trial about what what that what the case was but if you go back and you the record on that summary judgment well that and judge that's exactly what happened is that there were a number of photos taken and you've got one of them in front of you and there were other photos that show basically the same set up and wal mart's employees have testif those were the accident scene photos they took and it's simply a dispute with the plaintiff about what that thing actually looks like but there's but you're saying the actual knowledge business that if it was her burden to put in evidence that the display was created in such a way that no one except wal mart could have could have dislodged it and put it in dangerous i think that's a fact i think that's a fair statement i think that you can't just reasonably infer if it could have been a vendor it could have been the plaintiff it could have been a different customer we don't know how this thing got askew we don't know that it was too heavy to be put it to you by somebody other than wal mart it's not a well wal mart must have done it could have been anybody but wal mart must have done it was well i'm assuming for purposes of we have a plaintiff was testifying that it was so we're in summary judgment we're not a trial so i'm going to accept that it was askew i'm going to accept that it was a serious injury i'm going to accept that she tripped and fell and that was the cause of the injury weren't wal mart's not disputing any of that for purposes of summary judgment we're accepting all that but what we're saying is what wal mart's position is is that there's no evidence that it was wal mart that caused that thing to be that platform to be askew it could have just as easily been a customer a vendor somebody else we don't know that and that was the plaintiff's burden to put on evidence that was wal mart versus somebody else and also that it was that it was  obvious and so so so that's so there's facts that are disputed there's there's facts that are that are undisputed but we don't think that it can be shown that there's no evidence that thing was so heavy that only wal mart could have done it for purposes of summary judgment yes we are we are assuming that of that that it was askew and not only just a little bit askew like maybe it is in that photograph but the way that the plaintiff is saying is that it's catty corner so it's on a diagonal and  it's actually so far sticking out that it's actually blocking the aisle and you can't even get a card through because it's sticking so far out that's the plaintiff's testimony and that's and we're accepting that for purposes of summary judgment and i think that that testimony actually right and if you had turned around and asked that manager what are used affirmatively saying that wal mart place that thing across the we don't know i mean there's there's there's other possible for example the assistant manager might have been operating under that the customer is always your it's not where should be that's i don't i wouldn't dispute that but but the fact that wal mart's response before because they didn't place it correctly that's speculation that's speculation on part and that's the key evidence the key evidence is who's responsible for it and that is pure speculation for the assistant manager because here's what really here's here's the crux of the case is that you've got an assistant manager allegedly asking this question that the systematic doesn't remember asking this question but the plaintiff puts the words in his mouth and he says why wasn't that pallet placed correctly how does the assistant manager or anybody any walmart employee or any other person look at cricket pallet on the floor and magically look into the past and say oh it's i see how about cricket wal mart placed it that way when it originally placed of the sleigh versus it was placed correctly later on someone comes on and comes around and bumps our average already that is a somebody screwed up place in the pilot and that's what it's our i see nothing speculative a statement from the system out of that place wrong well and that would be that would be contrary to wal mart's position which is how does that how does that a system manager look at that thing and how does he know of course it's contrary to wal mart he said no but no but but the reason being the reason being and this is the crux of the case is how do you look at a crooked pallet on the floor no different than say the manager comes up and someone is slipped on a banana peel and he says how did that banana peel get there right and this is that's exactly this case that's exactly this case and you could say not that it's not this case for heaven's sakes a banana peel it's a stranger to the to the system this is part of your money and your persons are saying you put your this product in the wrong place now that has nothing to do with the one hand appeal of it of course that appeals a very because i think that's that that's really important you got a banana peel on the floor probably what happened was somebody ate it and they dropped it there and that could have been that could have walked again and i don't know i'm sorry mike you came to the store  matter that's true that's true but that same monkey could have come in and bumped into that that that poem must have and if it's too heavy to move them then they were out of luck but we don't know that it's not so light that you can bump into it and you can move that thing we have it we have what you do with out of that that's another step in the game whether it was there long enough and the opposition to whether it would open obvious i'm a gun to those but it does it does a jury to me plainly conclude just all right so so i think that we've we've we've covered