dissenting.
The question posed in Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 935 (Tex. 1998), was “what quantum of circumstantial evidence is legally sufficient to support a finding that an unreasonably dangerous condition has existed long enough to charge a proprietor with constructive notice of the condition.” As the majority correctly notes, the Texas Supreme Court held that “when circumstantial evidence is relied upon to prove constructive notice, the evidence must establish 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. However, before relying too heavily on Gonzalez, we must consider the effect that the Texas Supreme Court’s recent holding in Lozano v. Lozano, 52 S.W.3d 141 (Tex.2001), has on the Court’s analysis.
In Gonzalez, the Court considered the legal sufficiency of the evidence relied upon to prove that the macaroni salad that caused Gonzalez to slip had been on the floor long enough to charge Wal-Mart with constructive notice. 968 S.W.2d at 936. The Court considered the following evidence offered by Gonzalez: (1) testimony that the macaroni had mayonnaise in it, was “fresh,” “wet,” “still humid,” and contaminated with “a lot of dirt;” (2) testimony that the macaroni had footprints and cart track marks in it; and (3) testimony that the macaroni “seemed like it had been there awhile.” Id. The Court rejected the testimony regarding the dirt, asserting that the testimony would not support any reasonable inference as to the length of time the macaroni had been on the floor. See id. at 937. Similarly, the Court rejected the testimony that the macaroni “seemed like it had been there awhile” as mere speculative, subjective opinion. See id. This analysis does not appear to have been affected by Lozano. However, Loza-no does affect the Court’s analysis of the testimony that the macaroni had footprints and cart track marks in it.
In initially stating the standard governing its review in Gonzalez, the Court asserted: “meager circumstantial evidence from which equally plausible but opposite inferences may be drawn is speculative and thus legally insufficient to support a finding.” 968 S.W.2d at 936. Because it concluded that equally plausible inferences could be drawn from the testimony that the macaroni had footprints and cart track marks in it, the Court concluded that the testimony was no evidence. In Lozano, a majority of the Court joined Chief Justice Phillips’ opinion which stated: “circumstantial evidence is not legally insufficient merely because more than one reasonable inference may be drawn from it. If circumstantial evidence will support more than one reasonable inference, it is for the jury to decide which is more reasonable, subject only to review by the trial court and the court of appeals to assure that such evidence is factually sufficient.” 52 S.W.3d at 148 (Phillips, C.J., concurring and dissenting). After Lozano, the Court could no longer reject the inference that the macaroni salad had been on the floor for a prolonged period of time based on the presence of footprints and cart marks in the macaroni salad. Instead, the jury would be permitted to decide whether it was more reasonable to infer whether the tracks were of recent origin or had been there a long time.
In this case, we must determine whether a jury could find from the circumstantial evidence that it is more likely than not that the banana causing Rosa to slip was on the floor long enough to give Wal-Mart a reasonable opportunity to discover the banana. Therefore, our focus must be on *847whether Wal-Mart had a reasonable opportunity to discover the banana. Because a jury could reasonably infer from the evidence that Wal-Mart had such an opportunity, I would affirm the trial court’s judgment. Because the majority holds to the contrary, I respectfully dissent.
Two Wal-Mart employees testified that the customer in line ahead of Rosa was holding a baby that was eating a banana. The employees stated that their attention became focused on this fact when the cashier who was checking out that customer asked one of the Wal-Mart employees, who was a manager, for guidance as to how the customer should be charged for the banana. The employee was uncertain as to how the banana should be charged because customers are normally charged for a banana based on its weight, but the baby had consumed part of the banana. The manager told the employee not to charge the customer. The other employee admitted that it should be a concern of Wal-Mart to ensure that the baby did not create a mess when eating the banana.
At the time the banana was dropped, three Wal-Mart employees were aware that the baby was eating a banana. At least one of those employees was aware of the potential for the baby to create a mess by dropping the banana. None of those employees took the time to check and determine whether the baby had in fact dropped the banana.
Under these circumstances, the length of time that Wal-Mart needed to have a reasonable opportunity to discover the condition was significantly reduced. Three Wal-Mart employees were in the immediate vicinity and were aware of the potential for a dangerous condition to develop. They knew of the exact dangerous condition that developed. In fact, they knew what every parent knows from common experience: that there is a good chance when a baby is eating a banana that as much of the banana will wind up on the floor as in the baby’s stomach. See Lozano, 52 S.W.3d at 168 (Baker, J., concurring and dissenting) (noting common sense can provide a logical bridge between the circumstances and a jury’s finding). That was the concern. But no one did anything about it. None of those employees checked to ensure that the condition did not develop within the few minutes it took to complete the customer’s transaction. See Wal-Mart Stores, Inc. v. Garcia, 30 S.W.3d 19, 23 (Tex.App.—San Antonio 2000, no pet.) (taking into consideration close proximity of personnel to site of hazardous condition). The cashier even chose not to check the floor when moving the customer’s cart to the end of the check-out stand despite the fact that each Wal-Mart employee carries a paper towel in their pocket to wipe spills.
Wal-Mart asserts that the evidence as to the source of the dangerous condition is not refuted. The condition was caused by the baby eating the banana. The same baby who was the focus of at least three Wal-Mart employees’ attention, and the same baby that one Wal-Mart employee thought might create the very condition that caused Rosa to slip. Given those circumstances, a jury could reasonably infer that it was more likely than not that Wal-Mart had a reasonable opportunity to discover that the baby had dropped the banana and created the dangerous condition. That was the jury’s finding, and there was sufficient evidence to support that finding.