## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 20

- 00035

- CV

PAUL K . CLAYTON , Appellant

V. WALMART INC. AND WAL

- MART STORES TEXAS, L.P. , Appellee s

On Appeal from the 62nd District Court Hopkins County, Texas Trial C o urt No. CV43911

Before Morriss, C.J., Burgess and Stevens, JJ. Memorandum Opinion by Justice Stevens2 

### ME MORANDUM OPINION
After Paul K. Clayton slipped on salad dressing in his local Walmart, h e sued Walmart Inc. and Wal

- Mart Stores Texas, L.P. (collect ively Walmart ) , for premises liability. 1 The trial court granted Walmart’s motion for summary judgment, which argued that Clayton could not establish his premises liability clai m since there was no evidence that it had actual or
construct ive kn owledge o f a dangerous condition on the premises

. As a result, the trial court entered a take

- nothing judgment against Clayton

. On appeal, Clayton argues that he established a genuine issue of material fact on the issue of constructive knowl edge. Because we dis a g ree, we affirm the trial court’s judgment.
I. Standard of Review “The grant of a trial court ’ s summary judgment is s ubject to de novo review by appellate courts.” Padron v. Catholic Diocese of Austin , No. 06

- 18

- 00087

- CV, 20 19 WL 1548637, at *2 (Tex. A p p . — Texarkana Apr. 10, 2019, no pet.) (mem. op.) (citing Provident Life & Accident Ins.
Co. v. Knott , 128 S.W.3d 211, 215 (Tex. 2003)). “In making the required review, we deem as true all evidence which is favorable to the nonmovant, we i ndulg e every reas o n able inference to be drawn from the evidence, and we resolve any doubts in the nonmovant ’ s favor.” Id

. (citing Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005)). “A no

- evidence summary judgment is essentially a pretr ial d irected verd i c t. Therefore, we apply the same legal sufficiency standard in reviewing a no

- evidence summary judgment as

1 Though it contained allega tions of negligence, Clayton’ s petition asserte d a premises liability case. See United Scaffolding, Inc. v. Levine , 537 S.W.3d 463, 47 2, 479 (Tex. 2017) (explainin g the difference between premises liability and general negligence claims).3

we apply in re viewing a directed verdict.” Id. at *3 (citing Wal

- Mart Stores, Inc. v. Rodriguez , 92 S.W.3d 502, 506 (Tex. 2002)). “We must d eterm i n e whether the plaintiff produced any evidence of probative force to raise a fact issue on the material questions presented.” I d. (citing Rodriguez , 92 S.W.3d at 506; Woodruff v. Wright , 51 S.W.3d 727, 734 (Tex. App.

— Texarkana 2001, pet. denie d)). “The p l aintiff will defeat a defendant ’ s no - evidence summary judgment motion if plaintiff presented more than a scintilla of probative evidence on each element of its claim.” Id. (citing King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 751 (Tex. 2003); Rhine v. Pr i o rity One Ins. Co. , 411 S.W.3d 651, 657 (Tex. App.

— Texarkana 2013, no pet.)).
II. The Constructive Knowledge Requirement

“ In premises

- liability cases, the scope of a landowner ’ s responsibility turns on the plaintiff ’ s status. ” Id. (citing Del Lago Partn e r s, Inc. v. Smith , 307 S.W.3d 762, 767 (Tex.
2010 ) ). I t is undisputed that Clayton was a business invitee. “[G]enerally, a property owner owes invitees a duty to use ordinary care to reduce or
eliminate an unreason able ri sk of harm created by a premise s condition about which the property owner knew or should have known.” Id. (al teration in origina l) (quoting Advance Tire & Wheels, LLC v. Enshikar , 527 S.W.3d 476, 481 (Tex. App.

