United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 23-40250 

____________ 

Jesus Alonzo, 

Plaintiff—Appellant, 

versus

Cajun Operating Company, et al., 

Defendants—Appellees. 

______________________________ 

Appeal from the United States District Court 

for the Southern District of Texas 

USDC No. 7:20-CV-0407 

_____________________________ 

Before Richman, Chief Judge, Stewart, Circuit Judge, and Hanks, 

District Judge.

* 

Per Curiam: **

In this slip-and-fall case governed by Texas premises-liability law, 

plaintiff Jesus Alonzo appeals the district court’s grant of defendant’s 

renewed motion for judgment as a matter of law following a jury verdict in 

favor of Alonzo. We AFFIRM. 

_____________________ 

*

 United States District Judge for the Southern District of Texas, sitting by 

designation. 

** This opinion is not designated for publication. See 5th Cir. R. 47.5. 

United States Court of Appeals 

Fifth Circuit 

FILED 

March 6, 2024 

Lyle W. Cayce 

Clerk 

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2 

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The relevant facts, which we consider in the light most favorable to 

the jury verdict, are as follows. See Nobach v. Woodland Vill. Nursing Ctr., 

Inc., 799 F.3d 374, 376 (5th Cir. 2015). Alonzo was on his way to the restroom 

at a Church’s Chicken restaurant owned and operated by DefendantAppellee Cajun Operating Company (“Church’s”) when he slipped and fell 

backwards in the approximately two-to-three-foot-wide hallway that 

contained both the restroom and the door to the kitchen. In the end, Alonzo 

“didn’t actually fall because [he] put one hand on the floor, and [he] kind of 

was holding [him]self so – and [he] kind of turned around, and then 

something snapped, and [he] really got a lot of pain in [his] lower back.” An 

employee who was on her way to the kitchen saw Alonzo fall, but she just 

looked at him and did not ask him anything. (That employee was not 

identified at trial and did not testify at trial.) 

Alonzo stood up and “saw that [he] was wet” and the hand he had 

placed on the floor to break his fall “was wet with water and then grease.” 

He said, “It seemed like they had maybe mopped or something, but they had 

not put an announcement or some sort of warning that . . . be careful, it’s wet, 

or something like that.” He agreed that he thought the water and grease on 

the floor caused him to slip and fall. Alonzo’s companion, who also did not 

testify at trial, tried to report the fall to Church’s but was not successful at 

that time. Alonzo returned to the Church’s with a police officer later that 

evening, and the evening manager interviewed Alonzo and made an incident 

report. 

The evening manager was Maria Gomez, who was assistant manager 

at Church’s for at least ten years. She called in the report and said it would 

be “on the system” but not written down. She explained that although there 

is video camera surveillance in the restaurant, Alonzo fell in a place out of the 

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3 

view of the camera. She was not at Church’s when Alonzo slipped as her shift 

began at 4 p.m. 

She did, however, testify at trial about floor inspection and mopping 

procedures at that Church’s. Specifically, she said the floor was inspected 

every 30 minutes based on a timer: “We have a timer, it’s a beeper that 

sounds every 30 minutes. Well, we press on it whenever we go to clean the 

lobby so that’s inspecting it, and whenever we come back, we finished 

whatever and we come back and press on it again so it will be ready for 

another 30 minutes.” If there is something found during the inspection, 

Gomez said “we literally are told to put a WET sign there, even if it’s not 

wet, just to make it not [a] hazard.” If there was a need to mop, Church’s 

mopped using water mixed with Spic & Span floor cleaner, which is “for the 

grease.” (She later stated that they “mop every 30 minutes” rather than just 

inspect.) Once an area had been mopped, it could not be greasy. Even though 

Gomez agreed that the mop tends to collect grease over time even after it is 

rinsed out, she denied that the mop would leave grease on the floor even 

though the mop itself could be greasy. 

