IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 25, 2008
No. 08-20103 Charles R. Fulbruge III
Summary Calendar Clerk
KAREN BETH HENSLEY
Plaintiff - Appellant
v.
WAL-MART STORES INC doing business, as Wal-Mart
Supercenter Store #5091
Defendant - Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:07-CV-2068
Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Karen Hensley brought this slip-and-fall action against Wal-Mart Stores,
Inc. (“Wal-Mart”). The district court granted summary judgment in favor of
Wal-Mart, and Hensley appeals. We affirm.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 08-20103
I. FACTS AND PROCEEDINGS
While grocery shopping at Wal-Mart Store #5091 in Houston, Texas,
Hensley slipped and fell on a light green liquid on the floor in the meat
department, causing her to sustain personal injuries. Prior to her fall, Hensley
did not see the liquid, which she described as a “fine line” of more than one foot
in length. Hensley alleged that, before the incident, two Wal-Mart employees
were entering and exiting a door within approximately five feet of where she fell.
Hensley also alleged that, after the incident, Wal-Mart made a cautionary store-
wide announcement regarding the possible spill.
Hensley filed a negligence suit against Wal-Mart in a Texas state court.
Wal-Mart removed the case to federal court based on diversity of citizenship.
Wal-Mart moved for summary judgment, arguing that it did not have knowledge
of any allegedly dangerous condition existing on its premises at the time of
Hensley’s fall.1 Hensley never responded to this motion. The district court
granted summary judgment in favor of Wal-Mart. Hensley appeals.
II. DISCUSSION
This court has consistently held that arguments not raised in response to
a motion for summary judgment are waived and cannot be considered on appeal.
See, e.g., Keelan v. Majesco Software, Inc., 407 F.3d 332, 339–40 (5th Cir. 2005).
Because Hensley admittedly failed to respond to Wal-Mart’s motion for summary
judgment in the district court, she has waived any argument based on the
undisputed facts in opposition to Wal-Mart’s motion for summary judgment and
we need not consider her appeal.
Nevertheless, even if we consider Hensley’s argument, Wal-Mart is
entitled to summary judgment. We review the district court’s grant of summary
judgment in favor of Wal-Mart de novo. See Richardson v. Monitronics Int’l, Inc.,
1
Wal-Mart submitted Hensley’s deposition as an attachment to its motion, which was
the only evidence considered by the district court.
2
No. 08-20103
434 F.3d 327, 332 (5th Cir. 2005). Summary judgment is appropriate “if the
pleadings, the discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c). “We consider the
evidence in a light most favorable to [Hensley], the non-movant, but she must
point to evidence showing that there is a genuine fact issue for trial” in order to
survive summary judgment. Richardson, 434 F.3d at 332.
“In this diversity case, Texas law applies and under it [Hensley] is Wal-
Mart’s invitee.” Odom v. Wal-Mart Stores, Inc., 32 F.3d 566, 1994 WL 442488,
at *1 (5th Cir. Aug. 2, 1994) (citing Corbin v. Safeway Stores, Inc., 648 S.W.2d
292, 296 (Tex. 1983)).
To recover from Wal-Mart, [Hensley] bears the burden of proving
that (1) Wal-Mart had actual or constructive knowledge of some
condition on its premises; (2) the condition posed an unreasonable
risk of harm; (3) Wal-Mart failed to exercise reasonable care to
reduce or eliminate the risk; and (4) its failure to use reasonable
care proximately caused her injuries.
Id. (citing Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992); Corbin, 648
S.W.2d at 296); see also Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936
(Tex. 1998). The district court found that Hensley produced no evidence to prove
that Wal-Mart had actual or constructive knowledge of a dangerous condition on
its premises at the time of her fall, and we agree.
To establish that Wal-Mart had actual or constructive knowledge of the
liquid on the floor, Hensley must show that at least one of the following three
situations existed: (1) Wal-Mart placed the liquid on the floor; (2) Wal-Mart
actually knew the liquid was on the floor; or (3) it was more likely than not that
the liquid was on the floor long enough to give Wal-Mart a reasonable
opportunity to discover it. See Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814
(Tex. 2002) (citing Gonzalez, 968 S.W.2d at 936; Keetch, 845 S.W.2d at 265).
3
No. 08-20103
Because Hensley did not present any evidence that Wal-Mart placed the liquid
on the floor or actually knew that the liquid was there, she had to prove that the
liquid had been on the floor for a sufficient period of time such that Wal-Mart
would have had a reasonable opportunity to discover it. This court has
explained that this
so-called “time-notice rule” is based on the premise that temporal
evidence best indicates whether the owner had a reasonable
opportunity to discover and remedy a dangerous condition. An
employee’s proximity to a hazard, with no evidence indicating how
long the hazard was there, merely indicates that it was possible for
the premises owner to discover the condition, not that the premises
owner reasonably should have discovered it. Constructive notice
demands a more extensive inquiry. Without some temporal
evidence, there is no basis upon which the factfinder can reasonably
assess the opportunity the premises owner had to discover the
dangerous condition.
Id. at 816 (citation omitted). As a result, this court has held that “there must be
some proof of how long the hazard was there before liability can be imposed on
the premises owner for failing to discover and rectify, or warn of, the dangerous
condition.” Id.
Hensley failed to produce any temporal evidence. She did not provide
evidence to identify the liquid, state where it came from, indicate how it got on
the floor, or otherwise submit information as to how long it was there before the
incident. There was also no evidence that the liquid was conspicuous—Hensley
admitted that she never saw a collection or a puddle of the liquid, and she stated
that it “wasn’t all over the floor.” The evidence as to the purported proximity of
Wal-Mart employees to the liquid prior to the incident by itself is insufficient to
establish constructive knowledge. Moreover, the fact that Wal-Mart made a
cautionary store-wide announcement after the incident is irrelevant to the issue
of actual or constructive knowledge. Accordingly, even considering the evidence
in the light most favorable to Hensley, as we must, we hold that there is no
4
No. 08-20103
evidence to establish that the liquid had been there long enough to give Wal-
Mart constructive knowledge of the dangerous condition, a necessary element for
recovery under Texas law.
The judgment of the district court is AFFIRMED.
5