— Houston [1st Dist.] 2017, no pet.) ( citing A ustin v. Kroger Te x., L .P

. , 465 S .W.3d 193, 203 (Tex. 2015) (“A landowner has a duty
to exercise reasonable care to make the premises safe for invitees.”) )

. “A premises owner ’ s duty toward its invitee does not, however, make the owner an insurer of the in vitee ’ s safety.” Id. ( quoting A u stin , 465 S.W.3d at 203; Wal

- Mart Stores, Inc. v. Gonzalez , 968 S.W.2d 934 , 936 (Tex. 1998 )). “ Applying the general rule, the Texas Supreme Court ‘ has repeatedly described a4

landowner ’ s duty as a duty to make safe or warn against any concea led, unreason a b ly dangerous conditions of which the landowner is, or reasonably should be , aware but the invitee is not. ’ ” Id. at *4 (quoting Austin , 465 S.W.3d at 203 )

. Here, for Walmart to be liable for Clayton’ s injury, Clayton had to prove (1) tha t [the defend a nt ] had actual or constructive knowledge of some condition on the premises; (2) that the condition posed an unreasonable risk of harm to [the plaintiff]; (3) that [the defendant] did not exercise reasonable care to reduce or to eliminate the risk; and (4) th at [the defendant ’ s] failure to use such care proximately caused [the plaintiff ’ s] personal injuries. Id. at * 3 (quoting Levine , 537 S.W.3d at 471

– 72 (a lterations in original) (quoti ng Corbin v. Safeway Stores, Inc

. , 648 S.W.2d 292, 296 (Tex. 1983) ) ). On ly the first requirement is at issue.
III. Clayton’s Summary Judgment Evidence Did Not Raise a Genuine Issue of Material Fact A. Clayton’s Summary Judgme nt Evidence In response to Walmart’s no

- evidence motion for summary judgment, Clayton attached his o wn deposition testimony. Clayton said that the slip and fall happened in the salad dressing aisle of the Walmart, which was busy. It was his habit to wal k do wn the store a isle b y aisle. Clayton testified that he had previously been to the salad dressin g a isle before he slipped but did not notice any spill. After he had been in the store for about an hour and fifteen minutes, Clayton returned to the salad dressin g aisle to retri eve a n item he had forgotten and slipped on “[m]ayo on [the] floor” or “some thi ng w h ite.” After the slip, Clayton said he “was looking for help,” “knew somebody was in that area because [he’d] been seeing him around,” saw Walmart e mploye e Joe Tay lor “an aisle or two5

over,” showed him the spilled salad dressing, and advised him to c le a n it up. 2 After the incident, Taylor told Clayton that he had cleaned up the spill and that “there was a lot down there.” Clayto n walked to the front of the store to notify another Walmart employee, Melissa Farmer, that he had salad dressing on h is fo ot

. According to Farmer, Clayton told her that he had not reported the incident before he spoke with her but wanted to r eport it to a manager. Whe n asked whether Walmart had any opportunity to clean up the substance before he had encoun tered it, Cl ayto n s a id, “ For me, I didn ’ t see any bottle. I thought it looked like it had been

-- l i ke they had tried to clea n it up and maybe didn ’ t get all of i t. . . . From what I ’ m thinking, I don ’ t know. ” Clayton admitted that no one from Walmart told him that the y ha d tried but failed to clean up the spill. Clayton was shown a photograph of “a ra nch dressing container that had th e cap knocked o ff that was sitting on the shelf.” The photographs showed that the ranch d ressing bottle with the mi ssing c ap had been mi s placed on the bo ttom shelf next to large jars of mayonnaise. Kevin Caraway , an assistant manager, testified that Walma rt emp loyees check the aisles periodically for spills, other hazards, a nd mis

- stocked items. According to Carawa y, Walm art policy req u ires any employe e who comes across a spill to “guard it until somebody else comes by, and then somebody else cleans it up .” Caraway also said that , if a Walmart employee had