Gomez agreed that the floors at Church’s get greasy from time to 

time, that grease gets on employees’ shoes and that, if they work in the 

kitchen, the soles of their shoes are “always going to have some grease.” In 

response to a question about grease collecting because of employees walking 

in and out of the kitchen, Gomez stated that the “grease there is not 

slippery” because the floor was a “special tile” floor and “even if it has 

grease, it doesn’t slip.” She later conceded, however, that that special tile 

could get slippery if it is dirty. She further agreed that “[i]f it were not for 

mopping there would always be grease on that floor” and that the floor is also 

wet (and therefore slippery and dangerous for customers) from time to time 

because a mop is used on the floor. She also agreed that it would have been a 

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4 

violation of Church’s policy if signs were not put up if the floors were 

mopped at the time.

In Gomez’s experience, Church’s serves from 200 to 300 customers 

per day. Gomez stated that no one else that day, that week, or that year had 

complained about wet or greasy floors. She also said there had never been a 

slip and fall at that Church’s location in the ten years she had been assistant 

manager there. She did later, however, state that she had previously slipped 

on grease in the kitchen. 

* * * 

At the conclusion of Alonzo’s case-in-chief, Church’s moved orally 

for judgment as a matter of law, and the court denied the motion. The same 

day, Church’s filed a written motion for judgment as a matter of law. The 

court denied the written motion the following morning. Immediately before 

the court delivered charging instructions to the jury, Church’s orally 

renewed its motion for judgment as a matter of law, and the court denied it. 

The jury rendered a verdict for Alonzo. Church’s timely filed a renewed 

motion for judgment as a matter of law arguing that “Alonzo lacks substantial 

evidence of an essential element for his claim: that Church’s had actual or 

constructive knowledge that the alleged substance was on the floor in the area 

where Alonzo allegedly slipped and fell.” Alonzo responded, and Church’s 

replied. The district court granted Church’s motion. Alonzo timely filed a 

notice of appeal. 

LEGAL STANDARD 

This court reviews de novo a district court’s ruling on a motion for 

judgment as a matter of law. CBE Grp., Inc. v. Lexington L. Firm, 993 F.3d 

346, 349 (5th Cir. 2021). “Judgment as a matter of law may be granted when 

a party has been fully heard on an issue during a jury trial and the court finds 

that a reasonable jury would not have a legally sufficient evidentiary basis to 

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5 

find for the party on that issue.” Kelso v. Butler, 899 F.3d 420, 424 (5th Cir. 

2018); seeFed. R. Civ. P. 50(a)(1). “In evaluating the district court’s grant 

of judgment as a matter of law, we ‘consider all of the evidence (and not just 

that evidence which supports the non-mover’s case) in the light most 

favorable to the non-movant, drawing all factual inferences in favor of the 

non-moving party, and leaving credibility determinations, the weighing of the 

evidence, and the drawing of legitimate inferences from the facts to the 

jury.’” Rex Real Est. I, L.P. v. Rex Real Est. Exch., Inc., 80 F.4th 607, 615–16 

(5th Cir. 2023) (quoting Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 804 

(5th Cir. 1997)).

“A mere scintilla of evidence is insufficient to present a question for 

the jury.” Rex Real Est. I, L.P., 80 F.4th at 616. In order to survive a Rule 50 

motion, “the party opposing the motion must at least establish a conflict in 

substantial evidence on each essential element of their claim.” Goodner v. 

Hyundai Motor Co., 650 F.3d 1034, 1039 (5th Cir. 2011). “In other words, the 

evidence must be sufficient so that a jury will not ultimately rest its verdict 

on mere speculation and conjecture.” Anthony v. Chevron USA, Inc., 284 

F.3d 578, 583 (5th Cir. 2002). “Substantial evidence is more than a scintilla, 

less than a preponderance, and is such relevant evidence as a reasonable mind 

might accept as adequate to support a conclusion.” N. Cypress Med. Ctr. 

