COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-15-00345-CV 

CHARLES CAREY APPELLANT

V.

HI-LO AUTO SUPPLY, LP D/B/A 

O'REILLY AUTO PARTS AND 

O'REILLY AUTOMOTIVE STORES, 

INC.

APPELLEES 

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FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 352-268403-13

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MEMORANDUM OPINION1

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Appellant Charles Carey appeals from the trial court’s summary judgment 

in favor of appellees Hi-Lo Auto Supply, LP, d/b/a O’Reilly Auto Parts and 

 

1See Tex. R. App. P. 47.4.
2

O’Reilly Automotive Stores, Inc. (O’Reilly) on Carey’s premises-liability claim. 

We affirm.

I. BACKGROUND

O’Reilly operates an automotive-parts and -supply store in Tarrant County, 

Texas. On May 22, 2012, the store opened at 7:30 a.m. Michelle Swafford, an 

O’Reilly employee, stocked the oil aisle between 7:30 and 8:00 a.m. She 

inspected the aisle as she was stocking the shelves with oil. The aisle had 

shelves of oil on both sides with an oil display located in the middle. Two other 

employees at the store that day, Jared Sorrow and Sara Funchess, were working 

at the front counter, which was away from the oil aisle. 

At approximately 10:00 a.m., Carey entered the store, spoke briefly with 

“Ronnie,” a store employee, and then went down the oil aisle on his way to the 

commercial auto section of the store. When Carey was approximately halfway 

down the oil aisle, his right foot “hit something . . . slick” on the floor, causing him 

to slip and fall to the floor. Before he fell, Carey noticed nothing on the floor of 

the aisle, and he later stated that the store was clean and well-kept that day, 

which was normal for that store. The fall knocked Carey unconscious. When he 

regained consciousness, he used his cell phone to call the store’s main number 

for help. Swafford answered the call, and Carey told her that he was on the floor 

of the oil aisle and needed help. 
3

Swafford went to the aisle and saw Carey lying on his back. “J.B.,” the 

store manager,2 also came to the aisle and tried to have Carey sit up, but 

because doing so made him dizzy, Carey lay back down. Swafford noticed that 

the back of Carey’s shirt was covered with oil. As J.B. began wiping oil off of 

Carey, Carey noted that the oil was clear, making it undetectable on the white 

floor, and he saw leaked oil on a nearby shelf. The oil on the floor was 

concentrated in a single, one-foot area. Nevertheless, the store was unable to 

determine the source of the leak even though employees later inspected every 

can of oil on the aisle. 

Carey filed suit against O’Reilly for premises liability under the theories of 

negligence and negligence per se.3 He alleged that O’Reilly (1) failed to maintain 

its premises in a reasonable and safe condition, (2) created a dangerous 

condition, and (3) failed to adequately warn him of the dangerous condition or 

make the dangerous condition reasonably safe. Carey alleged that these failures 

or actions proximately caused severe injuries to “his shoulder, leg, head, back, 

and other parts of his body.” O’Reilly moved for a traditional summary judgment 

because Carey had not raised a genuine issue of material fact that O’Reilly had 

actual or constructive notice of the dangerous condition. See Tex. R. Civ. P. 

166a(c). O’Reilly also moved for a no-evidence summary judgment, arguing that 

 

2Carey gave no further identifying information about J.B. 

3Carey also raised a claim for gross negligence, but he waived this claim in 

the trial court. 
4

there was no evidence of one or more essential elements of Carey’s premisesliability claim: that O’Reilly had actual or constructive notice of a dangerous 

condition, that O’Reilly breached a duty to Carey, or that any breach of duty 

proximately caused Carey’s damages. See Tex. R. Civ. P. 166a(i). The trial 

court held a nonevidentiary hearing on O’Reilly’s hybrid motion and took it “under 

advisement.” On September 25, 2015, the trial court entered an order granting 

O’Reilly’s motion without stating its reasons. Carey appeals and argues that 

summary-judgment evidence raising genuine issues of material fact on each

element of his premises-liability claim precluded summary judgment in O’Reilly’s 

favor. 

II. STANDARD AND SCOPE OF REVIEW

When a party moves for summary judgment under both rules 166a(c) and 

166a(i), we first review the trial court’s judgment under the standards of rule 

166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the 

nonmovant failed to produce more than a scintilla of evidence under that burden, 

then there is no need to analyze whether the movant’s summary-judgment proof 

satisfied the rule 166a(c) standard. Id.

