goes straight to the trash cans which are of the bold faced part of the equal inference ruling by the by the district court and wal mart's argument here on appeal as court knows there is a videotape that captures that two hours in advance at the entrance of the wal mart on a morning around six am five fifty five we see scrubber coming through it pauses any particular spot six twenty am see mr garcia walk on exactly that spot he puts his foot and right where importantly that spot was for there was some change in the texture or height or type of flooring precisely on or there's you can see work shifts from a dark flooring to a light flooring there must be some sort of seam there the scrubber stops there in the scrubbers the only thing that we know that actually contains clear slipper liquids during the entire two hours of this this video off for about two seconds it stops for about two seconds your honor and it's all it proximately five fifty eight thirty five fifty five thirty eight starting that's when the discover first comes into the videotape comes in pass for a couple seconds probably have time for something to accumulate or follows and fall off and then it goes continues going out and exits the frame doesn't the record show that this crabber was only being moved at that point was not actually being operated for the purpose of cleaning the surface record does not show that either honor but even if it was not being operated even it wasn't actively laying down liquids it was still carrying liquids that's the point of the scrub or puts down waxy liquids in the skin all right but but but there's also nothing in the record that says it was still carrying liquid correct but it's the only thing designed to carry liquids and wouldn't be operated carries liquids if you go to the garbage cans for instance the garbage cans which that will face in their brief those are being carried back into mcdonalds and their argument is in the court were below picked it up was a could have been dripping some clear liquid but garbage cans going into the mcdonald's would have been empty they wouldn't have been carrying any trash or any garbage and secondly they don't go over the precisely the same spot the first garbage can and i gave the court a timeline in the somewhere oregon exhibits it's six o six fifty seven actually goes to the right where the scrubber was had been ten minutes earlier the other one is actually to the left of where the where mr garcia stepped and just the way the trash can was be carried it might have crossed over just a tiny little bit but there's no indication that it was dropping anything or that it or there was even carry anything that could be spilled from it so a reasonable inference but the same was true of the state of the  clearly this is that we're talking about reasonable inferences a jury could make and whether this question could go to the jury is it possible that a jury could look at the facts and say that's scrubber which is designed to had we don't know whether it was in operation at that time as opposed to merely being perhaps returned to storage or something like that it was all we know is it was being driven and we don't know whether the and there's some evidence raised is that we need to get his testimony we used to have his deposition the wal mart did not disclose his the identity of the scrubber operator in till after the discovery deadline one would think that that would be long it might be so that we can show that we can try to defeat a motion for summary judgment was what was that sort of motion made i don't think we actually have one styles of fifty nine emotion although there have been issue had been present it's been squarely presented to the district court to postpone that was the submission of the discovery of the summary judgment motion so if you complete discovery that was granted in very limited park where the district court allowed  from the record on appeal that the lawyers having a truck or were keying getting to discovery for instance getting a working copy of the of the of the video were king that on when they're funny got the deposition date in games which did not occur until after the discovery cut off and only because the court allowed a granted the motion they've been asking for deposition days asking for deposition dates and never got deposition days they finally got them and in the preparation program preparing for the deposition realize they did not have a working copy they did not have an ability to ask the deponent about the contents of the video because they did not have a working copy of the video but going back to the equal inferences it's a reasonable inference that the scrubber was the only thing that traversed that particular spot where mr garcia slipped there was actually carrying something that would cause him to split  result companies see that sort of thing usually in ice injuries in colder climes or people slip and they don't necessarily fall and hit but the actual twisting motion of the legs will will wrench the knees those are the injuries he sustained after of a liquid at that spot where he slipped and you know again it's very clear on the video precisely where his foot hit and you can see his knee shooting out but we're all we were all turning to and  case which is the fire case where there are numerous lighters in the i believe it was a mobile home and but there was only one manufactured by the one particular manufacturer where the district court said well that it is equal inference rule there all these other different incendiary devices in the in the cunt in the in the mobile home it could have been any one of them but a reasonable analysis which this court in actually looking more closely at the inference is that were drawn for instance well if there was one lighter that was in the kitchen the inference would have been that the young boy had taking the letter from the kitchen taken into his bedroom started the fire and returned it to the to the kitchen that's the type of speculative leap that wal mart is asking the court to make here in saying that all these different traverses of the slippery area are identical which is essentially what the district court ruled and said you could have been a person walking by it could have been these trash cans there's nothing to separate those from the scrub or with the scrubber is the only thing that we know is designed to and in all likelihood was carrying slippery on the oral argument exhibits i submitted it we talked a lot both parties were talking about does this question could go to the jury and i thought it was useful to the court to think of what exactly would be asking the jury to go to exhibit the question one would be court cases that require a member to is wal mart knew or reasonably should have known of the danger and if we get a guess answer to number one we go down to the instruction and this is following wal mart versus reese in th mccarty that you are instructed that if you have answered yes to question number one then wal mart should have known of the danger establishes as a matter of law that wal mart created the hazard that it had constructive knowledge now even if we don't get a yes answer to question number one we still have two