IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-40736
Summary Calendar
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ERNESTINE HENSLEE,
Plaintiff-Appellee,
VERSUS
WAL-MART DISCOUNT CITIES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
(1:95-CV-402)
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July 21, 1998
Before JOLLY, JONES, and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Ernestine Henslee received a jury verdict for the alleged
negligence of Wal-Mart Discount Cities (“Wal-Mart”) in failing to
prevent her from slipping on a piece of hot dog in a snack bar.
The magistrate judge entered judgment on the verdict. Because
evidence was insufficient to support the verdict, we REVERSE and
RENDER judgment in Wal-Mart's favor.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited circumstances
set forth in 5TH CIR. R. 47.5.4.
I.
Walking into the Wal-Mart snack bar at 12:08 p.m., Henslee
suddenly slipped and fell, sustaining injuries to both knees. She
testified that she did not see what tripped her before she fell;
afterward she looked around and observed a piece of hot dog,
approximately two inches long. She testified that the hot dog was
smashed or smeared, a fact which she attributed to her having
stepped on it. She stated that she had no idea how the hot dog got
there or how long it had been there. She added, at the prompting
of her attorney, that the hot dog “looked old and cold,” but
admitted that she did not touch it and that it appeared the same
color as those being sold at the snack bar.
Lisa Lozano, a customer who followed Henslee into the snack
bar, confirmed her description of events. She also testified that
the hot dog “looked old,” but failed to supply any reason for her
opinion.
Barry Stabler, the Wal-Mart assistant manager on duty,
responded to the announcement that Henslee had fallen. He
completed an incident report, took pictures, and spoke to Lozano.
He testified that Wal-Mart employees were trained to keep their
work areas clean; in fact, the store had a policy requiring them to
conduct “safety sweeps” or “zone defenses” every ten to fifteen
minutes. If employees were too busy to inspect the area, they were
instructed to contact management for help. In addition, the store
had a porter who roamed throughout the entire store performing
“zone defenses” and cleaning up any mess.
2
Diane Miller, who managed the snack bar, confirmed that she
instructs her employees to check the snack bar area every fifteen
minutes. She testified that she went on her lunch break at 12:00
that day and had performed a safety sweep before she left, noting
that the area was clean. Lisa Valerie, who was not a Wal-Mart
employee when she testified but was an employee on duty when the
accident occurred, offered “rebuttal” testimony that Miller did not
perform such a check before she left. Valerie was allowed to
present this testimony despite the fact that Wal-Mart had not been
notified of her address or of the expected content of her testimony
until the day of trial, that she had been sitting in the courtroom
throughout the testimony of Miller and another witness, and that
Wal-Mart had presented no formal “case in chief” for Henslee to
rebut, save its cross-examination of Henslee’s witnesses.
II.
In reviewing the denial of a motion for judgment as a matter
of law (j.m.l.”), we determine whether the record contains evidence
upon which a reasonable trier of fact could conclude as the jury
did. Molnar v. Ebasco Constr., Inc., 986 F.2d 115, 117 (5th Cir.
1993). We reverse the decision denying the motion only if the
facts and inferences point so strongly and overwhelmingly in favor
of the defendant that reasonable jurors could not arrive at a
contrary verdict. Crosthwait v. John Deere Co., 992 F.2d 525, 528
(5th Cir. 1993). A mere scintilla of evidence is insufficient to
provide a question for the jury; conflicts about substantial
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evidence must be present to avoid j.m.l. Boeing Co. v. Shipman,
411 F.2d 365, 374 (5th Cir. 1969) (en banc).
III.
To support her claim of premises liability under Texas law,
Henslee must demonstrate (1) that Wal-Mart had actual or construc-
tive notice of some condition on the premises; (2) that the
condition posed an unreasonable risk of harm; (3) that Wal-Mart did
not exercise reasonable care to reduce or eliminate the risk; and
(4) that Wal-Mart’s failure to use reasonable care proximately
caused her injuries. Motel 6 G.P. Inc. v. Lopez, 929 S.W.2d 1, 3
(Tex. 1996); Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992).
