United States Court of Appeals

for the Fifth Circuit

No. 21-40609

Rudolph O’Connor, 

Plaintiff—Appellant,

versus

Wal-Mart Stores Texas, L.L.C., 

Defendant—Appellee.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 3:20-CV-149

Before Higginbotham, Dennis, and Graves, Circuit Judges.

Per Curiam:*

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

plaintiff Rudolph O’Connor appeals the district court’s grant of summary 

judgment to defendant Wal-Mart Stores Texas, L.L.C. For the following 

reasons, we reverse the district court and remand for further proceedings. 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 19, 2023

Lyle W. Cayce

Clerk

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I. 

On May 10, 2019, O’Connor was exiting a Wal-Mart store in 

LaMarque, Texas, when he slipped and fell on a “green, slimy substance,”

—later identified by O’Connor’s expert as algae—that covered a portion of 

the cement sidewalk in front of the store’s garden center. He sustained neck 

injuries necessitating a disc replacement surgery. 

The store manager, Jesse Hale, stated in his deposition that the water 

from watering activity in the garden center drains out of the garden center 

and onto the sidewalk in front of it. Despite this, Hale stated that he does not 

check to see if the water is accumulating on the sidewalk outside of the garden 

center; instead, he only drives around the building—usually in the dark. 

Neither Hale nor any other staff member conducts a routine inspection of the 

sidewalk in question. Hale also stated that Wal-Mart is responsible for the 

sidewalk condition, and noted that the area does not drain properly, which 

results in pooling water. 

O’Connor’s expert witness, Dr. Jahan Rasty, a mechanical and 

forensic engineer, noted in his affidavit that green algae was present on the 

sidewalk and extended into the garden area, and he concluded such a 

condition indicated that the water was coming from the garden center. 

Further, he noted that although “natural rainfall water” also accumulated on 

the sidewalk, “the fact that the algae growth extended into that area tells me 

that – on algae growth – was affected by the water coming from that area.” 

Dr. Rasty analyzed photographs taken both at the time of O’Connor’s fall 

and nearly two years later and found them to show green algae staining on the 

concrete as well as water retention in that area. He also noted that “it takes 

many days of continuous moisture . . . for significant levels of algae to 

accumulate.” 

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O’Connor filed suit in the district court of Galveston County, Texas, 

asserting both negligent activity1 and premises liability claims. Wal-Mart 

removed the case to the United States District Court for the Southern 

District of Texas on diversity-of-citizenship grounds. Subsequently, WalMart moved for summary judgment, arguing that O’Connor (1) failed to 

present evidence “that the green slime/mold is an unreasonably dangerous 

condition[,]” and (2) failed to present evidence of Walmart’s actual or 

constructive notice of any unreasonably dangerous condition. The district 

court granted summary judgment in favor of Wal-Mart, holding that 

O’Connor failed to create a genuine issue of material fact that the “slime” in 

which he slipped was not a “natural” accumulation, for which there can be 

no premises liability under Texas tort law. It did not address Wal-Mart’s 

alternate argument that O’Connor failed to create a genuine issue of material 

fact as to whether Wal-Mart had actual or constructive knowledge of the 

dangerous condition. O’Connor now appeals to this court. 

II.

This court reviews a district court’s decision to grant summary 

judgment de novo, using the same standard as prescribed for the district 

court to apply in deciding the motion. See Smith v. Reg’l Transit Auth., 827 

F.3d 412, 417 (5th Cir. 2016). Summary judgment is proper if 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. FED. R. CIV. P. 56(a). “A 

dispute as to a material fact is ‘genuine’ if the evidence is such that a 

reasonable jury could return a verdict for the nonmoving party.” Boudreaux 

v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005) (citing Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986)). In resolving the motion, 

the court may not undertake to evaluate or weigh the evidence or resolve 

1 O’Connor does not challenge the district court’s summary judgment dismissal of 

his negligent activity claim, so we address only the premises liability claim here. 

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factual disputes; so long as the evidence in the record is such that a reasonable 

jury, drawing all inferences in favor of the nonmoving party, could arrive at a 

verdict in that party’s favor, the court must deny the motion. Int’l Shortstop 

v. Rally’s, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991). 