other options for establishing establishing the knowledge requirement first is that wal mart new in this is standard of actual knowledge and its course probably where you very rarely get that a premise is case especially in a slip and fall where you are the defendant is going to admit that they had actual knowledge of it or should have known and then the whole of the room then there's a second wave establishing should have known one is the constructive knowledge the first one to discussing which is creating the hazard and the second is the temporal proximity the macaroni on the in the aisle or the spilt grape or the the hanger back in the back in the dressing room but the key to that in this is why that would be me even if we were just time the reason is of the of the proximity of the employee now it's one thing if you have a dressing room in the back corner where maybe two or three people are going during the course of any hour or two hours or specially at six am no he's really trying on clothes back in a dressing room that and so it might be understandable that the hanger would have to be on the ground for forty five minutes an hour or even two hours but when you're talking about what is by definition the busiest spot in the store which is the entrance everybody comes in the entrance in people not going into wal mart people going to donald's or coming in the entrance to the wal mart the reasonable is the results of the inspection the reason list of wal mart not inspecting is a question for the jury you know bear in mind we had several other wal mart employees walking traversing this general area if not specifically on the spot we had a wal mart starker three four feet away continuously for two spells adding up to about seven minutes this is the entrance to the store so it would be for the jury to decide if we're relying on the temporal and proximity test which i don't think we have to because we still have the  creation of the hazard test if we rely on that we can still get to go to the jury because the question would be was all wal mart acting reasonable in not inspecting it or not having after the scrubber goes through the busiest area of the store not have a mop or come through it so we had three bites at the knowledge apple ones established by the videotape one we're not going to get one i can establish actual knowledge and the other one under texas law police court your honor in this case judge gilmore properly granted summary judgment to wal mart the issue that wal mart tacked there were four elements that plaintive needed to prove one was knowledge the issues on knowledge involve either actual knowledge or constructive no because wal mart disputed whether or not there was any knowledge on the part of wal mart of the spot of water on the recess the court said that mere proximity is simply not enough there has to be something more than that there has to be a time notice rule and the amount of time is also something that's location and it's also there's a conspicuous ness element as well as judge rosenthal addressed in shireen she said proximity could speak to woody and longevity were the words that she used so simply by the mere proximity that they should have noticed or should have seen the problem but here you have a wal mart piece of machinery that no one can test often contains a slippery liquid and passed over the spot where some short time later an accident occurred so i don't understand how there's a proximity problem well i think it's like the question then shifts to there were multiple potential causes of what could have left the water on the floor right one one was the what the garbage can from mcdonald's what others were there one was the garbage came from mcdonald's which i would disagree with counsel i think it passes directly over the spot and whether or not there's garbage in or not there may still be liquid as he's walking in the store the drink is his right hand his right hand passes over that same area so that's another possible possible cause of leaving the liquid on the floor but the liquid on the floor was found to be a slippery liquid wasn't it the look on the floor was i think he did i think the evidence shows that mr garcia slipped on that's true i mean there was no are you saying that the record doesn't reflect that there was any examination of the substance on the floor to determine whether it was slippery or not i think that i think that seeing mr perseus slip in a week it that it was potentially slippery but i think the issues more when the actual spot of water got on the floor because there are multiple reasonable inferences the judge gilmore stated that because there were multiple reasonable inferences that you could question of facts solely for the jury just because it involves a state of mourning and nonmoving must show some evidence and it can't just be meager circumstantial evidence like the court examined all right well also you've got a video of it shows your client's machine which we can all agree often contains a slippery liquid and end the video shows that it passed over the spot where there was  a slip and fall and that at that point there was some sort of a change in the texture or the height or both of the of the walking surface so that is possibility is because the gentleman that was driving the scrubber at the time there's no indication that the controls were on that he was actually performing scrubbing operations or that the vehicle at that point even had liquid in it for one for one thing he goes down the audio but he never comes back up to you know so i think a reasonable inference would be he's returning the scrubber to wherever it is supposed to be stored there's no evidence that that piece of machinery and gather did not have liquid in it and no showing of any kind of of whether being a mcdonald's a garbage can have had or not have that  again you have multiple you have at least two potential causes of having this water on the floor of the scrubber may have caused it but again that is a speculative need based on bigger circumstantial evidence there's no evidence that shows that the scrubber actually leaks or that there was actually liquid in the scrub or the time you're right again there's no evidence that there was liquid what you're faced with multiple potential reasonable inference is the courts have said you cannot pilot an inference on top of an inference on top of an inference to create a fact question i think one of the courts said mccarthy which was a slip and fall to houston's restaurant the court there said suspicion piled on suspicion results and suspicion not a fact question that also involved a slip and fall on a clear su i think that this case the court correctly ruled that because there were multiple a potential sources of reasonable sources of the water being on the floor the court correctly ruled that that plaintiffs had failed to identify the specific evidence in the record and to articulate the precise matter in which the evidence supported the  what they're talking about is this scrubber could have had water in it it might have had water in it it might have been operational it's just water and in relationship to the injury to the wal mart how far where was water in relationship