In The Court of Appeals Sixth Appellate District of Texas at Texarkana
No. 06-20-00035-CV
PAUL K. CLAYTON, Appellant
V.
WALMART INC. AND WAL-MART STORES TEXAS, L.P., Appellees
On Appeal from the 62nd District Court Hopkins County, Texas Trial Court No. CV43911
Before Morriss, C.J., Burgess and Stevens, JJ. Memorandum Opinion by Justice Stevens MEMORANDUM OPINION
After Paul K. Clayton slipped on salad dressing in his local Walmart, he sued Walmart
Inc. and Wal-Mart Stores Texas, L.P. (collectively Walmart), for premises liability.1 The trial
court granted Walmart’s motion for summary judgment, which argued that Clayton could not
establish his premises liability claim since there was no evidence that it had actual or
constructive knowledge of a dangerous condition on the premises. As a result, the trial court
entered a take-nothing judgment against Clayton.
On appeal, Clayton argues that he established a genuine issue of material fact on the issue
of constructive knowledge. Because we disagree, we affirm the trial court’s judgment.
I. Standard of Review
“The grant of a trial court’s summary judgment is subject to de novo review by appellate
courts.” Padron v. Catholic Diocese of Austin, No. 06-18-00087-CV, 2019 WL 1548637, at *2
(Tex. App.—Texarkana Apr. 10, 2019, no pet.) (mem. op.) (citing Provident Life & Accident Ins.
Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003)). “In making the required review, we deem as
true all evidence which is favorable to the nonmovant, we indulge every reasonable inference to
be drawn from the evidence, and we resolve any doubts in the nonmovant’s favor.” Id. (citing
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)).
“A no-evidence summary judgment is essentially a pretrial directed verdict. Therefore,
we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as
1 Though it contained allegations of negligence, Clayton’s petition asserted a premises liability case. See United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 472, 479 (Tex. 2017) (explaining the difference between premises liability and general negligence claims). 2 we apply in reviewing a directed verdict.” Id. at *3 (citing Wal-Mart Stores, Inc. v. Rodriguez,
92 S.W.3d 502, 506 (Tex. 2002)). “We must determine whether the plaintiff produced any
evidence of probative force to raise a fact issue on the material questions presented.” Id. (citing
Rodriguez, 92 S.W.3d at 506; Woodruff v. Wright, 51 S.W.3d 727, 734 (Tex. App.—Texarkana
2001, pet. denied)). “The plaintiff will defeat a defendant’s no-evidence summary judgment
motion if plaintiff presented more than a scintilla of probative evidence on each element of its
claim.” Id. (citing King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); Rhine v.
Priority One Ins. Co., 411 S.W.3d 651, 657 (Tex. App.—Texarkana 2013, no pet.)).
II. The Constructive Knowledge Requirement
“In premises-liability cases, the scope of a landowner’s responsibility turns on the
plaintiff’s status.” Id. (citing Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex.
2010)). It is undisputed that Clayton was a business invitee.
“[G]enerally, a property owner owes invitees a duty to use ordinary care to reduce or
eliminate an unreasonable risk of harm created by a premises condition about which the property
owner knew or should have known.” Id. (alteration in original) (quoting Advance Tire &
Wheels, LLC v. Enshikar, 527 S.W.3d 476, 481 (Tex. App.—Houston [1st Dist.] 2017, no pet.)
(citing Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 203 (Tex. 2015) (“A landowner has a duty
to exercise reasonable care to make the premises safe for invitees.”)). “A premises owner’s duty
toward its invitee does not, however, make the owner an insurer of the invitee’s safety.” Id.
(quoting Austin, 465 S.W.3d at 203; Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936
(Tex. 1998)). “Applying the general rule, the Texas Supreme Court ‘has repeatedly described a
3 landowner’s duty as a duty to make safe or warn against any concealed, unreasonably dangerous
conditions of which the landowner is, or reasonably should be, aware but the invitee is not.’” Id.
at *4 (quoting Austin, 465 S.W.3d at 203).
