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IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

MORENO V. WALMART INC.

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

JOANN MORENO, APPELLANT,

V.

WALMART INC., APPELLEE.

Filed November 16, 2021. No. A-21-188.

Appeal from the District Court for Lincoln County: MICHAEL E. PICCOLO, Judge. Affirmed.

Elaine A. Waggoner, of Waggoner Law Office, for appellant.

Dwyer Arce, of Kutak Rock, L.L.P., and Philip M. Kelly, of Douglas Kelly Law Firm, for 

appellee.

MOORE, BISHOP, and ARTERBURN, Judges.

ARTERBURN, Judge.

INTRODUCTION

Joann Moreno filed an action against Walmart Inc., in the district court for Lincoln County, 

as a result of her slipping on a puddle of clear liquid and falling inside of a Walmart store in North 

Platte, Nebraska. The district court sustained Walmart’s motion for summary judgment, and Joann 

appeals. Upon our review of the record, we conclude that there is no genuine issue of material fact 

as to whether Walmart created or had constructive knowledge of the wet floor on the premises. As

such, we affirm the district court’s granting of summary judgment in favor of Walmart.

BACKGROUND

On June 9, 2016, at approximately 10:15 in the morning, Joann slipped and fell on the floor 

of Walmart, near a display of floral arrangements for sale. After Joann’s fall, a puddle of clear 

liquid was located nearby.
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Joann subsequently filed a complaint against Walmart, alleging that she sustained personal 

injuries as a result of the fall. She asserted that Walmart’s negligence was the sole and proximate 

cause of her injuries, in that Walmart failed to maintain a safe environment for its customers by 

allowing liquid to pool on the floor in an area where customers passed through. Joann further 

asserted that Walmart was aware of the dangerous condition on the floor and failed to properly 

warn her. Joann sought a judgment against Walmart for special damages, general damages, and 

costs.

Walmart moved for summary judgment. At the hearing on the summary judgment motion, 

Walmart argued that there was no evidence to establish that Walmart either created the condition 

of the wet floor or knew, or should have known, of that condition prior to Joann’s fall. The 

evidence Walmart submitted in support of its motion included Joann’s deposition testimony; 

photographs of the area where Joann fell in the store; video surveillance footage of Joann’s fall; 

and affidavits from three employees of Walmart’s North Platte store. In opposition to the motion 

for summary judgment, Joann offered, among other evidence, her own affidavit and the affidavit 

of her son, who drove her to Walmart on the day of her fall.

In her deposition, Joann testified that on the day of the fall, she went to Walmart in order 

to purchase her son’s medication. As she was walking past the floral display, Joann slipped and 

fell. She testified that prior to falling, she did not notice anything on the floor. However, after the 

fall she observed “plenty” of “clear water” on the floor of the store, which she believes caused her 

to slip and fall. She did not see any trail of water or wet footprints which had originated from the 

puddle. Moreover, she indicated that she did not know how long the liquid had been on the floor 

prior to her fall. She also did not know whether Walmart was aware of the liquid on the floor prior 

to her fall. And, while Joann “assume[d]” that the water was dripped on the floor by whichever 

Walmart employee had restocked the floral display with flowers, she admitted that she did not see 

anyone restock the display, nor did she know exactly how the water came to be on the floor.

Joann testified that as a result of the slip and fall at Walmart, she injured her lower back 

and her side. She further testified that prior to falling at the Walmart in June 2016, she had slipped 

and fallen as a result of water being on the floor on three previous occasions at three different 

establishments, including two grocery stores and a hospital. Joann injured her lower back as a 

result of each of these prior falls.

Photographs of the floral display near where Joann fell which were admitted into evidence 

by Walmart reveal a large black mat placed directly in front of the display, presumably to catch 

any water which may drip from floral arrangements when removed from the display. The 

surveillance video depicting Joann’s June 2016 slip and fall demonstrates that in the hour prior to 

the fall, no employee of Walmart restocked the floral display. However, during that hour, at least 

four customers removed flowers from the display for purchase, including one customer who 

removed flowers from the display approximately 3 minutes prior to Joann’s fall. That customer 

took flowers from the display and walked off of the black mat in order to place the flowers in a 

shopping cart. In the 3 minutes between this customer removing the flowers and Joann’s fall, other 

customers walked past the floral display. In fact, two children can be seen running in the vicinity 

where Joann is about to fall. No one appears to notice any water on the floor and no one else slips. 

