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IN
THE SUPREME COURT OF
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No. 04-1046
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Wal-Mart Stores, Inc., Petitioner,
v.
Kathy Spates, Respondent
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On Petition for Review from the
Court
of Appeals for the Thirteenth District of
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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 (
The
appeal was transferred to the Thirteenth Court of Appeals, which reversed. 144 S.W.3d 657 (
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.
While a Wal-Mart employee was near this clear plastic ring, the only evidence is that it was behind her as she worked on the shelves. Thus, the sole question is whether Spates’s testimony that the plastic ring “had to have been on the floor” for 30 to 45 seconds establishes the employee’s proximity for “a continuous and significant period of time.” We hold it does not.
We
review a summary judgment for evidence that would enable reasonable and
fair-minded jurors to differ in their conclusions. See City of
Accordingly, we hold the summary judgment record contained no evidence that Wal-Mart should have discovered the six-pack ring Spates alleges was hazardous. Consistent with Reece, the Thirteenth Court of Appeals should have affirmed. As it did not, we reverse the latter’s judgment and reinstate the trial court’s summary judgment.
OPINION DELIVERED: February 24, 2006