UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-40672
PAULINE MORRIS,
Plaintiff-Appellee,
VERSUS
WAL-MART STORES, INC.,
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Texas
3:94-CV-15
May 29, 1996
Before JOLLY, DUHÉ, STEWART, Circuit Judges.
DUHÉ, Circuit Judge:1
Wal-Mart appeals the district court’s denial of its motions
for summary judgment, judgment as a matter of law, and new trial in
this “slip-and-fall” case. Because the jury could reasonably infer
1
Pursuant to Local 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
that Wal-Mart had constructive knowledge of the dangerous condition
on its floor, we affirm.
BACKGROUND
Pauline Morris fell after slipping on a clear liquid on the
drapery aisle of Wal-Mart. After her accident, Morris observed a
“puddle of water” that was “approximately two feet long and two
feet wide.” Morris also testified that during the few minutes
before the accident she did not see a Wal-Mart employee or customer
on this aisle.
However, Wal-Mart employee Ruth Ann Harris testified that she
had walked the aisle where Morris fell approximately one minute
prior to the fall but had not seen any liquid substance on the
floor. Upon arriving at the scene of the accident, Harris saw a
spill that was “six inches in diameter.” Harris was the last Wal-
Mart employee on the drapery aisle before the fall. No evidence
establishes either the source of the spill or the length of time
between the spill and the accident.
Wal-Mart filed for summary judgment, arguing that Morris
failed to prove that Wal-Mart had actual or constructive knowledge
of the condition causing the slip-and-fall. The district court
denied summary judgment. At the close of Morris’s case, Wal-Mart
moved for judgment as a matter of law. The district court refused
the motion. At the close of all the evidence, Wal-Mart again moved
for judgment as a matter of law. The court reserved ruling and
allowed the case to go to the jury.
The jury returned a verdict against Wal-Mart for $90,186.43
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together with post-judgment interest. Wal-Mart then renewed its
motion for judgment as a matter of law and filed an alternative
motion for a new trial. The district court denied these motions.
Wal-Mart now argues that because the evidence did not permit
the jury to infer knowledge, the district court erred by denying
its motions for summary judgment, judgment as a matter of law, and
new trial. After considering all of the evidence, we hold that the
district court properly accepted the jury’s verdict.
DISCUSSION
A. Judgment as a Matter of Law
Appellant contends that the district court erred by not
entering judgment as a matter of law. Under the standard
established in Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969)
(en banc), judgment as a matter of law should only be granted when
the facts and inferences point so strongly and overwhelmingly in
favor of the moving party that reasonable persons could not arrive
at a contrary verdict. In reviewing the district court’s refusal
to grant Wal-Mart judgment as a matter of law, we must consider all
the evidence in the light most favorable to Morris. If reasonable
and fair-minded persons in the exercise of impartial judgment could
reach different conclusions, we must defer to the jury’s verdict.
Solis v. Rio Grande City Independent School, 734 F.2d 243, 247 (5th
Cir. 1984).
This is a diversity action in which Texas law applies. Under
Texas law, the elements of a premises liability cause of action
are: (1) Actual or constructive knowledge of some condition on the
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premises by the owner or operator; (2) the condition posed an
unreasonable risk of harm; (3) the owner or operator did not
exercise reasonable care to reduce or eliminate the risk; and (4)
the owner or operator’s failure to use such care proximately caused
the plaintiff’s injuries. Corbin v. Safeway Stores, Inc., 648
S.W.2d 292, 296 (Tex. 1983).
The first element, actual or constructive knowledge of the
condition, is the central issue in this appeal. An owner has
sufficient knowledge of a condition to be liable for the injuries
caused by the condition if the plaintiff proves that the defendant
knew that a foreign substance “was on the floor and negligently
failed to remove it” or “that the foreign substance was on the
floor so long that it should have been discovered and removed in
the exercise of ordinary care.” Keetch v. Kroger Co., 845 S.W.2d
262, 265 (Tex. 1992).
