UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-41319
Summary Calendar
NETTIE SIPES,
Plaintiff-Appellee,
VERSUS
WAL-MART STORES INC,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
(6:99-CV-722)
June 5, 2001
Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
In this premises liability case, Defendant-Appellant Wal-Mart
Stores, Inc. appeals from the district court’s judgment awarding
Nettie Sipes damages for injuries related to her fall in a Wal-Mart
Supercenter. Wal-Mart contends that the district court erred by
*
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opinion should not be published and is not precedent except under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.
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denying its motion for judgment as a matter of law because there
was insufficient evidence to create a jury question concerning
whether Wal-Mart had constructive knowledge of the slippery
substance that caused Mrs. Sipes’s accident.
I.
Shortly before 5:00 p.m. on August 5, 1998, Plaintiff Nettie
Sipes and her husband arrived at the Wal-Mart Supercenter in Mount
Pleasant, Texas. As the couple backed their vehicle behind a
trailer in the parking lot, they met Arlander (“Lan”) Buford, a
Wal-Mart employee. Buford assisted Mr. Sipes while Mrs. Sipes
shopped for garden supplies. Mrs. Sipes entered the store through
the outdoor section of the garden department and immediately walked
through the doorway leading to the indoor section. Mrs. Sipes
browsed through the garden department for approximately thirty
minutes. As she walked through an aisle, she slipped and fell on
a cream-colored, oily substance.
When Buford finished helping Mr. Sipes, he returned to the
cash register where Mrs. Sipes stood waiting. After Mrs. Sipes
informed him of her accident, Buford called the assistant manager
and cleaned up the mess. The assistant manager asked Mrs. Sipes to
fill out an accident report, which specified 5:30 p.m. as the time
of her fall. After an investigation, the assistant manager
identified the source of the substance as a bottle of sun tan
lotion misplaced on a shelf in another aisle. Mrs. Sipes testified
that she was certain that there were no other shoppers in the
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garden department from the time she entered the indoor section to
the time of her accident.
Wal-Mart requires its employees to check for safety hazards in
each department every thirty minutes. Lan Buford testified that
before meeting the couple outside the store, he conducted a routine
safety sweep of the garden department. Buford claimed that he did
not notice the spill during his inspection. After finishing the
safety sweep, he walked to the department cash register to relieve
the another employee. Buford was the only Wal-Mart employee in the
garden department when Mrs. Sipes fell. The area of the aisle
where Mrs. Sipes fell could not be seen from the cash register.
Mrs. Sipes filed suit against Wal-Mart in the District Court
of Titus County, Texas on November 16, 1999. Wal-Mart removed the
case to the District Court for the Eastern District of Texas
pursuant to 28 U.S.C. § 1332. At the close of Mrs. Sipes’s case,
Wal-Mart moved for judgment as a matter of law, which the judge
denied. Wal-Mart did not present any witness on its behalf. The
jury apportioned sixty percent of the fault to Wal-Mart and awarded
$204,600.30 plus post-judgment interest and costs for the
Plaintiff. Wal-Mart renewed its motion for judgment as a matter of
law and moved for a new trial, remittitur, or for a modification of
the judgment. The district court denied Wal-Mart’s motions for
post-trial relief, and Wal-Mart appealed.
II.
We review the denial of a motion for judgment as a matter of
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law de novo. See Threlkeld v. Total Petroleum, Inc., 211 F.3d 887,
891 (5th Cir. 2000). A challenge to the legal sufficiency of the
evidence supporting a jury’s verdict invokes the standard set forth
in Boeing v. Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc),
overruled on other grounds by, Gautreaux v. Scurlock Marine, Inc.,
107 F.3d 331 (5th Cir. 1997) (en banc). We recited the appropriate
Boeing standard in Gaia Technologies, Inc. v. Recycled Prods.
Corp., 175. F.3d 365, 374 (5th Cir. 1999):
Under Boeing, we must find a conflict in substantial
evidence to create a jury question. Substantial evidence
is defined as evidence of such quality and weight that
reasonable and fair-minded men in the exercise of
impartial judgment might reach different conclusions.
Consequently, a mere scintilla of evidence is
insufficient to present a question for the jury. Even if
the evidence is more than a scintilla, Boeing assumes
that some evidence may exist to support a position which
is yet so overwhelmed by contrary proof as to yield to a
[motion for judgment as a matter of law].
Id. (quotations and citations omitted). “We consider all evidence,
drawing all reasonable inferences and resolving all credibility
determinations in the light most favorable to the non-moving
party.” Threlkeld, 211 F.3d at 891 (citing Rhodes v. Guiberson Oil
Tools, 74 F.3d 989, 993 (5th Cir. 1996) (en banc)).
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In a diversity action such as this, we apply Texas premises
liability law to the underlying facts. See id. (citing Powers v.
Vista Chem. Co., 109 F.3d 1089, 1093 (5th Cir. 1997). A merchant
in Texas owes its invitees a duty to exercise reasonable care to
protect them from dangerous conditions that are either known to the
merchant, or reasonably discoverable. See Wal-Mart Stores, Inc. v.
Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). A plaintiff must prove
the following elements to recover damages in a slip and fall case:
(1) Actual or constructive knowledge of some condition on
the premises by the owner/operator;
(2) That the condition posed an unreasonable risk of
harm;
(3) That the owner/operator did not exercise reasonable
care to reduce or eliminate the risk; and
(4) That the owner/operator’s failure to use such care
proximately caused the plaintiff’s injuries.
Id. (citing Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992);
Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983)).
Wal-Mart’s only issue on appeal is whether the evidence is
sufficient to support the jury’s finding that Wal-Mart had
constructive knowledge of the substance that caused the Plaintiff’s
fall.
In order to impose constructive knowledge of a dangerous
condition on a defendant, a plaintiff must demonstrate that the
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condition continued for “so long that it should have been
discovered and removed in the exercise of ordinary care.” Keetch,
845 S.W.2d at 265. In Gonzalez, the Texas Supreme Court held that
evidence supporting the mere possibility that a dangerous condition
existed for a long period of time is not sufficient to establish
constructive knowledge. See Gonzalez, 968 S.W.2d at 938. Rather,
a plaintiff must establish that it was “more likely than not that
the [condition] had been there . . . long enough to make [the
defendant] responsible for noticing it.” Id.
Texas courts have recognized two categories of evidence
sufficient to establish a merchant’s constructive knowledge of a
dangerous condition. See Wal-Mart Stores, Inc. v. Reece, 32 S.W.3d
339, 343 (Tex. App.–-Waco 2000, no pet. h.). The first category
includes circumstantial evidence tending to show that a dangerous
condition was present for an extended period of time. See
Gonzalez, 968 S.W.2d at 936-38; Richardson v. Wal-Mart Stores,
Inc., 963 S.W.2d 162, 165-66 (Tex. App.–-Texarkana 1998, no pet.).
The second category includes evidence demonstrating that store
employees were in sufficient proximity to the condition that the
employees should have discovered and removed the danger. See
Reece, 32 S.W.3d at 343; H.E.B. Food Stores v. Slaughter, 484
S.W.2d 794, 797 (Tex. Civ. App.–-Corpus Christi 1972, writ dism’d).
Cf. Wal-Mart Stores, Inc. v. Garcia, 30 S.W.2d 19 (Tex. App.–-San
Antonio 2000, no pet. h.) (holding that evidence of proximity of
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employees to a snack bar combined with testimony that no other
customer had eaten the food spilled on the floor for a period of
time was sufficient to support a jury finding of constructive
knowledge). This case falls into the first category.
The Texas Supreme Court has continually rejected evidence such
as footprints, cart tracks, and discoloration of fruit to establish
that a dangerous condition on a store’s floor was present for a
sufficient period of time to impose constructive knowledge on the
merchant. See Gonzalez, 968 S.W.2d at 936-38; Corbin v. Safeway
Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983). Unlike footprint or
cart track evidence, Mrs. Sipes testified that she was the only
person in the garden department from the time she entered the
enclosed area at 5:00 p.m. until her fall at 5:30 p.m. She
contends that Lan Buford either failed to perform his inspection of
the aisles shortly before 5:00 p.m. or performed the search
negligently. She argues that since no one else was in the garden
department, the liquid on the floor must have been there before
Buford’s inspection. If the substance was present before the
routine scheduled safety inspection, Wal-Mart should have
discovered the condition and removed it.
Wal-Mart contends that Mrs. Sipes could not have known how
many people were in the garden department. Wal-Mart suggests that
the layout of the store prevents a person in one aisle from seeing
other aisles. In addition, Wal-Mart claims that Mrs. Sipes did not
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know how many people walked through the aisles of the garden
department when she and her husband met Buford outside the store.
Mrs. Sipes did not explain how she knew that there were no other
customers in the garden department.
In an appeal from a district court’s denial of a motion for
judgment as a matter of law, we defer to the jury’s determination
of credibility by reviewing the witness’s testimony in the light
most favorable to the non-moving party. See Rhodes v. Guiberson
Oil Tools, 75 F.3d 989, 993 (5th Cir. 1996) (en banc). However, if
self-serving testimony is naturally impossible, we may disregard
the testimony in deciding whether the evidence was sufficient to
support the jury verdict. See Ralston Purina Co. v. Hobson, 554
F.2d 725 (5th Cir. 1977). Although it may have been difficult for
Mrs. Sipes to discover that there were no other persons in the
garden department, it was not naturally impossible for her to do
so. See Miller v. Butcher Distributors, 89 F.3d 265, 267 (5th Cir.
1996).
Under Texas law, the evidence must demonstrate that it was
more likely than not that the dangerous condition that caused Mrs.
Sipes’s fall was on the floor long enough for a Wal-Mart employee
to discover the condition. See Gonzalez, 968 S.W.2d at 936-38.
Based on Mrs. Sipse’s testimony that she was the only person in the
garden department from 5:00 p.m. until 5:30 p.m., a reasonable jury
could find that it was more likely than not that the liquid spilled
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on the floor had been there long enough for Buford or another
employee to discover the substance during a routine safety
inspection. We therefore conclude that a reasonable jury could
find that Wal-Mart had constructive knowledge of the spill.
Accordingly, we affirm the district court’s judgment.
AFFIRMED
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