Operating Co., Ltd. v. Aetna Life Ins. Co., 898 F.3d 461, 473 (5th Cir. 2018).

“Even if the evidence is more than a scintilla, . . . some evidence may exist to 

support a position which is yet so overwhelmed by contrary proof as to yield 

to a [motion for judgment as a matter of law].” Rogers v. McDorman, 521 F.3d 

381, 391 (5th Cir. 2008) (alteration in original) (quoting Gaia Techs. Inc. v. 

Recycled Prods. Corp., 175 F.3d 365, 374–75 (5th Cir. 1999)). 

“[T]he standard for granting summary judgment ‘mirrors’ the 

standard for judgment as a matter of law, such that ‘the inquiry under each is 

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6 

the same.’” Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 150 (2000) 

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250–251 (1986)). 

ANALYSIS 

The district court concluded that legally sufficient evidence was not 

presented on the knowledge element of Alonzo’s premises-liability claim. We 

agree. Accordingly, we conclude that the district court properly granted 

Church’s renewed motion for judgment as a matter of law. 

In a diversity action like this one, the court must apply the substantive 

law of the forum state, in this case Texas. CBE Grp., Inc., 993 F.3d at 350; see 

Goodner, 650 F.3d at 1040 (explaining that a court sitting in diversity “refers 

to state law for the kind of evidence that must be produced to support a 

verdict”).

To “prevail in a premises-liability case, an invitee must prove that the 

premises owner had actual or constructive knowledge of a dangerous 

condition on the premises.” Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 

813 (Tex. 2002). A slip-and-fall plaintiff satisfies this “element by 

establishing that (1) the defendant placed the substance on the floor, (2) the 

defendant actually knew that the substance was on the floor, 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.” Id. at 814. In some 

exceptional cases, a plaintiff can meet this element by “introducing evidence 

that a proximate cause of the fall was the storeowner’s failure to use 

reasonable care to protect its customers from the known and unusually high 

risks accompanying customer usage of a self-service display of goods.” 

Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983). 

 “Plaintiffs may rely upon both direct and circumstantial evidence of a 

defendant’s knowledge.” McCarty v. Hillstone Rest. Grp., Inc., 864 F.3d 354, 

358 (5th Cir. 2017). “Circumstantial evidence must ‘either directly or by 

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7 

reasonable inference’ support the conclusion that the defendant had 

knowledge of the alleged risk.” Id. (quoting Sampson v. Univ. of Tex. at 

Austin, 500 S.W.3d 380, 394 (Tex. 2016)). “An inference is not reasonable if 

premised on mere suspicion—some suspicion linked to other suspicion 

produces only more suspicion, which is not the same as some evidence.” Id.

(internal quotation marks omitted). 

Alonzo conceded at oral argument that there is no direct evidence of 

Defendant’s knowledge in this case. 

—Evidence that Church’s placed the substance on the floor 

The record does not contain legally sufficient evidence that Church’s 

placed the substance on the floor. 

There is no direct evidence available in the record regarding the 

substance on the hallway floor. The relevant circumstantial evidence in the 

record is sparse and can be summed up as follows: 

(1) Alonzo believed his hand was “wet with water and then grease” 

and it “seemed like they had maybe mopped or something, but they had 

not put an announcement or some sort of warning that . . . be careful, 

it’s wet, or something like that” (emphasis added); 

(2) grease gets on employees’ shoes, and, if they work in the kitchen, 

the soles of their shoes are “always going to have some grease”; 

(3) the Church’s employee who testified had previously slipped on 

grease in the kitchen; 

(4) the floors at Church’s get greasy from time to time and if “it were 

not for mopping there would always be grease on that floor”; 

(5) once an area had been mopped, it could not be greasy; 

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8 

(6) Church’s inspects and/or mops the floor every 30 minutes 

(prompted by a timer) using water mixed with a floor cleaner for the 

grease, and, if something is found during an inspection, employees are 

told to “put a WET sign there, even if it’s not wet, just to make it not 

[a] hazard”; and 

(7) from time to time the floor is wet (and therefore slippery) because 

a mop is used on the floor, and it is a violation of Church’s policy if 

signs are not put up when the floors are mopped. 

