### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON Februar y 19, 2 002 Session MARGARET PARKER v. THE KROGER COMPANY A Direct Appeal from the Circuit Court for Shelby County No. 95499-2 T.D. The Honorable James F. Russell, Judge

No. W2002-02279-COA-RM-CV - Filed October 11, 2002

The Circuit

Court, Shelby

County, gra

nted summary judgment for Defendant in a slip and fallcase. The Court of Appeals reversed a nd remanded the case. The Supreme Court granted appeal and remanded the case by Order dated September 23, 2002 to the Court of Ap peals for the sole purpose of determin ing the a pplicabi lity , if any , of the Te xas Supreme

Court opinion in Wal-Mart Stores, Inc. v. Reece , 81 S.W.3d 812 (Tex. 2002). On remand, the Court of Appeals withdrew the Court’s pr

eviously filed opin

ion and af firms the Trial Cour

t’s gra nt of summa

ry judgmen t. Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed
W. F RANK C RAWFORD , P.J., W.S., delive red the o pinion of t

he court , in which D AVID R. F ARMER , J. and H OLLY K IRB Y L ILLARD , J., joined. Marshall L. Gerber , Memphis, For Appellant, Margaret Parke r Minton P. Mayer, Memphis, For Appe llee, The Kroger Company OPINION This slip and fall case is before the Court on remand from the Supre me Court for this Court to de te rm in e t he ap pl ic ab il it y, i f a ny, of Texas Supreme Court opinion in Wal-Mart Stores, Inc. v. Reece , 81 S.W.3d 812 (Tex. 2002 ). The Cou rt, pursu ant to the Supreme Court's mandate, withdrew its Opinion filed March 19, 2002 and has reconsidered the ca se. Plaintiff, M argaret P arker (“Ms. Parker”), appe als from an order granting summary judgme

nt to Defendant, The Kroger Company (“Krog er” ). Ms . P ar ke r, a r es id en t o f S he lb y Co un ty, Tennessee, slipped in

a Krog er store

located in Flower Mound, Texas on a “dark object like a grape or a piec e of veg etable”that had b een mash ed. Ms. Pa

rker inju red her knee in th

e fall.
Ms. Parker f

iled a co mplaint in t

his action in

Shelby County Circuit Court on June 26, 1998. Kroger then filed a Motion to Dismiss on the grounds of for um n on conveniens , which the trial-2-

court granted. This Court reversed the trial cour tand rema

nded the c ase to the

circuit c ourt. Upon remand, Kroger fi le d a Motion for Summary Judgment, which the tria l court granted on July 24, 2001.
Ms. Parker appeals and presents one issue on a p peal: Whe

ther the trial cou rt erre d in granting Kroge

r summary judgment. For the following reasons, we affirm the trial court and hold that summary judgme

nt was appropriate in this case.
Alth ough the parties agree that the substantive law of Texas applies, the proc edural aspects of the case are governed by Tennessee law. See Standard

Fire Ins. Co. v. Chester-O’Donley & Assocs. , 972 S.W.2d 1 (Tenn. Ct. App. 1998 ); State ex rel. Smith v. Ea rly , 934 S.W.2d 655 (Tenn. Ct. App. 1996).
A motion for summary judgme nt should be granted

when the movant demonstrates that there are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. Tenn. R. Civ. P. 56.03. The party moving for summar y judgment be ar s the burden of demonstrating that

no genuine issue of material fact exists. See Bain v. Wells , 936 S.W.2d 618, 622 (Tenn.1997). On a motion for summary judgment, the court must take the strongest legitimate view of the evidence in favo r of the nonmoving party, a llow all reasonable inferences in favor of that pa rt y, and discard all countervailing evidence

. See id. In Byrd v. Ha ll , 847 S .W.2d 208 (Tenn. 1993), our Supreme Court stated:

Once it is show n by the moving pa rty that there is no g enuine issue of material fact, the nonmoving party must then demonstrate, by affida vits or discov ery

materia ls, that the

re is a genuine, material fact dispute to warra nt a trial. In this regar

d, Rule 56.05 provides that the nonmoving party ca

nnotsimply rely

upon his pleadings but must set forth specific facts showing that there is a genuine issue of material fact fo r trial. Id. at 210-11 (citations omitted) (emphasis in original). Summary judgment is only appropr iate when the facts and the legal conclusions drawn f rom the facts re asonably

permit only one conclusion. See Carvell v. B otto ms , 900 S.W.2d 23, 26 (Tenn. 1995). Since only questions of law are involved, there is no presumption of correctness rega rding a trial cou rt's g rant of s ummary

judgmen t. See Bain , 936 S.W.2d at 622. Therefore, our review of the trial court’s grant o f summary judgmen t is de novo on the record before this Court. See Warren v. Estate o

