United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 30, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
__________________________
No. 00-40006
__________________________
BILLIE F. DIXON,
Plaintiff-Appellee,
v.
WAL-MART STORES, INC.,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
___________________________________________________
Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.
WIENER, Circuit Judge:
In this simple negligence case, Defendant-Appellant Wal-Mart
Stores, Inc. (“Wal-Mart”) appeals the district court’s denial of
its motion for judgment as a matter of law following a jury verdict
in favor of Plaintiff-Appellee Billie F. Dixon. She had brought
suit against Wal-Mart after she tripped on a strip of plastic that
was lying on the floor near a check-out register at a Wal-Mart
store in Texas. Concluding that Dixon has not established a
sufficient evidentiary basis on which a reasonable jury could find
in her favor, we reverse the district court’s order and remand for
entry of judgment as a matter of law in favor of Wal-Mart.
I. FACTS AND PROCEEDINGS
In July 1996, Dixon tripped and fell at approximately 5:00
p.m. on a Sunday while leaving a Wal-Mart store in Longview, Texas.
After checking out at one of the registers, she fell when her feet
becoming entangled in a piece of plastic similar to the rope-like
plastic strips that are typically used to bind newspapers or
magazines into stacks. The injuries resulting from her fall were
relatively severe, requiring Dixon to obtain immediate medical
treatment at a nearby hospital. Thereafter, she continued to
receive regular medical treatment for maladies related to this
incident.
In July 1998, Dixon filed suit against Wal-Mart in Texas state
court, alleging injuries resulting from Wal-Mart’s negligence in
failing to maintain reasonably safe premises at its Longview store.
Wal-Mart removed the case to federal court under our diversity
jurisdiction. At a two-day trial in October 1999, Dixon claimed
that Wal-Mart failed to remove an unreasonable risk of harm to its
customers at its Longview store, viz., the plastic binder on the
floor near the check-out registers. She did not claim actual
knowledge by Wal-Mart, instead proffering two evidentiary bases for
Wal-Mart’s constructive knowledge of this unreasonable risk of
harm: (1) the close physical proximity of the plastic binder to
Wal-Mart employees, i.e., the location of the plastic binder only
several feet away from the employees staffing the check-out
registers, and (2) the sufficiently long time that the plastic
2
binder had remained on the floor, i.e., the implication that the
plastic binder had been dropped at the location of her fall by the
magazine and newspaper suppliers who restocked the store between
4:30 and 8:30 a.m. that day, more than eight hours prior to her
5:00 p.m. accident. Wal-Mart countered with uncontroverted
testimony that (1) all employees are trained to pick up any debris
or trash in the store, (2) managers and employees frequently
perform safety inspections of the store, and (3) the particular
area in which Dixon fell had been inspected most recently
approximately five minutes before her accident. The jury returned
a verdict for Dixon, but also found her 50% at fault for the
accident. Thus, the jury awarded Dixon one-half of the total
damages of $125,000.
Pursuant to Federal Rule of Civil Procedure 50, Wal-Mart moved
for judgment as a matter of law both at the close of Dixon’s case-
in-chief and prior to submission of the case to the jury. The
district court denied both of these motions. Following the return
of the jury verdict, Wal-Mart renewed its motion for judgment as a
matter of law, which was again denied. Wal-Mart timely filed a
notice of appeal.
II. ANALYSIS
A. Standard of Review.
We review de novo rulings on motions for judgment as a matter
3
of law, applying the same standards as the district court.1 Under
Rule 50, judgment as a matter of law should be granted if “a party
has been fully heard on an issue and there is no legally sufficient
evidentiary basis for a reasonably jury to find for that party on
that issue.”2 Accordingly, Rule 50 mandates that we adopt a
“sufficiency of the evidence” standard in our de novo review.3
This standard requires that we consider all evidence in the
light most favorable to the opposing party and draw all reasonable
inferences in favor of the opposing party.4 We may not make
credibility determinations or weigh any evidence, which are fact-
finding judgments to be made by the jury, not by the court.5
Nonetheless, “[i]f the facts and inferences point so strongly and
overwhelmingly in favor of the moving party that the reviewing
court believes that reasonable jurors could not have arrived at a
contrary verdict, then we will conclude that the motion should have
been granted.”6
1
Resolution Trust Co. v. Cramer, 6 F.3d 1102, 1109 (5th
Cir. 1993).
