Sheila M. Guidry v. Brookshire Grocery Store

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-322

SHEILA M. GUIDRY

VERSUS

BROOKSHIRE GROCERY COMPANY, ET AL.

************
ON SUPERVISORY WRIT FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2015-4684-G
HONORABLE LAURIE A. HULIN, DISTRICT JUDGE

************
SYLVIA R. COOKS
JUDGE
************

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks and
John D. Saunders, Judges.

THIBODEAUX, Chief Judge, dissents and assigns written reasons.

WRIT DENIED.

Danielle Thompson
Paul J. DeMahy
The Thompson Law Office, LLC
290 Johnston Street, Suite 301
Lafayette, LA 70503
(337) 534-8761
Attorneys for Plaintiff/Respondent
Sheila M. Guidry

Andrew H. Meyers
Breaud & Meyers, APLC
P. O. Box 3448
Lafayette, LA 70503
(337) 266-2200
Attorneys for Defendant/Applicant
Brookshire Grocery Company

COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

Sheila M. Guidry (Plaintiff) allegedly sustained injuries when she slipped and

fell in a Super 1 supermarket, owned by Brookshire Grocery Company (Defendant),

on June 21, 2015. Plaintiff alleged an area of water approximately twelve inches in

diameter was present on the floor for a sufficient period of time for Defendant to

have been aware of the hazard in the exercise of ordinary care. The parties did not

dispute that the presence of water on the polished concrete floor presents an

unreasonably dangerous condition. The trial court granted summary judgment on

the issue of liability in favor of Plaintiff. Defendant filed supervisory writs seeking

review of the trial court’s judgment asserting the trial court erred in finding it had

constructive notice of a hazardous condition and failed to take remedial action

resulting in Plaintiff’s fall.

ANALYSIS

We review summary judgments de novo applying the same criteria governing

the trial court’s determination of whether to grant that summary judgment. Under

the provisions of La.Code Civ.P. art 966(A)(3), a motion for summary judgment

shall be granted upon a showing that there is no genuine issue of material fact and

that the mover is entitled to judgment as a matter of law.

Plaintiff brings her claims under La.R.S. 9:2800.6, commonly known as the

merchant liability statute. It provides that:

A. A merchant owes a duty to persons who use his premises to exercise
reasonable care to keep his aisles, passageways, and floors in a
reasonably safe condition. This duty includes a reasonable effort to
keep the premises free of any hazardous conditions which
reasonably might give rise to damage.

B. In a negligence claim brought against a merchant by a person
lawfully on the merchant’s premises for damages as a result of an
injury, death, or loss sustained because of a fall due to a condition

existing in or on a merchant’s premises, the claimant shall have the
burden of proving, in addition to all other elements of his cause of
action, all of the following:

(1) The condition presented an unreasonable risk of harm to the
claimant and that risk of harm was reasonably foreseeable.

(2) The merchant either created or had actual or constructive notice of
the condition which caused the damage, prior to the occurrence.

(3) The merchant failed to exercise reasonable care. In determining
reasonable care, the absence of a written or verbal uniform cleanup
or safety procedure is insufficient, alone, to prove failure to
exercise reasonable care.

C. Definitions:

(1) “Constructive notice” means the claimant has proven that the
condition existed for such a period of time that it would have been
discovered if the merchant had exercised reasonable care. The
presence of an employee of the merchant in the vicinity in which
the condition exists does not, alone, constitute constructive notice,
unless it is shown that the employee knew, or in the exercise of
reasonable care should have known, of the condition.

(2) “Merchant” means one whose business is to sell goods, foods,
wares, or merchandise at a fixed place of business. For purposes of
this Section, a merchant includes an innkeeper with respect to those
areas or aspects of the premises which are similar to those of a
merchant, including but not limited to shops, restaurants, and lobby
areas of or within the hotel, motel, or inn.

