(dissenting).
Where a jury has found negligence, the reviewing court must consider the evidence in a light most favorable to support the verdict, and should not reverse unless convinced that there was neither evidence nor inferences therefrom which will support the verdict. Lewis v. Barber’s Super Mkts., Inc., 72 N.M. 402, 403-04, 384 P.2d 470, 471 (1963); see also Barakos v. Sponduris, 64 N.M. 125, 127, 325 P.2d 712, 713 (1958). My review convinces me that reversal is mandated.
A. FACTUAL BACKGROUND
With that standard in mind, I will set forth the relevant facts. On Friday, May 25, 1984, Plaintiff fell while shopping with a friend in Defendant’s store. The friend did not testify. Plaintiff was five and one-half months pregnant at the time. While proceeding toward the front of the store with her friend behind her pushing a cart, Plaintiff attempted to reach for some soup. Plaintiff could not recall anything from the time she reached for the soup until she fell. “I remember I went to reach for some soups and the next thing I knew I was on the floor. That is all I can remember.” Plaintiff did not feel anything that indicated the presence of water until after she fell. It was when someone started to mop up the water that she felt moisture on her back. Plaintiff said she had no idea what caused her to fall.
Witnesses who responded gave clearer testimony as to the nature, size, location, and source of the spillage. Ms. Turner, a nurse, who at the time was proceeding toward the front of the store on aisle four, did not see Plaintiff fall but “heard a thud as if someone was falling.” She saw Plaintiff, to the rear of the aisle, on the floor on her back. Turner saw a clear liquid puddle next to Plaintiff, approximately six inches in width by two and one-half to three feet in length, which she assumed to be water. “She was right by the puddle lying on the floor on her back.” Plaintiff was “pretty much in the middle” of the aisle and the water was closer to the side of the aisle. Turner did not know the source of the water. She saw no streaks through the water and saw no footprints in the puddle.
Mr. Moulton, the store director, was the second to arrive. He observed the liquid on the floor. When asked about the source of liquid, he said he had no idea how the liquid or the water got on the floor. Moulton did investigate a lobster tank six to eight feet away at the end of the aisle, but stated that there was no trail of water leading from the tank to the spot where Plaintiff had fallen and there was no leak in the tank. Moulton described seeing one or two puddles, each “maybe six inches in diameter or so.” He also recalled that the water was adjacent to where Plaintiff was lying on her back. Moulton saw no foot marks but did remember “a couple of cart tracks.”
Mr. Kell, the store manager, observed the liquid. He described it as less than four ounces covering an area of one foot by three feet. He said the liquid was not in a solid body but made up of several spots. He tasted the liquid and determined it was water. He also checked the lobster tank and found no leakage. The purpose of tasting the liquid was to determine if it contained salt which is used in the tank. It did not. Kell took a sample of the spillage. He too could not find a source for the spilled water.
B. DISCUSSION
1. Failure of Proof of Reason for Plaintiff’s Fall
The first obstacle in finding substantial evidence to support Defendant’s negligence is that Plaintiff offered no evidence as to how she fell or what caused her to fall. See Caldwell v. Johnsen, 63 N.M. 179, 184, 315 P.2d 524, 527-28 (1957) (directed verdict upheld where plaintiff unable to explain what caused her to fall). Plaintiff did not describe slipping or sliding on the surface of the floor or on the water itself. She did not say she lost her balance or footing. Plaintiff was asked the following question and gave the following answer:
