Case: 21-20395 Document: 00516422087 Page: 1 Date Filed: 08/05/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 5, 2022
No. 21-20395 Lyle W. Cayce
Clerk
Tenneh Agbonzee,
Plaintiff—Appellant,
versus
Wal-Mart Stores Texas, L.L.C. #772; Wal-Mart Stores
Texas, L.L.C.,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC 4:19-CV-4985
Before Stewart, Clement, and Elrod, Circuit Judges.
Per Curiam:*
Tenneh Agbonzee slipped and fell in a Wal-Mart. She sued Wal-
Mart, claiming that there was a puddle of clear liquid on the ground that Wal-
Mart either actually or constructively knew about. The district court granted
summary judgment to Wal-Mart, determining that Agbonzee failed to
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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establish Wal-Mart’s actual or constructive knowledge of the liquid.
Because Agbonzee has failed to present any genuine dispute of material fact
and Wal-Mart is entitled to judgment as a matter of law, we affirm.
I.
One day while Agbonzee was in a Wal-Mart, as she was heading to the
grocery area, she slipped and fell on a clear liquid on the floor. She sustained
back and leg injuries. Twelve minutes prior, grainy security-camera footage
appears to show an unidentified man quickly move out of the aisle with a cart,
pick up what appears to be a cup, “begin to drink from [that] cup,” and “then
step back as he spilled liquid onto the floor.” 1 In the 12 minutes between the
spill and Agbonzee’s fall, several Wal-Mart employees and customers
congregated near or passed by the liquid on the floor, seemingly without
noticing it.
Agbonzee sued in state court, asserting a premises-liability claim.
Wal-Mart removed the case to federal court and later moved for summary
judgment. The district court granted Wal-Mart summary judgment after
determining there was no genuine dispute of material fact and that Wal-Mart
did not have actual or constructive knowledge of the liquid Agbonzee slipped
on. Agbonzee moved for reconsideration, attaching Wal-Mart employee
Jacques Trahan’s witness statement and a proposed expert report which said
Wal-Mart failed to exercise reasonable care as to the condition of the floor.
The district court denied it and Agbonzee timely appealed.
1
Given the low resolution of the video, it is also plausible that the cup was in the
cart and fell over while this person was moving down the aisle with the cart, causing some
liquid to leak from the cup before the person picked it up.
2
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II.
We review the grant of summary judgment de novo. Lewis v. Sec’y of
Pub. Safety & Corr., 870 F.3d 365, 368 (5th Cir. 2017). Summary judgment is
proper if the movant shows that there is no genuine dispute of material fact
and that the movant is entitled to judgment as a matter of law. Sanders v.
Christwood, 970 F.3d 558, 561 (5th Cir. 2020) (citing Fed. R. Civ. P. 56(a)).
A fact is “material” if resolving it one way or another would change the
outcome of the lawsuit. Sossamon v. Lone Star State of Tex., 560 F.3d 316, 325
(5th Cir. 2009). A genuine dispute over that fact exists if “the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.”
McCarty v. Hillstone Rest. Grp., Inc., 864 F.3d 354, 357–58 (5th Cir. 2017)
(quoting Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005)).
We view the evidence in the light most favorable to the nonmovant and
resolve factual controversies in the nonmovant’s favor. Id. (citing Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)).
We do not, however, assume facts in the absence of proof, and we
affirm summary judgment “in any case where critical evidence is so weak or
tenuous on an essential fact that it could not support a judgment in favor of
the nonmovant.” Id. (quoting Little, 37 F.3d at 1075). Moreover, when a
party’s testimony “is blatantly contradicted by the record [such as by video
evidence], so that no reasonable jury could believe it, a court should not adopt
that version of the facts for purposes of ruling on a motion for summary
judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007); see McDowell v. Wal-
Mart Stores, Inc., 811 F. App’x 881, 883 (5th Cir. 2020) (citing Scott v. Harris
in a Wal-Mart slip-and-fall lawsuit); Granados v. Wal-Mart Stores, Inc., 653
F. App’x 366, 369 n.8 (5th Cir. 2016) (same); Romano v. Jazz Casino Co.,
L.L.C., No. 21-30554, 2022 WL 989480, at *2 (5th Cir. Apr. 1, 2022) (citing
Scott v. Harris in a slip-and-fall case).