D. Nothing herein shall affect any liability which a merchant may have
under Civil Code Arts. 660, 667, 669, 2317, 2322, or 2695.

La.R.S. 9:2800.6 (emphasis added).

In support of her motion for summary judgment Plaintiff has established that

she slipped on a wet liquid present on Defendant’s floor for at least seventy minutes

before the accident. Plaintiff and an eyewitness testified that Plaintiff slipped on a

wet substance and this clear liquid was on her dress after she fell. Defendant does

not rebut this testimony. We have viewed Defendant’s security video tape of the

area of the store where Plaintiff fell. The video reveals that in the seventy minutes

preceding the accident there is no evidence of anyone spilling any liquid in the area.

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This, taken together with Plaintiff’s unrefuted testimony that she could feel a wet

substance on her dress after she fell, established that the liquid was present in the

area for quite some time before she slipped and fell. This court and the State

Supreme Court have held that Plaintiff may meet her burden of proof under this

statute by both direct and circumstantial evidence. See Blackman v. Brookshire

Grocery Co., 07-348 (La. App. 3 Cir. 10/3/07), 966 So.2d 1185, and Lewis v. Jazz

Casino Co., L.L.C., 17-935 (La. App. 4 Cir. 4/26/18), 245 So.3d 68, writ denied, 18-

757 (La. 9/21/18), 252 So.3d 877, and cases cited therein.

Proof of the temporal element of La. R.S. 9:2800.6 may be made
by both direct and substantial evidence. Birdsong v. Hirsch Mem'l
Coliseum, 39,101, p. 7 (La. App. 2 Cir. 12/15/04), 889 So.2d 1232,
1236. Thus, “[a] plaintiff is not required to prove by eyewitness
testimony that the hazardous condition existed for a certain number of
minutes prior to the fall.” Beggs v. Harrah's New Orleans Casino, 14-
0725, p. 10 (La. App. 4 Cir. 1/21/15), 158 So.3d 917, 923. Ms. Lewis,
therefore, may rely on circumstantial evidence to meet her burden
of proving constructive notice. See Davis v. Cheema, Inc., 14-1316,
p. 8 (La. App. 4 Cir. 5/22/15), 171 So.3d 984, 989. Circumstantial
evidence is “evidence of one fact, or a set of facts, from which the
existence of the fact to be determined may reasonably be
inferred.” Smith v. Toys “R” Us, Inc., 98-2085, p. 7 (La. 11/30/99), 754
So.2d 209, 213.

Lewis, 245 So.3d at 75. (emphasis added).

Plaintiffs unrefuted facts lead to the logical conclusion that there was a clear

liquid on the floor that caused Plaintiff to slip and fall and that the liquid was on the

floor for at least seventy minutes before Plaintiff unwittingly stepped in it and fell.

Defendant asserts that because no one is seen spilling any liquid on the floor during

the course of the video, there was no liquid on the floor prior to Plaintiff’s fall. When

Plaintiff is seen falling in the video there is no evidence that she spilled any liquid

at that moment or just prior to her fall. Moreover, Defendant’s argument ignores

Plaintiff’s unrefuted evidence that she slipped on a wet liquid and that her dress was

noticeably wet after she fell. Additionally, Defendant’s assertion that the amount of

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liquid on the floor where Plaintiff fell was only a few inches in diameter is

contradicted by Plaintiff’s unrefuted testimony and by Defendant’s own actions seen

in its security video clip showing Defendant’s employee mopping a large area of the

floor where Plaintiff fell immediately after interviewing the Plaintiff and placing a

bright yellow cone warning patrons of a wet surface. The employee makes broad

sweeping motions back and forth with the rag and wipes the floor for some distance

under the edge of the refrigerated compartments. These actions belie Defendant’s

assertion that there was only a tiny spot of water on the floor as opposed to Plaintiff

and her eyewitness’ description of a twelve-inch area of water on the floor. A yellow

warning cone is left in the area for several minutes after Defendant’s employee wipes

the floor and is later removed by Defendant’s employee.

