Last week, the Court of Appeals of Texas, Corpus Christi, concluded that dirty liquid on the floor of an HEB grocery store, and the injured party’s subjective assertion that it appeared a lot of people had previously been through that area, was no evidence that the liquid had been on the floor long enough to charge HEB with constructive notice of the presence of the liquid.  In Lopez v. HEB Grocery Company., No. 13-19-00611-CV, 2021 WL 1567504 (Tex. App.—Corpus Christi [Edinburg Division], April 22, 2021), Lopez was shopping at an HEB grocery store when she stepped in liquid that caused her to slip and fall, causing her injury. Lopez subsequently sued HEB asserting a claim of premises liability.  HEB answered and later filed a no-evidence motion for summary judgment, asserting there was no evidence that HEB knew of, was notified of, or had reason to be aware of the liquid on the floor (i.e., the alleged dangerous condition).  In Lopez’s response, she argued that the liquid was dirty, which meant the water was on the floor long enough to collect dirt, which, in turn, meant that a genuine issue of material fact existed regarding whether HEB had constructive notice of the liquid on the floor.  The trial court granted summary judgment, and Lopez subsequently appealed.

On appeal, Lopez relied on Pay & Save, Inc. v. Martinez, 452 S.W.3d 923 (Tex. App.—El Paso 2014, pet. denied) for the proposition that “the liquid on the floor being dirty is sufficient to demonstrate that the landowner possessed constructive knowledge.” In Pay & Save, the court found that the injured party presented some evidence that the hazardous condition existed long enough for the store to have a reasonable opportunity to discover it. The court based its finding on evidence of the store's Sweep Log showing that the floor had been swept less than an hour before the slip and fall occurred, that the floor was very dirty, and that there was another slip mark showing that someone else had already slipped in the same area. Further, the plaintiff presented evidence that there was an employee of the store six or seven feet away from where the incident occurred, who had been in the area for approximately fifteen minutes prior to the incident.

The Court of Appeals found the facts in Pay & Save distinguishable and affirmed the trial court’s judgment.  The court reasoned that Lopez's argument was focused solely on the dirtiness of the liquid.  Further, she presented no evidence that any employee was in proximity to the liquid that allegedly caused her fall. Further, although she presented evidence that the floor was cleaned over an hour before her fall, she did not explain how this information amounted to actual or constructive knowledge of any liquid on the floor. The court concluded that the dirtiness of the liquid alone did not demonstrate actual or constructive notice.  Moreover, “the liquid on the floor being described as ‘dirty’ and Lopez's subjective assertion that it ‘looked like a lot of people had already been through that area before [her]’ was no evidence that the liquid had been on the floor long enough to charge HEB with constructive notice of the alleged hazard.

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