2
FED. R. CIV. P. 50(a)(1).
3
Scottish Heritable Trust, PLC v. Peat Marwick Main & Co.,
81 F.3d 606, 610 (5th Cir. 1996).
4
Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969)
(en banc).
5
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
150 (2000).
6
Resolution Trust Co., 6 F.3d at 1109.
4
B. Sufficiency of the Evidence of Wal-Mart’s Negligence.
1. Texas Law on Premises-Owner Liability.
As this case was removed to federal court under our diversity
jurisdiction, we look to Texas law for the substantive standards
defining Wal-Mart’s duty of care to its customers. In Texas, a
customer, such as Dixon, is an invitee. As such, business owners
like Wal-Mart owe “a duty to exercise reasonable care to protect
her from dangerous conditions in the store known or discoverable to
it.”7 Notably, this is a duty requiring only reasonable care by
the business owner: Texas courts have repeatedly stated that
businesses are not insurers of an invitee’s safety.8 Therefore, to
prove premises liability on the part of a business owner, a
plaintiff must show:
(1) Actual or constructive knowledge of some condition on the
premises by the owner/operator;
(2) the condition posed an unreasonable risk of harm;
(3) the owner/operator did not exercise reasonable care to
reduce or eliminate the risk; and
(4) the owner/operator’s failure to use such care proximately
caused the plaintiff’s injuries.9
In this case, Wal-Mart did not contest that the plastic binder
on the floor constituted an unreasonable risk of harm or that Dixon
7
Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936
(Tex. 1998).
8
Id. See also Wright v. Wal-Mart Stores, Inc., 73 S.W.2d
552, 554 (Tex. App.—— Houston [1st Dist.] 2002) (noting that a
business is not an insurer of an invitee’s safety on its
premises); Wal-Mart Stores, Inc. v. Garcia, 30 S.W.3d 19, 22
(Tex. App. —— San Antonio 2000) (same).
9
Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992).
5
was in fact injured in a trip and fall caused by this binder. Wal-
Mart disputes only Dixon’s allegation that it had constructive
knowledge of the presence of the plastic binder on the floor.
Therefore, the sole issue on appeal is whether Dixon established a
sufficient evidentiary basis on which a reasonable jury could find
that Wal-Mart had constructive knowledge of the plastic binder’s
presence on the floor.
2. Constructive Knowledge.
On appeal, Dixon reiterates her trial contention that Wal-Mart
had constructive knowledge of the plastic binder’s presence, given
its proximity to Wal-Mart employees and the length of time —— at
least eight hours —— that inferentially it had been at that spot on
the floor. She maintains that either of these propositions
establishes a sufficient evidentiary basis for presenting this
issue to a jury. We shall deal with each of these claims in order.
a. Evidence of Proximity of Object to Employees.
The argument that constructive knowledge can be inferred from
the close physical proximity of an unreasonable risk to the
employees of a premises owner was recently rejected by the Texas
Supreme Court in Wal-Mart Stores, Inc. v. Reece.10 In that case,
a Wal-Mart employee walked directly past a puddle of liquid on the
floor, but did not notice the liquid until after the plaintiff had
slipped on it and fallen. The plaintiff maintained that Wal-Mart
10
81 S.W.3d 812 (Tex. 2002).
6
had constructive knowledge by virtue of the employee’s propinquity
to the puddle, despite the employee’s undisputed lack of actual
knowledge of the liquid’s presence. Wal-Mart argued that, as none
of its employees knew of the spill, the plaintiff failed to bear
her burden of proving knowledge, constructive or actual, on the
part of a premises owner. The plaintiff in Reece did not adduce
any evidence of what caused the spill or —— more importantly —— how
long prior to her slip and fall the spill had occurred. The jury
found in the plaintiff’s favor, and the Texas appellate court
affirmed the verdict based solely on the proposition that the Wal-
Mart employee’s proximity to the puddle satisfied the element of
Wal-Mart’s constructive knowledge of the puddle’s existence.