Having established that there was a liquid substance on the polished concrete

floor, that the presence of such substance created an unreasonable risk of harm, and

that the substance was present for a lengthy period of time prior to Plaintiff’s fall, it

remained only for Plaintiff to show that Defendant had sufficient time and

opportunity to remedy the hazard but failed to do so.

As stated in White, there is no “bright line time period” required,
and the time period need not be in specific minutes or hours. All that is
required is that the substance be present for “some period of time” prior
to Ms. Lewis’s accident. The surveillance video shows that, one minute
after Ms. Lewis entered the tiled walkway in front of Harrah’s buffet,
her leg slipped out from under her and she fell. The video shows that
within seconds of the accident, Ms. Lewis’s son and husband rushed
over to help her, and both testified that they saw the foreign substance
on the floor and her shoe. Ms. Lewis testified that she saw “little white
stuff” on the floor. She also said that when Mr. Parkman came over
immediately to help her, he told her that she had slipped on a “smushed
grape.” Ms. Mayshack, the Harrah’s supervisor stated that she was
called over by Mr. Parkman after the fall, and she saw a substance like
“melted cheese” on the floor. And because Ms. Lewis’s slip and fall,
and the witnesses’ observations of the foreign substance, occurred
within seconds of each other, we disagree with Jazz Casino’s contention
that post-accident evidence is insufficient to establish that the substance
was on the floor for “some period of time” before the
accident. See Davis v. M & E Food Mart, Inc., 02-0585, p. 2 (La. App.

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3 Cir. 10/30/02), 829 So.2d 1194, 1196 (reversing summary judgment
where defendant’s employees testified that they saw a “smashed” grape
on the floor when they went to help the plaintiff “immediately” after
her slip and fall).

It may be reasonably inferred from this circumstantial evidence
that the foreign substance was on the floor for “some time period”
before Ms. Lewis’s fall. That is all the Supreme Court requires.

We conclude, therefore, that Ms. Lewis has satisfied the
“prerequisite showing of some time period.” White, 97–0393, p. 4, 699
So.2d at 1084.

Lewis, 245 So.3d 73–76.

The video also reveals that several of Defendant’s employees walked through

the area where plaintiff fell a total of twelve times in the seventy-minute videotaped

time frame preceding Plaintiff’s accident but failed to address the hazard.

Defendant’s witnesses admit the presence of water or a clear liquid on the polished

concrete floor presents a hazard to shoppers like Plaintiff. Byron J. Hebert (Hebert),

assistant store manager, describes the floor as polished concrete with no texture.

Mark Cortina (Cortina), assistant store manager, testified in deposition “any

substance on the floor, especially a liquid substance, is a hazard.”

Defendant also admits it has a policy in place requiring its employees to check

the floor frequently to ensure they are free of hazards to patrons. Cortina testified in

deposition:

We make perimeters every hour. We make center store walks at
least every two hours. And that’s each actual manager on duty. Like,
it’s my job to walk it every hour, however, the other assistant manager
of the director has to do the same thing as well. And it might be ten
minutes after me. It might be forty-five minutes after me. We’re
required to do so. Basically, we do that consistently… We’ll walk and
assess repetitively.

Defendant’s employee, Shane Haywood (Haywood), is seen on the video nine

times in the area of Plaintiff’s fall. During a forty-five-minute time period prior to

Plaintiff’s fall Haywood appears in the area five times and each time walks past a

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piece of paper on the floor, at one point nearly stepping on it, before he finally picks

it up and disposes of it. None of the other employees traversing the area for a period

of some seventy minutes appear to pay any attention to the floor as they engage in

various activities in the area where Plaintiff fell. Defendant’s employees are seen in

the video opening and closing the glass doors on the refrigerated compartments.