2 Clayton argue s that the following portion o f his testim ony showed that Taylor was in the proximity of the spill for an hour and a half:
I was looking for help because, you kn ow, I’d be en there, like I said, an hour and a half. So I knew somebody was in that area beca use I’d been seeing him a r ound. So I seen him. He was, like, an aisle or two over, and I let him know what happened

. . . . We disagree with Clayton’s char acterization of this testimony, which does not show how long Taylor had been in the area

. It also does not show that Tayl o r was ever in the salad dressing aisle.6

f ound the salad dressing bottle, they would have taken it o ff the floor and to t h e claims area. C araway testified tha t, after the spill, the area was cleaned for the sake of customer safety but that no on e had located the top of the ranch dressing bottle

. B. Analysis Clayton argues that there are genuine issues of material fact conc e rning whether Walmart had constructive knowledge of the salad dressing spill

. 3 Under Texas law, a plaintiff can establish k no wledge of a potentially harmful condition in one of three ways: (1) prove the defendant caused the harmful condition; ( 2) prove t h e defendant knew of t he ha rmful condition and negligently failed to remove it; or (3) prove the har mful condition was presen t for so long that it should have been discovered or removed in the exercise of reasonable care. Brookshire Food Stores, L.L.C. v. Allen , 93 S.W.3d 897, 900 (Tex. App.

— Texarkana 2002, no pet

. )

. Clayton first argues that Walmart caused the harmful condit i on because the salad dressing was improperly stocked on the bottom shelf with the cap removed. That said , he introduce d no evide n ce showing that it wa s misp laced by a Walmart employee instead of a
customer. As for the second and third method of establis h ing constructive knowledge, Clayton argues that Taylor had been in the area of the spill, which was “clearl y conspicuou s because i t was a large puddle of ran ch dressing ” and because Walmart employ ees were to periodically inspect aisles for spills. Even s o , t he Texas Supreme Court has held that “ evidence [that] the premises owner ’ s employee was in close proximi ty to the da ngerous co n dition immediately

3 There is no evidence of actual knowledge of the spill

.7

before the pl aintiff fell, without more, is legally insufficient to charge the premises owner with constructive notice. ” Id. at 901 (citing Wal

- Mart Stores, Inc. v. Reece , 81 S.W.3d 812, 813 , 816
n.1 (Tex. 2002 ) )

. “ There must also be s ome evidence showing the dangerous condition existed long enough that the premises owner had a reasonable opportunity to discover it. ” Id. (citing
Reece , 81 S.W.3d at 813). This “time

- notice rule” prevents the impo sition of “ liability on a
store keeper f

o r the carelessness of another over whom it had no control or for ‘t he fortuitous act of a single customer ’ that could instantly create a dangerous condition. ” Wal

- Mart Stores, Inc . v. Reece , 81 S.W.3d 812, 81 6 (Tex. 2002 ) (quoting Coffee v. F.W. Woolwort h Co

. , 5 36 S.W.2d 539, 541 (Tex. 1976) ).
Here , there is no evidence of when the spill occurred or who c aused the spill , and Clayton himself testified that he did n ot see the spill when he first walked through the salad dressing aisle

. Clayton’s argument “ merel y indicates that it was possible for the premises owner to discover the condition, not that the pr emises owner reason ably should have discovered it. ” Id.

“ C onstructive notice demands a more extensive inquiry ,” but Clayto n presented n othing negatin g the possibility th at the spill could have occurred moments before he fell. Id. “ Without some temporal evidence, there is no basis upon which the fact [

- ] finder can reasonably assess the opportunity the premises owner h ad to di scover the dang erous condit i on. ” Id. As a res ult, there was no evidence Walmart knew of the harmful condition or that it was present for so long that it should hav e been discovere d and cleaned. Because we find the trial court’s summary judgment proper, we overrule Cl ayton’s poin t of error on appeal

.8

IV. Conclusion We affirm the trial court’s judgment.

Scott E. Stevens Just ice Date Submitted: December 9 , 2020 Date Decided: December 11 , 2020