Wal-Mart Stores, Inc. v. Spates

• Decision Date: 24 February 2006
• Docket Number: No. 04-1046.,04-1046.
• Citation: 186 S.W.3d 566
• Parties: WAL-MART STORES, INC., Petitioner, v. Kathy SPATES, Respondent.
• Court: Texas Supreme Court

186 S.W.3d 566

WAL-MART STORES, INC., Petitioner, v. Kathy SPATES, Respondent.

No. 04-1046.

Supreme Court of Texas.

February 24, 2006.

John Andrew Ramirez, Connie Hawkins, Bush & Ramirez, P.C., Houston, for Petitioner.

Marion D. Allen, Robert T. Rice & Associates, Angleton, for Respondent.

PER CURIAM.

In Wal-Mart Stores, Inc. v. Reece, this Court unanimously held that the mere proximity of an employee to a spill, without evidence of when or how it came to be on the floor, was legally insufficient to charge a premises owner with constructive notice of the hazard. 81 S.W.3d 812, 816-17 (Tex.2002). Five months later, the 149th District Court of Brazoria County granted summary judgment in a similar case involving the same retailer, in which the only evidence of constructive notice was the proximity of an employee to a hazard, again with no evidence of when or how it came to be on the floor.

The appeal was transferred to the Thirteenth Court of Appeals, which reversed. 144 S.W.3d 657 (Tex.App.-Corpus Christi 2004). Although citing our opinion in Reece, the court chose to rely instead on one of the cases we specifically disapproved in that opinion. Id. at 660 (citing Wal-Mart Stores, Inc. v. Garcia, 30 S.W.3d 19 (Tex.App.-San Antonio 2000, no pet.), disapproved, Reece, 81 S.W.3d at 816 n. 1). Accordingly, we reverse.

In her summary judgment affidavit, Kathy Spates avers that while shopping in the soft-drink aisle at a Wal-Mart in Lake Jackson, "her toe and sandal became entangled in an empty plastic six-pack ring," causing her to go down on one knee and extend her shoulder upward, injuring the latter. The ring "was directly behind" a Wal-Mart employee, "within 3-5 feet of her." "At no time was there any other person on the aisle [other than the employee] for at least 30-45 seconds."

Spates concedes there is no evidence that Wal-Mart created or knew of the hazard. Instead, she relies on constructive notice, which requires proof that an owner had a reasonable opportunity to discover the defect. Reece, 81 S.W.3d at 813. As we explained in Reece, that question requires analyzing the combination of proximity, conspicuity, and longevity:

[I]f the dangerous condition is conspicuous as, for example, a large puddle of dark liquid on a light floor would likely be, then an employee's proximity to the condition might shorten the time in which a jury could find that the premises owner should reasonably have discovered it. Similarly, if an employee was in close proximity to a less conspicuous hazard for a continuous and significant period of time, that too could affect the jury's consideration of whether the premises owner should have become aware of the dangerous condition.

Id. at 816.

While a Wal-Mart employee was near this clear...