to the entry into wal mart if you know if you look at the videotape or not it is whether people walk you they walk in sometimes they go to the right two times they go to the left but it's in that aisle that directly in front of being going either almost or coming back in the trash bin goes by twice so again in the flux case which counsel pointed out there was only one lighter in the ro if the if there are multiple reasonable inferences then the courts have said that it's not proper to say that there is evidence more than  it's evidence to support or to defeat a motion for summary judgment and again one of the keys that court focused on is the time notice if a condition has existed for a sufficient amount of time the court say have held as a matter of law that that it's not it's simply not enough time for macaroni on the floor macaroni salad on the floor that had car tracks and dirt and the court said that the fact that the proof is difficult that's no excuse to avoid introduction of evidence of causation in the throat kill case in the gonzalez case that both both courts observed this may be a harsh reality that the plaintiff may not be able to establish constructive knowledge and the shy reach case that i mentioned earlier there was a grape on the floor for seventeen minutes the associated thirty seconds after this one how it got there and i think that the multiple reasonable inferences you don't have to look hard for under one i'm saying to you walk straight to your doctor were like well your honor i would also say that that's where the gentleman was and he'd fall and remind us how much time elapsed according to the video between the time when the machine passed over the spot of the ultimate slip and a slip and fall itself between the time the machine went over in the fall i believe it was around twenty three minutes between the time the back down almost ten went by and the fall was about six minutes so there simply no basis  that has been raised by the plaintiff in this case is i think a little bit inaccurate in terms of what happened first of all there's discretion is a very broad discretion for the trial court to make its rulings on a motion they sent us a note on april the seventh two thousand and sixteen and said we cannot view this video on august eighth we sent an e mail back saying we're going to send it to you in a microsoft windows viewer format on both a cd and on a thumb drive the next thing that happens is on january the fifth two thousand and seventeen the plaintiff sings a demand and in the demand letter the plaintiff specifically refers to the surveillance video and specifically refers to employees that can be seen in the surveillance video our assumption at that point was that they had a workable copy of the surveillance video because they had not said anything otherwise since april when we provided them the second time a cd and  drive and in january they do specifically refer to the fake video and the employees in the video were you specifically asked to provide the name of the operator of the machine not until  time we were after the discovery deadline and after wal mart filed its motion for summary judgment on march twenty seventh two thousand and seventeen before that your challenge before that time there was no request that could reasonably be understood as asking for the name or jennifer cation of the what i call the driver operator of the machine they had filed a motion on the twenty seventh the same day that we filed our motion for summary judgment identified the people that we knew that had knowledge we felt that this person did not have knowledge but at the same time we provided them with a video that showed if you wanted to say that this was a person  oh yes but there was never any kind of indication on their part that they wanted to talk to this operator even though they knew it as well so our our position would be that which we simply wait provided them with the information that they came up with later to ask about employees and they didn't specifically ask for this person's deposition and they didn't ask for it in a timely fashion and weren't diligent in pursuing their discovery and of course the pride overseas tyson foods case the days in case the smith case in the column case that we've been over in detail talk about this idea  that it's important for someone who is seeking that information to not wait until the last second they didn't file a motion until after the discovery deadline they didn't file a second motion to try and see this deposition until after the motion deadline and judge gilmore who has very broad forcing her scheduling orders ruled and granted nodded their motion to compel and did allow them discretion and i believe it's not an abuse of discretion and in closing your honor wal mart would point out that number one there's really about a dispute about the actual age number two with respect to constructive knowledge there were multiple attentional sources of water on that floor and you cannot take one inference over another if they are both equal so thank you mr employees when every time the scrubber goes to the store someone supposed to follow with the mop into mop after them and that's without regard to whether it's actually in operation actually in scrubbing or not when it while this is trevor sing from from the store room to where it's going to be scrubbing someone supposed to follow it and the only reason wal mart would have that policy is there is some sort of presumption or at least some sort of inference that it would be leaking or that it could leak so wal mart itself by adopting these internal policies is telling the jury what reasonable inference to make from the presence of the scrubber not sure other things could have conceivably contributed to it but those are reasonable inferences and i was trying to explain earlier i apologize for the blurriness of this but these are the stills from the for the video you can see where this is mr garcia the first wal mart garbage can goes to the left  just one corner across it and it's actually the elevated corner crosses the spot so if you think about what a garbage can that might be leaking well the leaking would be over the wheels which are closest to the ground i mean if you're tilting garbage can you take it out to the to the street one and goes up well that's the end that crosses over the spot where the the were mr garcia slept not the wheel and so if there was a liquid in it he would be gathering towards the wheel something that we be at walmart would be asking the jury to make certain inferences we'd be asking the jury to make other differences but the point as we get to go to the jury at the very least that question one is did wal mart create the hazard and they can say that it was you know the man who came running through or similar or possibly a mcdonald's trash can but they have to establish that it's a reasonable inference and that it is equal inference that the scrubber which is designed to carry the court to make and again this is why we have the juries to make these scituate to to make these determinations to back up to balance the facts and to make the actual durations and also just as important determine what is reasonable conduct what is