Under rule 166a(i) and after an adequate time for discovery, the party 

without the burden of proof may, without presenting evidence, move for summary 

judgment on the ground that there is no evidence to support an essential element 

of the nonmovant’s claim or defense. Tex. R. Civ. P. 166a(i). The trial court 

must grant the motion unless the nonmovant produces summary-judgment 
5

evidence that raises a genuine issue of material fact. See Tex. R. Civ. P. 166a(i) 

& cmt.; Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008).

When reviewing a no-evidence summary judgment, we examine the entire 

record in the light most favorable to the nonmovant, indulging every reasonable 

inference and resolving any doubts against the motion. Sudan v. Sudan, 

199 S.W.3d 291, 292 (Tex. 2006). If the nonmovant brings forward more than a 

scintilla of probative evidence that raises a genuine issue of material fact, then a 

no-evidence summary judgment is not proper. Smith v. O’Donnell, 288 S.W.3d 

417, 424 (Tex. 2009); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 

2003), cert. denied, 541 U.S. 1030 (2004). When, as here, a trial court’s order 

granting summary judgment does not specify the ground or grounds relied on for 

its ruling, we will affirm the summary judgment if any of the theories presented to 

the trial court and preserved for appellate review are meritorious. See Provident 

Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).

III. PREMISES LIABILITY

A. LEGAL PRINCIPLES

A person injured on another’s property may have either a negligence claim 

or a premises-liability claim against the property owner. Occidental Chem. Corp. 

v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016). When the injury is the result of a 

contemporaneous, negligent activity on the property, ordinary negligence 

principles apply. Id. But when the injury is the result of the property’s condition,

as is the case here, premises-liability principles apply. See id. Therefore, 
6

although Carey raised a premises-liability claim and appeared to additionally 

raise separate negligence and negligence-per-se claims, his allegations 

implicated premises-liability principles alone. See 1 J. Hadley Edgar Jr. & James 

B. Sales, Texas Torts & Remedies § 20.01[1], [3] (2015). Accordingly, Carey 

was required to establish the elements of premises liability no matter what label 

he put on his claim. See id. § 20.01[1].

Premises liability is a form of negligence where the duty owed to the 

plaintiff depends on the plaintiff’s status at the time of the incident. W. Invs., Inc. 

v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). It is undisputed that Carey was a 

business invitee at the time he fell. A premises owner has a duty to use 

reasonable care to keep the premises under his control in a safe condition for 

business invitees such as Carey by making the premises safe or to warn of 

dangerous conditions as reasonably prudent under the circumstances. 

Occidental Chem., 478 S.W.3d at 644; Austin v. Kroger Tex., L.P., 465 S.W.3d 

193, 202 (Tex. 2015) (op. on certified question). See generally Carlisle v. 

J. Weingarten, Inc., 152 S.W.2d 1073, 1075–76 (Tex. 1941) (discussing business 

invitees and duty of care owed by premises owners). The general rule is that a 

premises owner has “a duty to make safe or warn against any concealed, 

unreasonably dangerous conditions of which the [owner] is, or reasonably should 

be, aware but the invitee is not.” Austin, 465 S.W.3d at 203. This duty is limited 

to the duty to exercise ordinary, reasonable care and does not apply such that a 

premises owner becomes the insurer of an invitee’s safety. Id.; see also Brinson 
7

Ford, Inc. v. Alger, 228 S.W.3d 161, 163 (Tex. 2007) (“[A] condition is not 

unreasonably dangerous simply because it is not foolproof.”). “What a 

reasonable [premises owner] would do is often a jury question, but sometimes it 

is not.” Austin, 465 S.W.3d at 204. 

The elements of a premises-liability claim are (1) actual or constructive 

notice of a condition on the premises by the owner, (2) the condition’s posing an 

unreasonable risk of harm, (3) the owner’s failure to exercise reasonable care to 

reduce or eliminate the risk, and (4) proximate causation from that failure to the 

plaintiff’s injury. Scott & White Mem’l Hosp. v. Fair, 310 S.W.3d 411, 412 (Tex. 

2010); CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000). In its noevidence motion for summary judgment, O’Reilly first argued that Carey had 

proffered no evidence of the first element, i.e., that O’Reilly had actual or 

constructive notice of the condition itself: 

[N]ot only is there no evidence that O’Reilly had actual awareness of the oil 

on the floor prior to the alleged accident, but there is also no evidence to 

show (i) when or how the oil appeared on the floor, (ii) that the oil was 

conspicuous, or (iii) that there were employees in close proximity to the oil 

while it was on the floor.