III.

Under Texas law, a premises owner “has a duty to exercise reasonable 

care to make the premises safe for invitees.” Austin v. Kroger Texas, L.P., 465 

S.W.3d 193, 202 (Tex. 2015). To prevail on a premises-liability claim, a 

plaintiff must prove four elements: “(1) Actual or constructive knowledge of 

a condition on the premises by the owner or occupier; (2) That the condition 

posed an unreasonable risk of harm; (3) That the owner or occupier did not 

exercise reasonable care to reduce or eliminate the risk; and (4) That the 

owner or occupier’s failure to use such care proximately caused the 

plaintiff’s injury.” CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 

2000). This appeal involves the first two elements: the actual or constructive 

knowledge of a condition on the premises by the owner or occupier, and the 

risk of harm posed by the condition. We address each below, starting with 

the second. 

A. 

In Texas, “naturally occurring” conditions per se do not constitute 

unreasonably dangerous conditions. See, e.g., M.O. Dental Lab v. Rape, 139 

S.W.3d 671, 675–76 (Tex. 2004) (mud); Brownsville Navigation Dist. v. 

Izaguirre, 829 S.W.2d 159, 160–61 (Tex. 1992) (mud); Eubanks v. Pappas 

Rest., Inc., 212 S.W.3d 838, 840–41 (Tex. App.—Houston [1st Dist.] 2006) 

(“slimy” mud). For instance, the accumulation of mud on a man-made 

sidewalk is not considered an unreasonable risk of harm because it involves 

“nothing more than dirt in its natural state.” M.O. Dental Lab, 139 S.W.3d 

at 676. Texas courts have reasoned that any rule otherwise would make 

landowners strictly liable for injuries resulting from elements beyond their 

control. See id. at 676. By analogy to those cases, the district court reasoned 

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that “[t]he same rule likewise applies to ‘slime’ or a ‘slimy mud,’ which are 

also naturally occurring.” 

The crux of the Texas courts’ holdings in ruling that mud does not 

present an unreasonably dangerous condition is that “rain is beyond the 

control of landowners.” M.O. Dental Lab, 139 S.W.3d at 675–76. Therefore

“[h]olding a landowner responsible for naturally accumulating mud that 

remains in its natural state would be a heavy burden[.]” Id. at 676 (emphasis 

added). Thus, “[o]rdinary mud that accumulates naturally on an outdoor 

concrete slab without the assistance or involvement of unnatural contact is, in 

normal circumstances, nothing more than dirt in its natural state and, 

therefore, is not a condition posing an unreasonable risk of harm.” Id.

(emphasis added). But O’Connor testified that he slipped on “water and/or 

mud and/or slimy green algae,” and submitted an expert report analyzing 

photographs of the area which determined that the slippery, slimy substance 

on the sidewalk was indeed green algae. Taking this testimony in the light 

most favorable to O’Connor, he has at least created a material issue of fact as 

to whether the substance on which he slipped was “ordinary mud[.]” M.O. 

Dental Lab, 139 S.W.3d at 676.

More importantly, O’Connor has raised a genuine question of fact as 

to whether the algae was “naturally accumulating” or “in its natural state.” 

Id. If it wasn’t, then M.O. Dental Lab’s “heavy burden” in favor of the 

landowner doesn’t apply. Id. Wal-Mart argues that O’Connor “did not cite 

a single piece of evidence . . . establishing that the slime was unnatural in 

origin,” but this is plainly untrue. O’Connor presented deposition testimony 

from Jesse Hale, the manager of the LaMarque, Texas Wal-Mart store, who 

affirmed that “as the manager of th[e] store, [he] underst[ood] that the water 

from the garden center drains out of the garden center onto the sidewalk 

[where O’Connor fell], down into the drainage area into the parking lot[.]” 

