from the United States District Court for the Southern
District of Texas
HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
E. SMITH, CIRCUIT JUDGE.
Garcia sued Wal-Mart Stores Texas, L.L.C.
("Wal-Mart"), after he slipped and fell inside the
entrance to one of its stores. The district court granted
summary judgment for Wal-Mart, reasoning that Garcia had
failed to raise a fact issue on Wal-Mart's knowledge of
the spill. Disagreeing, we reverse and remand.
incident was caught on the store's video surveillance. At
5:56 a.m., a Wal-Mart employee operating an auto-scrubber
machine passed over the area of the accident. The
auto-scrubber works by dispensing cleaning solution on the
floor, scrubbing the floor, and squeegeeing the remaining
solution. The machine paused briefly where the floor changes
from brown tile to white vinyl flooring-the spot where Garcia
would fall. The auto-scrubber operator then left the area
without checking for wet spots, trail mopping the uneven
area, or posting warning signs of spillage. Garcia claims
this was all contrary to Wal-Mart's operating procedures
and safety policies related to auto-scrubber use, which
require that "Wet Floor" signs be placed in areas
"to be scrubbed, " and that employees "trail
mop anything left behind by the scrubber, " "during
turns, along edges, or left in low spots."
the course of the next twenty-five minutes, thirteen
customers and employees walked past or through the accident
scene without slipping or checking for wet spots. At around
6:07, an employee of the McDonald's franchise located
inside the Wal-Mart pulled a trash bin through the area; and
again at 6:15, another McDonald's employee dragged a
second trash bin over the spot of the fall. At 6:21, Garcia
entered the store and slipped on what he describes as
"the exact spot where the auto scrubber had earlier
paused." Shortly thereafter, a Wal-Mart employee walked
over to the place of the incident and "put [a] cone
down" on "the spot where Mr. Garcia had
fallen" because she "saw a liquid on the
floor." The video is of too low a resolution to show the
sued in state court, and Wal-Mart removed. Wal-Mart sought
summary judgment on the ground that Garcia had offered no
evidence that Wal-Mart knew of the spill before the incident.
Garcia responded that the video, together with Wal-Mart's
policies, supported the inference that the spillage came from
the auto-scrubber; and under Texas law, evidence that the
defendant created the spill ("creation evidence")
permits a jury to infer the requisite knowledge. The district
court granted summary judgment. Citing Wal-Mart Stores, Inc.
v. Reece, 81 S.W.3d 812, 814 (Tex. 2002), the court
agreed that Garcia could create a fact issue on knowledge
if he could prove the auto-scrubber "caused the
condition." But the court dismissed Garcia's story
as "merely a possibility, an inference among many other
equally plausible, but opposite inferences." Accord
Flock v. Scripto-Tokai Corp., 319 F.3d 231, 237 (5th
requires an invitee to prove four elements on a
premises-liability claim: that "(1) the property owner
had actual or constructive knowledge of the condition causing
the injury; (2) the condition posed an unreasonable risk of
harm; (3) the property owner failed to take reasonable care
to reduce or eliminate the risk; and (4) . . . the risk was
the proximate cause of injuries to the invitee."
Henkel v. Norman, 441 S.W.3d 249, 251-52 (Tex.
2014). In Reece, 81 S.W.3d at 814, the Texas Supreme
Court explained that a plaintiff can prove knowledge, the
first element, by showing that (a) "the defendant placed
the substance on the floor"; (b) "the defendant
actually knew that the substance was on the floor"; or
(c) "it is more likely than not that the condition
existed long enough to give the premises owner a reasonable
opportunity to discover it." See also McCarty v.
Hillstone Rest. Grp., Inc., 864 F.3d 354, 358 (5th Cir.
2017). To prove any of these three propositions,
"[p]laintiffs may rely upon [either] direct [or]
circumstantial evidence." Id. at 358-59
(quotations and citations omitted).
parties agree that Keetch v. Kroger Co., 845 S.W.2d
262, 265 (Tex. 1992), provides the starting point. Before
Keetch, "a plaintiff [in Texas] could prove
actual or constructive knowledge of the dangerous conditions
by showing only that the owner/operator created the
dangerous condition." Keetch modified that rule and
The fact that the owner or occupier of a premises created a
condition that posed an unreasonable risk of harm
may support an inference of knowledge. However, the
jury still must find that the owner or occupier knew or
should have known of the condition. Making the inference as a
matter of law is improper unless knowledge is uncontroverted.
[The owner] denied knowledge of the condition so the
inference of knowledge could not be made as a matter of law.
845 S.W.2d at 265 (emphasis added, footnote and citation
reads Keetch for the broad proposition that
circumstantial creation evidence never suffices to create a
fact issue on notice of the spill where the defendant denies
knowledge. But Keetch does not say that. The court