O’Reilly raises these same arguments on appeal and contends that the lack of 

any evidence that it had actual or constructive notice of the oil on the floor

compels this court to affirm the summary judgment. 

To avoid a no-evidence summary judgment regarding a premises owner’s 

actual or constructive notice of a condition on the premises, a plaintiff must 

proffer more than a scintilla of evidence that (1) the defendant placed the 
8

substance on the floor, (2) the defendant actually knew that the substance was 

on the floor, or (3) it is more likely than not that the condition existed long enough 

to give the premises owner a reasonable opportunity to discover it. See WalMart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002). Carey did not 

allege that an O’Reilly employee placed the oil on the floor.

B. ACTUAL NOTICE

Carey contends that he proffered evidence that an O’Reilly employee 

actually knew that the substance was on the floor through his deposition 

testimony. Carey testified that two weeks after his fall, he called J.B., who told 

him that a prior customer that same day bought “jugs” of oil that left oil “all over 

[the checkout] counter.”4 J.B. did not tell Carey how long before Carey’s fall this 

occurred. In fact, Carey stated that there was “no mention of time.” Carey 

argues that this phone conversation along with the fact that he actually slipped 

on oil equated to more than a scintilla of evidence that O’Reilly had actual notice

of the oil on the floor of the oil aisle.5 

 

4Carey testified that J.B. said the customer was “another gentleman ahead 

of [Carey].” 

5O’Reilly objected to this summary-judgment evidence in the trial court, 

arguing that it was inadmissible hearsay. The record does not show that the trial 

court explicitly ruled on this objection, and the order granting summary judgment 

indicates that this evidence was considered. We will consider this evidence in 

our review of the trial court’s summary judgment; but because O’Reilly does not 

argue that the trial court abused its discretion by considering it, we make no 

ruling on its ultimate admissibility.
9

Carey’s recounting of his phone conversation with J.B. indicates, at most,

that J.B. was aware that the cans of oil another unnamed customer bought at an 

unspecified time before Carey’s fall deposited oil on the counter while the 

customer was paying for the oil. Any inference that the oil on the counter gave 

J.B. actual notice of the oil on the floor in the oil aisle is speculative and cannot 

raise a fact issue regarding O’Reilly’s actual notice. See Univ. of Tex. v. 

Bellinghausen, No. 03-14-00749-CV, 2016 WL 462735, at *5–6 (Tex. App.—

Austin Feb. 3, 2016, no pet.) (mem. op.); Univ. of Tex. at El Paso v. Muro, 

341 S.W.3d 1, 5–6 (Tex. App.—El Paso 2009, no pet.); Esparza v. SGSThomson Microelecs., Inc., No. 05-98-01798-CV, 2001 WL 115054, at *2 (Tex. 

App.—Dallas Feb. 12, 2001, pet. denied) (not designated for publication); see 

also Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113, 117 (Tex. 2010) (“The 

representative’s testimony contemplates the hypothetical knowledge of a 

dangerous condition, not actual knowledge of a dangerous condition.”); Jefferson 

Cty. v. Akins, No. 09-14-00017-CV, 2016 WL 747477, at *7 (Tex. App.—

Beaumont Feb. 25, 2016, pet. filed) (“A claimant cannot establish actual 

knowledge by piling inference upon inference.”). Carey produced less than a 

scintilla of evidence that O’Reilly actually knew there was an oil spill on the floor 

of the oil aisle before Carey walked down that aisle. See Young v. Wal-Mart 

Stores Tex., LLC, No. 05-14-00362-CV, 2015 WL 1062744, at *2 (Tex. App.—

Dallas Mar. 10, 2015, no pet.) (mem. op.).
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C. CONSTRUCTIVE NOTICE

Because there was less than a scintilla of evidence that O’Reilly had actual 

notice of the oil on the floor, Carey was required to produce more than a scintilla 

of evidence of O’Reilly’s constructive notice—that it was more likely than not that 

the oil was on the floor long enough to give O’Reilly a reasonable opportunity to 

discover it, rectify it, or warn about it. See Reece, 81 S.W.3d at 814, 817; WalMart Stores, Inc. v. Diaz, 109 S.W.3d 584, 588 (Tex. App.—Fort Worth 2003, no 

pet.). This iteration of constructive notice is commonly referred to as the “timenotice rule” and is based on the premise that temporal evidence best indicates 

whether the owner had a reasonable opportunity to discover and remedy a 

dangerous condition. See CMH Homes, 15 S.W.3d at 102–03. The supreme 

court has explained that constructive notice cannot be found in the absence of 

evidence indicating how long a hazard was present, which involves an analysis 

of proximity, conspicuity, and longevity of the 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.