The video does show two Walmart employees in the area of the floral display in the minutes 

preceding Joann’s fall.
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After Joann’s fall, the video depicts multiple Walmart employees coming to her assistance. 

One of these employees retrieves some paper towels and appears to mop up some liquid on the 

floor near Joann.

Three Walmart employees from the North Platte store provided an affidavit regarding the 

circumstances related to Joann’s fall. Denise Young, an assistant manager, indicated in her 

affidavit that she was working at the time of Joann’s fall and assisted her. Young provided 

information regarding how the floral display is restocked. First, she explained that a mat is placed 

in front of the floral display in order to catch any water spills. However, she also explained that 

the flowers in the display arrive at the store in self-contained buckets of water. When restocking 

the flowers, a Walmart employee simply replaces the buckets filled with flowers. The employees 

do not add any water to the buckets. Young indicated that the liquid near Joann’s fall was clear 

and there were no cart marks or footprints trailing through it. She believed that the absence of these 

marks is indicative that the liquid had not been on the floor for very long. And, although Walmart 

employees are trained to watch for and guard spills, no employee reported seeing the liquid on the 

floor prior to Joann’s fall.

Rhonda Musolf, a department manager at the North Platte Walmart store also responded 

to Joann’s fall on June 9, 2016. In her affidavit, Musolf stated that she observed “a small clear 

puddle of water about the size of a saucer” nearby to Joann. She did not see any cart marks or 

footprints going through the water. As such, she believed that the water was only on the floor for 

a short period of time prior to Joann’s fall. Musolf indicated that, to her knowledge, no customer 

reported observing a wet floor near the floral display prior to Joann’s fall.

Daniel Steele, the manager of the North Platte Walmart store, provided further information 

regarding the training of Walmart employees. He indicated in his affidavit that all employees are 

trained to look for spills and to “guard” or mark any spills that are awaiting clean-up. He further 

indicated that employees routinely conduct “safety sweeps” to assess any dangerous conditions, 

including, spills. Steele indicated that no customers reported any water spill by the flower display 

on June 9, 2016, prior to Joann’s fall.

In her affidavit, offered in opposition to the motion for summary judgment, Joann 

explained that on the day of her fall, she and her son drove to Walmart to pick up her son’s 

medication. Upon arriving at the store, Joann went in alone while her son waited in the car. Prior 

to her slipping in front of the floral display, she did not observe there to be any signs cautioning 

that the floor was wet. Joann alleged that she laid on the floor “for a considerable period of time”

before being assisted by any Walmart employee. She averred that although she asked Walmart 

employees to call an ambulance for her, that they refused to do so. Instead, her son transported her 

to seek out medical care.

Joann’s son’s affidavit provides that when he came into the store to check on Joann after 

her fall, he observed a puddle of water near Joann. He described the puddle as “about the size of 

the inner rim of a toilet seat if you were looking directly down at it.” He also described observing 

a second puddle about half the size of the first puddle, with a few drops of water leading away 

from it. As he was helping Joann off of the floor, he observed her shoe and the bottom of her pant 

leg to be wet.
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The district court entered an order granting summary judgment in favor of Walmart. The 

court determined that there was no evidence that Walmart created the condition of the wet floor or 

that its employees knew or should have known of the condition:

Joann has produced no evidence to establish that Walmart created the dangerous condition. 

Furthermore, Joann has produced no evidence or has provided a reasonable inference that 

Walmart or its associates knew or should have known of the water on the floor prior to her 

fall. In fact, other than through speculation, Joann does not know how the water may have 

been spilled or for how long that condition may have existed prior to her fall. Without that 

evidence or even the existence of plausible inferences not supported by guess or 

speculation this Court nor a fact-finder can determine that the condition persisted for a 

sufficient length of time prior to the incident to permit Walmart associates to discover and 

remedy it as would be required for constructive notice.

