Wal-Mart Stores, Inc. and Tammy Haggar v. Aida Silva Reyes--Appeal from County Court of Starr County

No. 04-98-00686-CV
WAL-MART STORES, INC.,
Appellant
v.
Aida Silva REYES,
Appellee
From the County Court at Law, Starr County, Texas
Trial Court No. CC-95-70
Honorable Alex W. Gabert, Judge Presiding

Opinion by: Tom Rickhoff, Justice

Sitting: Tom Rickhoff, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: July 21, 1999

REVERSED AND RENDERED

Aida Silva Reyes sued Wal-Mart Stores, Inc., claiming she injured herself when she slipped and fell in water at a Wal-Mart store in Rio Grande City. In accordance with the jury's verdict, the trial court rendered judgment in Reyes's favor for $8,598.04, plus pre- and post-judgment interest. Because the evidence is legally insufficient to establish that Wal-Mart had actual or constructive knowledge of the water on the floor, we reverse the trial court's judgment and render judgment that Reyes take nothing.

Discussion

To recover damages in a slip-and-fall case, a plaintiff must prove: 1) actual or constructive knowledge of some condition on the premises by the owner/operator; 2) the condition posed an unreasonable risk of harm; 3) the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and 4) the owner/operator's failure to use such care proximately caused the plaintiff's injuries. See Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). Wal-Mart challenges the legal and factual sufficiency of the evidence regarding the first three elements, as well as the legal and factual sufficiency of the evidence regarding damages.

To determine whether the evidence is legally sufficient, we must consider only the evidence and inferences tending to support the verdict, disregarding all contrary evidence and inferences. See id. However, meager circumstantial evidence from which equally plausible but opposite inferences may be drawn is speculative and thus legally insufficient to support a finding. See id.

Regarding the first element--the proprietor's actual or constructive knowledge of the condition--there is no evidence that Wal-Mart had actual knowledge that water was on the floor. Therefore, the only remaining question is whether the evidence is legally sufficient to establish that Wal-Mart had constructive notice. "[W]hen 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.

The only evidence presented by Reyes regarding the circumstances of the accident was her own testimony. She testified that when she fell, she "felt like [she] slipped and like there was water there." When she got back to her car, she noticed that her clothing was wet. Reyes did not testify that she saw the water, and none of the other witnesses saw any water on the floor, before or after the accident. Consequently, there was no evidence indicating the condition of the water, how much water was on the floor, or how long the water had been there. In short, the record is simply devoid of evidence from which a jury could infer that the water was on the floor for a long enough period to give Wal-Mart a reasonable opportunity to discover it.

Although she did not file an appellate brief, Reyes suggested in her response to Wal-Mart's motion for judgment notwithstanding the verdict that Wal-Mart had constructive notice of the water because there were many Wal-Mart employees in the area where the accident occurred. This evidence, standing alone, is insufficient to support an inference that the water was on the floor a sufficient length of time for one of the employees to discover it. See H.E.B. Foods, Inc. v. Moore, 599 S.W.2d 126, 129 (Tex. Civ. App.--Corpus Christi 1980, no writ); Great Atl. & Pac. Tea Co. v. J.E. Giles, 354 S.W.2d 410, 414 (Tex. Civ. App.--Dallas 1962, writ ref'd n.r.e.).

Reyes also noted in her response to the motion for judgment notwithstanding the verdict that the accident occurred near an area where jugs of drinking water were displayed for sale. She suggested that this evidence supported an inference that Wal-Mart had constructive knowledge because it created a dangerous condition. There was a complete absence of evidence, however, linking the jugs of water to the accident. There was no evidence that any of the jugs were leaking, and a Wal-Mart employee testified that he did not see any jugs leaking. There was also no evidence that the jugs had the propensity to leak or that the manner in which they were displayed made it likely they would leak. Therefore, any inference that the water jugs constituted or caused a dangerous condition would be based on speculation.

We conclude that the evidence is legally insufficient to support the first element of Reyes's premises liability cause of action. We therefore find it unnecessary to address Wal-Mart's other evidence-sufficiency challenges. The judgment of the trial court is reversed and judgment is rendered that Reyes take nothing from Wal-Mart.

Tom Rickhoff, Justice

DO NOT PUBLISH