In the Texas Supreme Court, Wal-Mart insisted that alone an
employee’s proximity to a hazard cannot establish constructive
knowledge. Wal-Mart argued that such a rule would (1) require
“omniscience” of a premises owner, (2) not a provide premises owner
with a fair opportunity to inspect, correct, or warn invitees of
the risk, and (3) impose constructive knowledge instantly, at the
moment a hazard is created, and thus make a premises owner a de
facto insurer of invitees’ safety.11 The Texas Supreme Court agreed
with all of Wal-Mart’s arguments, reversed the trial court and the
intermediate appellate court, and rendered a take-nothing judgment
11
Id. at 814-15.
7
against the plaintiff.12 In so doing, the Reece court announced the
rule that “proximity evidence alone is insufficient to establish
constructive notice absent some indication that the hazard existed
long enough to give the premises owner a reasonable opportunity to
discover it.”13
Reece further establishes that physical proximity evidence is
relevant only in case-by-case determinations of constructive
knowledge based on the length of time that the risk has been
present. A plaintiff might be able to show, for instance, that a
shorter presence is required to establish constructive knowledge
for a conspicuous hazard that is near a premises owner’s employees
than for an inconspicuous hazard that is remote from such
employees.14 Still, the rule in Texas is that temporal evidence,
not proximity evidence, is the sine qua non of a premises owner’s
constructive knowledge.15
Dixon argued before the district court that Wal-Mart’s motion
for judgment as a matter of law should be rejected because the
accident “happened two feet from a cashier.” She did not argue
that this is only an additional factor for determining the
reasonableness of Wal-Mart’s constructive knowledge based on her
12
Id. at 817.
13
Id. at 815.
14
Id. at 816.
15
Id.
8
temporal evidence. Neither did she adduce any evidence at trial of
the conspicuousness of the plastic binder on the floor. She argued
only that the plastic binder’s proximity to Wal-Mart employees
serves as an independent basis for finding that Wal-Mart had
constructive knowledge of the plastic binder’s presence on the
floor. Yet, Reece mandates the conclusion that the accident’s
occurrence just “two feet from a cashier” is, by itself,
nondeterminative of Wal-Mart’s constructive knowledge. Thus,
Dixon’s proximity argument and her reliance on proximity evidence
fails the legal standard under Texas law for determining a premises
owner’s constructive knowledge.
b. Temporal Evidence of the Plastic Binder’s Presence.
Dixon asked the jury to infer that the plastic binder was on
the floor constantly for more than eight hours until her late
afternoon accident, presumably having been dropped there in the
early morning by the magazine or newspaper suppliers. This is
simply unreasonable, given the totality of the evidence proffered
at trial. Our standard of review mandates that we draw all
reasonable inferences in favor of Dixon, and the applicable
substantive law in this case requires a premises owner to “exercise
reasonable care” vis-à-vis an invitee.16 Under Texas law, a
premises owner’s constructive knowledge is predicated on temporal
evidence because a premises owner is not an insurer of an invitee’s
16
Gonzalez, 968 S.W.2d at 936.
9
safety, and therefore a premises owner must have the opportunity ——
sufficient time —— to “exercise reasonable care to reduce or
eliminate the risk.”17
Most often, the reasonableness of constructive knowledge of a
premises owner is defined in terms of the minimum time required for
a risk to exist before it can constitute constructive knowledge.18
To establish a premises owner’s constructive knowledge owner of the
presence of an unreasonable risk of harm, a plaintiff generally
must prove that the risk existed for a time sufficiently long to
permit the premises owner (or his employees) to (1) discover it and
(2) correct it. For this reason, defendant premises owners often
respond, as Wal-Mart did in the instant case, that the risk existed
for such a brief period of time that, as premises owner, it had
insufficient time for the peril to be recognized and corrected.19
Fealty to her pleading burden and to the only evidence she was able
17
Keetch, 845 S.W.2d at 264.
18
See, e.g., Wright, 73 S.W.3d at 555 (rejecting
plaintiff’s argument that the cause of her slip and fall, a
french fry, was on the floor a sufficiently long time to
establish constructive knowledge given only that the french fry
was dirty and that Wal-Mart failed to keep sweeping records of
the area).
19
See, e.g., Brookshire Food Stores, LLC v. Allen, 2002 WL
31769486, *4 (Tex. App. —— Texarkana 2002) (nothing that “the
available evidence suggests the grapes [on which the plaintiff
slipped and fell] were not on the floor longer than fifteen
minutes”); Garcia, 30 S.W.3d at 23 (“Wal-Mart argues the jalepeno
[on which the plaintiff Garcia slipped and fell] went unnoticed
by snack bar personnel because it fell immediately prior to
Garcia’s accident.”)