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Under Texas law, a property owner has a duty to protect invitees from
conditions posing unreasonable risks of harm if the owner “knew of the
conditions or, in the exercise of reasonable care, should have known of
them.” Henkel v. Norman, 441 S.W.3d 249, 251 (Tex. 2014). An injured
invitee must establish, among other factors, that the “property owner had
actual or constructive knowledge of the condition causing the injury.” Id. at
251–52. There are typically three ways to satisfy this knowledge requirement.
See Wal-Mart Stores v. Reece, 81 S.W.3d 812, 814–15 (Tex. 2002). As
Agbonzee does not allege that Wal-Mart’s employees placed the substance
on the floor, she must prove either that Wal-Mart actually knew that the
substance was on the floor or that it is more likely than not that the condition
existed long enough to give Wal-Mart a reasonable opportunity to discover
it. See id. at 814–15.
Agbonzee can rely on direct or circumstantial evidence to show the
owner’s knowledge. See Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934,
935–36 (Tex. 1998). Circumstantial evidence must “either directly or by
reasonable inference” show the owner’s knowledge, and an “inference is not
reasonable if premised on mere suspicion—‘some suspicion linked to other
suspicion produces only more suspicion, which is not the same as some
evidence.’” Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 394 (Tex.
2016) (quoting Suarez v. City of Tex. City, 465 S.W.3d 623, 634 (Tex. 2015)).
There is no genuine dispute of material fact about Wal-Mart’s actual
knowledge of the spill prior to the fall. After falling, Agbonzee allegedly
overheard Trahan say that “there has been a fall from the spill that was
there.” Agbonzee claims that referring to a spill “that was there” establishes
Trahan’s actual knowledge of the spill prior to the fall. But calling that
statement an admission of actual knowledge puts too much weight on the
phrase “the spill.” The only reasonable inference to draw is that Trahan was
notifying assistant manager Saidu Ibrahim about Agbonzee’s fall, and in
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doing so, he indicated the likely cause of her fall. This alone does not cause
a fact dispute on actual knowledge regarding the spill’s existence before
Agbonzee’s fall.
“Constructive knowledge is a substitute in the law for actual
knowledge,” and can be established when “the condition had existed long
enough for the owner or occupier to have discovered it upon reasonable
inspection.” CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 102–03 (Tex. 2000).
‘Long enough’ varies from case to case, but it comes down to “the
combination of proximity, conspicuity, and longevity.” Wal-Mart Stores, Inc.
v. Spates, 186 S.W.3d 566, 567 (Tex. 2006). Texas courts consider: (1) the
proximity of employees to the hazard; (2) the conspicuousness of the hazard;
and (3) how long the hazard was in place in order to make this determination.
Shirey v. Wal-Mart Stores Tex., L.L.C., 699 F. App’x 427, 428 (5th Cir. 2017).
The inquiry is not whether “it was possible for the premises owner to
discover the condition,” but whether “the premises owner reasonably should
have discovered it.” Reece, 81 S.W.3d at 816. For instance, “if the dangerous
condition is conspicuous as, for example, a large puddle of dark liquid on a
light floor would likely be, then an employee’s proximity to the condition
might shorten the time in which a jury could find that the premises owner
should reasonably have discovered it.” Id. Where a hazard is less
conspicuous, the employee’s proximity “for a continuous and significant
period of time . . . too could affect the jury’s consideration of whether the
premises owner should have become aware of the dangerous condition.” Id.
The Supreme Court of Texas has said that “[t]emporal evidence is
the best indicator of whether the owner could have discovered and
remedied” a dangerous condition. Brookshire Bros., Ltd. v. Aldridge, 438
S.W.3d 9, 30 (Tex. 2014). The Court in Reece held that “there must be some
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proof of how long the hazard was there before liability can be imposed on the
premises owner.” 81 S.W.3d at 816.
