dissenting.
I respectfully dissent. In my opinion, the evidence was legally and factually insufficient to prove Wal-Mart had constructive knowledge of the macaroni on the floor.
SLIP AND FALL LIABILITY IN GENERAL
The prevalent theme winding throughout the majority opinion is the recognition that plaintiffs in premises liability eases such as this one face difficulties in proof. While it is true that plaintiffs face an uphill battle in proving liability of business owners in slip and fall eases, there are sound policy reasons for this difficult burden. If slip and fall plaintiffs were not required to prove knowledge and/or constructive knowledge of dangerous conditions, business owners could very well become insurers of all their patrons, subject to strict liability for injuries occurring on their premises regardless of fault. See Garner v. McGinty, 771 S.W.2d 242, 244 (Tex.App.—Austin, 1989, no writ) (holding occupier of business premises is not insurer of safety of invitees); see also W. Page Keeton Et Al„ ProsseR & Keeton On The Law Of Torts § 11, at 425 (5th ed. 1984). While it may seem an onerous burden for plaintiffs to prove constructive knowledge, imagine the burden strict liability would place on business owners, a burden which would, no doubt, be passed on to the consumer.
In its opinion, the majority discusses the standard of review and recognizes the fact that, under the current state of Texas law, constructive knowledge must be proven in order for the plaintiff to recover. Although finding the evidence sufficient to support the jury’s finding of constructive knowledge, the majority opinion, nevertheless, includes a discussion concerning the plaintiffs difficult burden in slip and fall cases which could be read to indicate that slip and fall plaintiffs should be held to a reduced burden of proof. Specifically, the majority opinion states:
A plaintiff has the obligation to produce the evidence that exists. If a court requires more than is possible to prove, the court has taken over the legislative function of simply deciding that there will be no negligence cause of action for slip and falls. No court has done this, and the cause of actions exists. The great majority of slip-and-fall cases are lost at the trial level, and no doubt, always will be. But this court is not willing to say that an injured person must go beyond the evidence that is created by the operative facts, which would be an impossibility.
In the above-quoted paragraph, the majority seems to be saying that, because the plaintiff can only prove what is possible to prove with the evidence that exists, she should not be penalized and denied recovery if she is unable, by such evidence, to prove her case. The majority does recognize that there may be some cases where there is “simply not enough evidence to make a case, even if it is all produced,” but that “[t]his is not such a *784case.” However, if the evidence is legally and factually sufficient in this case, I am puzzled by the majority’s statements implying that plaintiffs should not be denied recovery in slip and fall cases even when the “operative facts” are not sufficient to prove a case. Of course, plaintiffs as well as defendants, in any kind of case, are limited to proving “the operative facts.” To go beyond such evidence would require the parties to manufacture evidence that does not exist. No party is or should be required to do that. However, if the evidence does not exist, it does not exist. Our system of justice requires plaintiffs to bear the burden of proof in all types of cases. If they cannot do so, they cannot recover. The harsh reality is that if the plaintiff cannot prove facts to support her cause of action, there is simply no recovery. This is true not only in slip and fall cases, but in all cases.
The fact that constructive knowledge in a slip and fall ease is often difficult to prove is no reason to hold plaintiffs in such cases to a reduced burden of proof. The majority points out that different types of negligence cases require different amounts of proof to be sufficient, and, that by its nature, a slip and fall case requires less evidence than other types of negligence cases because “[tjhere is simply less to say.” There may, in fact, be less to say in terms of how many witnesses testify, how much they have to say about the condition of the premises, and how many lines and pages of testimony appear in the statement of facts. But, the fact that there is less quantitative evidence available does not and should not translate into requiring a reduced burden of proof. The fact remains that, in order to hold a business owner liable for a slip and fall injury, the plaintiff must prove knowledge or constructive knowledge of the hazardous condition. Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996). Anything less would amount to a form of strict liability which is simply not the law.
EVIDENCE OF CONSTRUCTIVE KNOWLEDGE
Whether Wal-Mart had constructive knowledge of the macaroni on the floor is the central issue in this case. Thus, the evidence must be reviewed, using the proper standard ■ of review, as it relates to the length of time the macaroni was on the floor before Mrs. Gonzalez’s fall. In other words, what evidence was adduced at trial to show whether the maearoni was on the floor for such a length of time that Wal-Mart should have discovered it and removed it in the exercise of ordinary care? See Keetch v. Kroger, 845 S.W.2d 262, 265 (Tex.1992).