10
to adduce motivated Dixon to imply at trial that (1) the source of
the plastic binder was the magazine and newspaper suppliers who
visited the store more than eight hours prior to her accident, and
(2) the plastic binder lay there the entire eight hours, just steps
from the cash register, without being seen.
For the jury to make this inference, however, was logically
unreasonable, particularly in light of the evidence submitted by
Wal-Mart, which was undisputed by Dixon. Wal-Mart’s front-end
manager, Jean Chatham, testified that it is “part of our job”
constantly to survey the area in which Dixon fell and to pick up
any trash. Chatham’s job description required her to patrol this
particular area approximately once every five minutes, specifically
looking for any trash, debris, puddles, or merchandise that should
be removed from the area. She further testified that the cashiers
go through the same training regimen as do the managers, and that
every employee is responsible for making sure that foreign objects
are picked up and that any potential risk is promptly eliminated.
This testimony was confirmed by the assistant store manager, Luther
Fairley, who noted that “picking stuff up off the floor isn’t just
one person’s responsibility but...belongs to all the employees at
Wal-Mart.”
In addition, the Store Director, Greg Smith, explained that
all Wal-Mart employees are trained according to company policy
“[t]o be on the look-out at all times” for “merchandise on the
floor,” including such items as a plastic binder and other “type
11
trash.” He confirmed Chatham’s testimony that the front-end
managers are responsible for patrolling the area around the check-
out registers, making rounds approximately every five minutes or
so. “[T]hey do make the rounds,” he said, “just like myself even,
my assistant managers, all of us make the rounds. We obviously try
to keep everything as much as possible a hundred percent free of
trash, debris and any type of safety hazard.”
Smith noted further that, in addition to giving responsibility
for cleaning activities to cashiers, front-end managers, assistant
managers and himself, Wal-Mart employs a “safety team,” which
patrols the entire store and constantly trains the employees.
Smith explained:
What they look for is specific hazards and basically what
their job duty is —— we cover it every day. It’s constant
training. We have morning and evening meetings with our
associates and the safety team does demonstrations. We do
spill demonstrations. We do demonstrations on picking up
trash, and we have a specific safety team, but it’s
everybody’s duty to maintain the sales floor, including
myself. . . . [I]t’s just part of my job and my duties to keep
the floor clean.
Also, a maintenance crew, comprising a minimum of two employees, is
on duty during the “busy times of the day, between say 10 [in the
morning] and eight o’clock at night.” Their singular job function
is to “walk around with a broom, dust pan and a mop and clean the
floors.”
The result of Wal-Mart’s policies, its training programs, and
the cleaning responsibilities of all Wal-Mart employees is
palpable. Smith testified that approximately five million
12
customers use the Longview Wal-Mart store each year, averaging
about 13,700 customers each day, but that only some 50 accidents
occur per year. None of this evidence —— none of the testimony of
Chatham, Fairley or Smith —— was challenged or contradicted by
Dixon.
Given this extensive evidence of constant searches for hazards
by myriad Wal-Mart employees, and the dearth of temporal evidence
by Dixon of the presence of the hazard any closer to her fall in
time than eight hours, the conclusion is inescapable that any
plastic binder dropped by the vendors that morning could not
possibly have remained at the location of her fall for those many
hours without being discovered. And, absent evidence of some
other, believable period of the plastic binder’s presence prior to
the fall, no reasonable jury could find negligence by Wal-Mart
based on constructive knowledge of the risk. When the sole source
of the hazard advanced by Dixon is eliminated as being a virtual
impossibility, her burden of proof of constructive knowledge fails.
During argument before the district court on Wal-Mart’s
renewed motion for judgment as a matter of law, Dixon’s attorney
explained that Wal-Mart must have had constructive knowledge of the
presence of the plastic binder because
it might be something from the magazines. They stock the
magazines at eight o’clock. If it was left from eight o’clock
that morning to five o’clock that afternoon, that’s certainly
13
not prudent (emphasis added).20
It strains credulity, let alone the bounds of logic and reason,
that a plastic binder large enough to entangle Dixon’s feet and
cause her to fall could have lain on the floor in such a high-
traffic area of the store for at least eight hours. This area was
traversed by thousands of customers that day, and was under the
constant surveillance of numerous Wal-Mart employees as well. Yet,
Dixon would have the fact-finder believe that the plastic binder
lay there for more than eight hours without a single person
noticing it, let alone picking it up and removing it. She adduced
no evidence that anyone —— neither a customer nor an employee ——
noticed the plastic binder lying on the floor for over eight hours
during the busiest portion of the business day in one of the most
heavily trafficked areas of the store.
