* Pursuant to 5 TH C IR

. 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opinion should not be published and is not precedent except under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 5 TH C IR . R. 47.5.4.

1 UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-41319

Summary Calendar

NETTIE SIPES,

Plaintiff-Appellee,

VERSUS

WAL-MART STORES INC,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Texas

(6:99-CV-722)

June 5, 2001

Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.

PER CURIAM: *

In this premises liability case, Defendant-Appellant Wal-Mart

Stores, Inc. appeals from the district court’s judgment awarding

Nettie Sipes damages for injuries related to her fall in a Wal-Mart

Supercenter. Wal-Mart contends that the district court erred by2

denying its motion for judgment as a matter of law because there

w as insufficient evidence to create a jury question concerning

whether Wal-Mart had cons tructive knowledge of the slippery

substance that caused Mrs. Sipes’s accident.

I.

Shortly before 5:00 p.m. on August 5, 1998, Plaintiff Nettie

Sipes and her husband arrived at the Wal-Mart Supercenter in Mount

Pleasant, Texas. As the couple backed their vehicle behind a

trailer in the parking lot, they met Arlander (“Lan”) Buford, a

Wal-Mart employee. Buford assisted Mr. Sipes while Mrs. Sipes

shopped for garden supplies. Mrs. Sipes entered the store through

the outdoor section of the garden department and immediately walked

through the doorway leading to the indoor section. Mrs. Sipes

browsed through the garden depart ment for approximately thirty

minutes. As she walked through an aisle, she slipped and fell on

a cream-colored, oily substance.

When Buford fin ished helping Mr. Sipes, he returned to the

cash register where Mrs. Sipes stood waiting. After Mrs. Sipes

informed him of her accident, Buford called the assistant manager

and cleaned up the mess. The assistant manager asked Mrs. Sipes to

fill out an accident report, which specified 5:30 p.m. as the time

of her fall. After an investigation, the assistant manager

identified the source of the substance as a bottle of sun tan

lotion misplaced on a shelf in another aisle. Mrs. Sipes testified

that she wa s certain that there were no other shoppers in the3

garden department from the time she entered the indoor section to

the time of her accident.

Wal-Mart requires its employees to check for safety hazards in

e ach department every thirty minutes. Lan Buford testified that

before meeting the couple outside the store, he conducted a routine

safety sweep of the garden department. Buford claimed that he did

not notice the spill during his inspection. After finishing the

safety sweep, he walked to the department cash register to relieve

the another employee. Buford was the only Wal-Mart employee in the

garden department when Mrs. Sipes fell. The area of the aisle

where Mrs. Sipes fell could not be seen from the cash register.

Mrs. Sipes filed suit against Wal-Mart in the District Court

of Titus County, Texas on November 16, 1999. Wal-Mart removed the

case to the District Court for the Eastern District of Texas

pursuant to 28 U.S.C. § 1332. At the close of Mrs. Sipes’s case,

Wal-Mart moved for judgm ent as a matter of law, which the judge

denied. Wal-Mart did not present any witness on its behalf. The

jury apportioned sixty percent of the fault to Wal-Mart and awarded

$204,600.30 plus post-judgment interest and costs for the

Plaintiff. Wal-Mart renewed its motion for judgment as a matter of

law and moved for a new trial, remittitur, or for a modification of

the judgment. The district court denied Wal-Mart’s motions for

post-trial relief, and Wal-Mart appealed.

II.

We review the denial of a motion for judgment as a matter of4

law de novo

. S ee Threlkeld v. Total Petroleum, Inc.

, 211 F.3d 887,

891 (5th Cir. 2000). A challenge to the legal sufficiency of the

evidence supporting a jury’s verdict invokes the standard set forth

i n Boeing v. Shipman

, 411 F.2d 365 (5th Cir. 1969) (en banc),

overruled on other grounds by, Gautreaux v. Scurlock Marine, Inc.

,

107 F.3d 331 (5th Cir. 1997) (en banc). We recited the appropriate

Boeing standard in Gaia Technologies, Inc. v. Recycled Prods.

Corp. , 175. F.3d 365, 374 (5th Cir. 1999):

Under Boeing , we must find a conflict in substantial

evidence to create a jury question. Substantial evidence

is defined as evidence of such quality and weight that

reasonable and fair-minded men in the exercise of

impartial judgment might reach different conclusions.

Consequently, a mere scintilla of evidence is

insufficient to present a question for the jury. Even if

the evidence is more than a scint illa, B oeing assumes

that 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].

Id. (quotations and citations omitted). “We consider all evidence,

drawing all reasonable inferences a nd resolving all credibility

determinations in the light most favorable to the non-moving

party.” T hrelkeld

, 211 F.3d at 891 (citing Rhodes v. Guiberson Oil

Tools , 74 F.3d 989, 993 (5th Cir. 1996) (en banc)).5

In a diversity action such as this, we apply Texas premises

liability law to the underlying facts. See id . (citing Powers v.

Vista Chem. Co. , 109 F.3d 1089, 1093 (5th Cir. 1997). A merchant

in Texas owes its invitees a duty to exercise reasonable care to

protect them from dangerous conditions that are either known to the

merchant, or reasonably discoverable. S ee Wal-Mart Stores, Inc. v.