Here, for Walmart to be liable for Clayton’s injury, Clayton had to prove
(1) that [the defendant] had actual or constructive knowledge of some condition on the premises; (2) that the condition posed an unreasonable risk of harm to [the plaintiff]; (3) that [the defendant] did not exercise reasonable care to reduce or to eliminate the risk; and (4) that [the defendant’s] failure to use such care proximately caused [the plaintiff’s] personal injuries.
Id. at *3 (quoting Levine, 537 S.W.3d at 471–72 (alterations in original) (quoting Corbin v.
Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983))). Only the first requirement is at issue.
III. Clayton’s Summary Judgment Evidence Did Not Raise a Genuine Issue of Material Fact
A. Clayton’s Summary Judgment Evidence
In response to Walmart’s no-evidence motion for summary judgment, Clayton attached
his own deposition testimony. Clayton said that the slip and fall happened in the salad dressing
aisle of the Walmart, which was busy. It was his habit to walk down the store aisle by aisle.
Clayton testified that he had previously been to the salad dressing aisle before he slipped but did
not notice any spill. After he had been in the store for about an hour and fifteen minutes,
Clayton returned to the salad dressing aisle to retrieve an item he had forgotten and slipped on
“[m]ayo on [the] floor” or “something white.”
After the slip, Clayton said he “was looking for help,” “knew somebody was in that area
because [he’d] been seeing him around,” saw Walmart employee Joe Taylor “an aisle or two
4 over,” showed him the spilled salad dressing, and advised him to clean it up.2 After the incident,
Taylor told Clayton that he had cleaned up the spill and that “there was a lot down there.”
Clayton walked to the front of the store to notify another Walmart employee, Melissa Farmer,
that he had salad dressing on his foot. According to Farmer, Clayton told her that he had not
reported the incident before he spoke with her but wanted to report it to a manager.
When asked whether Walmart had any opportunity to clean up the substance before he
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In The Court of Appeals Sixth Appellate District of Texas at Texarkana
No. 06-20-00035-CV
PAUL K. CLAYTON, Appellant
V.
WALMART INC. AND WAL-MART STORES TEXAS, L.P., Appellees
On Appeal from the 62nd District Court Hopkins County, Texas Trial Court No. CV43911
Before Morriss, C.J., Burgess and Stevens, JJ. Memorandum Opinion by Justice Stevens MEMORANDUM OPINION
After Paul K. Clayton slipped on salad dressing in his local Walmart, he sued Walmart
Inc. and Wal-Mart Stores Texas, L.P. (collectively Walmart), for premises liability.1 The trial
court granted Walmart’s motion for summary judgment, which argued that Clayton could not
establish his premises liability claim since there was no evidence that it had actual or
constructive knowledge of a dangerous condition on the premises. As a result, the trial court
entered a take-nothing judgment against Clayton.
On appeal, Clayton argues that he established a genuine issue of material fact on the issue
of constructive knowledge. Because we disagree, we affirm the trial court’s judgment.
I. Standard of Review
“The grant of a trial court’s summary judgment is subject to de novo review by appellate
courts.” Padron v. Catholic Diocese of Austin, No. 06-18-00087-CV, 2019 WL 1548637, at *2
(Tex. App.—Texarkana Apr. 10, 2019, no pet.) (mem. op.) (citing Provident Life & Accident Ins.
Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003)). “In making the required review, we deem as
true all evidence which is favorable to the nonmovant, we indulge every reasonable inference to
be drawn from the evidence, and we resolve any doubts in the nonmovant’s favor.” Id. (citing
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)).
“A no-evidence summary judgment is essentially a pretrial directed verdict. Therefore,
we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as
1 Though it contained allegations of negligence, Clayton’s petition asserted a premises liability case. See United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 472, 479 (Tex. 2017) (explaining the difference between premises liability and general negligence claims). 2 we apply in reviewing a directed verdict.” Id. at *3 (citing Wal-Mart Stores, Inc. v. Rodriguez,
92 S.W.3d 502, 506 (Tex. 2002)). “We must determine whether the plaintiff produced any
evidence of probative force to raise a fact issue on the material questions presented.” Id. (citing
Rodriguez, 92 S.W.3d at 506; Woodruff v. Wright, 51 S.W.3d 727, 734 (Tex. App.—Texarkana
2001, pet. denied)). “The plaintiff will defeat a defendant’s no-evidence summary judgment
motion if plaintiff presented more than a scintilla of probative evidence on each element of its
claim.” Id. (citing King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); Rhine v.