Employees are seen stepping up onto the rim to reach into the refrigerated

compartments and holding the doors open for various lengths of time. One employee

is seen in the area with a stock cart as he restocks a display in the center of the aisle.

Employees assist customers in the area with finding items in the refrigerated

compartments and pass through the area with a shopping cart. On none of these

twelve occasions does any employee appear to survey the area or in any manner look

at or examine the floor for safety hazards. None of these employees make any

attempt to wipe the floor or warn shoppers to avoid the area. We find, as did the

trial judge, that these facts demonstrate Defendant had constructive notice of the

hazard and had more than a reasonable amount of time to remove the hazard.

Defendant failed to exercise reasonable care in fulfilling its duty to “keep [its] aisles,

passageways, and floors in a reasonably safe condition. This duty includes a

reasonable effort to keep the premises free of any hazardous conditions which

reasonably might give rise to damage.” La.R.S. 9:2800.6(A).

In Patin v. Evangeline Downs of Louisiana, Inc., 08-988 (La. App. 3 Cir.

2/4/09), 3 So.3d 638, a panel of this court composed of Chief Judge Ulyssess Gene

Thibodeaux, Elizabeth A. Pickett and Billy Howard Ezell, found the plaintiff

established the elements of constructive notice. The plaintiff in Patin showed that

she slipped and fell on food left on the floor near the buffet on a busy Friday night.

There, the plaintiff showed that the area was understaffed that night and that no one

had checked the area for food on the floor for about one hour and forty-five minutes,

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contrary to the casino’s policy. The casino argued that Ms. Patin failed to show the

amount of time the beet she slipped on was on the floor. This court found:

The evidence was clear that Friday nights at the Cajun Buffet
were the busiest because it was a seafood buffet. The buffet area seats
about 275 people. This was established by the testimonies of Mr.
Melancon and Ms. Poole in addition to Freida Carmouche, a buffet
server. They all testified that food would spill on the floor.

At the time of the accident, Mr. Melancon had been a shift
supervisor in the buffet for seventeen days. He testified that it was
usually the bussers’ job to keep the floor clean but everybody is
supposed to watch for food on the floor on Friday nights. Mr. Melancon
also testified that it was not uncommon to be shorthanded on weekends
and, on this particular night, he was short one cashier, one server, and
one busser.

Both Mr. Melancon and Ms. Carmouche testified that there were
training and procedures in place about picking up spills immediately.
Mr. Melancon remembered security telling him to check the floors
every forty-five minutes, especially on Friday nights. However, he does
not remember if inspections of the floor occurred on the night of Ms.
Patins' fall. He further testified that it could have been as long as one
hour and forty-five minutes before the floor was inspected on Friday
night. Mr. Melancon was of the opinion that there needed to be more
staff on Friday nights due to the high volume of customers.

There was also testimony that there were mats by the cashiers’
station, the entrance into the busing area, and by the ice cream stand.
However, there were no mats next to the buffet line. The floor near the
buffet line was a tile floor.

In ruling that Ms. Patin established Evangeline Downs had constructive
notice of the beet on the floor, the trial judge found that an hour to an
hour and forty-five minutes was an inadequate amount of time before
an inspection was made. He also considered the lack of staff which
contributed to the lack of adequate inspections.

Given the testimony at trial, we cannot say the trial judge’s
conclusion was manifestly erroneous. It is clear that, on this particular
night, the buffet was extremely busy. Food would obviously be spilled
on the floor, and we agree with the trial judge that an hour and forty-
five minutes is an extremely long time to wait in between inspection of
the floors. Ms. Patin clearly met her burden of proof that the beet was
on the floor for an unreasonable amount of time. We do not agree that
Ms. Patin has to actually show how long this particular beet was on the
floor. If that was so, then there would be no need for constructive
knowledge. Ms. Patin has established that inspection procedures on this
particular Friday night in addition to an inadequate staff contributed to
food remaining on the floor longer than reasonable.

