IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-40058

Summary Calendar

CYNTHIA MURRAY, 

 Plaintiff - Appellant

v.

CHICK-FIL-A, INCORPORATED, 

 Defendant - Appellee

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 9:14-CV-11

Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Cynthia Murray appeals the district court’s grant of summary judgment 

dismissing her premises liability claim for personal injuries suffered in a slipand-fall accident at a Chick-fil-A restaurant. We AFFIRM.

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 28, 2015

Lyle W. Cayce

Clerk

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FACTUAL AND PROCEDURAL BACKGROUND

Cynthia Murray and two of her co-workers visited a Chick-fil-A 

restaurant in Nacogdoches, Texas, on the morning of May 9, 2012. Murray 

claims that while in the restroom she slipped on liquid on the floor and fell, 

causing extensive injuries. 

Murray brought suit against Chick-fil-A, Inc., a Georgia corporation,

which Murray sued as the owner or operator of the restaurant where she fell. 

She filed her action in the United States District Court for the Eastern District 

of Texas. She asserted claims for premises liability, negligence, and gross 

negligence. Chick-fil-A moved for summary judgment on all claims, which the 

district court granted. Murray timely appealed only on her premises liability 

claim. She now argues that the district court erroneously applied a “hardline 

temporal requirement” and determined Murray had not shown a genuine issue 

of material fact as to Chick-fil-A’s constructive notice. 

DISCUSSION

We review a district court’s grant of summary judgment de novo. Rogers 

v. Bromac Title Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 2014). Summary 

judgment is granted if “there is no genuine dispute as to any material fact and 

the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).

There is a sufficient dispute “if the evidence is such that a reasonable jury could 

return a verdict for the nonmoving party.” Rogers, 755 F.3d at 350 (citation 

and quotation marks omitted). We “construe[] all facts and inferences in the 

light most favorable to the nonmoving party.” Id. (citation and quotation 

marks omitted). Nonetheless, a nonmovant cannot survive summary 

judgment by offering “[conclusory] allegations, unsupported assertions, or [by]

present[ing] [] only a scintilla of evidence.” Id. (citation and quotation marks 

omitted). 

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I. The Temporal Evidence Requirement

Murray argues that the district court erred by applying a “hardline 

temporal requirement” for evidence of constructive notice. Murray contends 

the temporal requirement is “neither dispositive nor the sole standard to 

establish constructive notice” for premises liability. 

Under Texas law, a premises liability plaintiff must show, among other 

things, that the premises owner or occupier had actual or constructive 

knowledge of a condition on the premises. Wal-Mart Stores, Inc. v. Gonzalez, 

968 S.W.2d 934, 936 (Tex. 1998). To prove such knowledge, the plaintiff can 

establish: (1) the defendant caused the condition; (2) the defendant actually 

knew of the condition; 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, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002). 

Murray attempts to show constructive knowledge only with evidence it was 

more likely than not that the liquid was on the floor long enough to give Chickfil-A a reasonable opportunity to discover it. 

In Reece, the Texas Supreme Court emphasized that “[w]ithout 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.” Id. at 816. The Reece decision expressly disapproved of those Texas 

appellate court decisions allowing an employee’s proximity to a dangerous 

condition to show constructive notice. Id. at 815, 816 & n.1. An employee’s 

proximity or a condition’s conspicuity would often be “relevant” to the analysis 

of how long a condition could exist before a premises owner should reasonably 

have discovered it. Id. at 816. Proximity or conspicuity on their own, however, 

are insufficient to show constructive notice under Reece. Id.

Following Reece, Texas courts have granted summary judgment motions 

when the plaintiff did not offer sufficient temporal evidence to establish 

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constructive notice. See Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566 (Tex. 

2006); Gillespie v. Kroger Texas, L.P., 415 S.W.3d 589 (Tex. App.—Dallas 2013, 

no pet.); Mendoza v. Fiesta Mart, Inc., 276 S.W.3d 653 (Tex. App.—Houston 

[14th Dist.] 2008, no pet.). 

Murray cites a few decisions that she argues support relaxing the 

temporal evidence rule. In one, the Texas Supreme Court recognized 

constructive notice existed when a premises owner knew the design and 

maintenance of a grape display made it unreasonably dangerous at all times. 

Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983). In the other, 

an intermediate appellate court held that under Corbin, a mat buckled so 

frequently as to make it dangerous from the moment it was placed on the floor. 

Crosby v. Minyard Food Stores, Inc., 122 S.W.3d 899, 901–02 (Tex. App.—

Dallas 2003, no pet.). These decisions are inapposite. Even if a restroom is 

an area likely to have hazardous spills, we see no basis to eliminate the 

temporal requirement. Corbin applies only to conditions that are dangerous 

from the inception of their use in contrast to conditions that become dangerous 

over time, even if they frequently do become dangerous. See CMH Homes, Inc. 

v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000); see also Crosby, 122 S.W.3d at 901–

02. For conditions that become dangerous over time, a premises owner has to 

have actual or constructive knowledge of the particular danger that has arisen. 

See CMH Homes, 15 S.W.3d at 101. Here, Chick-fil-A’s restroom is not a 

dangerous condition from the inception of its use; it only becomes dangerous 

over time if not properly maintained. 

Thus, Murray must show that Chick-fil-A had constructive notice of this 

particular hazardous condition, not just a general awareness that hazards 

could arise. To show constructive notice, evidence must make it more likely 

than not that this hazardous condition existed long enough that Chick-fil-A 

should have discovered it. See id. at 102–03.

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II. Murray’s Evidence of Chick-fil-A’s Constructive Notice

We now turn to the evidence that Murray asserts created a genuine issue 

of material fact as to Chick-fil-A’s constructive knowledge. 

Preliminarily, we reject the argument that constructive notice is a 

question of fact solely for the jury because it concerns state of mind. To survive 

summary judgment on this question, Murray must show some evidence that 

would enable a reasonable jury to find it was more likely than not that the 

condition existed long enough that Chick-fil-A should have discovered it. See 

Sturdivant v. Target Corp., 464 F. Supp. 2d 596, 600–01 (N.D. Tex. 2006).

Murray’s evidence at most allows an inference that the liquid on the floor

existed for a few minutes. When Murray arrived at Chick-fil-A with her two 

co-workers, one of them, Leigh Stewart, used the restroom first. Her affidavit 

does not suggest that the liquid was present at that time because she did not 

state that she saw liquid on the floor when she used the restroom. The other 

co-worker, Scharla Hayley, then entered the restroom and saw a “fairly large” 

puddle on the floor. Hayley was washing her hands when Murray entered the 

restroom and slipped on the liquid. Such a short amount of time is insufficient

to impart constructive notice on Chick-fil-A. See Sturdivant, 464 F. Supp. 2d 

at 603 (refusing to find a fact issue of constructive notice under Texas 

precedent when water had been on the floor for five minutes). 

Murray also offered the testimony of former Chick-fil-A employees who 

said they check the restrooms every ten minutes during peak hours and every

ten to thirty minutes otherwise. Murray’s evidence would not enable a 

reasonable jury to find the liquid on the floor had existed long enough that 

Chick-fil-A employees would have discovered it in a regular restroom check. 

Murray also offers no evidence that this policy was not followed in her case. 

Murray’s evidence does not support a reasonable inference that it was more 

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likely than not that the liquid existed long enough that Chick-fil-A should have 

discovered it. 

Murray did not meet her burden as a nonmovant to offer some evidence 

showing a genuine issue of material fact as to Chick-fil-A’s constructive notice.

AFFIRMED. 

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