Wal-Mart contends that no conclusion can be drawn from the grainy
surveillance video, and that Agbonzee’s theory about the spill cannot be
adequately discerned from the tape, pointing to several other potential causes
of the spill. While liquid is not visible on the floor, and neither is any dripping
from the cup, the video is clear enough to show the likely cause of the spill: a
person quickly moves out of the aisle with a cart, picks up what appears to be
a cup, begins to drink from the cup, and then steps back as he spilled liquid
onto the floor. That all happened in the exact spot Agbonzee ultimately fell.
This is likely enough evidence to establish a cause of the spill, and with that
a starting point: the liquid was on the floor for roughly 12 minutes.
Though timing is only one factor, this court has said that a grape on
the floor for 17 minutes was not enough for constructive knowledge. Shirey,
699 F. App’x at 429; see also Robbins v. Sam’s E., Inc., No. 21-20050, 2021
WL 3713543, at *2 (5th Cir. Aug. 20, 2021) (same for fruit on the floor for ten
minutes); Brookshire Food Stores, LLC v. Allen, 93 S.W.3d 897, 901 (Tex.
App.—Texarkana 2002, no pet.) (same for grapes on the floor for longer than
15 minutes). Thus, temporal proximity cuts against finding constructive
knowledge.
The conspicuity prong also cuts against finding constructive
knowledge of the spill on the part of Wal-Mart. The liquid is not visible on
the surveillance video. Unlike the dark liquid discussed in Reece, this was a
clear spill on a white or grey floor. 81 S.W.3d at 816. Over the 12 minutes
between the spill and fall, roughly 25 customers walked through it or around
it without appearing to look down or otherwise avoid it. Agbonzee herself
admitted that she had no idea the liquid was there. And though the
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employees’ proximity to the spill is relevant, it does not appear that any of
them even noticed the spill, showing just how inconspicuous it was.
Proximity is a closer question. While some employees were on or
around the spot where the liquid purportedly was, they were not there for
long, and other employees passed by it without stopping or apparently even
noticing the liquid. See id. (considering whether an employee was near
dangerous condition “for a continuous and significant period of time”).
In sum, though the employees’ proximity to the spill weighs in
Agbonzee’s favor, the inconspicuous nature of the clear liquid on the white
or greyish floor and the short length of time between the spill and the fall cut
toward Wal-Mart. While this inquiry is necessarily fact-intensive, there are
no genuine disputes of material fact. And under these facts, Wal-Mart is
entitled to judgment as a matter of law. 2
2
Agbonzee moved for reconsideration to include (1) Trahan’s witness statement,
which was already in the record, and (2) an expert report which said Wal-Mart failed to
exercise reasonable care as to the condition of the floor. “Rule 59(e) of the Federal Rules
of Civil Procedure allows a court to alter or amend a judgment to (1) accommodate an
intervening change in controlling law, (2) account for newly discovered evidence, or (3)
correct a manifest error of law or fact.” Trevino v. City of Fort Worth, 944 F.3d 567, 570
(5th Cir. 2019). As “[i]t is not the ‘proper vehicle for rehashing evidence, legal theories,
or arguments that could have been offered or raised before the entry of judgment[,]’” we
review the denial of Rule 59(e) motions for abuse of discretion. Id. (quoting Templet v.
HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004)). Agbonzee argued that the district court
committed “manifest error” by applying the wrong standards and by conflating actual
knowledge with constructive knowledge. Agbonzee’s arguments merely rehash the district
court’s grant of summary judgment, and she does not identify anything in the district
court’s order that is “manifest[ly]” wrong. Thus, the district court’s decision not to
reconsider or include the expert testimony and witness statement was neither an abuse of
discretion nor manifest error.
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* * *
Because Agbonzee has failed to present any genuine dispute of
material fact and Wal-Mart is entitled to judgment as a matter of law, we
AFFIRM.
8