* 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should not be published and is not precedent except under the limited circumstances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. 97-40736

Summary Calendar

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ERNESTINE HENSLEE,

Plaintiff-Appellee,

VERSUS

WAL-MART DISCOUNT CITIES,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Eastern District of Texas

(1:95-CV-402)

_________________________

July 21, 1998

Before JOLLY, JONES, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Ernestine Henslee received a jury verdict for the alleged

negligence of Wal-Mart Discount Cities (“Wal-Mart”) in failing to

prevent her from slipping on a piece of hot dog in a snack bar.

The magistrate judge entered judgment on the verdict. Because

evidence was insufficient to support the verdict, we REVERSE and

RENDER judgment in Wal-Mart's favor.
2

I.

Walking into the Wal-Mart snack bar at 12:08 p.m., Henslee

suddenly slipped and fell, sustaining injuries to both knees. She

testified that she did not see what tripped her before she fell;

afterward she looked around and observed a piece of hot dog,

approximately two inches long. She testified that the hot dog was

smashed or smeared, a fact which she attributed to her having

stepped on it. She stated that she had no idea how the hot dog got

there or how long it had been there. She added, at the prompting

of her attorney, that the hot dog “looked old and cold,” but

admitted that she did not touch it and that it appeared the same

color as those being sold at the snack bar. 

Lisa Lozano, a customer who followed Henslee into the snack

bar, confirmed her description of events. She also testified that

the hot dog “looked old,” but failed to supply any reason for her

opinion.

Barry Stabler, the Wal-Mart assistant manager on duty,

responded to the announcement that Henslee had fallen. He

completed an incident report, took pictures, and spoke to Lozano.

He testified that Wal-Mart employees were trained to keep their

work areas clean; in fact, the store had a policy requiring them to

conduct “safety sweeps” or “zone defenses” every ten to fifteen

minutes. If employees were too busy to inspect the area, they were

instructed to contact management for help. In addition, the store

had a porter who roamed throughout the entire store performing

“zone defenses” and cleaning up any mess. 
3

Diane Miller, who managed the snack bar, confirmed that she

instructs her employees to check the snack bar area every fifteen

minutes. She testified that she went on her lunch break at 12:00

that day and had performed a safety sweep before she left, noting

that the area was clean. Lisa Valerie, who was not a Wal-Mart

employee when she testified but was an employee on duty when the

accident occurred, offered “rebuttal” testimony that Miller did not

perform such a check before she left. Valerie was allowed to

present this testimony despite the fact that Wal-Mart had not been

notified of her address or of the expected content of her testimony

until the day of trial, that she had been sitting in the courtroom

throughout the testimony of Miller and another witness, and that

Wal-Mart had presented no formal “case in chief” for Henslee to

rebut, save its cross-examination of Henslee’s witnesses.

II.

In reviewing the denial of a motion for judgment as a matter

of law (j.m.l.”), we determine whether the record contains evidence

upon which a reasonable trier of fact could conclude as the jury

did. Molnar v. Ebasco Constr., Inc., 986 F.2d 115, 117 (5th Cir.

1993). We reverse the decision denying the motion only if the

facts and inferences point so strongly and overwhelmingly in favor

of the defendant that reasonable jurors could not arrive at a

contrary verdict. Crosthwait v. John Deere Co., 992 F.2d 525, 528

(5th Cir. 1993). A mere scintilla of evidence is insufficient to

provide a question for the jury; conflicts about substantial
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evidence must be present to avoid j.m.l. Boeing Co. v. Shipman,

411 F.2d 365, 374 (5th Cir. 1969) (en banc).

III.

To support her claim of premises liability under Texas law,

Henslee must demonstrate (1) that Wal-Mart had actual or constructive notice of some condition on the premises; (2) that the

condition posed an unreasonable risk of harm; (3) that Wal-Mart did

not exercise reasonable care to reduce or eliminate the risk; and

(4) that Wal-Mart’s failure to use reasonable care proximately

caused her injuries. Motel 6 G.P. Inc. v. Lopez, 929 S.W.2d 1, 3

(Tex. 1996); Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992).