Q. Would it be fair to say you don’t recall anything from the time you actually reached for the soup until you fell?
A. That’s right, I don’t recall. I don’t remember nothing.
The only evidence remotely tying the puddle of water to Plaintiff’s fall, other than the presence of the water near her after she fell, was the testimony of Turner who, when asked if she saw anything that might have caused the fall, said “there was water on the floor.” This amounts to no more than speculation. Turner did not see Plaintiff fall and did not claim to know how she fell. Moreover, a reasonable inference could not be drawn from that testimony since Turner said that the puddle showed no marks of having tracks or footprints through it. Further, at the time Turner arrived to aid Plaintiff, Plaintiff was to the side of the puddle, not in it. See Barakos, 64 N.M. at 129, 325 P.2d at 714-15 (testimony may be disregarded where legitimate inferences may be drawn that cast reasonable doubt upon the truth or accuracy of the oral testimony); Bowman v. Incorporated County of Los Alamos, 102 N.M. 660, 662, 699 P.2d 133, 135 (Ct.App.1985) (an inference “is more than a supposition or conjecture” (citing Lovato v. Plateau, Inc., 79 N.M. 428, 430, 444 P.2d 613, 615 (Ct.App.1968)). Plaintiff’s counsel’s representation that Turner saw “Plaintiff ... lying on her back in water after the fall” is not supported by the record.
Although not involving a slip and fall accident, Lovato is instructive. In that case, plaintiffs, who had just filled the tank on their pickup, heard an explosion underneath and saw a flash. Id. at 430, 444 P.2d at 615. It was unknown what was burning, how the flammable substance got on the paved apron, how long the substance had been there, or what caused the ignition. There was no evidence as to any notice to or knowledge on the part of anyone that any gasoline or other flammable substance had been spilled or otherwise caused to be present. The supreme court said that all reasonable inferences from the evidence must be indulged in support of the plaintiffs’ case, but that “an inference is more than a supposition or conjecture. It is a logical deduction from facts which are proven and guess work is not a substitute therefor.” Id. The supreme court affirmed a directed verdict for defendant in that case for failure of proof. I would do so here for the same reason. See also Bowman, 102 N.M. at 662-63, 699 P.2d at 135-36; cf. Rayco Drilling Co. v. Dia-Log Co., 81 N.M. 101, 107, 464 P.2d 17, 23 (1970) (equal probabilities will not support recovery). To do otherwise would require stacking inference upon inference. This is impermissible. Hansler v. Bass, 106 N.M. 382, 386, 743 P.2d 1031, 1035 (Ct.App.), cert. denied, 106 N.M. 375, 743 P.2d 634 (1987); Duran v. General Motors Corp., 101 N.M. 742, 753, 688 P.2d 779, 790 (Ct.App.1983), cert. quashed, 101 N.M. 555, 685 P.2d 963 (1984).
2. Failure of Proof of Defendant’s Negligence
In addition to the failure of proof linking Plaintiff’s fall to the water, there was a failure of proof as to negligence by Defendant. In an analogous case, this court, relying on Lovato, concluded that no inference of negligence could be drawn by the unexpected presence of foreign matter on the floor. See Williamson v. Piggly Wiggly Shop Rite Foods, Inc., 80 N.M. 591, 593, 458 P.2d 843, 845 (Ct.App.1969). In Williamson, the floor had been swept and mopped an hour before the fall, and the produce manager had inspected the area several times during that interim and saw nothing. Id.
In the case before us, it is undisputed that one of the courtesy clerks dry-mopped the entire store, including aisle four, starting at 4:00 p.m., and had completed the cleaning before the accident, which occurred at approximately 5:00 p.m. Moulton had seen the clerk, Lujan, make his turn in aisle four. It was estimated that Lujan had cleaned aisle four ten to twenty minutes before the accident. Lujan testified that he saw no water when he mopped that aisle. Lujan described how the dry mop grips the floor when it comes into contact with water. That did not occur.
The law governing slip and fall cases is well-established. To find a shopkeeper negligent toward business invitees, the evidence must show a dangerous condition that either is known or should have been known; that the condition is such that the shopkeeper realizes that his invitees would not discover the danger themselves; and with such knowledge the shopkeeper fails to exercise reasonable care to protect his invitees. O’Neil v. Furr’s, Inc., 82 N.M. 793, 795, 487 P.2d 495, 497 (Ct.App.1971). A business is not an insurer of the safety of its customers, De Baca v. Kahn, 49 N.M. 225, 230, 161 P.2d 630, 633 (1945), and the mere presence of a slippery spot does not establish negligence since this condition may arise temporarily in any business. Kitts v. Shop Rite Foods, Inc., 64 N.M. 24, 27-28, 323 P.2d 282, 284 (1958).