In McCarty v. Hillstone Rest. Grp., Inc., 864 F.3d 357 (5th Cir. 2017), 

this court addressed actual and constructive knowledge in a factually-similar 

premises-liability case. In that case, a plaintiff fell while walking to the 

restrooms, which required her to pass the restaurant’s kitchen. McCarty, 864 

F.3d at 357. She alleged that some substance on the floor outside the 

restaurant’s kitchen and restrooms caused her crutch to slip from underneath 

her. Id. The court found that the summary judgment record did not contain 

sufficient evidence for a jury to conclude the restaurant placed the substance. 

Id. at 359. Specifically, the court found that evidence that (1) a restaurant 

manager acknowledged that it was possible that employees tracked food and 

water from the restaurant’s kitchen floor or spilled liquid from drinks in the 

area where the plaintiff fell and (2) restaurant employees testified that while 

moving between the kitchen and seating areas, wait staff frequently traversed 

the same area raised “[a]t best” “a mere suspicion that restaurant employees 

might have tracked or spilled a foreign substance where the fall occurred.” 

Id. (“What evidence the record does contain about how a foreign substance 

might have gotten onto the floor is simply too speculative.”). 

Here, as in McCarty, the few pieces of circumstantial evidence do not 

directly or by reasonable inference support the conclusion that Church’s 

placed the substance in the hallway. As the district court succinctly 

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explained, “the circumstances relied on by Plaintiff—the nature of the 

restaurant, its layout, and the cleaning procedures—are so slight as to raise 

nothing more than speculation that employees tracked grease, applied mop 

water, or were otherwise actually aware of the wet, greasy area.” The 

evidence at best raises the mere suspicion that an employee who had gotten 

grease on his shoes might have walked in the spot where Alonzo fell and left 

grease on the floor before Church’s 30-minute inspection and/or mopping. 

Or it raises the mere suspicion that the floor was wet because an employee 

had mopped the spot where Alonzo fell, possibly to remove grease (or 

possibly to remove another hazard), but for some reason had violated 

Church’s policy by not putting up a sign. But even linking suspicion to other 

suspicion does not get to where Alonzo would like to be, that is, a reasonable 

inference that Church’s placed water and grease on the floor together. In fact, 

testimony from Church’s employee shows that once an area had been 

mopped, it could not be greasy. 

The three alternative theories that Alonzo advances as to how 

Church’s placed the dangerous condition on the floor only clarifies that a jury 

would have to rest on “mere speculation and conjecture” to conclude that 

Church’s placed the water-and-grease substance where Alonzo slipped. See 

Anthony v. Chevron USA, Inc., 284 F.3d at 583. As one example, Alonzo 

posits that a jury could have concluded that the floor was “wet and/or 

greasy” because (1) after an employee mops “water is on the floor, water 

does not evaporate immediately and would remain in aggregate wet for [a] 

portion of the day,” (2) “a certain process is required to remove grease from 

the floor to render it not slippery” so “if an employee did not follow this 

process when mopping, then the floor would be wet and greasy,” and (3) the 

“floor was in fact wet and greasy.” The record does not contain any evidence 

about water evaporating from or aggregating on Church’s floors. Nor does 

the record contain any evidence from which a jury could reasonably infer that 

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Church’s employees mopped the area where Alonzo fell but did not use floor 

cleaner and did not put up a WET sign. A jury could only reach the 

conclusion that Alonzo advocates by making a series of speculations. 

Thus, the circumstantial evidence is legally insufficient for a jury to 

find that Church’s placed the substance on its floor. 

—Evidence that Church’s actually knew the substance was on the floor 

The record is also bereft of any evidence that any Church’s employee 

actually knew that a wet, greasy substance was on the floor where Alonzo fell. 

