IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-20298

Summary Calendar

ELIZABETH SHIREY,

Plaintiff–Appellant,

v.

WAL-MART STORES TEXAS, L.L.C.,

Defendant–Appellee.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:15-CV-3368

Before JOLLY, OWEN, and HAYNES, Circuit Judges.

PER CURIAM:*

Elizabeth Shirey was injured after slipping on a single green grape while 

shopping at a store operated by Wal-Mart Stores Texas, L.L.C. (Wal-Mart). 

After she brought suit, the district court granted summary judgment for WalMart. For the following reasons, we AFFIRM the judgment of the district 

court.

 

* 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

October 30, 2017

Lyle W. Cayce

Clerk

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I

A video of activity on the aisle in the Wal-Mart store where Shirey fell 

reflects that the green grape at issue fell from another shopper’s cart onto the 

off-white floor. Thirty seconds later, a Wal-Mart employee walked past the 

grape but did not notice it. Wal-Mart employees are trained to perform visual 

“sweeps” for hazards while walking through the store. About seventeen 

minutes later, Shirey slipped on the grape. Her resulting injuries required 

surgery and she sought damages in state court from Wal-Mart for negligence 

and premises liability based on constructive knowledge. Wal-Mart removed 

the case to federal court and, after discovery, moved for summary judgment. 

In response, Shirey acknowledged that she could not simultaneously maintain 

negligence and premises liability causes of action, but otherwise opposed 

summary judgment. The district court dismissed Shirey’s negligence claim 

and granted summary judgment for Wal-Mart on the premises liability claim. 

This appeal followed. 

II

We review a district court’s grant of summary judgment de novo.1 

“Summary judgment is required when ‘the movant shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment 

as a matter of law.’”2 “A fact is ‘material’ if its resolution in favor of one party 

might affect the outcome of the lawsuit,”3 and a genuine dispute as to such a 

fact exists if the “evidence is such that a reasonable jury could return a verdict 

for the nonmoving party.”4 

 

1 See, e.g., BP Oil Int’l., Ltd. v. Empresa Estatal Petroleos de Ecuador, 332 F.3d 333, 

336 (5th Cir. 2003). 

2 Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015) (quoting FED. R. CIV. P. 56(a)). 

3 Sossamon v. Lone Star State of Tex., 560 F.3d 316, 326 (5th Cir. 2009) (quoting 

Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000) (per curiam)).

4 Nola Spice Designs, LLC v. Haydel Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015) 

(quoting Royal v. CCC & R Tres Arboles, LLC, 736 F.3d 396, 400 (5th Cir. 2013)). 

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“Where the non-movant bears the burden of proof at trial, ‘the movant 

may merely point to the absence of evidence and thereby shift to the nonmovant the burden of demonstrating . . . that there is an issue of material fact 

warranting trial.’”5 The non-movant must then “go beyond the pleadings” and 

point to “specific facts showing that there is a genuine issue for trial.”6 “This 

burden will not be satisfied by ‘some metaphysical doubt as to the material 

facts, by conclusory allegations, by unsubstantiated assertions, or by only a 

scintilla of evidence.’”7 We “view[] the evidence in the light most favorable to 

the nonmoving party.”8

Under Texas law, a premises liability plaintiff must show that (1) the 

property owner or occupier had “[a]ctual or constructive knowledge” of the 

condition; (2) “the condition posed an unreasonable risk of harm;” (3) “the 

owner or occupier did not exercise reasonable care to reduce or eliminate the 

risk;” and (4) that this failure caused the plaintiff’s injuries.9 Wal-Mart moved 

for summary judgment on the grounds that Shirey cannot show that it had 

constructive knowledge of the grape. 

To prove constructive knowledge, Shirey must show that Wal-Mart had 

time to discover and remove the grape.10 How much time is sufficient to impute 

knowledge to a defendant depends on the circumstances, and Texas courts 

examine (1) the proximity of employees to the hazard; (2) the conspicuousness 

of the hazard; and (3) how long the hazard was in place in order to make this 

 

5 Id. (quoting Transamerica Ins. Co. v. Avenell, 66 F.3d 715, 718-19 (5th Cir. 1995) 

(per curiam)). 6 Id. (quoting EEOC v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014)). 

7 Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005) (quoting Little v. 

Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)). 

8 Connors v. Graves, 538 F.3d 373, 376 (5th Cir. 2008). 

9 CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000). 

10 See Wal-Mart Stores, Inc. v. Reece, 81 S.W3d 812, 816 (Tex. 2002). 

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determination.11 For instance, a particularly conspicuous hazard, or an 

employee’s close proximity to an inconspicuous hazard for a “continuous and 

significant period of time,” may reduce the amount of time within which a 

“premises owner should have become aware of the dangerous condition.”12

III

The district court correctly determined that Shirey did not raise a fact 

issue as to whether Wal-Mart had constructive knowledge of the grape. 

Shirey’s evidence fails to establish that the grape was conspicuous. 

Photographic and video evidence demonstrate that the grape was, as the 

district court noted, almost invisible on the off-white floor. The evidence also 

fails to establish that any Wal-Mart employee was in proximity to the grape 

for a sufficient period of time. The few seconds during which the employee 

passed by the grape did not provide an objectively reasonable opportunity for 

him to see it, notwithstanding his employer’s policy that he perform visual 

“sweeps” for hazards. Under these circumstances, the seventeen minutes 

during which the inconspicuous grape was on the floor did not afford Wal-Mart 

a reasonable time to discover and remove the hazard. Shirey’s evidence was 

therefore insufficient to impute constructive knowledge of the grape to WalMart, and summary judgment was proper. 

* * *

For these reasons, the judgment of the district court is AFFIRMED.

 

11 See Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 567 (Tex. 2006) (per curiam) 

(requiring courts to analyze “the combination of proximity, conspicuity, and longevity”).

12 Reece, 81 S.W.3d at 816.

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