Priority One Ins. Co., 411 S.W.3d 651, 657 (Tex. App.—Texarkana 2013, no pet.)).
II. The Constructive Knowledge Requirement
“In premises-liability cases, the scope of a landowner’s responsibility turns on the
plaintiff’s status.” Id. (citing Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex.
2010)). It is undisputed that Clayton was a business invitee.
“[G]enerally, a property owner owes invitees a duty to use ordinary care to reduce or
eliminate an unreasonable risk of harm created by a premises condition about which the property
owner knew or should have known.” Id. (alteration in original) (quoting Advance Tire &
Wheels, LLC v. Enshikar, 527 S.W.3d 476, 481 (Tex. App.—Houston [1st Dist.] 2017, no pet.)
(citing Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 203 (Tex. 2015) (“A landowner has a duty
to exercise reasonable care to make the premises safe for invitees.”)). “A premises owner’s duty
toward its invitee does not, however, make the owner an insurer of the invitee’s safety.” Id.
(quoting Austin, 465 S.W.3d at 203; Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936
(Tex. 1998)). “Applying the general rule, the Texas Supreme Court ‘has repeatedly described a
3 landowner’s duty as a duty to make safe or warn against any concealed, unreasonably dangerous
conditions of which the landowner is, or reasonably should be, aware but the invitee is not.’” Id.
at *4 (quoting Austin, 465 S.W.3d at 203).
Here, for Walmart to be liable for Clayton’s injury, Clayton had to prove
(1) that [the defendant] had actual or constructive knowledge of some condition on the premises; (2) that the condition posed an unreasonable risk of harm to [the plaintiff]; (3) that [the defendant] did not exercise reasonable care to reduce or to eliminate the risk; and (4) that [the defendant’s] failure to use such care proximately caused [the plaintiff’s] personal injuries.
Id. at *3 (quoting Levine, 537 S.W.3d at 471–72 (alterations in original) (quoting Corbin v.
Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983))). Only the first requirement is at issue.
III. Clayton’s Summary Judgment Evidence Did Not Raise a Genuine Issue of Material Fact
A. Clayton’s Summary Judgment Evidence
In response to Walmart’s no-evidence motion for summary judgment, Clayton attached
his own deposition testimony. Clayton said that the slip and fall happened in the salad dressing
aisle of the Walmart, which was busy. It was his habit to walk down the store aisle by aisle.
Clayton testified that he had previously been to the salad dressing aisle before he slipped but did
not notice any spill. After he had been in the store for about an hour and fifteen minutes,
Clayton returned to the salad dressing aisle to retrieve an item he had forgotten and slipped on
“[m]ayo on [the] floor” or “something white.”
After the slip, Clayton said he “was looking for help,” “knew somebody was in that area
because [he’d] been seeing him around,” saw Walmart employee Joe Taylor “an aisle or two
4 over,” showed him the spilled salad dressing, and advised him to clean it up.2 After the incident,
Taylor told Clayton that he had cleaned up the spill and that “there was a lot down there.”
Clayton walked to the front of the store to notify another Walmart employee, Melissa Farmer,
that he had salad dressing on his foot. According to Farmer, Clayton told her that he had not
reported the incident before he spoke with her but wanted to report it to a manager.
When asked whether Walmart had any opportunity to clean up the substance before he
had encountered it, Clayton said, “For me, I didn’t see any bottle. I thought it looked like it had
been -- like they had tried to clean it up and maybe didn’t get all of it. . . . From what I’m
thinking, I don’t know.” Clayton admitted that no one from Walmart told him that they had tried
but failed to clean up the spill. Clayton was shown a photograph of “a ranch dressing container
that had the cap knocked off that was sitting on the shelf.” The photographs showed that the
ranch dressing bottle with the missing cap had been misplaced on the bottom shelf next to large
jars of mayonnaise.
