* Pursuant to 5TH CIR. 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 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-20103

Summary Calendar

KAREN BETH HENSLEY

Plaintiff - Appellant

v.

WAL-MART STORES INC doing business, as Wal-Mart 

Supercenter Store #5091

Defendant - Appellee

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:07-CV-2068

Before WIENER, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Karen Hensley brought this slip-and-fall action against Wal-Mart Stores,

Inc. (“Wal-Mart”). The district court granted summary judgment in favor of

Wal-Mart, and Hensley appeals. We affirm.

United States Court of Appeals

Fifth Circuit

F I L E D

August 25, 2008

Charles R. Fulbruge III

Clerk
No. 08-20103

1 Wal-Mart submitted Hensley’s deposition as an attachment to its motion, which was

the only evidence considered by the district court. 

2

I. FACTS AND PROCEEDINGS

While grocery shopping at Wal-Mart Store #5091 in Houston, Texas,

Hensley slipped and fell on a light green liquid on the floor in the meat

department, causing her to sustain personal injuries. Prior to her fall, Hensley

did not see the liquid, which she described as a “fine line” of more than one foot

in length. Hensley alleged that, before the incident, two Wal-Mart employees

were entering and exiting a door within approximately five feet of where she fell.

Hensley also alleged that, after the incident, Wal-Mart made a cautionary storewide announcement regarding the possible spill. 

Hensley filed a negligence suit against Wal-Mart in a Texas state court.

Wal-Mart removed the case to federal court based on diversity of citizenship.

Wal-Mart moved for summary judgment, arguing thatit did not have knowledge

of any allegedly dangerous condition existing on its premises at the time of

Hensley’s fall.1 Hensley never responded to this motion. The district court

granted summary judgment in favor of Wal-Mart. Hensley appeals.

II. DISCUSSION

This court has consistently held that arguments not raised in response to

a motion for summary judgment are waived and cannot be considered on appeal.

See, e.g., Keelan v. Majesco Software, Inc., 407 F.3d 332, 339–40 (5th Cir. 2005).

Because Hensley admittedly failed to respond to Wal-Mart’s motion for summary

judgment in the district court, she has waived any argument based on the

undisputed facts in opposition to Wal-Mart’s motion for summary judgment and

we need not consider her appeal. 

Nevertheless, even if we consider Hensley’s argument, Wal-Mart is

entitled to summary judgment. We review the district court’s grant of summary

judgmentin favor of Wal-Mart de novo. See Richardson v. Monitronics Int’l, Inc.,
No. 08-20103

3

434 F.3d 327, 332 (5th Cir. 2005). Summary judgment is appropriate “if the

pleadings,the discovery and disclosure materials on file, and any affidavits show

that there is no genuine issue as to any material fact and that the movant is

entitled to judgment as a matter of law.” FED. R. CIV.P. 56(c). “We consider the

evidence in a light most favorable to [Hensley], the non-movant, but she must

point to evidence showing that there is a genuine fact issue for trial” in order to

survive summary judgment. Richardson, 434 F.3d at 332.

“In this diversity case, Texas law applies and under it [Hensley] is WalMart’s invitee.” Odom v. Wal-Mart Stores, Inc., 32 F.3d 566, 1994 WL 442488,

at *1 (5th Cir. Aug. 2, 1994) (citing Corbin v. Safeway Stores, Inc., 648 S.W.2d

292, 296 (Tex. 1983)). 

To recover from Wal-Mart, [Hensley] bears the burden of proving

that (1) Wal-Mart had actual or constructive knowledge of some

condition on its premises; (2) the condition posed an unreasonable

risk of harm; (3) Wal-Mart failed to exercise reasonable care to

reduce or eliminate the risk; and (4) its failure to use reasonable

care proximately caused her injuries. 

Id. (citing Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992); Corbin, 648

S.W.2d at 296); see also Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936

(Tex. 1998). The district court found that Hensley produced no evidence to prove

that Wal-Mart had actual or constructive knowledge of a dangerous condition on

its premises at the time of her fall, and we agree.

To establish that Wal-Mart had actual or constructive knowledge of the

liquid on the floor, Hensley must show that at least one of the following three

situations existed: (1) Wal-Mart placed the liquid on the floor; (2) Wal-Mart

actually knew the liquid was on the floor; or (3) it was more likely than not that

the liquid was on the floor long enough to give Wal-Mart a reasonable

opportunity to discover it. See Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814

(Tex. 2002) (citing Gonzalez, 968 S.W.2d at 936; Keetch, 845 S.W.2d at 265).
No. 08-20103

4

Because Hensley did not present any evidence that Wal-Mart placed the liquid

on the floor or actually knew that the liquid was there, she had to prove that the

liquid had been on the floor for a sufficient period of time such that Wal-Mart

would have had a reasonable opportunity to discover it. This court has

explained that this

so-called “time-notice rule” is based on the premise that temporal

evidence best indicates whether the owner had a reasonable

opportunity to discover and remedy a dangerous condition. An

employee’s proximity to a hazard, with no evidence indicating how

long the hazard was there, merely indicates that it was possible for

the premises owner to discover the condition, not that the premises

owner reasonably should have discovered it. Constructive notice

demands a more extensive inquiry. 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.

Id. at 816 (citation omitted). As a result, this court has held that “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. 

Hensley failed to produce any temporal evidence. She did not provide

evidence to identify the liquid, state where it came from, indicate how it got on

the floor, or otherwise submit information as to how long it was there before the

incident. There was also no evidence that the liquid was conspicuous—Hensley

admitted that she never saw a collection or a puddle of the liquid, and she stated

that it “wasn’t all over the floor.” The evidence as to the purported proximity of

Wal-Mart employees to the liquid prior to the incident by itself is insufficient to

establish constructive knowledge. Moreover, the fact that Wal-Mart made a

cautionary store-wide announcement after the incidentis irrelevant to the issue

of actual or constructive knowledge. Accordingly, even considering the evidence

in the light most favorable to Hensley, as we must, we hold that there is no
No. 08-20103

5

evidence to establish that the liquid had been there long enough to give WalMart constructive knowledge ofthe dangerous condition, a necessary element for

recovery under Texas law. 

The judgment of the district court is AFFIRMED.