Joann timely appeals from the district court’s order granting summary judgment in favor 

of Walmart.

ASSIGNMENTS OF ERROR

Joann assigns, consolidated and restated, that the district court erred in granting Walmart’s 

motion for summary judgment after concluding that there was no issue of material fact as to 

whether Walmart created or had constructive knowledge of the wet floor on the premises.

STANDARD OF REVIEW

An appellate court will affirm a lower court’s grant of summary judgment if the pleadings 

and admitted evidence show that there is no genuine issue as to any material facts or as to the 

ultimate inferences that may be drawn from those facts and that the moving party is entitled to 

judgment as a matter of law. Edwards v. Hy-Vee, 294 Neb. 237, 883 N.W.2d 40 (2016).

In reviewing a summary judgment, an appellate court views the evidence in the light most 

favorable to the party against whom the judgment was granted and gives that party the benefit of 

all reasonable inferences deducible from the evidence. Phillips v. Liberty Mut. Ins. Co., 293 Neb. 

123, 876 N.W.2d 361 (2016).

ANALYSIS

In premises liability cases, an owner or occupier is subject to liability for injury to a lawful 

visitor resulting from a condition on the owner or occupier’s premises if the lawful visitor proves 

(1) that the owner or occupier either created the condition, knew of the condition, or by exercise 

of reasonable care would have discovered the condition; (2) that the owner or occupier should have 

realized the condition involved an unreasonable risk of harm to the lawful visitor; (3) that the 

owner or occupier should have expected that the visitor either would not discover or realize the 

danger or would fail to protect himself or herself against the danger; (4) that the owner or occupier 

failed to use reasonable care to protect the visitor against the danger; and (5) that the condition was 

a proximate cause of damage to the visitor. Edwards v. Hy-Vee, supra. We address Joann’s claims 

that there was a genuine issue of material fact as to whether Walmart created the wet floor or had 

constructive knowledge of the condition of the floor prior to her slip and fall.
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Creation of Hazardous Condition.

In its order granting Walmart’s motion for summary judgment, the district court found that 

there was no evidence that Walmart had created the condition which caused Joann to slip and fall. 

Specifically, the court concluded, “[T]here is no evidence to support Joann’s position that Walmart 

or its associates participated in or contributed to the spill of [liquid] in the flower display area.”

In her brief on appeal, Joann contests the district court’s finding that there was no evidence 

that Walmart or its employees created the condition by spilling liquid on the floor. She asserts that 

there was evidence presented which demonstrated that Walmart was aware of the potential for 

water to pool in front of the floral display. In support of this claim, Joann points to Walmart’s use 

of a mat in front of the flower display as well as the availability of plastic bags for customers to 

use for the flowers. Joann appears to contend that because Walmart clearly foresaw the potential 

that a customer may drip water on the floor when removing flowers from the floral display, that 

Walmart can be found to have created the condition.

The Nebraska Supreme Court has previously rejected an argument similar to Joann’s. In 

Edwards v. Hy-Vee, supra, a store employee was handing out watermelon samples to customers. 

One customer later slipped on a piece of dropped watermelon, which was located approximately 

6 feet away from the sample stand. In her suit against the store, the customer argued that the store 

was not relieved of liability merely because the watermelon was likely dropped by a customer and 

not an employee of the store. She argued that because it was reasonably foreseeable that a customer 

would drop the watermelon, that the store should be held to have created the dangerous condition. 

The Supreme Court rejected this argument, explaining, “But to say that [the store] created the 

condition through the actions of a third party would expand the definition of ‘created’ well beyond 

its plain and ordinary meaning.” Id. at 242, 883 N.W.2d at 44. We find similarly here. Walmart is 

not liable for the intervening acts of its customers when there is no evidence that any Walmart 

employee directly contributed to the spill on the floor.

Because there is no evidence from which a fact finder could reasonably infer that Walmart 

created the condition through the participation of its employees, the district court did not err in 

finding as a matter of law that Walmart did not create the condition of water on the floor.