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Patin, 3 So.3d at 640 (emphasis added).

In Blackmun v. Brookshire Grocery Company, 07-348 (La.App. 3 Cir.

10/3/07), 966 So.2d 1185, this court found that three minutes was a sufficient

amount of time for the merchant to exercise reasonable care in discovering

and cleaning up a spill. Id. at 1189. The court rejected Super One’s argument

in Blackmun that the fact five or six of its employees had been in the vicinity

of the spill just prior to the plaintiff’s fall did not satisfy that plaintiff’s burden

to prove constructive notice. Id. at 1190. Super One also asserted that its

violation of store policy by failing to inspect the aisle where Plaintiff fell for

over two hours was insufficient to establish constructive notice. The panel in

Blackmun, relying on this court’s reasoning in Moore v. Brookshire Grocery

Co., 01–737 (La.App. 3 Cir. 1/16/02), 805 So.2d 446, reversed, 02–525

(La.6/21/02), 824 So.2d 345, agreed with plaintiff’s argument that all of these

facts taken together strongly supported a finding of constructive notice and

imposition of liability on Super One. Id. at 1191. In rejecting Super One’s

argument that the trial court’s emphasis on Super One’s failure to follow its

own policy formed an insufficient basis to find constructive notice this court

explained:

We are mindful that La.R.S. 9:2800.6(B)(3) clearly states that in
determining whether the merchant failed to use reasonable care, the
absence of a written or verbal uniform cleanup or safety procedure is
insufficient, alone, to prove failure to exercise reasonable care.
However, whether a merchant has a safety policy, whether that policy
specifically provides how often employees are to inspect for unsafe
conditions, and whether any such policy was violated are certainly
relevant questions, the answers of which significantly aid a trial court
in determining whether a merchant failed to exercise reasonable care.

Mr. Mondell, the assistant manager on duty at the time of Mr.
Blackman’s accident, testified that Super One had a policy regarding
floor care and maintenance, but that policy did not specify how often
the aisles needed to be inspected. He further testified that his personal

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preference was to check the aisles every thirty to forty-five minutes. It
was Mr. Mondell’s responsibility to fill out an accident report regarding
Mr. Blackman. Part of that responsibility was determining which
employee had last inspected the area where Mr. Blackman fell. Mr.
Mondell testified that he had been the last employee to inspect the area
and that his inspection took place two and one-half hours prior to the
accident.

Mr. Mondell testified that when he followed Mr. Blackman to
the area of his slip and fall, he noticed a red substance on the floor
which appeared to be picante sauce. He stated that as he cleaned the
spill, he found a piece of broken glass which he considered to be the
bottom of a glass container.

We are convinced that the trial judge was correct in concluding,
based upon the totality of the evidence presented, that Plaintiffs met
their burden of proving that Super One had constructive notice of the
unsafe condition that caused Mr. Blackman’s injury.

Blackman, 966 So.2d at 1190–91.

Likewise, here Plaintiff established that Defendant’s employees did not

adhere to its policy to inspect the aisles for hazards at least every sixty minutes.

Cortina testified he repeatedly checked the aisles for hazards every hour and other

assistant managers checked the aisles in overlapping time segments. As can be seen

on Defendant’s security video, Defendant’s employees visited the area of Plaintiff’s

fall twelve times in seventy minutes but on none of those occasions can they be seen

observing or inspecting the floor for hazardous substances. In fact, one of the same

employees ignores trash on the floor four times in forty-five minutes before picking

it up, having walked right past the piece of paper several times earlier. All of the

evidence presented by Plaintiff, both direct and circumstantial, in support of her

motion for summary judgment on liability support a finding that Defendant had

constructive notice of the hazardous condition and failed to exercise reasonable care

to remedy the situation.

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For these reasons, we affirm the trial court ruling. Costs of this proceeding

are assessed against Defendant. The case is remanded to the trial court for further

proceedings.

WRIT DENIED.