Here, we have evidence of a wet spot on the floor without any proof of its source. The evidence shows that the floor had been mopped ten to twenty minutes before Plaintiff fell. No one reported any spillage and none was observed either by the clerk when he cleaned the area or by any other store employee. The only logical inference is that the water was spilled between the time the clerk cleaned aisle four and the time Plaintiff fell. This length of time is insufficient to hold Defendant negligent given the condition of the puddle when Plaintiff fell.
We said in Williamson that the mere presence of a slick or slippery spot does not of itself establish negligence because this condition may arise temporarily. Negligence may not be presumed from the mere fact that an injury has been sustained. Williamson, 80 N.M. at 592, 458 P.2d at 844; see also Waterman v. Ciesielski, 87 N.M. 25, 27, 528 P.2d 884, 886 (1974) (unexplained accident is not enough to infer negligence); Woolwine v. Furr’s, Inc., 106 N.M. 492, 495, 745 P.2d 717, 720 (Ct.App.1987). To impose liability here would require that we make Defendant an insurer of the safety of its customers. Defendant is not held to that standárd. De Baca, 49 N.M. at 230, 161 P.2d at 633.
In reviewing for the existence of substantial evidence to support the verdict, it should be noted that Plaintiff called as her witnesses, Moulton, Marcus Lujan, and one other store employee, Adrian Gallegos. This point is made because evidence regarding the sweeping of the store, including aisle four, came in through Plaintiff’s proof. With that in mind, I will now comment on the evidence the majority relies on to support the verdict.
a. Lujan’s Actions and Subsequent Testimony
As to actual knowledge of the existence of the water in time to remove it, the majority first looks to Lujan’s presence in the mop closet after he completed sweeping the floors. While the majority emphasizes variances in Lujan’s testimony as to why he was getting the wet mop, those differences do not permit the jury to infer a different purpose. The jury could disbelieve Lujan’s testimony and statement that he intended to clean dirty areas or the produce department, however, the jury would not be justified in finding the opposite was true, i.e., that Lujan was actually getting the mop to go back and clean the spilled water in aisle four that he knew he had missed. See De Baca, 49 N.M. at 231, 161 P.2d at 633 (even if jury disregards testimony, it is not justified in finding the opposite is true).
The majority’s attempt to get around this rule also fails. The jury could not reasonably infer that because Lujan was in the mop closet after finishing his sweeping, he must have had actual knowledge of the water when he swept aisle four ten to twenty minutes earlier. That is not a permissible inference.
In Stambaugh v. Hayes, 44 N.M. 443, 103 P.2d 640 (1940), the supreme court faced a similar argument. Plaintiff in that case attempted to prove an employer liable under the doctrine of respondeat superior for the negligence of one of its employees. The accident occurred when the employee was en route to a friend’s house. The employee, an insurance agent, was required to put in long days, collecting in his debit area until all accounts had been collected, then spend the remainder of the week selling new insurance. Id. at 449, 103 P.2d at 644. The employee was approaching his debit area at 6:30 p.m., when he collided with and killed plaintiff’s decedent, a ten year old boy. The employee testified that he worked in his debit area until 6:00 p.m., then went to his fiancee’s house. He decided to quit for the day and left her house after being there fifteen minutes and headed for Old Town to visit a family friend, where he had a standing invitation. Id. at 450, 103 P.2d at 644. Plaintiff argued that since the employee was approaching his debit area, the jury could infer he was still working or intended to sell new insurance to his friend. The supreme court, according the jury’s verdict the same deference as we do here, reversed the judgment against the employer. The court held that even disregarding the employee’s testimony, there was not the slightest evidence upon which to base even conjecture regarding employee’s destination or mission at the time of the accident. The court held there were no facts from which to draw a logical deduction, only conjecture and probabilities. Id. at 451, 103 P.2d at 645; see also Gonzales v. Shoprite Foods, Inc., 69 N.M. 95, 98-99, 364 P.2d 352, 354 (1961) (“An inference is not a supposition or conjecture, but a logical deduction from facts proved, and guesswork is no substitute therefor.”).