Constructive notice may consist of proving that the defendant put
the substance on the floor, knew it was there and failed to remove
it, or should have discovered and removed it in the exercise of
ordinary care because it had remained there for so long. Keetch,
845 S.W.2d at 265; Richardson v. Wal-Mart Stores, Inc., 963 S.W.2d
162, 165 (Tex. App.SSTexarkana 1998, no writ). Henslee presented
no evidence that Wal-Mart placed the hot dog on the floor or knew
it was there; accordingly, her evidence must show that the hot dog
was on the floor so long that, in the exercise of ordinary care,
Wal-Mart would have discovered and removed it.
The jury heard testimony to the numerous ways in which
Wal-Mart monitors the cleanliness of its stores. It has a porter
who patrols the entire store. Its employees are instructed to
conduct “safety sweeps” of their assigned areas every fifteen
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minutes.
Although it appears employees may not have conducted the
sweeps when busy, and that at noon on the date in question, fewer
employees were working behind the counter than are sometimes
available during the typically busy lunch hour, there is no
evidence demonstrating when the last check was performed (assuming
that her witness, Valerie, correctly observed that Miller did not
perform one at noon). Only a few customers were in the snack bar
when the accident occurred, so it seems unlikely that, as Henslee
implies, the snack bar employees were too busy to perform any
sweeps for a substantial period of time before her accident.2 She
produced no witness who could testify that the snack bar employees
were lax in their duty to perform safety inspections, on that day
or any other. Nor could she produce any witness who had any idea
when the hot dog found its way to the floor.
Henslee’s only evidence that the hot dog was on the floor long
enough to put a reasonable premises owner on constructive notice is
her observation, supported by Lozano, that the hot dog “looked
old.” She could not bolster this opinion with any facts, such as
the color of the hot dog or its actual temperature; although she
claimed it looked cold, she did not touch it. On appeal, her
counsel argues that the fact the hot dog was smeared supported
Henslee’s claim, yet Henslee admitted that she believed it was she
2
See Joachimi v. City of Houston, 712 S.W.2d 861, 865 (Tex. App.SSHouston
[1st Dist.] 1986, no writ) (holding insufficient a mere allegation that garage
failed to discover oil spill because it was understaffed, without evidence of how
long it had been there, where garage claimed daily cleanings and inspections
throughout the day).
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who first smashed the hot dog. There is no evidence to suggest, as
Henslee’s brief claims, that previous customers had already stepped
on the hot dog.
Henslee’s “evidence” therefore differs from the testimony
offered in cases finding liability. In one case, for example, a
plaintiff testified that the grape juice she slipped on had “dried
around the edges.” See Furr’s, Inc. v. Bolton, 333 S.W.2d 688, 690
(Tex. Civ. App.SSEl Paso 1960, no writ). Similarly, in another,
the plaintiff noted that a vomited substance was “already dried
where it looks like a cake.” See Kroger Stores, Inc. v. Hernandez,
549 S.W.2d 16, 17 (Tex. Civ. App.SSDallas 1977, no writ). These
plaintiffs’ jury verdicts were upheld because they offered actual
observations, rather than baseless conclusions, that the liquid
materials were dry in places.
In contrast, Henslee alleged no observable facts to support
her conclusion that the hot dog was old. She did not allege that
it was a different color from those being sold, nor did she touch
it to determine whether it was actually cold.
The unsupported conclusions of the self-interested Henslee and
the sympathetic Lozano do not create a material issue of fact.
Absent any reliable evidence that the hot dog had been on the floor
for longer than a few minutes, or even that Wal-Mart’s inspection
was so lax that it could have been on the floor for longer than
that, a reasonable jury could not find that Henslee had proven
constructive notice. As the Texas Supreme Court recently declared,
in a similar slip-and-fall case, the plaintiff “had to demonstrate
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that it was more likely than not that the [food] had been [on the
floor] for a long time,” “to put the store on constructive notice.”
Wal-Mart Stores, Inc. v. Gonzalez, No. 97-1030, 1998 Tex. LEXIS 79,
at *9-*10 (Tex. May 8, 1998). “Absent any evidence of the length
of time that the substance had been on the floor, there can be no
inference that any increased level of inspecting or cleaning by
Wal-Mart would have discovered and remedied the condition.”
Richardson, 963 S.W.2d at 166.
IV.
The magistrate judge faced some difficult procedural issues in
deciding whether to allow Valerie’s testimony. Because the
evidence was insufficient to support the verdict even with
Valerie's testimony, we need not review the rulings on those
issues.
For the foregoing reasons, the judgment is REVERSED AND
RENDERED in favor of Wal-Mart.
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