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STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

19-322

SHEILA M. GUIDRY

VERSUS

BROOKSHIRE GROCERY COMPANY, ET AL.

THIBODEAUX, Chief Judge, dissenting.

Despite acknowledging the summary judgment status of this

proceeding, the majority proceeds to treat Plaintiff’s submission of her factual

inferences as irrefutable gospel truth. That just isn’t so given the posture of this

record. Our court has always addressed “the long-standing rationale that ‘[a] motion

for summary judgment is rarely appropriate for a determination based on subjective

facts, such as . . . knowledge[.]” Id. at 242 (citation omitted). In any event, this

court has long held that “[q]uestions of negligence are generally inappropriate for

disposition by summary judgment.” Cobb v. Delta Exports, Inc., 03-33, p. 4

(La.App. 3 Cir. 6/4/03), 847 So.2d 739, 742, writ denied, 03-1906 (La. 10/31/03),

857 So.2d 483.

Louisiana Revised Statutes 9:2800.6 provides that in negligence claims

brought against a merchant as a result of a fall due to a condition existing on the

merchant’s premises, the plaintiff shall have the burden of proving all of the

following elements: (1) the condition presented an unreasonable risk of harm that

was reasonable foreseeable; (2) the merchant either created or had actual or

constructive notice of the damage-causing condition prior to the occurrence; and (3)

the merchant failed to exercise reasonable care. La.R.S. 9:2800.6(B). Given

Brookshire’s admissions, the parties do not dispute the presence of a liquid in the

aisle which led to the creation of an unreasonable risk of harm.

Having purportedly satisfied the first element, the trial court then

agreed with Plaintiff’s next assertion that the evidence adduced was sufficient to

prove that Brookshire had constructive notice of the liquid on the floor. The

merchant liability statute defines constructive notice as meaning that “the claimant

has proven that the condition existed for such a period of time that it would have

been discovered if the merchant had exercised reasonable care.” La.R.S.

9:2800.6(C)(1). Moreover, “[t]he presence of an employee of the merchant in the

vicinity in which the condition exists does not, alone, constitute constructive notice,

unless it is shown that the employee knew, or in the exercise of reasonable care

should have known, of the condition.” Id. In White v. Wal-Mart Stores, Inc., 97-

393 (La. 9/9/97), 699 So.2d 1081, our supreme court interpreted constructive notice

as necessarily including a temporal element by virtue of its explicit language, “for

such a period of time[.]” Specifically, it held:

The statute does not allow for the inference of constructive
notice absent some showing of this temporal element. The
claimant must make a positive showing of the existence of
the condition prior to the fall. A defendant merchant does
not have to make a positive showing of the absence of the
existence of the condition prior to the fall.
Notwithstanding that such would require proving a
negative, the statute simply does not provide for a shifting
of the burden.

Though there is no bright line time period, a
claimant must show that “the condition existed for such a
period of time . . .” . . . A claimant who simply shows that
the condition existed without an additional showing that
the condition existed for some time before the fall has not
carried the burden of proving constructive notice as
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mandated by the statute. Though the time period need not
be specific in minutes or hours, constructive notice
requires that the claimant prove the condition existed for
some time period prior to the fall. This is not
an impossible burden.

Id. at 1084-85 (emphasis added) (footnote omitted). In order to make such a

showing, it is generally accepted that a claimant may rely on both direct and

circumstantial evidence to establish the temporal element of constructive notice.

Ceasar v. Wal-Mart Stores, Inc., 00-1181 (La.App. 3 Cir. 6/6/01), 787 So.2d 582,

writ denied, 01-1899 (La. 10/26/01), 799 So.2d 1143.