Kevin Caraway, an assistant manager, testified that Walmart employees check the aisles
periodically for spills, other hazards, and mis-stocked items. According to Caraway, Walmart
policy requires any employee who comes across a spill to “guard it until somebody else comes
by, and then somebody else cleans it up.” Caraway also said that, if a Walmart employee had
2 Clayton argues that the following portion of his testimony showed that Taylor was in the proximity of the spill for an hour and a half:
I was looking for help because, you know, I’d been there, like I said, an hour and a half. So I knew somebody was in that area because I’d been seeing him around. So I seen him. He was, like, an aisle or two over, and I let him know what happened . . . .
We disagree with Clayton’s characterization of this testimony, which does not show how long Taylor had been in the area. It also does not show that Taylor was ever in the salad dressing aisle. 5 found the salad dressing bottle, they would have taken it off the floor and to the claims area.
Caraway testified that, after the spill, the area was cleaned for the sake of customer safety but
that no one had located the top of the ranch dressing bottle.
B. Analysis
Clayton argues that there are genuine issues of material fact concerning whether Walmart
had constructive knowledge of the salad dressing spill.3 Under Texas law, a plaintiff can
establish knowledge of a potentially harmful condition in one of three ways:
(1) prove the defendant caused the harmful condition; (2) prove the defendant knew of the harmful condition and negligently failed to remove it; or (3) prove the harmful condition was present for so long that it should have been discovered or removed in the exercise of reasonable care.
Brookshire Food Stores, L.L.C. v. Allen, 93 S.W.3d 897, 900 (Tex. App.—Texarkana 2002, no
pet.).
Clayton first argues that Walmart caused the harmful condition because the salad
dressing was improperly stocked on the bottom shelf with the cap removed. That said, he
introduced no evidence showing that it was misplaced by a Walmart employee instead of a
customer.
As for the second and third method of establishing constructive knowledge, Clayton
argues that Taylor had been in the area of the spill, which was “clearly conspicuous because it
was a large puddle of ranch dressing” and because Walmart employees were to periodically
inspect aisles for spills. Even so, the Texas Supreme Court has held that “evidence [that] the
premises owner’s employee was in close proximity to the dangerous condition immediately
3 There is no evidence of actual knowledge of the spill. 6 before the plaintiff fell, without more, is legally insufficient to charge the premises owner with
constructive notice.” Id. at 901 (citing Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 813, 816
n.1 (Tex. 2002)). “There must also be some evidence showing the dangerous condition existed
long enough that the premises owner had a reasonable opportunity to discover it.” Id. (citing
Reece, 81 S.W.3d at 813). This “time-notice rule” prevents the imposition of “liability on a
storekeeper for the carelessness of another over whom it had no control or for ‘the fortuitous act
of a single customer’ that could instantly create a dangerous condition.” Wal-Mart Stores, Inc. v.
Reece, 81 S.W.3d 812, 816 (Tex. 2002) (quoting Coffee v. F.W. Woolworth Co., 536 S.W.2d
539, 541 (Tex. 1976)).
Here, there is no evidence of when the spill occurred or who caused the spill, and Clayton
himself testified that he did not see the spill when he first walked through the salad dressing
aisle. Clayton’s argument “merely indicates that it was possible for the premises owner to
discover the condition, not that the premises owner reasonably should have discovered it.” Id.
“Constructive notice demands a more extensive inquiry,” but Clayton presented nothing negating
the possibility that the spill could have occurred moments before he fell. Id. “Without some
temporal evidence, there is no basis upon which the fact[-]finder can reasonably assess the
opportunity the premises owner had to discover the dangerous condition.” Id. As a result, there
was no evidence Walmart knew of the harmful condition or that it was present for so long that it
should have been discovered and cleaned.
Because we find the trial court’s summary judgment proper, we overrule Clayton’s point
of error on appeal.
7 IV. Conclusion
We affirm the trial court’s judgment.
Scott E. Stevens Justice
Date Submitted: December 9, 2020 Date Decided: December 11, 2020