“The actual knowledge required for liability is of the dangerous 

condition at the time of the accident, not merely of the possibility that a 

dangerous condition can develop over time.” City of Dallas v. Thompson, 210 

S.W.3d 601, 603 (Tex. 2006). “[A]wareness of a potential problem is not 

actual knowledge of an existing danger.” Sampson v. Univ. of Texas at Austin, 

500 S.W.3d 380, 396 (Tex. 2016). 

As the district court correctly pointed out, “[m]ere knowledge that 

grease was prone to collect along the hallway is not the same as actual 

knowledge of the condition itself, i.e., that employees were aware that grease 

had in fact accumulated.” In the same vein, the mere fact that Church’s knew 

that grease gets on employees’ shoes, there would always be grease on the 

floor if not for mopping, and the floors are wet and slippery from time to time 

when they are mopped is no evidence that Church’s actually knew grease 

and/or water was on the floor at the time of the accident. See, e.g., id. (the 

fact that employees “discussed methods of stringing the cord—through the 

trees above the walkway, in order to avoid a tripping hazard—does not create 

actual knowledge that the decision to lay the cord on the ground created a 

dangerous condition”); City of Denton v. Paper, 376 S.W.3d 762, 767 (Tex. 

2012) (“The City arguably knew that the repaired area of the street might 

sink again but ‘the actual knowledge required for liability is of the dangerous 

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condition at the time of the accident, not merely of the possibility that a 

dangerous condition can develop over time’” (quoting Reyes v. City of Laredo, 

335 S.W.3d 605, 608 (Tex. 2010))); State ex rel. State Dep't of Highways & 

Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 330 (Tex. 2002) (finding that 

“evidence that [the State] knew the signs had been repeatedly vandalized 

does not indicate, either directly or by reasonable inference, that [the State] 

actually knew the signs were down before the accident occurred”). 

—Evidence that it is more likely than not that the condition existed long 

enough to give Church’s a reasonable opportunity to discover it 

The district court correctly determined that no legally sufficient 

evidence of longevity of the hazard was presented and therefore that the 

record was “without a temporal basis on which to impute [Church’s] with 

constructive knowledge.”

Constructive knowledge is a substitute in the law for actual 

knowledge. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 102 (Tex. 2000). It 

“requires proof that an owner had a reasonable opportunity to discover the 

defect” and it “requires analyzing the combination of proximity, conspicuity, 

and longevity.” Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 567 (Tex. 

2006). Significantly, however, the “rule in Texas is that temporal evidence, 

not proximity evidence, is the sine qua non of a premises owner’s constructive 

knowledge.” Dixon v. Wal-Mart Stores, Inc., 330 F.3d 311, 315 (5th Cir. 2003) 

(citing Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 816 (Tex. 2002)). 

“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.” Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 

812, 816 (Tex. 2002) (“[T]here must be some proof of how long the hazard 

was there before liability can be imposed on the premises owner for failing to 

discover and rectify, or warn of, the dangerous condition.”). 

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When “circumstantial evidence is relied upon 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) (rendering judgment for Wal-Mart where 

court concluded “that the circumstantial evidence in th[e] case supports only 

the possibility that the dangerous condition existed long enough to give Wal–

Mart a reasonable opportunity to discover it”). “’[M]eager evidence, from 

which equally plausible but opposite inferences may be drawn’ is no evidence 

that [a defendant] had constructive knowledge of the dangerous condition, 

and thus, is legally insufficient to support such a finding.” Threlkeld v. Total 

Petroleum, Inc., 211 F.3d 887, 894 (5th Cir. 2000) (citing Gonzalez, 968 

S.W.2d at 936). 

The circumstantial evidence here is not legally sufficient to establish 

that it is more likely than not that the grease-and-water substance was on the 

floor long enough to give Church’s a reasonable opportunity to discover it. 