That is simply not credible. When the only source of the
binder on which Dixon presented evidence is eliminated as
constituting an impossibility, she is left without proof of a
source, and thus without proof that the binder had been in place
(1) long enough for knowledge of its presence to be imputed to Wal-
Mart, but (2) not so long as to defy reason.
In fact, Dixon’s proximity argument works in favor of Wal-Mart
20
Smith earlier testified that the newspaper and magazine
vendors restock the area near the check-out registers “early in
the morning.” He further explained that “[t]he morning run on
the newspapers is typically 4:30, five o’clock in the morning.
The magazine people usually get there eight, nine o’clock,
somewhere around in there.”
14
on this point, not against it. We have shown that it is a logical
impossibility that this plastic binder remained on the floor for at
least eight hours when it was only feet away from the cashiers,
other Wal-Mart employees, and a legion of customers. Had the
binder been dropped no later than 8:00 a.m., then in light of the
evidence submitted by Wal-Mart, the plastic binder simply could not
have lain there all that time without having been seen and removed.
The obvious flaw in Dixon’s theory is the premise that the only way
the binder could have gotten to the place of the accident was to
have been dropped there that morning by a vendor. Yet Dixon
offered no evidence of any other source or of any time closer to
the accident to place the plastic binder on the floor at the site
of her trip and fall. The result is that Dixon has not met her
burden to plead and prove credible facts to support even an
inference of constructive knowledge of this risk on the part of
Wal-Mart.
In a similar case, Wal-Mart Stores Inc. v. Gonzalez, the Texas
Supreme Court rejected a plaintiff’s “logic” that the presence of
“dirt” on spilled macaroni salad justified the inference that the
macaroni had been on the floor long enough to impute constructive
knowledge to Wal-mart of this risk to its customers. The court
explained that
[d]irt in macaroni salad lying on a heavily-traveled
aisle is no evidence of the length of time the macaroni had
been on the floor. That evidence can no more support the
inference that it accumulated dirt over a long period than it
can support the opposite inference that the macaroni had just
15
been dropped on the floor and was quickly contaminated by
customers and carts traversing the aisle.21
The result of the Gonzalez court’s rejection of this evidentiary
basis for the plaintiff’s implying that the risk existed for a long
time was that there was “no evidence that the macaroni had been on
the floor long enough to charge Wal-Mart with constructive notice
of this condition.”22 Concluding that the plaintiff thus failed to
meet her evidentiary burden in pleading notice, the Supreme Court
reversed the trial verdict in her favor.23
The instant case presents the logical converse of Gonzalez.
Simply because most cases focus on the minimum time requirement for
constructive knowledge does not mean that there is not a maximum
temporal proximity as well. Put another way, a plaintiff asserting
premises-owner liability is not free to assert that a risk
continued to exist unabated for some illogically long period,
regardless of the factual context. If it were otherwise,
plaintiffs could assert constructive knowledge of risks that were
proved to have existed days or even weeks earlier. Without any
reasonable limit on such temporal arguments, premises owners would
21
Gonzalez, 968 S.W.2d at 937 (emphasis added).
22
Id. at 938.
23
The Texas Supreme Court similarly reversed another trial
verdict in favor of a slip-and-fall plaintiff when it ruled that
“smushed” grapes were not a sufficient evidentiary basis for
inferring a long enough period of time for constructive
knowledge. The plaintiff offered no other temporal evidence of
constructive knowledge on the part of the premises owner. Thus,
her verdict was reversed. See generally Allen, 2002 WL 31769486.
16
indeed become de facto insurers of invitees’ safety.24
In this case, Dixon would infer constructive knowledge from
evidence of a span of time that is simply too long to be credible.