In addition, photographs show that a raised area between the sidewalk and 

the parking lot prevents water from fully draining into the parking lot, causing 

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it to pool on the sidewalk. This at minimum creates an issue of material fact 

as to whether “the assistance or involvement of unnatural contact” 

attributable to Wal-Mart caused the accumulation of algae on the sidewalk 

where O’Connor slipped. Id. at 675–76. A reasonable jury, reviewing this 

evidence, and drawing all inferences in favor of the nonmoving party, could 

find that this algae growth was unnatural—caused by Wal-Mart allowing 

water to drain onto the sidewalk, pool there, and stand long enough for algae 

growth to form. See Int’l Shortstop, 939 F.2d at 1263. The district court thus 

erred in granting summary judgment in favor of Wal-Mart on O’Connor’s 

premises liability claim. 

B.

Wal-Mart urges this court to affirm the grant of summary judgment 

on the alternative ground, unexamined by the district court, that O’Connor 

failed to create a genuine issue of material fact as to whether Wal-Mart had 

actual or constructive notice of the algae slime—another requirement for 

pleading a premises liability claim under Texas law. See Gonzalez, 968 

S.W.2d at 936. Wal-Mart argues that O’Connor offered no evidence of such

actual or constructive notice. But a reasonable fact finder could decide 

otherwise. 

Knowledge of a dangerous condition may be inferred from the 

persistence of that condition. Keetch v. Kroger Co., 845 S.W.2d 262, 266

(Tex. 1992) (citing Coffee v. F.W. Woolworth Co., 536 S.W.2d 539 (Tex. 

1976)). What constitutes a reasonable time for discovery of a condition is 

highly fact-dependent. See Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 816 

(Tex. 2002). To prove constructive notice, “there 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.” Id. at 816. In determining whether a premises owner had 

constructive knowledge, a court may consider the combination of (1) the 

length of the time the hazard existed, (2) the proximity of employees to the 

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hazard, and (3) the conspicuousness of the hazard. Wal-Mart Stores, Inc. v. 

Spates, 186 S.W.3d 566, 567–68 (Tex. 2006) (referring to “analyzing the 

combination of proximity, conspicuity, and longevity” when determining 

constructive notice). “[M]ere proximity of an employee to a spill, without 

evidence of when or how it came to be on the floor, [is] legally insufficient to 

charge a premises owner with constructive notice of the hazard.” Id. at 567 

(citing Reece, 81 S.W.3d at 816–87). Evidence of the changed condition of a 

substance, however, may be sufficient on its own to show that the substance 

existed for long enough to result in constructive knowledge by the premises 

owner. See Kofahl v. Randall’s Food & Drugs, Inc., 151 S.W.3d 679, 681 (Tex. 

App. 2004); Kroger Stores, Inc. v. Hernandez, 549 S.W.2d 16, 16–17 (Tex. Civ. 

App. 1977); Furr’s, Inc. v. Bolton, 333 S.W.2d 688, 689–690 (Tex. Civ. App. 

1960).

Here, O’Connor’s expert analyzed photographs taken both at the 

time of O’Connor’s fall and nearly two years later, and found them to show

green algae staining on the concrete as well as water retention in that area. 

O’Connor also introduced deposition testimony that the store manager was 

aware that “water from the garden center drains out of the garden center 

onto the sidewalk.” Wal-Mart argues that this does not establish that the 

algae on which O’Connor slipped had been growing on the sidewalk for long 

enough to justify a finding that Wal-Mart had constructive notice; but, as 

O’Connor’s expert attested, “it takes many days of continuous moisture . . . 

for significant levels of algae to accumulate.” Therefore, taking this evidence 

in the light most favorable to O’Connor, the store manager was aware that 

water from the garden center was draining out onto the sidewalk, and because 

the green algae in question results from accumulation of the water over the 

course of several days, a jury could reasonably conclude that the store 

manager had constructive knowledge of the dangerous condition. 

Accordingly, O’Connor has created a genuine issue of material fact as to 

whether Wal-Mart had constructive notice of the potentially unnatural

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dangerous condition. We decline to uphold the district court’s grant of 

summary judgment to Wal-Mart on this alternate ground.

IV.

For the foregoing reasons, we REVERSE the district court’s 

summary judgment dismissal of O’Connor’s premises liability claim and 

REMAND for further proceedings consistent with this opinion. 

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