The only evidence in the record that contains a time element is the 30-minute 

inspection-and-mopping schedule that the Church’s employee testified 

about. And, as the district court correctly explained, the “factual gap in the 

record is too wide to make [the] inferential leap” that “the wet and greasy 

substance was on the floor for thirty minutes based on the inspection 

schedule.” Specifically, the district court noted that there is no evidence in 

the record as to when the schedule began running, when the hallways would 

have been accordingly inspected, what if anything an inspection revealed, and 

whether the area was actually mopped. 

On appeal, Alonzo attempts to overcome the lack of legally sufficient 

evidence in the record regarding how long the grease-and-water substance 

was on the floor by characterizing it as an ongoing condition that is always on 

the floor. He relies primarily on (1) his own testimony that “it seemed like 

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they had maybe mopped or something,” (2) the Church’s employee’s 

statements regarding the 30-minute inspection-and-mopping schedule, and 

(3) the Church’s employee’s testimony regarding grease, e.g., that grease is 

on employees’ shoes and would always be on the floor if not for mopping.1

 

As an initial matter, Alonzo’s subjective beliefs cannot provide 

evidence of longevity. In Wal-Mart Stores, Inc. v. Gonzalez, for example, the 

Texas Supreme Court held that subjective testimony that the macaroni salad, 

on which Gonzalez had slipped, “seemed like it had been there awhile” was 

“no evidence that the macaroni had been on the floor long enough to charge 

Wal-Mart with constructive notice of this condition.” 968 S.W.2d 934, 938 

(Tex. 1998). Specifically, the court found that testimony was a “mere 

speculative, subjective opinion of no evidentiary value” where the 

“witnesses had not seen the macaroni salad prior to the fall and had no 

personal knowledge of the length of time it had been on the floor.” Id. at 937–

938. Similarly, this court found that a witness’s “subjective belief that the 

dangerous condition may have been there for awhile is no more indicative 

that the water had been on the floor for a long enough period of time so as to 

give [the defendant] constructive knowledge of it, than it is of the opposite 

proposition, that the water appeared on the floor as a result of a previous 

patron’s use within seconds or minutes of [the witness’s] arrival in the 

restroom.” Threlkeld v. Total Petroleum, Inc., 211 F.3d 887, 893 (5th Cir. 

2000). 

_____________________ 

1

 Alonzo also posits that Gomez testified that the store is mopped every 30 minutes 

“because it would be more likely that grease would be in the space through which the 

employees all must walk” and that “[g]rease collects on the floor because of the employees 

walking in and out of the kitchen and is present on the floor between moppings.” Alonzo is 

inferring that Gomez agreed to these statements when he asked them of her on recross 

because Gomez did not deny them. 

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Here, Alonzo’s testimony that it “seemed like they had maybe 

mopped or something,” is, like the testimony in Gonzalez, a “mere 

speculative, subjective opinion of no evidentiary value.” 968 S.W.2d at 937–

938. There is no evidence that anyone saw the wet, greasy substance before 

Alonzo fell, that anyone had actually “mopped or something” leading up to 

Alonzo’s fall, or that anyone had personal knowledge of the length of time 

the substance had been on the floor or the last time the floor was mopped. 

Like the witness’s testimony in Threlkeld, Alonzo’s testimony that it 

“seemed like they had mopped” could just as easily support the proposition 

that another customer had unsuccessfully tried to wipe up dropped food and 

drink right before Alonzo arrived, leaving a wet, greasy floor behind. 

Additionally, Alonzo’s assertion that water and grease are always on 

the floor is also no evidence of longevity because it is based on speculative 

leaps he takes from the meager circumstantial evidence in the record, e.g., 

that employees mopped and/or inspected every thirty minutes and that 

grease would accumulate but for mopping. He argues with no support that 

“[w]ater does not instantly evaporate, and thus [a] puddle must have been 

on the floor for some portion of the last hour and of every hour, constituting 

an ongoing condition.” And he guesses that “a mop puddle tends to be thin, 

spread out, and have streaks in it, while a spill tends to be a deeper puddle 

with splashes around it.” His assertion that grease is always on the floor is 

similarly based on speculative jumps from some of the Church’s employee’s 

testimony combined with his selective disregard for other of her testimony. 