Moreover, her inference is not supported by the totality of the
evidence presented at trial; on the contrary, the inference that
she was able to sell to the jury is totally refuted by that very
evidence. She simply asks too much of a jury to believe that the
only source of the plastic binder on which Dixon tripped —— the
magazine suppliers —— were last present more than eight hours
before her fall, and that the plastic binder lay there undetected
all that time. Dixon’s inability to show a credible source of the
hazard within a reasonable period —— a time between (1) the instant
24
It is this essential requirement of Texas’s premises-
owner liability law that the dissent overlooks in its accusation
that we are “crafting a new rule of law” that creates a
“presumption in favor of premises owners.” To the contrary, we
are acting within the province of our mandate under Erie to
predict how the Texas courts would resolve the novel evidentiary
issue presented in this case. In so doing, we are applying (1)
the absolute rule stated in every Texas premises-owner-liability
case that premises owners are not insurers of their invitees’
safety and (2) the reasonableness standard repeatedly applied by
the Texas Supreme Court in such premises-owner liability cases as
Reece, Gonzalez and Allen.
The dissent would have us ignore this vital jurisprudence
and simply create a de facto insurer standard for premises-owner
liability in Texas: A plaintiff may claim that a hazard has
existed “forever” irrespective of factual context, and a jury is
always free to agree with such claims no matter how unreasonable
or arbitrary, in imposing liability on a premises owner. This
rule, as advocated by the dissent and which is the only basis for
finding in favor of Dixon in this case, is clearly proscribed by
the Texas jurisprudence on premises-owner liability.
Accordingly, we reject it outright for what, in essence, it would
be: a judicially-created insurance program for all invitees in
Texas.
17
before her fall and (2) an hour so remote from her fall that the
plastic binder could not help but have been discovered —— dooms
her case. Once the early morning vendors are eliminated as even a
remotely possible source, Dixon can point to no believable
proximate explanation for the plastic binder’s having come to rest
at the point of the accident. We are thus left with a plaintiff
who has failed to meet her burden of establishing Wal-Mart’s
constructive knowledge on the basis of plausible temporal evidence.
III. CONCLUSION
The basic standard of tort liability is reasonableness,
determined in the discrete factual context of each case.
Accordingly, a plaintiff is not free to make just any temporal
argument in attempt to meet her burden of demonstrating
constructive knowledge. There has to be a reasonable minimum time
limit for constructive knowledge to be implied, but, conversely,
there has to be a reasonable maximum time limit as well —— an
outside time beyond which there can be no nexus. As with virtually
every aspect of tort law, there is no absolute, bright-line rule
that establishes these temporal boundaries; unique facts and
circumstances control in each case. Just as proximity evidence
serves as a “plus factor” for temporal arguments, the minimum and
maximum limits on the spectrum of the reasonable time within which
constructive knowledge can be imputed is determined by the
particular facts of each case.
Although all cases to date have turned on the minimum time
18
required to establish a premises owner’s constructive knowledge,
this case presents the novel question of the reasonable maximum
time limit, given the totality of evidence presented at trial.25
It defies common sense, and is against all logic, to infer that the
plastic binder on which Dixon tripped could possibly have lain on
the floor, just two feet away from the Wal-Mart check-out
registers, for over eight hours, without being noticed by at least
one of the thousands of individuals traversing that spot, including
the many employees who were actively patrolling and surveying it
for the very purpose of detecting and eliminating any risk to
customer safety. The conclusion is inescapable: The source of the
plastic binder could not have been the magazine or newspaper
vendors who last visited the store early on the morning of Dixon’s
afternoon accident; and Dixon has proffered no other, believable
source. Whatever or whoever the true source might have been, Dixon
failed to adduce any evidence of how the plastic binder could have
come to rest in that area, much less when. It follows inescapably
that she has not established a sufficient evidentiary basis for
proving Wal-Mart’s constructive knowledge of the presence of an
unreasonable risk of harm to its invitees. Accordingly, the
district court’s denial of Wal-Mart’s motion for judgment as a
matter of law is reversed, and the case is remanded to that court
25
We are, therefore, “required to make an Erie guess as to
what the Texas Supreme Court would most likely decide.” Herrmann
Holdings Ltd. v. Lucent Tech., Inc., 302 F.3d 552, 558 (5th Cir.
2002).
19
for entry of a take-nothing judgment against Dixon and in favor of
Wal-Mart.
REVERSED and REMANDED with instructions.
ENDRECORD
20
DENNIS, Circuit Judge, dissenting:
Because I believe the majority does not apply Federal Rule of
Civil Procedure 50 as interpreted in Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133 (2000), and therefore encroaches on the
province of the jury, I respectfully dissent.
