* Pursuant to 5 T H 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this opinion should not be published and is not precedent except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. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 96-41057

__________________

LARRY STEWART,

Plaintiff-Appellee,

versus

WAL-MART STORES, INC.,

Defendant-Appellant.

______________________________________________

Appeal from the United States District Court for the

Eastern District of Texas

(2:95-CV-94)

______________________________________________ July 3, 1997

Before WISDOM, BENAVIDES, and STEWART, Circuit Judges.

BENAVIDES, Circuit Judge: *

This slip-and-fall case requires us to examine whethe r the

record contains substantial evidence from which t he jury could

reasona bly infer that Wal-Mart Stores, Inc. (“Wal-Mart”) knew or

should have known of the dangerous condition that caused Larry

Stewart’s injuries. We also review the jury’s award of past2

medical expenses.3 I.

Larry Stewart filed this diversity su it in federal district

court against Wal-Mart on a premises liability theory after he

slipped and fell in a Wal-M art store. The case was tried to a

jury. After Stewart rested, Wal-Mart moved for a directed verdict

on the ground that Stewart failed to show that Wal-Mart had actual

or constructive knowledge of the dangerous condition that caused

his injury. The district court denied Wal-Mart’s motion. Wal-Mart

did not call any witnesses.

The jury was instructed that Stewart had the burden of showing

that Wal-Mart knew or should have known of the dangerous condition.

The jury found that both Wal-Mart and Stewart were negligent and

apportioned negligenc e 50 percent to Wal-Mart and 50 percent to

Stewart. The jury awarded Stewart $75,000 for past medical

expenses. Wal-Mart contends that the plaintiff adduced evidence at

trial of only $64,827 in past medical expenses.

On August 19, 1996, the district c ourt rendered judgment on

the jury’s verdict for $37,500. Wal-Mart timely filed a motion for

judgment as a matter of law. In the alternative, Wal-Mart

challenged the amount of the award by filing a motion to amend or

modify the judgment. The district court denied both motions on

October 9, 1996. This appeal followed.

II.

Lar ry Stewart slipped and fell in a puddle of water at the

Wal-Mart Supercenter in Longview, Texas on a Sa turday afternoon.4

He fell in the self-service cut flower and potted plant sales

section near the entrance of the store. The fall knocked him

unconscious for several minutes.

Mor ris Belt, an off-duty Texas state trooper, came to

Stewart’s aid. At trial, Officer Belt testified that he knelt at

Stewart’s side until the ambulance arrived. When Officer Belt got

up, he noticed that the left knee of his blue jeans was soaked with

water. He then saw that there was a “pretty good puddle of water”

on the floor. The puddle “stemmed from the flowers to where Larry

fell.” When asked whether the water “appear[ed] to be coming from

tho se cut flowers, that area,” Officer Belt responded

affirmatively. He also testified that “[t]here was some brown

soily substance mixed in with the water,” which “kind of filtered

out to the edges where it appeared that it was running.” According

to Officer Belt, the water was flowing in a “three or four inch

stream, you know, a solid stream coming, and then just little

sprinkles coming off of that.” On cross examination, he stated

that he had not paid attention to whether the water was coming from

cut flowers or a potted plant.

The jury also heard t estimony from David Boozer, an area

director (assistant manager) at the store. Boozer testified that

although he saw a puddle of water where Stewart had fallen, he did

not investigate the source of the water. He explained that “there

was no need to investigate because it was a puddle of water and it

could have come from several different places.” According to1 Only designated portions of the deposition were read into the

record. It is not entirely clear that “that spot” refers to the

precise place where Stewart fell, but it is a reasonable inference

in support of the jury’s verdict. In fact, Wal-Mart appears to

assume in its brief that Waggoner’s testimony referred to that

area.

5 Boozer, Wal-Mart employees started watering the plants in that area

at 3 a.m. daily. (The store is open 24 hours a day).

Finally, Stewart presented deposition testimony from Jeff

Waggoner, a Wal-Mart field manager. Waggoner agreed that “the

entrance area where the slip-and-fall occurred is one of the two

highest traffic areas in the store.” He also agreed that “it was

predictable that water would accumulate in that spot 1 in the

store.” He added, “[w]e would have water in that area at some

time, sure.”

III.

DISCUSSION

A.

Wal-Mart appeals the di strict court’s denial of its Rule 50

motion for judgment as a matter of law. S ee F ED

. R. C IV

. P. 50. In

reviewing the denial of a motion for judgment as a matter of law,

we use the same standard of review that guided the district court.