Constructive notice may consist of proving that the defendant put

the substance on the floor, knew it was there and failed to remove

it, or should have discovered and removed it in the exercise of

ordinary care because it had remained there for so long. Keetch,

845 S.W.2d at 265; Richardson v. Wal-Mart Stores, Inc., 963 S.W.2d

162, 165 (Tex. App.SSTexarkana 1998, no writ). Henslee presented

no evidence that Wal-Mart placed the hot dog on the floor or knew

it was there; accordingly, her evidence must show that the hot dog

was on the floor so long that, in the exercise of ordinary care,

Wal-Mart would have discovered and removed it.

The jury heard testimony to the numerous ways in which

Wal-Mart monitors the cleanliness of its stores. It has a porter

who patrols the entire store. Its employees are instructed to

conduct “safety sweeps” of their assigned areas every fifteen
 

2 See Joachimi v. City of Houston, 712 S.W.2d 861, 865 (Tex. App.SSHouston

[1st Dist.] 1986, no writ) (holding insufficient a mere allegation that garage

failed to discover oil spill because it was understaffed, without evidence of how

long it had been there, where garage claimed daily cleanings and inspections

throughout the day).

5

minutes. 

Although it appears employees may not have conducted the

sweeps when busy, and that at noon on the date in question, fewer

employees were working behind the counter than are sometimes

available during the typically busy lunch hour, there is no

evidence demonstrating when the last check was performed (assuming

that her witness, Valerie, correctly observed that Miller did not

perform one at noon). Only a few customers were in the snack bar

when the accident occurred, so it seems unlikely that, as Henslee

implies, the snack bar employees were too busy to perform any

sweeps for a substantial period of time before her accident.2 She

produced no witness who could testify that the snack bar employees

were lax in their duty to perform safety inspections, on that day

or any other. Nor could she produce any witness who had any idea

when the hot dog found its way to the floor.

Henslee’s only evidence that the hot dog was on the floor long

enough to put a reasonable premises owner on constructive notice is

her observation, supported by Lozano, that the hot dog “looked

old.” She could not bolster this opinion with any facts, such as

the color of the hot dog or its actual temperature; although she

claimed it looked cold, she did not touch it. On appeal, her

counsel argues that the fact the hot dog was smeared supported

Henslee’s claim, yet Henslee admitted that she believed it was she
6

who first smashed the hot dog. There is no evidence to suggest, as

Henslee’s brief claims, that previous customers had already stepped

on the hot dog. 

Henslee’s “evidence” therefore differs from the testimony

offered in cases finding liability. In one case, for example, a

plaintiff testified that the grape juice she slipped on had “dried

around the edges.” See Furr’s, Inc. v. Bolton, 333 S.W.2d 688, 690

(Tex. Civ. App.SSEl Paso 1960, no writ). Similarly, in another,

the plaintiff noted that a vomited substance was “already dried

where it looks like a cake.” See Kroger Stores, Inc. v. Hernandez,

549 S.W.2d 16, 17 (Tex. Civ. App.SSDallas 1977, no writ). These

plaintiffs’ jury verdicts were upheld because they offered actual

observations, rather than baseless conclusions, that the liquid

materials were dry in places. 

In contrast, Henslee alleged no observable facts to support

her conclusion that the hot dog was old. She did not allege that

it was a different color from those being sold, nor did she touch

it to determine whether it was actually cold. 

The unsupported conclusions of the self-interested Henslee and

the sympathetic Lozano do not create a material issue of fact.

Absent any reliable evidence that the hot dog had been on the floor

for longer than a few minutes, or even that Wal-Mart’s inspection

was so lax that it could have been on the floor for longer than

that, a reasonable jury could not find that Henslee had proven

constructive notice. As the Texas Supreme Court recently declared,

in a similar slip-and-fall case, the plaintiff “had to demonstrate
7

that it was more likely than not that the [food] had been [on the

floor] for a long time,” “to put the store on constructive notice.”

Wal-Mart Stores, Inc. v. Gonzalez, No. 97-1030, 1998 Tex. LEXIS 79,

at *9-*10 (Tex. May 8, 1998). “Absent any evidence of the length

of time that the substance had been on the floor, there can be no

inference that any increased level of inspecting or cleaning by

Wal-Mart would have discovered and remedied the condition.”

Richardson, 963 S.W.2d at 166.

IV.

The magistrate judge faced some difficult procedural issues in

deciding whether to allow Valerie’s testimony. Because the

evidence was insufficient to support the verdict even with

Valerie's testimony, we need not review the rulings on those

issues. 

For the foregoing reasons, the judgment is REVERSED AND

RENDERED in favor of Wal-Mart.