The Stambaugh court defined a reasonable inference “as a process of reasoning whereby, from facts admitted or established by the evidence, or from common knowledge or experience, a reasonable conclusion may be drawn that a further fact is established.” Stambaugh, 44 N.M. at 451, 103 P.2d at 645. The court also stated that “[w]here evidence is equally consistent with two hypotheses, it tends to prove neither.” Id.
It was equally consistent that Lujan was obtaining the mop to clean the dirty areas. Moulton testified that was the procedure. To infer Lujan was going back to aisle four would require the jury to infer that was his destination and from that inference further infer he was going there to clean the puddle of water, the existence of which he had knowledge. This stacking of inferences on inferences is impermissible. Id.
The inference the majority says may be drawn from Lujan’s presence in the mop closet is even more improbable when viewed in light of other evidence Plaintiff offered. She proved through Moulton and Lujan that Lujan did sweep the store; that he used a three-foot wide dry mop; that he would go up each aisle at least twice; that the width of the dry mop covered all but a foot or less of the aisle when run over twice; that the mop would drag when it came into contact with water and the water would streak; and that Moulton observed Lujan making his turn at the front of aisle four where Moulton was working at a check-out counter.
b. Plaintiff’s Constructive Knowledge Argument
Nor can a permissible inference be drawn from the fact someone mopped up the water while Plaintiff was still lying on the floor, referred to by Plaintiff as the “guilty conscience” evidence. It may have been insensitive to ask Plaintiff to move so someone could mop around her, but removing the water proves nothing, even if the jury could infer it was Lujan who did it. Moulton testified he may have told Lujan to bring a mop. The same type of conjecture, piling inferences on inferences is required here as with the mop closet evidence. It is just as logical, perhaps more so, to infer that the water was removed to prevent others from falling. Moulton had called for paramedics and there was testimony that the store had between 2,000 to 3,000 customers a day.
To uphold a finding of constructive knowledge of the water, the majority relies on evidence that the store was busy and that about one-half of the courtesy clerks had quit or been laid off the prior week. In addition to the fact that Moulton testified he believed most of the positions had been filled, there is no evidence that Lujan was rushed or pressured to hurry up with his mopping chores. Had there been any evidence suggesting the presence of the water when Lujan swept aisle four, Plaintiff’s efforts to show the layoff and busy condition might have some worth. As presented, it offered no more than conjecture. There simply was no evidence showing the store was short-handed or that its procedures caused the accident.
The last item of evidence relied on to establish constructive knowledge is Moulton’s testimony that while he saw no footprints, he remembered a couple of cart marks. He arrived after Turner who saw neither. The majority also relies on testimony by Lujan to the same effect, but a fair reading of his testimony reflects that he was referring to the condition after Plaintiff had been removed by a stretcher with wheels on it, not before.1 Be that as it may, Moulton did remember a couple of cart marks through the water.
Case law requires that the foreign matter have been on the floor for a sufficient length of time that the store should have seen it. See generally 65 C.J.S. Negligence § 63(124) (1966) (storeowner liable only if had constructive or actual notice of presence of substance and substance was on floor long enough that storeowner had reasonable opportunity to remove it). The period, of course, is for the jury to determine, but it must be for an unreasonable length of time. New Mexico case law holds the mere presence of a slippery spot does not prove negligence since this condition may arise temporarily in any business. Kitts, 64 N.M. at 27-28, 323 P.2d at 284. The Restatement (Second) of Torts § 328D cmt. g (1965) (citations omitted) provides a useful example:
A, a customer in B’s store, slips on a banana peel near the door, and falls and is injured. The banana peel is fresh, and there is no evidence as to how long it has been on the floor. Since it is at least equally probable that it was dropped by a third person so short a time before that B had no reasonable opportunity to discover and remove it, it cannot be inferred that its presence was due to the negligence of B.
