dissenting.
I respectfully dissent to the majority’s disposition of this appeal. Diaz pleaded1 and proved2 her case in reliance on our decision in Wal-Mart Stores, Inc. v. Rangel, 966 S.W.2d 199, 202 (Tex.App.-Fort Worth 1998, pet. ref d).3 The. trial court denied Wal-Mart’s motion for judgment notwithstanding the verdict in reliance on our decision in Rangel.4 Yet today, the *591majority overrules our Rangel decision and renders judgment against Diaz on the very theory Rangel specifically held was “not the standard Ms. Rangel had to meet.” Id. Because Diaz relied upon controlling precedent from this jurisdiction in pleading and proving5 her case in the trial court, and because we are now overruling that precedent, I would remand this case for a new trial in the interests of justice.6 Tex.R.App. P. 43.3(b).
. Diaz pleaded, "Defendant’s actions in allowing consumers to walk through the premises with McDonald’s drinks was a repeated activity. It was foreseeable that customers would spill these drinks.”
. Diaz’s attorney elicited the following testimony from Julie Williams, a Wal-Mart employee at the time of Diaz’s accident:
Q. Now, at the Wal-Mart that you worked at, the one that we’re here today about, there was a McDonald’s in there, correct?
A. Yes, sir.
Q. There were not any type of warning signs or anything like that to customers not to take their drinks from the McDonald's to walk though the Wal-Mart, was there?
A. No.
Q. And you’ve seen customers walking around the store with their McDonald’s drinks, right?
A. Yes, sir.
Q. That wasn’t an unusual sight, was it?
A. No.
. In Wal-Mart Stores, Inc. v. Rangel, we held:
In its brief, Wal-Mart maintains that Ms. Rangel did not prove that the store had constructive knowledge of the water and ice cubes because she could not show that the “substance had been on the floor for such a period of time that it would have been discovered and removed by the defendant in the exercise of ordinary care.” However, that is not the standard Ms. Rangel had to meet. Rather than having to prove one particular instance of negligence or knowledge of one specific hazard (the water and ice), Ms. Rangel’s right to recover from Wal-Mart required her to show that Wal-Mart had knowledge of the foreseeable harm that could result from the store’s policy of allowing its customers to walk throughout the premises while, carrying food and drinks.
966 S.W.2d at 202.
. Diaz’s response in opposition to Wal-Mart’s motion for judgment notwithstanding the verdict on the actual or constructive notice issue contains three pages of discussion concerning our Rangel decision and argues that Diaz adequately proved Wal-Mart’s knowledge of foreseeable harm. Specifically, Diaz explains:
In this case, the store’s assistant manager, who had worked fifteen years for Wal-Mart, *591testified that before Ms. Rangel fell, he was aware of the store's policy, he knew people would carry food and drinks through the store, they could spill or drop those items on the floor, and that it was foreseeable a customer might slip, fall, and be injured in a liquid spilled on the floor by another customer. He also testified that in spite of that foreseeability, there were only three routine "safety sweeps” of the floor during each day.
. The majority acknowledges that Rangel "had the effect of imputing knowledge of the actual defect based on the fact that the owner should foresee a potential defect solely because it allowed its customers to carry drinks on its premises." Yet, the majority holds that, nonetheless, Diaz should have proved that Wal-Mart "actually or constructively knew about the actual defect.”
. Appellate courts have remanded to the trial court in the interest of justice when the applicable law has changed between the time of trial and the disposition of the appeal or when precedent has been overruled. See Tex.R.App. P. 42.3, 60.3; see, e.g., In re Doe, 19 S.W.3d 278, 290 (Tex.2000) (orig. proceeding) (Owens, J., concurring) (agreeing with remand to trial court in the interests of justice for new hearing due to recent supreme court opinion on the subject); Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 26 (Tex.1994) (remanding to trial court in the interest of justice when trial had been conducted before any supreme court opinion specifically addressed the standards governing the imposition of punitive damages in bad faith cases); Boyles v. Kerr, 855 S.W.2d 593, 603 (Tex.1993) (remanding to trial court in the interests of justice for new trial because supreme court held no cause of action exists for negligent infliction of emotional distress and plaintiff chose to proceed below only on that theory); Twyman v. Twyman, 855 S.W.2d 619, 626 (Tex.1993) (remanding to trial court in the interests of justice for new trial when case proceeded to trial on theory subsequently overruled by supreme court); Westgate, Ltd. v. State, 843 S.W.2d 448, 455 (Tex.1992) (refusing to remand to trial court in the interests of justice for a new trial but recognizing, "[Tjhe most compelling case for such a remand is where we overrule existing precedents on which the losing party relied at trial”); Scott v. Liebman, 404 S.W.2d 288, 294 (Tex.1966) (remanding to trial court in the interests of justice for a new trial and recognizing that the courts of appeals are authorized to remand in the interest of justice); Tex. Dep’t of Transp. v. Bederka, 36 S.W.3d 266, 273 (Tex.App.-Beaumont 2001, no pet.) (remanding to trial court in the interests of justice). The majority cites no authority for its novel proposition that a remand in the interest of justice is appropriate “only if the burden of proof for liability” under the overruled precedent is "higher,” and none of the cases cited above recognize this distinction.