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Garcia v. Wal-Mart Stores Texas, L.L.C.

United States Court of Appeals, Fifth Circuit

June 18, 2018

LEONCIO GARCIA, Plaintiff-Appellant,
WAL-MART STORES TEXAS, L.L.C., Defendant-Appellee.

          Appeal from the United States District Court for the Southern District of Texas

          Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.


         Leoncio 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.


         The 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." (Emphasis added.)

         Over 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 clear fluid.

         Garcia 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.[1] 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 Cir. 2003).


         Texas 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).

         The 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."[2] Keetch modified that rule and explained,

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 omitted).

         Wal-Mart 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 ...

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