Despite Plaintiff and her sister admitting that they had no knowledge as

to where the liquid came from or how long it had been on the floor, the trial court

explicitly recognized that “plaintiff cannot show how the puddle was created,” yet

found that Plaintiff “unequivocally shows the puddle existed at least 70 minutes prior

to her fall.” However, a review of the evidence reveals that the only “showing”

made by Plaintiff in demonstrating that the liquid was present for some period of

time was a mere inference drawn from the video footage that because no liquid was

seen being spilled in the seventy minutes of footage before the fall, and that this was

“the only explanation” of how the liquid got on the floor, then the liquid must have

gotten there more than seventy minutes before the fall.

In my view, the trial court incorrectly granted summary judgment for a

number of reasons. First, beyond stating her inference ad nauseum, Plaintiff offered

no proof, positive or otherwise, that the liquid was present for more than seventy

minutes before the fall. In fact, the totality of the evidence appears to directly

contradict Plaintiff’s assertion; in light of all the consistent testimony that the puddle

of liquid remained clear of dirt, footprints, and buggy tracks despite being traversed

by such extensive traffic in the seventy minutes of footage before the fall alone, I

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find that it is simply untenable to infer from this “circumstantial evidence” offered

that the hazard existed for the time period that Plaintiff alleges. Moreover, the video

footage shows two separate families with buggies, stop, shop, and leave, with no

issues or seeming awareness of liquid on the ground, from the exact area where

Plaintiff would fall a mere seven to eight minutes later. “Whether the period of time

is sufficiently lengthy that a merchant should have discovered the condition is

necessarily a fact question; however, there remains the prerequisite showing of

some time period.” White, 699 So.2d at 1084 (emphasis added). Thus, even

accepting Plaintiff’s bare assertion arguendo as a sufficient prerequisite showing of

some time period, it is submitted that the factual question presented in determining

whether that time frame is sufficient that the merchant should have noticed a hazard

necessarily precludes disposition by summary judgment by its very nature. The

following colloquy between Plaintiff’s counsel and the trial court illustrates not only

Plaintiff’s lack of any positive evidence, but also the inherent factual nature of the

issues presented:

MR. DE MAHY: The dispute between the parties
is when did the substance get there and how did it get
there. It’s our contention that it doesn’t make any
difference how it got there, because it got there in such a
length of period of time – it had been there for such a
length of period of time it doesn’t make any difference how
it got there because it was there for that period of time.

YOUR HONOR: But that was one of my questions,
too, is does the law require you to prove how, just that it
was there for a long period of time and that the grocery
store should have had a notice of intent [sic]?

MR. DE MAHY: If we can prove it has been there
for seventy minutes, it doesn’t make any difference how it
got there, whether an employee spilled it or a customer
spilled it. If it’s been there for that length of time, it’s a
hazardous condition and the store has the obligation to
remove it.

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Id. at p. 275-76 (emphasis added). Reviewing the totality of the evidence de novo,

Plaintiff simply failed to prove this temporal element; thus, a finding that she

established constructive notice on the part of the merchant was rendered in error.

Second, it was improper for the trial court to accept Plaintiff’s argument

that someone spilling the liquid over seventy minutes prior to the fall was the only

explanation for how it came to be there, especially after acknowledging that no one

had any knowledge of how the liquid got onto the floor which, again by its nature,

presents a factual question not appropriate for summary judgment. While two

Brookshire employees testified that they had no knowledge of any leaks or

condensation issues with the refrigeration units, one of them further stated: “There

are various ways water could get on the floor, not necessarily from a customer

spilling it. It could come from wet produce. . . . there are various forms that water

could come on a floor, not necessarily. . . from a refrigeration [sic] or a customer.”

Additionally considering that Plaintiff and her sister, Judy, testified that the size of

the puddle ranged from twelve to eighteen inches, while Mr. Cortina testified that it

appeared to him to be smaller than the size of a fist, this conflicting testimony about

a material fact also suggests that summary judgment was inappropriate. To conclude

that no genuine issues of material fact exist here is inconsistent with the statutory

requirements and developed jurisprudence.

For the foregoing reasons, I respectfully dissent.

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