Constructive Knowledge of Condition.

Joann next argues that the district court erred in finding as a matter of law that Walmart 

did not have constructive knowledge of the spilled water. Constructive knowledge is generally

defined as knowledge that one using reasonable care or diligence should have. Gaytan v. 

Wal-Mart, 289 Neb. 49, 853 N.W.2d 181 (2014). Joann asserts that a genuine issue of material 

fact exists as to whether Walmart employees reasonably should have known that there was liquid 

on the floor near the floral display. Specifically, Joann points to the presence of two Walmart 

employees in the vicinity of the floral display in the minutes preceding her fall and to Walmart’s 

“extensive training on slip and fall hazards.” Brief for appellant at 9. We disagree with Joann’s 

contention that there was a material issue of fact regarding Walmart’s constructive knowledge of 

the liquid on the floor.

In order for a defendant to have constructive notice of a condition, the condition must be 

visible and apparent and it must exist for a sufficient length of time prior to an accident to permit 

a defendant or the defendant’s employees to discover and remedy it. Edwards v. Hy-Vee, 294 Neb. 
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237, 883 N.W.2d 40 (2016). In the absence of evidence to support an inference of the possessor’s 

actual or constructive knowledge of the hazardous condition, the Supreme Court has refused to 

allow the jury to speculate as to the possessor’s negligence. Id.

There is simply no evidence to support an inference that Walmart had constructive 

knowledge of the liquid on the floor. Joann specifically indicated that she did not know how long 

the liquid had been on the floor prior to her fall and the affidavits of the Walmart employees 

indicated that no employee or other customer had reported any liquid being on the floor. There 

were no footprints or cart tracks going through the liquid, which may indicate that the liquid was 

not on the floor for very long prior to Joann’s fall. In addition, although Joann speculated that a 

Walmart employee spilled water when restocking the floral display, she admitted that she did not 

see an employee restocking the display nor did she see anyone actually spill any liquid. In fact, the 

evidence offered by Walmart indicates that employees do not handle any water when restocking 

the floral display. Joann testified in her deposition that she, herself, did not even notice the water 

prior to slipping and falling.

Essentially, nothing in our record demonstrates how or when the water came to be on the 

floor of the Walmart store. Inferences based upon guess or speculation do not create material issues 

of fact for purposes of summary judgment. Range v. Abbott Sports Complex, 269 Neb. 281, 691 

N.W.2d 525 (2005). Without evidence of how long the liquid was on the floor prior to Joann’s fall, 

the training of the Walmart employees to recognize and quickly rectify spills becomes irrelevant. 

There is simply no way to know whether the spill existed for a sufficient length of time prior to 

Joann’s fall to have permitted Walmart’s employees, even with their training, to discover the 

condition. Because there is no evidence or reasonable inference that Walmart knew or should have 

known of the liquid on the floor, Walmart was entitled to judgment as a matter of law.

Other Genuine Issues of Material Facts.

In her brief on appeal, Joann asserts that there were other material issues of fact in dispute 

which should have prevented entry of the summary judgment in favor of Walmart, including the 

type of shoes she was wearing at the time of her fall and whether Walmart employees refused her 

request to call an ambulance to transport her to the hospital. While the evidence presented at the 

summary judgment hearing indicates that there was conflicting evidence presented as to Joann’s 

shoes and the request for an ambulance, such factual issues are not material to the ultimate question 

raised by Walmart’s motion for summary judgment. Walmart’s motion focused solely on whether 

there was any evidence to demonstrate that Walmart knew or should have known of the liquid 

spilled on the floor prior to the time of Joann’s fall. As we discussed at length above, there was no 

such evidence presented. As a result, the type of shoes Joann was wearing when she fell or whether 

she requested an ambulance be called are inconsequential to our decision to affirm the granting of 

summary judgment in favor of Walmart.

CONCLUSION

Because there was no evidence from which a reasonable finder of fact could infer that 

Walmart created the dangerous condition or had constructive knowledge of the liquid spilled on 

the floor, the district court did not err in granting summary judgment in favor of Walmart.

AFFIRMED.