For example, he ignores Gomez’s testimony that the floors are not greasy 

after mopping. He also ignores her testimony that the floors are inspected 

every half an hour and that a “WET sign” is placed if something on the floor 

requires cleanup. And he ignores that the employee said “no” when asked 

whether “there is always grease on that hallway.” 

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15 

Furthermore, 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 

charged with constructive notice.” McCarty, 864 F.3d at 360. For example, 

the Texas Supreme Court found that “[d]irt in macaroni salad lying on a 

heavily-traveled aisle is no evidence of the length of time the macaroni had 

been on the floor” because “that evidence can no more support the inference 

that it accumulated dirt over a long period of time than it can support the 

opposite inference that the macaroni had just been dropped on the floor and 

was quickly contaminated by customers and carts traversing the aisle.” 

Gonzalez, 968 S.W.2d at 937. 

Here, as was the case in Gonzalez, the meager circumstantial evidence 

that Alonzo uses as a jumping off point to support his conjecture that the 

grease-and-water substance is perpetually on the floor could just as easily 

support an opposite inference that Church’s floors were not wet and not 

greasy and instead another one of the 200 to 300 customers that Church’s 

served that day had tried unsuccessfully to wipe up some food and drink that 

she had dropped before Alonzo arrived in the hallway, leaving behind a wet, 

greasy floor. See Threlkeld, 211 F.3d at 894. 

—High Risk of Dangerous Condition 

On appeal, Alonzo argues, citing Corbin v. Safeway Stores, Inc., 648 

S.W.2d 292, 294 (Tex. 1983), a case involving a self-service display of loose 

grapes, that even in the absence of actual or constructive knowledge, an 

owner can still be held liable if the plaintiff can show that the owner was 

“aware of a high risk that the dangerous condition would occur” and appears 

to assert that “the manner in which food is prepared in the Church’s 

restaurant” creates the condition of wet, greasy floors. Alonzo did not raise 

this argument below and thus forfeited it. See Rollins v. Home Depot USA, 8 

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F.4th 393, 397 (5th Cir. 2021) (“A party forfeits an argument by failing to 

raise it in the first instance in the district court—thus raising it for the first 

time on appeal—or by failing to adequately brief the argument on appeal.”). 

Regardless, however, Corbin is inapplicable here where the floor at 

Church’s was not a “dangerous condition from the moment it was used” and 

Church’s has not admitted that there is an unusually high risk associated with 

its floors. See Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406, 408 (Tex. 

2006) (explaining that the decision in Corbin was different from that issued 

by the Texas Supreme Court in another case involving a self-service display 

of loose grapes because “the store in Corbin admitted there was an unusually 

high risk associated with its grape display”); CMH Homes, Inc. v. Daenen, 15 

S.W.3d 97, 101 (Tex. 2000) (distinguishing Corbin as the grape display in that 

case “constituted a dangerous condition from the moment it was used”). 

Indeed, even if Church’s had admitted that grease and water were 

prone to spill on the floor and that that was a hazard that had to be cleaned 

up regularly, that would still not be enough to establish that that floor at 

Church’s was an “unreasonably dangerous condition” like the self-service 

display in Corbin. See Taylor, 222 S.W.3d at 407–409 (finding that ice, not 

soft drink dispenser, was the only unreasonably dangerous condition even 

where grocery employee admitted that ice fell from dispenser on daily basis 

and ice on floor was a hazard to customers that had to be cleaned up 

regularly). 

CONCLUSION 

 We AFFIRM the district court’s judgment. 

Case: 23-40250 Document: 53-1 Page: 16 Date Filed: 03/06/2024