Does a couple of cart marks permit an inference that the water had been there a sufficient length of time to require the store to observe it? Appellate courts have not directly addressed this question. If a grape or banana falls on the floor and is stepped on by one customer, is that sufficient to raise an inference that the store should become aware of it before a second customer steps on the item? To say it is would require the store to maintain patrols and constantly keep surveillance over the customers. I do not believe New Mexico law goes that far.
Because New Mexico case law is clear, the majority understandably has looked for out-of-state authority to support affirmance. I do not believe that authority helps. In Foodtown Stores, Inc. v. Patterson, 282 Ala. 477, 213 So.2d 211, 216 (1968), the Supreme Court of Alabama relied on the fact that six or seven customers were at the produce counter, coupled with the fact that produce does sometime fall on the floor, to conclude an inference could be drawn that the store should have known the beans might fall when it had been ten minutes since the clerk had swept the floor. Alabama apparently requires the stores to anticipate happenings, such as beans falling, and be available to sweep every few minutes. New Mexico does not. As stated in Williamson, 80 N.M. at 592, 458 P.2d at 844, “the law does not impose upon a storekeeper the duty to follow each customer about, dustpan in hand, to gather up debris____” (citations omitted). In fact, New Mexico case law makes clear the mere presence of foreign material on the floor does not give rise to an inference of neglect. Kitts, 64 N.M. at 27-28, 323 P.2d at 284. We apply a common sense approach that requires reasonable care, not constant surveillance. See Barrans v. Hogan, 62 N.M. 79, 83, 304 P.2d 880, 882 (1956) (evidence held insufficient to charge defendant with knowledge of dangerous condition on floor).
Nor does Keene v. Arlan’s Department Store, 35 Md.App. 250, 370 A.2d 124, 126-29 (1977), require affirmance. In that case, the clerk’s utterance coupled with her close proximity to the “clear, sleek solution,” and the plaintiff’s husband’s presence in the check-out line for fifteen minutes was sufficient to give rise to an inference that the store had knowledge of the spot for at least fifteen minutes. We have no comparable situation in the case before us.
Here, the proof was uncontradicted that when Plaintiff fell the puddle was clear, not streaked, and with the exception of Moulton’s recollection of a couple of cart marks, was undisturbed. Utilizing the definition on the drawing of inferences, as set forth in Stambaugh, the only logical inference is that a customer ahead of Plaintiff ran over the puddle. 44 N.M. at 451, 103 P.2d at 645. Turner, who preceded Plaintiff, was going the same direction. It could have been Turner, or someone else, if Turner was pushing her cart on the wrong side of the aisle. With 2,000 to 3,000 customers a day, on a busy Friday, at 5:00 p.m., it is not reasonable to conclude that the water could have remained in near perfect condition for the ten to twenty minutes since Lujan swept that aisle. We know from experience shoppers often travel up and down each aisle. The only logical inference is that the puddle came into existence just prior to Plaintiff reaching that area.
The court today has not only impliedly overruled forty-six years of well-established law starting with De Baca v. Kahn, 49 N.M. 225, 161 P.2d 630 (1945), it has adopted a rule that where the condition of a foreign matter is relied on to prove constructive notice, the store must know of its existence after the first customer comes into contact with it no matter how short a period that may be. This approach will no doubt be a welcome surprise for Plaintiff. Perhaps recognizing the weakness of this argument, Plaintiff did not even rely on it in her brief and presumably not below. She made no more than a passing glance in her brief of the cart mark testimony of Moulton.
Nor does Plaintiff rely on the theory advanced in the majority that Lujan may not have even swept aisle four. While I disagree with the majority’s interpretation of Lujan’s taped interview six weeks after the incident, even if it could be read as the majority suggests,2 the idea put forth is at odds with Plaintiff’s theory and the uncontradicted proof she offered. She established through Moulton and Kell that Lujan did sweep the entire store and through Moulton he swept aisle four. That testimony was not impeached. Moreover, Plaintiff never attempted to show Lujan failed to sweep, only that he missed the water when he did sweep. To say a jury question was raised as to whether Lujan “swept aisle four at all” not only changes Plaintiff's theory but ignores case law that unimpeached testimony must be accepted, particularly when offered by the prevailing party. See Lahr v. Lahr, 82 N.M. 223, 225, 478 P.2d 551, 553 (1970) (reversible error found where individual’s unimpeached testimony was not accepted).