Crosthwait Eq uip. Co. v. John Deere Co. , 992 F.2d 525, 528 (5th

Cir.), cert. denied

, 510 U.S. 991, 114 S. Ct. 549, 126 L.Ed.2d 451

(1993). We consider all the evidence and all reasonable inferences

therefrom in the light most favorable to the nonmovant. A motion2 This case was not, nor should it have been, submitted to the

jury on a “negligent activity” theory. In Texas, recovery under a

negligent activity theory “requires that the person have been

injured by or as a contemporaneous result of the activity itself

rather than the condition created by the activity.” K eech v.

Kroger Co., 845 S.W.2d 262, 265-66 (Tex. 1992).

6 for judgment as a matter of law is properly granted if the facts

and inferences point so strongly and overwhelmingly in favor of one

party that reasonable jurors could not arrive at a contrary

verdict. I d. If the record contains substantial evidence opposing

the motion, then the motion should have been denied. I d. (citing

Normand v. Research Inst. of Am., Inc.

, 927 F.2d 857, 859 (5th Cir.

1991)). Substantial evidence is “evidence of such quality and

weight that r easonable and fairminded jurors in the exercise of

impartial judgment might reach di fferent conclusions.” I d.

(citation omitted).

This case was properly submitted to the jury as a dangerous

condition premises liability case. 2 To establish a premises

liability claim under Texas law, an invitee must show: (1) the

occupier had actual or constructive knowledge of some condition on

the premises; (2) the condition posed an unreasonable risk of harm

to the invitee; (3) the occupier did not exercise reasonable care

to reduce or to eliminate the risk; and (4) the occupier’s failure

to use such care proximately caused the invitee’s injuries. C orbin

v. Safeway Stores, Inc.

, 648 S.W.2d 292, 296 (Tex. 1983); see also

Folks v. Kirby Forest Indus., Inc.

, 10 F.3d 1173, 1175-78 (5th Cir.3 Wal-Mart does not argue that the puddle of water on the tile

floor did not constitute a dangerous condition, nor does it contest

any element other than actual or constructive knowledge.

4 Wal-Mart relies on Motel 6 G.P., Inc. v. Lopez

, 929 S.W.2d 1,

3 (Tex. 1996). In Motel 6 , the supreme court reaffirmed that the

owner’s or occupier’s actual or constru ctive knowledge of a

dangerous condition gives rise to a duty toward invitees. I d. T he

court of appeals found, and Motel 6 did not dispute in the supreme

court, that Motel 6 n either knew nor should have known that the

shower was unreasonably dangerous. Accordingly, the supreme court

held that Motel 6 had no duty to remove risks of which it was not

nor should have been aware. I d. The court said nothing about the

evidence necessary to show actual or constructive knowledge. The

court’s decision in Motel 6 is entirely consistent with previous

Texas law, including Corbin.

7 1994) (applying Texas premises liability law). Wal-Mart disputes

that the record contains substantial evidence that it had actual or

constructiv e knowledge of the condition of which Stewart

complains. 3

Under Texas law, the jury may infer that the owner or occupier

knew or should have known of a dangerous condition if there is

evidence that the dangerous condition was created by the owner or

occupier. See Keech , 845 S.W.2d at 265-66; Corbin , 648 S.W.2d at

297; Coffee v. F.W. Woolworth Co.

, 536 S.W.2d 539, 540 (Tex.

1976)

. 4 Under this rule, the record in this case contains

sufficient evidence from which the jury could reasonably infer that

Wal-Mart knew or should have known of the dangerous condition.

The jury could have reasonably concluded that Wal-Mart created

a dangerous condition by placing a display of plants and flowers

near the store’s entrance in one of the most highly trafficked5 Boozer, the assistant manager at the scene, neglected to

investigate the source of the water and did not contradict Officer

Belt’s testimony.

6 Texas law does not require that Wal-Mart have known of the

presence of this particular puddle. K eech

, 845 S.W.2d at 265

(“Safeway did not have to know that a particular grape was on the

floor at a particular time because it knew that the grapes would be

on the floor due to the nature of the display.”)(discussing Corbin

,

8 areas of the store. Testimony from Wal-Mart managerial employees

indicated that Wal-Mart managers made a conscious decision to place

this display in a busy area near the entrance of the store to

attract impulse buyers. Officer Belt’s uncontradicted testimony

established that the water on which Stewart slipped was flowing

from a po tted plant or cut flowers in Wal-Mart’s display. 5

Boozer’s testimony that Wal-Mart em ployees usually watered the

plants at 3 a.m. does not alter the undisputed fact that the water

on which Stewart slipped in fact came from Wal-Mart’s own display.

Stewart’s evidence that Wal-Mart created the dangerous condition is

sufficient to allow the jury to infer that Wal-Mart knew or should

have known of th e dangerous condition. S ee Keech

, 845 S.W.2d at

265; Coffee , 536 S.W.2d at 540.