The facts relating to the condition of the macaroni are not in dispute. Mrs. Gonzalez testified that she was walking down a very busy aisle, next to the refrigeration cases in Wal-Mart. She was walking toward an empty shopping cart when she slipped and fell on what she later identified as cooked macaroni. She testified that the macaroni had mayonnaise in it and that it appeared to be “fresh,” and “wet,” and “still humid.” Mrs. Gonzalez admitted that she had no knowledge of how long the macaroni had been on the floor when she fell, but she stated that it had a “lot of dirt” in it. Veronica Gomez, Mrs. Gonzalez’s daughter, testified that she was shopping with her mother on the day of the accident. She was on another aisle when she heard her mother call for her. She found her mother lying on the floor, next to the refrigeration cases. She did not actually see her mother fall. Mrs. Gomez testified that her mother had slipped on a “piece of macaroni.” She noticed that her mother had some of the macaroni on her shoes. She also admitted she did not know how long the macaroni had been on the floor but that it “seemed like it had been there a while” because it had track marks in it. In summary, the evidence shows that, after Mrs. Gonzalez fell, the macaroni was observed to be fresh, wet, humid, dirty and having track marks in it. Although the majority opinion indicates there was “some contradictory evidence” regarding the appearance of the macaroni on the floor, I respectfully disagree. The record indicates that no one saw the macaroni on the floor before Mrs. Gonzalez fell. The only testimony regarding the condition of the macaroni after the fall came from Mrs. Gonzalez and her daughter, Mrs. Gomez. Their testimony was not contradicted by any other witnesses or by any Wal-Mart employee. The contradictory evidence *785referred to by the majority was, apparently, the fact that the macaroni was both dirty and fresh and that, although it was wet, it seemed like it had been there a long time because it had cart tracks through it. As discussed below, these are not necessarily contradictory facts.
In cases involving similar facts, the courts have held that the defendant did not have constructive knowledge of the condition. For instance, in Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex.1983), the evidence showed the grapes on which the customer slipped were discolored and ruptured. The supreme court found this was not evidence of how long the grapes had been on the floor because the grapes could have ruptured before they fell on the floor or immediately before or during the customer’s fall. Id. at 294. In Safeway Stores, Inc. v. Harkless, 601 S.W.2d 534 (Tex.Civ.App.—Tyler 1980, writ refd n.r.e.), the store customer slipped on brown water next to a flower display. The court found there was no evidence of how long the water had been on the floor because it could have fallen from a flower pot picked up by another customer shortly before the plaintiffs fall just as easily as it could have been there for a long period of time. Id. at 538. In Robledo v. Kroger Co., 597 S.W.2d 560 (Tex.Civ.App.—Eastland 1980, writ ref'd n.r.e.), the court found that evidence that a customer slipped on dirty water that had cart tracks through it was no evidence from which the jury could infer how long the water had been on the floor because the cart tracks could have been made by the customer’s fall or by another customer minutes before the fall. Id. Also, in Kimbell, Inc. v. Blount, 562 S.W.2d 10 (Tex.Civ. App.—Austin 1978, no writ), the court found that where drying footprints and tracks were leading away from a puddle of water, there was no evidence that the puddle had been on the floor for such a length of time to give constructive notice to the store employees. Id. at 13.
Similarly, in this case, the fact that the macaroni appeared dirty and had tracks through it is no evidence of the length of time the macaroni had been on the floor. As in the above-cited cases, it could just as reasonably be inferred that the dirt and tracks were made by other customers just minutes before or by Mrs. Gonzalez herself during the course of the fall.