The facts in this slip and fall diversity tort suit are
straightforward. On Sunday, July 28, 1996, at about 5:00 p.m.,
Billie Jo Dixon, a 56-year-old homemaker, tripped and fell while
shopping at a Wal-Mart store in Longview, Texas. The accident
occurred when Dixon, after paying for pizza and milk at one of the
29 checkout stands, walked away from the cash register and turned
left, intending to exit the store. Approximately two feet from the
register, Dixon’s feet became entangled in a rope-like piece of
plastic lying loose on the floor. As a result of the entanglement,
Dixon fell face forward to the floor. The fall rendered her
unconscious and caused bleeding from her left eye and knee.
Paramedics took Dixon to a local hospital emergency room where she
received treatment. After the fall Dixon remained “dazed,” and
continued to experience dizzy spells, weakness, and tingling in her
right arm and hand. The piece of plastic that caused Dixon’s fall
appeared to be a plastic binder commonly used to hold together
stacks of magazines or newspapers, or merchandise.
Dixon filed suit against Wal-Mart in Texas state court seeking
21
recovery for damages she suffered because of the accident. Wal-
Mart removed the case to federal court under our diversity
jurisdiction. A full jury trial followed, with the jury finding
Dixon and Wal-Mart each 50% responsible for the accident. Finding
total damages of $125,000, the jury awarded Dixon $62,500. The
district judge denied Wal-Mart’s Federal Rule of Civil Procedure 50
motion for judgment as a matter of law (JMOL), and Wal-Mart
appealed.
The applicable legal standards here are accurately summarized
by the majority. When considering a Rule 50 motion for judgment as
a matter of law following a jury verdict, we must be “especially
deferential” to the jury’s findings. Brown v. Bryan County, Okla.,
219 F.3d 450, 456 (5th Cir. 2000). We may grant a JMOL only where
upon reviewing the entire record, we find that there is no legally
sufficient evidentiary basis for a reasonable jury to find for the
non-moving party on an issue. FED R. CIV. P. 50(a). In evaluating
the record, we must make all reasonable inferences for the non-
moving party, and disregard all evidence from the moving party that
a jury is not required to credit. Reeves, 530 U.S. at 150-51
(2000). And of course, we must remember that "[c]redibility
determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those
of a judge." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986).
22
Under Texas state law to recover in this slip and fall suit,
Dixon must prove by a preponderance of the evidence:
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.
Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). As the
majority correctly notes, the only issue on appeal is whether Dixon
presented the jury a “legally sufficient evidentiary basis” for it
to find that Wal-Mart had constructive notice of the plastic
binder’s hazardous presence on the store’s floor.26
Dixon established constructive notice through circumstantial
evidence, using the standard provided in Wal-Mart Stores, Inc. v.
Gonzalez, 968 S.W.2d 934 (Tex. 1998). In that case the Texas
Supreme Court explained that to establish constructive notice
through circumstantial evidence, that evidence must prove that it
is “more likely than not that the dangerous condition existed long
enough to give the proprietor a reasonable opportunity to discover
the condition.” Id. at 936. Thus, as the majority notes, Dixon’s
evidentiary burden is to establish that the plastic binder was on
the floor for a sufficiently long period of time that Wal-Mart had
a reasonable opportunity to correct that condition. And where, as
26
Wal-Mart concedes that the other three prongs of the slip
and fall liability test are met here.
23
here, the hazard was in constant close proximity to Wal-Mart
employees, the reasonable time period needed to correct the defect
is shorter than in cases where there are no agents of the premises
owner near the danger. Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d
812, 816 (Tex. 2002).
To meet this burden Dixon introduced evidence establishing
that the plastic binder on which she tripped was similar to the
plastic rope used to tie bundles of magazines and newspapers that
are delivered to the registers at least once daily. Greg Smith,
Wal-Mart store director, explained that magazine vendors used the
plastic binders to bundle their merchandise until they placed the
reading materials in racks at the checkout stands. He testified
that the magazine handlers would typically “go back to our
receiving area with a shopping cart and get the banded magazines
together. They take them up front. They bust the bands on them
and they stock the registers.” He stated that the newspaper racks
usually were stocked between 4:30 a.m. and 5:00 a.m., and that the
magazines usually were restocked between 8:00 a.m. and 9:00 a.m.,
but that on occasions of heightened demands either or both might be
restocked later in the day.27 Based on this evidence a jury
reasonably could have concluded that the binder was on the floor
27
There was no evidence that there had been an afternoon or
late-morning restocking on the day of Dixon’s fall because Wal-
Mart does not maintain records of magazine and newspaper
restocking.