Gonzalez

, 968 S.W.2d 934, 936 (Tex. 1998). A plaintiff must prove

the following elements to recover damages in a slip and fall case:

(1) Actual or constructive knowledge of some condition on

the premises by the owner/operator;

( 2) That the condition posed an unreasonable risk of

harm;

(3) That the owner/operator did not exercise reasonable

care to reduce or eliminate the risk; and

(4) That the owner/operator’s failure to use such care

proximately caused the plaintiff’s injuries.

Id. (citing Keetch v. Kroger Co.

, 845 S.W.2d 262, 264 (Tex. 1992);

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

Wal-Mart’s only issue on appeal is whether the evidence is

sufficient to support the jury’s finding that Wal-Mart had

constructive knowledge of the substance that caused the Plaintiff’s

fall.

In order to impose constructive knowledge of a dangerous

condition on a defendant, a plaintiff must demonstrate that the6

condition co ntinued for “so long that it should have been

discovered and removed in the exercise of ordinary care.” K eetch

,

845 S.W.2d at 265. In G onzalez

, the Texas Supreme Court held that

evidence supporting the mere possibility that a dangerous condition

existed for a long period of time is not sufficient to establish

constructive knowledge. See Gonzalez , 968 S.W.2d at 938. Rather,

a plaintiff must establish that it was “more likely than not that

the [condition] had been there

. . . long enough to make [the

defendant] responsible for noticing it.” Id

.

Texas courts have recognized two categories of evidence

s ufficient to establish a merchant’s constructive knowledge of a

dangerous condition. S ee Wal-Mart Stores, Inc. v. Reece

, 32 S.W.3d

339, 343 (Tex. App.–-Waco 2 000, no pet. h.). The first category

includes circumstantial evidence tending to show that a dangerous

condition was present for an extended period of time. S ee

Gonzalez

, 968 S.W.2d at 936-38; Richardson v. Wal-Mart Stores,

Inc.

, 963 S.W.2d 162, 165-66 (Tex. App.–-Texarkana 1998, no pet.).

The second cate gory includes evidence demonstrating that store

employees were in sufficient proximity to the condition that the

employees should have disc overed and removed the danger. S ee

Reece

, 32 S.W.3d at 343; H.E.B. Food Stores v. Slaughter

, 484

S.W.2d 794, 797 (Tex. Civ. App.–-Corpus Christi 1972, writ dism’d).

Cf. Wal-Mart Stores, Inc. v. Garcia , 30 S.W.2d 19 (Tex. App.–-San

Antonio 2000, no pet. h.) (holding that evidence of proximity of7

employees to a snack bar combined with testimony that no other

customer had eaten the food spilled on th e floor for a period of

t ime was sufficient to support a jury finding of construct ive

knowledge). This case falls into the first category.

The Texas Supreme Court has continually rejected evidence such

as footprints, cart tracks, and discoloration of fruit to establish

that a dangerou s condition on a store’s floor was present for a

sufficient period of time to impose constructive knowledge on the

merchant. S ee Gonzalez

, 968 S.W.2d at 936-38; Corbin v. Safeway

Stores, Inc.

, 648 S.W.2d 292, 296 (Tex. 1983). Unlike footprint or

cart track evidence, Mrs. Sipes testified that she was the only

person in the garden department from the time she entered the

enclosed area at 5:00 p.m. until her fall at 5:30 p.m. She

contends that Lan Buford either failed to perform his inspection of

the aisles shortly before 5:00 p.m. or performed the search

negligently. She argues that since no one else was in the garden

department, the liquid on the floor must have been there before

Buford’s insp ection. If the substance was present before the

routine scheduled safety inspection, Wal-Mart should have

discovered the condition and removed it.

Wal-Mart contends that Mrs. Sipes could not h ave known how

many people were in the garden department. Wal-Mart suggests that

the layout of the store prevents a person in one aisle from seeing

other aisles. In addition, Wal-Mart claims that Mrs. Sipes did not8

know how many people walked through the aisles of the garden

department when she and her husband met Buford outside the store.

Mrs. Sipes did not explain how she knew that there were no other

customers in the garden department.

I n an appeal from a district court’s denial of a motion for

judgment as a matter of law, we defer to the jury’s determination

of credibility by reviewing the witness’s testimony in the light

most favorable to the non-moving party. S ee Rhodes v. Guiberson

Oil Tools

, 75 F.3d 989, 993 (5th Cir. 1996) (en banc). However, if

self- serving testimony is naturally impossible, we may disregard

the testimony in deciding whether the evidence was sufficient to

support the jury verdict. See Ralston Purina Co. v. Hobson , 554

F.2d 725 (5th Cir. 1977). Although it may have been difficult for

Mrs. Sipes to discover that there were no other per sons in the

garden department, it was not naturally impossible for her to do

so. S ee Miller v. Butcher Distributors

, 89 F.3d 265, 267 (5th Cir.

1996).

Under Texas law, the evidence must demonstrate that it was

more likely than not that the dangerous condition that caused Mrs.

Sipes’s fall was on the floor long enough for a Wal-Mart employee

to discover the condition. S ee Gonzalez

, 968 S.W.2d at 936-38

.

Based on Mrs. Sipse’s testimony that she was the only person in the

garden department from 5:00 p.m. until 5:30 p.m., a reasonable jury

could find that it was more likely than not that the liquid spilled9

on the floor had been there l ong enough for Buford or another

employee to discover the substance during a routi ne safety

inspection. We therefore conclude that a reasonable jury could

find that Wal -Mart had constructive knowledge of the spill.

Accordingly, we affirm the district court’s judgment.

AFFIRMED