In contrast, in those cases where constructive knowledge has been imposed, the facts were different from those in this case and others where constructive knowledge was found lacking. For instance, in J.C.Penney Co., Inc. v. Chavez, 618 S.W.2d 399 (Tex.Civ. App.—Corpus Christi 1981, writ refd n.r.e.), the plaintiff slipped on a black and “gooey” banana peel. The court found there was some evidence the store employees should have detected and removed it because only fresh, yellow bananas were available at the store. Id. at 401. In Furr’s Super Market v. Garrett, 615 S.W.2d 280 (Tex.Civ.App.—El Paso 1981, writ refd n.r.e.), the plaintiff fell in a “pool” of water which resulted in her clothes being soaked wet. This happened in the vicinity of five store employees. The court found the employees should have detected that much water before the customer fell. Id. at 281-82. In Albertson’s, Inc. v. Mungia, 602 S.W.2d 359 (Tex.Civ.App.—Corpus Christi 1980, no writ), there was a substantial leak in an ice machine next to a check-out stand. The court found this should have been detected by an employee because it is well known that melting ice and water has a tendency to accumulate close to an ice machine. Id. at 362-63. And, in H.E. Butt Grocery Co. v. Heaton, 547 S.W.2d 75 (Tex. Civ.App.—Waco 1977, no writ), the court held there was sufficient evidence to impute constructive knowledge where the customer slipped on grapes that were smashed, spread out, and drying, and the same layer of dirt covering the floor also covered the grapes. Id. at 76.
It is well settled that in conducting a sufficiency review, the reviewing court cannot substitute its conclusions for those of the jury. If there is sufficient competent evidence of probative force to support the finding, it must be sustained. Carrasco v. Goatcher, 623 S.W.2d 769, 772 (Tex.Civ. App.—El Paso 1981, no writ). It is not within the province of the court to interfere with the jury’s resolution of conflicts in the evidence or to pass on the weight or credibili*786ty of the witness’s testimony. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 797 (1951). In this ease, however, as stated above, there is no conflicting evidence. The undisputed evidence is simply that Mrs. Gonzalez slipped on some macaroni salad, it had some dirt in it, it had track marks in it, and it looked fresh and wet. The pivotal question is whether this evidence is sufficient to support a finding that the macaroni salad was on the floor long enough to charge Wal-Mart with constructive notice of its presence. Whether a duty exists “is a question of law for the court to decide from the facts surrounding the occurrence in question.” Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990).
Based on the above-cited authorities, the evidence in this case is legally and factually insufficient to support a finding of constructive knowledge. The macaroni salad was not in a drying condition or discolored as in Chavez and Heaton. There was not a large amount of it as in Garrett. There was no indication there were store employees in close proximity to the macaroni salad at or near the time that Mrs. Gonzalez fell as in Mungia. As in Robledo, there is no evidence that Mrs. Gonzalez did not make the tracks in the macaroni salad when she fell, or that another customer traversing the busy aisle did not make the tracks just minutes before Mrs. Gonzalez fell. There is simply no evidence from which the jury could infer how long the macaroni salad had been on the floor.
The majority concludes that the jury could have inferred from the track marks that the macaroni salad had been on the floor for a sufficient amount of time to impute knowledge to Wal-Mart’s employees. The majority attempts to distinguish tracks through water from tracks through macaroni by stating that tracks through water are transitory whereas tracks through solid matter will presumably last until cleaned up. While that may be true, the fact that there were track marks is still no evidence of how long the macaroni had been on the floor because, under the facts in this case, there is simply no way of knowing how long the track marks had been there. The majority likens this case to the Heaton case, which involved a slip and fall on smashed and dirty grapes. See Heaton, 547 S.W.2d at 75. In that case, however, the dangerous condition was caused by grapes on the floor. The grapes were described as “smashed and spread out”, “the juice had been pressed out of them”, and “they were in a drying stage.” Further, there were footprints and cart tracks in them and, most importantly,“the same layer of dirt that was on the floor proceeded to cover the grapes as if they had been there for a great length of time.” Further, as the majority noted, dirtyand desiccated grapes on the floor are considered the “quintessential dangerous condition.” See Wyatt v. Furr’s Supermarkets, Inc., 908 S.W.2d 266, 268 (Tex. App.—El Paso 1995, writ denied). And, in such a situation, knowledge of a hazard is easier to infer. Id. Accordingly, the majority’s reliance on Heaton is inappropriate to the facts of this case.
Because I am of the opinion there was no evidence that Wal-Mart had knowledge or constructive knowledge of the macaroni on the floor where Mrs. Gonzalez slipped and fell, I would reverse and render judgment in favor of Wal-Mart.