What constitutes a reasonable time for a premises owner to 

discover a dangerous condition will, of course, vary depending upon 

the facts and circumstances presented. And proximity evidence will 

often be relevant to the analysis. Thus, if the dangerous condition is 

conspicuous as, for example, a large puddle of dark liquid on a light 

floor would likely be, then an employee’s proximity to the condition 
11

might shorten the time in which a jury could find that the premises 

owner should reasonably have discovered it. Similarly, if an 

employee was in close proximity to a less conspicuous hazard for a 

continuous and significant period of time, that too could affect the 

jury’s consideration of whether the premises owner should have 

become aware of the dangerous condition. But in either case, 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.

Reece, 81 S.W.3d at 816.

Carey contends that he raised a fact issue regarding constructive notice

through Funchess’s and Swafford’s deposition testimony that “sometimes” oil 

would leak from the oil cans into the shipping box. Carey also relies on 

(1) Swafford’s recognition that she had “a continuing job duty” to keep the aisles 

free of “hazards,” (2) an O’Reilly regional manager’s testimony that O’Reilly did 

not have a “process” for routine aisle inspection, and (3) Sorrow’s testimony that 

he did not know when the oil aisle had last been inspected before Carey fell. 

Finally, Carey points to Sorrow’s testimony regarding the 21⁄2 hours between the 

time the store opened, which was when Swafford stocked the oil aisle, and the 

time Carey fell to show that the oil was on the floor long enough to impute 

constructive notice of the condition to O’Reilly. 

We conclude that Carey’s evidence did no more than raise the speculative 

possibility that O’Reilly could have discovered the oil on the floor before Carey 

fell. The spill was not conspicuous—it was not a large puddle and was clear so 

that it blended into the white floor. No evidence indicated when or how the spill 

came to be on the floor. Although Carey suggests that the oil was there from the 
12

time the store opened until the time he fell, this is nothing more than speculation. 

There also was no evidence concerning the condition of the spilled liquid that 

might indicate how long it had been on the floor. It is undisputed that the cash 

registers were not within sight of the oil aisle, no one saw Carey fall, and no one 

was able to determine the source of the oil on the floor after Carey fell. Even 

J.B.’s alleged statement to Carey about a prior customer leaving leaked oil on the 

check-out counter did not supply any evidence of the length of time between the 

time that oil was purchased and Carey’s fall. Carey failed to produce more than 

a scintilla of probative evidence raising a genuine issue of material fact regarding

O’Reilly’s constructive notice of the oil on the floor. See, e.g., id. at 816–17; Cox 

v. H.E.B. Grocery, L.P., No. 03-13-00714-CV, 2014 WL 4362884, at *3–4 (Tex. 

App.—Austin Aug. 27, 2014, no pet.) (mem. op.); Gillespie v. Kroger Tex., L.P., 

415 S.W.3d 589, 593 (Tex. App.—Dallas 2013, pet. denied); Coburn v. Toys “R”

Us–Del., Inc., No. 01-09-00871-CV, 2011 WL 345936, at *4–5 (Tex. App.—

Houston [1st Dist.] Feb. 3, 2011, no pet.) (mem. op.); Garcia v. Sellers Bros., 

Inc., No. 14-05-00954, 2006 WL 3360473, at *6–7 (Tex. App.—Houston [14th 

Dist.] Nov. 21, 2006, no pet.) (mem. op.); Esparza, 2001 WL 115054, at *2.

IV. CONCLUSION

Viewing the record in the light most favorable to Carey, we conclude that 

Carey failed to proffer any evidence raising a genuine issue of material fact that 

O’Reilly had actual or constructive notice of the oil on the floor; thus, the trial 

court did not err by granting O’Reilly a no-evidence summary judgment on 
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Carey’s premises-liability claim. We need not address the other elements of 

Carey’s claim. See Tex. R. App. P. 47.1. Accordingly, we overrule Carey’s issue 

and affirm the trial court’s judgment. See Tex. R. App. P. 43.2(a).

/s/ Lee Gabriel

LEE GABRIEL

JUSTICE

PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.

DELIVERED: June 9, 2016