some of the evidence of actual notice one thing we haven't talked about are the pallets and basically with that with the pallets we have and we have a plane if we used to work at wal mart a number of years ago says there's a different kind of pal if you've used a different kind of pallet but again it's a very undeveloped record we don't know that those pilots were ever used at the store we don't know that they're still available we don't know that they were there wasn't some problem when they were discontinued we don't know even with the wo that was used we don't know that there was some kind of coverage or some method to cover those holes so that you don't trip on them and that when the pallet got bumped by whoever bumped it that those covers came off they got lost something happened to them we don't have any evidence of that's all that's all evidence that could have been developed in this case and i don't know which way it goes that wasn't developed but we don't know we don't know that those pallet those black plastic pallets would have been effective we don't really know what they look like we don't know that that they would have made a difference in this case and we don't know that pallet that was used wasn't in some way covered and then came on covered it's it's all speculation on that point as well and i think we've covered most of the other issues on the actual notice element on the obviousness point that's an independent ground on which summary judgment can be affirmed and basically the idea here is that you've got a plaintiff is testifying that this pallet is sticking so far out that it's blocking traffic in the store and you can't get a cart through because it's sticking so far out and then wants to turn around and say well it but it wasn't obvious i couldn't i couldn't tell i couldn't see and  several reasons first the plaintiff testifies that she kept a quote unquote proper lookout but doesn't go into what that means it's a it's a purely conclusory claim it's not explained and it's and it's also well and that's and that's correct but my point is my point is not that we prevented her from getting around it my point is that if it's sticking out far out you're going to see it it's obvious and the reasons that she gives for not seeing it really don't you can't you know it's not like this other case where you've got these vegetable clippings and you run over and with your heart you never see them and then you slip and fall on them this is a big pallet it's a big shopping cart you're going to bang the real thing to it if it's between you at the point of testifies it was blocking your view it's got to be between you and the power and if and if that's the case you can't you you literally cannot trip over it it's it's impossible so her reason why she couldn't see it because her parts in the way doesn't work what had to have happened was she turns the car to the side she gets closer to the now polished display and now her foot can get caught in that thing true but at same time she can now see it because it's sticking out so far you can't get through the aisle it's not just a little you know slightly  slightly askew this is catty corner it's sticking out so far you can't get past it and so when she turns out shopping cart to the side it's right there it's in plain view it's obvious and she doesn't see it of course she's an eye level looking at the that's a that's an open question what the point of testifies to is that the the display is aligned straight and it's the palette that's crooked but you really don't know maybe the intent was to to put palette in a diagonal with the other merchandise and then to put the display correctly aligned on that so now it's in kind of a diamond shape if you approach it walking down the aisle we don't know we don't know if it's the if it's the platform that's out of place we don't know if it's or did offer that i'm not making that an issue for this summary judgment the fact that wal mart sees that as the accident scene photos of the plaintiff sees those photos as not accurately depicting because that's going to be a that's going to an issue credibility it's going to be an issue of who do you who do you believe and that's not a summary judgment issue so i think that disregard that we still have summary judgment because it doesn't matter thank you moved he didn't say why it's not where it should be he said why was this pallet not placed right and that indicates his own awareness but the problem is with the way in which the pallet was placed and he could reasonably conclude that it was mis placed not belabor this but with regard to the banana peel it is the store that is responsible for putting the bananas up on the counters and therefore the banana peel is not much not really significantly unlike the great cuttings they were on the floor and then the question is constructive knowledge but who put the great cuttings on the floor is not proven by the fact that the manager comes there and says how did these great cunning stay managed to be on this floor you know it's not necessarily an admission of liability but to mention that the wrong place also is the been in the body and is stored in the wrong place and and given that given the other evidence of nature it's not a banana peel in the sense that knowledge in a texas premises liability case if you show that the premise on or created the condition it was that the owner created the condition you don't need to show how long it's been there and that's our position that the deed th wal mart created this condition when it placed this pallet catty corner with the display on it a different direction and that's what the manager recognized when he said why was this p write the final case of the morning is number sixteen four one five t