As stated at the outset, in reviewing a verdict the appellate court must consider the evidence in a light most favorable to support the verdict. We disregard unfavorable facts and inferences that could be drawn from those facts. Nevertheless, principles guide us in determining whether the verdict is supported by substantial evidence. We keep in mind that substantial evidence is evidence that a reasonable mind would accept as adequate to support a conclusion. Sandoval v. Department of Employment Sec., 96 N.M. 717, 718, 634 P.2d 1269, 1270 (1981). In examining the evidence for substantiality, we should give it a reasonable and fair interpretation. We must not fragment the evidence unduly to find support for the verdict. See State v. Manus, 93 N.M. 95, 100, 597 P.2d 280, 285 (1979). Also, the inferences to be drawn from facts must be reasonable and logical; guesswork is no substitute. Once we have examined the evidence in support of the verdict, we then must ask whether a rational trier of fact could find for the prevailing party by the greater weight of the evidence. As applied to this case, could a rational trier of fact find that Defendant either knew of the presence of the water or that the water had been on the floor for such a length of time prior to Plaintiff’s fall that Defendant should have been aware of its presence and then failed to remove it or warn of its existence? I would hold it could not. Plaintiff has only shown that there was water on the floor and that maybe she fell on that water but proved none of the essential elements of negligence. The sufficiency of the evidence depends on the amount necessary to satisfy the burden of proof. See State v. Davis, 97 N.M. 130, 132, 637 P.2d 561, 563 (1981) (when no rational trier of fact could find guilt beyond a reasonable doubt, jury verdict can be overturned on appeal); State ex rel. Dep’t of Human Servs. v. Williams, 108 N.M. 332, 335, 772 P.2d 366, 369 (Ct.App.), cert. denied, 108 N.M. 273, 771 P.2d 981 (1989). Here Plaintiffs burden was to prove negligence by the greater weight of the evidence; evenly balanced evidence is not sufficient. See SCRA 1986, 13-304 (instruction given to jury in this case). In my opinion, the evidence of negligence here was not evenly balanced; it did not exist. The majority holding otherwise, I respectfully dissent.
. The following exchange took place between Plaintiffs counsel and Lujan on direct examination:
Q. How much water was there?
A. It was like streaked. I mean, there was carts, had already went over. After she was gone you mean?
Q. No, when she was — well, was there water underneath her?
A. I don’t remember.
(emphasis added). When Lujan related his answer to "after she was gone you mean?”, counsel said "No,” but then changed the subject. Lujan was not afforded the opportunity to describe the condition he observed before Plaintiff left. Moments later, Lujan was given that opportunity. On cross-examination to complete his answer, the following exchange occurred:
Q. The streaks that you saw that were through the water, were those there before or after Mrs. Gutierrez was taken by the paramedics?
A. It was after.
Q. Do you know if she was taken on a stretcher that had wheels on the bottom of it?
A. I think so.
Further, the majority does not account for the fact that Lujan arrived at the scene after others, and we do not know how much time expired from the time Moulton responded, saw Plaintiff on the floor, left to call paramedics and to call for assistance on the intercom to which Lujan responded. Plaintiff would have had to show the condition did not change during that time. Plaintiff did not do so because she did not rely on this evidence to establish notice or knowledge.
. The transcription of the taped telephone interview between Mr. Huebert and Lujan on July 9, 1984, read in context, indicates that the interviewer at the outset thought Lujan had swept only aisle four. This lack of communication resulted no doubt from Lujan’s early answer that he had swept aisle four ten minutes before the accident. In any event, I fail to see how the majority can make a leap from their interpretation to the conclusion that Lujan may not have swept aisle four at all.