f Kirk , 954 S.W.2d 722, 723 (Tenn. 1997).
Texas law requires the plaintiff in a slip and fall c ase to prove four elements to recover damage s:-3- (1) Actual or

c onstructive knowledge of some condition on the premises by the owne

r/operator; (2) That the condi tion posed

an unrea sonable r

isk of har m; (3) That the owner/operator did not exercise reasonable care

to reduce or eliminate the risk; and (4) That the owner/operator’s failur e to use such care p

roximately caused t he plaint iff’s da mages. Wal-Mart Stores, Inc. v. Gonzalez , 968 S.W.2d 934, 935 (Tex. 1998). The issue beforeus involves the first element, actual or constructive knowledge of s om e condition on the premises by the owner/operator. Constructive knowledge may be established by showing “more likely than not

that the dange rous cond

ition existe d long e

nough to give the proprie tor a re asonable

opportuni

ty to discover the condition.” Id. at 936.
In Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812 (Tex. 2002), the Texas Supreme Court was faced with the questionof whether “eviden ce that th e premise s [sic] owne

r’s emplo ye e was in close proximity to the dangerous condition rig ht before the plaintiff fell, withou t more, is lega lly sufficient to cha rge the premises [sic] owner with constructive notice.” Id. at 813. The Court noted that there was a split in the intermediate appellate courts reg arding the import of proximity evidence. The Court noted that some courts have held that proximity evidence alone is insuffi cient to

establish constructive noti ce, cit ing Wal-Mart Sto res v. Ros a , 52 S. W.3d 8 42, 844 (Te x. App. San A

ntonio 2001); Furr’s, Inc . v. Sigala , 608 S.W.2d 789, 790 (Tex. App. El Paso 198 0); H. E. B. Foods, Inc. v. Moore , 599 S.W.2d 126, 129 ( Tex. Civ. Ap p. Corpus Ch

risti 1980) . Other Courts of Ap peals hav e held that

evidenc e of an e

mployee’s pr

oximity to a dang erous co ndition ca n establis h constructive notice. See Wal-M art Stores, Inc. v. Ga

rcia , 30 S.W.3d 19 , 23 (Tex. A pp. San An

tonio 2000); Duncan v. Black-Eyed Pea U.S.A., Inc., 994 S.W.2d 447, 449-50 (Tex. App. Beaumont 1999); Furr’s Super

Market v. Garrett , 615 S .W.2d 280, 2 81-8 2 (Te

x. Civ. App. El Paso 1981).
In Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812 (Tex. 2002), the Court said:
Co nstructive notice demands a more extensive inquiry . Witho u t some temporal evidence, there is no basis upon which the factfinder can reasona

bly assess the opportu

nity the prem

ises owne

r had to discover the dangerous condition.
Whatconstitutes a reasonable time for a pr emises ow ner to discover a dang erous co ndition will, of course, vary depending upon the facts and circumstances presented. And proximit y evidence

will often be relevant to the analy sis. Thus, if the dang erous co ndition is conspicuous as, for example, a large puddle of

dark liqu id on a light floor would likely be, then

an employee ’s proximity to the condition might shorten the time in which a j ury could find that the pre mises owner should reasonably ha

ve discovered it. Similarly, if an-4- employee was in close proximity to a less cons picuou s hazard for a continuous and sign

ificant p eriod of

tim e, that too could affect the jury’s consideration o f w hether the premises owner should have become aware of the dang erous condition. But in either c ase, ther e must be some proof of how

long the ha

zard was the re before lia bility can be imposed on the premises owner for failing to disco ver and rectify, or warn of, the dangerous condition

. Id . at 816, (emphasis added).
In the ca se at bar, Ms. Parker fell on a “dark object. . . that had been mashed” in the are a where customers exit the checkout lines and the st ore. Ms. Parker opines that the object “had been there for some time.” She ar gues that the proximity of the ar ea where she fell to the checkout counter with Krog er emplo ye es on duty is sufficient to establish that Kroger had constructive kno wledge th at a dang erous or defect ive condi tion existed . Ms. Parke

r has pro duced no

credibl e evidence of how long the objec t she slipped on had been on the floor, but has only presented evidence that the a

rea in wh

ich sh e s lipped wa s close to the Krog er chec

kout coun

ters with employees present and

that the condition of the offending object gave the appearance

of having been mashed. In the absence of any temporal evidence of how long the object ha d been on the store’s floor, there is no proof t

hat more likely than not the condition existed long enough to give Defenda nt a reasonable opportunity

to “discover and rectify

it, or to warn about it.” Id. at 817.
Ac co rd in gl y, the order of the trial court granting summary judgme

ntis affirmed. Costs of th e a pp ea l a re as se ss ed to th e a pp el la nt , M ar ga re t P ar ke r, an d h er su re ty.

__________________________________________ W. FRANK CRAWFORD, PRESI DING JUDGE, W.S

.