Dixon v. Wal-Mart Stores, Inc.

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