24
near the registers from the morning magazine restocking until the
5:00 p.m. accident, and therefore, Wal-Mart had a reasonable amount
of time to remedy the danger, making it liable for Dixon’s
injuries.
In response to Dixon’s evidence which supports a jury finding
of constructive notice, the majority notes in expansive detail the
testimony of various Wal-Mart employees regarding the store
cleaning policy. It then uses this uncontradicted testimony to
“find” that Dixon’s theory that the binder was dropped in the
morning magazine delivery cannot be the basis of a reasonable jury
finding of constructive notice. The majority is cryptic as to
whether this is a “finding” of fact or law. But in either case the
majority oversteps its role.
If the majority was making a factual finding on the basis of
testimony a jury was required to credit, it misstates the record
when it suggests that more than the existence of a store cleaning
policy was uncontradicted in the Wal-Mart employee testimony. Wal-
Mart cites no employee testimony stating that this policy was
carried out on the day in question in the area in which Dixon
fell.28 Rather, the majority infers textbook execution of store
28
Jean Chatham, Wal-Mart front-end manager, indicated in her
deposition testimony that she checked the front area of the store
five minutes prior to an accident in the store. But her
description of the accident and the person who reported falling
do not match the incident here, and Wal-Mart itself admits that
her testimony is of a different incident. Thus the majority’s
assertion that “the particular area in which Dixon fell had been
inspected most recently approximately five minutes before her
25
policies from mere evidence that the policies had been formulated.
But the jury was free to believe that the cleaning policy had not
been carried out. And therefore this court on review cannot make
an inference favorable to Wal-Mart, given the Supreme Court’s clear
directive that when considering a motion for a JMOL a court cannot
make inferences for the moving party that the jury was not required
to make. Reeves, 530 U.S. at 150-51.
If the majority is crafting a new rule of law, it is on even
shakier ground. The majority asserts that it is applying the
“converse” principle to Gonzalez, which is that there is a maximum
time period that a plaintiff may establish a hazard was present and
still establish premises liability. The majority gives no support
in Texas case law for this proposition.29 And given that logic
belies a converse principle to Gonzalez, this is not surprising.
Gonzalez speaks to the policy determination made in Texas that
premises owners are not insurers of their invitees’ safety. As a
result, a hazard must have been in place sufficiently long that a
proprietor has a reasonable opportunity to detect and correct it.
accident” is simply not supported by the record.
29
In response to this criticism, the majority claims it
derives support for this rule from a “reasonableness” principle
applied by the Texas Supreme Court. But as I explained above,
Dixon’s theory of constructive notice is unreasonable only if you
infer from the existence of a store cleaning policy, execution of
that policy. By so doing, the majority makes an inference the
jury was not required to make for the moving party, and therefore
oversteps the bounds of its Rule 50 review. Reeves, 530 U.S. at
150-51 (2000).
26
There can be no “converse” of this proposition because the greater
the amount of time a hazard is present, the more unreasonable is
the premises owner for failing to correct it.
I believe the effect of the majority opinion is to apply a new
presumption in favor of premises owners: where a premises owner has
a policy regarding hazards, it is presumed that policy is carried
out in each case. Thus, the existence of a store cleaning policy
here means that we presume a plastic binder could not have been on
the store floor for eight hours in contravention of the policy
(albeit subject to rebuttal by the invitee). By creating such a
presumption not only does the majority exceed the bounds of our
diversity jurisdiction by creating new, unsupported mandatory
inferences in state tort law, Matador Petroleum Corp. v. St. Paul
Surplus Lines Ins. Inc., 174 F.3d 653, 656 (5th Cir. 1999) (role of
federal courts sitting in diversity is to decide cases as the
highest state court would decide them), but it also tramples upon
the jury’s role as arbiter of credibility and fact. Liberty Lobby,
477 U.S. at 255. I would, therefore, uphold the jury verdict and
affirm the judgment of the district court.
27