We hold that the evidence permitted the jury to infer
constructive knowledge. The testimony was sufficient to establish
that (1) a substantial puddle of liquid was in the drapery aisle
when the plaintiff fell; (2) a Wal-Mart employee was present on
that aisle a few moments before Morris fell; and (3) even though
the employee was on the aisle immediately before the fall, she did
not see a puddle. From these facts, the jury could reasonably
conclude that if the employee had conducted a reasonable
investigation of the drapery aisle she would have discovered the
puddle. Alternatively, the jury could have disbelieved that the
employee inspected the aisle sixty seconds before the accident and
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instead credited Morris’s testimony that for a few minutes prior to
her fall she remained alone on the aisle. In either case, “[i]t
was within the province of the jury to judge the credibility of
these witnesses and the weight to be given their testimony, and
this Court will not substitute its findings for those of the trier
of fact.” Johnson v. Kroger, Inc., 623 S.W.2d 479, 481 (Tex.App.--
Corpus Cristi 1981, no writ).
While it is conceivable that another customer spilled the
liquid after the employee left the aisle and before Morris fell,
the jury could have considered such an occurrence unlikely given
the short time between the two events. Although “other inferences
can be drawn, we must accept that inference most favorable to the
jury finding, and reject those inferences to the contrary.”
McClure v. Allied Stores of Texas, Inc., 608 S.W.2d 901, 904 (Tex.
1980). Thus, because the evidence permits the requisite inference,
we defer accordingly to the jury’s verdict. B. Evidence
Considered in Denying Judgment as a Matter of Law
In ruling on Wal-Mart’s renewed motion for judgment as a
matter of law, the district court stated: “if the defendant submits
evidence which support the jury’s verdict after the court
erroneously denies a motion for judgment as a matter of law, such
error is waived.” Slip Op. at 3. Thus, the district court
concluded that “the only question is whether at the close of all
the evidence a reasonable jury could have reached a verdict in
favor of the plaintiff, as it did.” Id. Wal-Mart contends that
this analysis is flawed.
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We disagree. This Court has held that a defendant waived its
motion for directed verdict when the “defendant offered defensive
evidence after denial of the motion and failed to renew it at the
close of all the evidence.” Frontier Airlines, Inc. v. Sky Chefs,
Inc., 447 F.2d 1351, 1353 (5th Cir. 1971). However, “[i]f the
motion for directed verdict is renewed at the close of all the
evidence, the court will decide it according to the record as it
then stands.” Trustees of Univ. of Pa. v. Lexington Ins. Co., 815
F.2d 890, 903 (3rd Cir. 1987). The district court properly applied
this rule and considered all of the evidence in deciding Wal-Mart’s
renewed motion for judgment as a matter of law.
C. Summary Judgment
Wal-Mart next argues that the district court erred by not
granting its motion for summary judgment. However, we cannot
review the pretrial denial of Appellant’s summary judgment motion.
“This Court has already held that an interlocutory order denying
summary judgment is not to be reviewed where final judgment adverse
to the movant is rendered on the basis of a subsequent full trial
on the merits.” Black v. J.I. Case Co., Inc., 22 F.3d 568, 570
(5th Cir.), cert. denied, 115 S. Ct. 579 (1994).
D. New Trial
A trial judge’s ruling on a motion for new trial is reviewed
for an abuse of discretion. Further, this Court has emphasized
that review is more deferential when the trial court upholds the
jury’s verdict. Jones v. Wal-Mart Stores, Inc., 870 F.2d 982, 986
(5th Cir. 1989). All the evidence must be viewed in the light most
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favorable to the jury’s verdict, and the verdict must be affirmed
unless the evidence points “so strongly and overwhelmingly in favor
of one party” that the reviewing court believes that reasonable
people could not arrive at a contrary conclusion. Id. at 987
(citing Whatley v. Armstrong World Indus., Inc., 861 F.2d 837, 839
(5th Cir. 1988); Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.
1969)). Because the jury could reasonably infer that Wal-Mart had
constructive knowledge of the spill, the verdict is not against the
great weight of the evidence.
CONCLUSION
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
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