Aside from Texas’s rule that the jury may infer actual or

constructive knowledge from the creation of a dangerous condition,

the jury’s verdict is also supported by common sense. Wal-Mart

should have known that plants, which must be watered, and cut

flowers, which must be kept in water, will create slippery floors

in the area where they are displayed. 6 Indeed, the record shows648 S.W.2d at 296). By contrast, proof only of the presence of the

puddle would be insufficient to allow the jury infer actual or

constructive knowledge, absent evidence of the length of time the

puddle remained on the floor. C ompare Rojas v. Wal-Mart Stores,

Inc. , 857 F. Supp. 533, 538 (N.D. Tex. 1994).

7 Wag goner gave no indication that water would accumulate in

this area because of the floral display. He was specifically

questioned only about “water slickened or snow slickened floors.”

9 that that is exactl y what happened in this case. Finally, the

jury’s finding is also reinforced by some evidence, albeit slim, of

actual knowledge: Waggoner, a Wa l-Mart field manager, testified

that it was predictable that water would accumulate in this area. 7

Although we re cognize that this appeal presents a close

question, we are not convinced that the “facts and inferences point

so strongly and overwhelmingly in favor of [Wal-Mart]” that a

reasonable jury could not find that Wal-Mart knew or should have

known of the dangerous condition. Thus, the district court

properly denied Wal-Mart’s motion for judgment as a matter of law.

B.

Wal-Mart next argues that the district court erred when it

failed to grant Wal-Mart’s motion to amend or modify the judgment.

Wal-Mart claims that Stewart adduced evidence at trial of

$64,827.09 in past medical expenses, yet the jury awarded $75,000.

As Wal-Mart points out, counsel for plaintiff in closing argument

asked for only $64,827.09.10

Remittitur is the appropriate remedy for an excessive damage

award, especially where the award does not appear to be the product

of passion or prejudice and “the defects in the award are readily

identifiable and measurable.” B runnemann v. Terra Int’l, Inc.

, 975

F.2d 175, 178 (5th Cir. 1992). The jury’s award in this case does

not appear to have been based on bias or prejudice, but instead

appears to have been “merely excessive” based on the evidence

Stewart proffered at trial. See id. (noting that “[d]amage awards

which are merely excessive

. . . are subject to remittitur

. . .”).

Moreover, the defect in the award is “readily identifiable and

measurable.” Id. ; Texarkana Mem. Hosp., Inc. d/b/a Wadley Reg.

Med. Ctr. v. Murdock et al.

, No. 95-1073, 1997 WL 205982, at *5

(Tex., Apr 25, 1997), pet. for reh’g filed (May 12, 1997)(“The

award of past medical expenses is readily capable of measurement by

a certain standard.”). We construe Wal-Mart’s motion to amend or

alter the judgment as a motion for remittitur. This court

generally reviews the denial of a motion for remittitur under an

abuse of discretion standard. Id.

Stewart offered and the district court admitted into evidence

Stewart’s medical records, which reflect a total of $64,827.09 in

past medical expenses. Stewart argues that in addition to the

amounts reflected in these records, the record suppor ts an

additional award of $25,0 00-$30,000 for spinal fusion surgery,

which Stewart underwent prior to trial. Stewart offered the11

d eposition testimony of Dr. Guy Danielson, the surgeon who

performed the operation, that the reasona ble cost of the surgery

would be $25,000-$30,000. Although the surgery had not yet been

performed at the time of Dr. Danielson’s deposition, Stewart

testified that he had undergone the fus ion surgery before trial.

Dr. Danielson also testified that the physical therapy associated

with the surgery would cost between $3,500 and $5,000.

Although Stewart offered testimony that a range of charges

would be reasonable, Stewart failed to offer testimony that the

surgery was necessary. T exarkana Mem. Hosp.

, 1997 WL 205982, at

*4. Thus, the total necessary past medical expenses prov en at

trial fall short of the $75,000 awarded by the jury. Inasmuch as

the evidence of past medical expenses would only support a finding

of $64,827.09 and in view of the jury’s comparative negligence

findings, Stewart should be limited in this proceeding to the

recovery of $32,413.54 rather than the $37,500 actually awarded.

On the basis of this record, Stewart should be required to remit

$5086.46.

Stewart also argues that even if the evidence adduced does not

support the award of $75,000, the error was harmless because he

presented evidence of other types of damages that were not awarded

by the jury . He also appears to argue that because the

discrepancy, if any, is not large, it does not affect Wal-Mart’s

substantial rights. These arguments are without merit.12 IV.

For these reasons, we AFF IRM the district court’s denial of

Wal-Mart’s motion for judgment as a matter of law. We REVERSE the

district court’s denial of Wal-Mart’s motion to amend or alter the

judgment, and we direct the district court to grant a remittitur of

$5086.46. If the plaintiff refuses to remit this amount, we order

a new trial as to damages for past medical expenses only.