## Facts

- Flora L. Gonzalez, a customer at a Wal-Mart in Rio Grande City, Texas, walked in a busy aisle from the cafeteria area toward a store refrigerator.
- Gonzalez stepped on cooked macaroni salad originating from the store cafeteria, slipped, and fell, injuring her back, shoulder, and knee.
- Gonzalez testified the macaroni salad looked significantly contaminated with dirt.
- Gonzalez’s daughter testified the macaroni had shopping cart tracks and footprints and “appeared to have been on the floor for a while.”
- No witness provided direct evidence of how long the macaroni salad had been on the floor before the fall.
- Gonzalez sued Wal-Mart for negligence based on premises liability, alleging Wal-Mart failed to use reasonable care to keep the premises safe by discovering and removing the hazard.
- A jury found for Gonzalez and awarded $100,000; the trial court rendered judgment on the verdict.
- The court of appeals reduced damages to $96,700 and otherwise affirmed.
- Wal-Mart sought further review, challenging the legal sufficiency of evidence of actual or constructive notice.

## Issues

1. What level of circumstantial evidence is legally sufficient to prove a premises owner had constructive notice that a dangerous condition existed long enough to be discovered through reasonable care.
2. Whether evidence that a substance appeared dirty and had cart tracks and footprints establishes, as a matter of law, that it was more likely than not present long enough to give the owner a reasonable opportunity to discover it.

## Decision

- The Supreme Court of Texas reversed the court of appeals and rendered judgment that Gonzalez take nothing.
- The court held the evidence of constructive notice was legally insufficient because it showed only a possibility, not a probability, that the macaroni salad had been on the floor long enough for Wal-Mart to discover it.
- The court concluded the condition evidence (dirtiness, footprints, and cart tracks) supported competing inferences about duration and did not permit a reasonable inference that the hazard more likely than not existed for a sufficient time.

## Legal Principles

- A premises owner owes an invitee a duty of reasonable care to protect against dangerous conditions known to the owner or discoverable through reasonable inspection, but the owner is not an insurer of invitee safety.
- In a slip-and-fall case, the plaintiff must prove: (1) actual or constructive knowledge of a condition by the owner/operator; (2) the condition posed an unreasonable risk of harm; (3) failure to use reasonable care to reduce or eliminate the risk; and (4) proximate causation of injury.
- When constructive notice is proven by circumstantial evidence, the evidence must establish it is more likely than not that the dangerous condition existed long enough to give the proprietor a reasonable opportunity to discover it.
- Evidence that a substance looked dirty or tracked over, without objective proof linking the condition to time on the floor, may be too speculative to establish constructive notice where it supports equally plausible inferences of recent creation.

## Conclusion

The Supreme Court of Texas held that circumstantial evidence must show a probability—not merely a possibility—that a hazard existed long enough to provide a reasonable opportunity for discovery; because the condition evidence here did not establish that duration, the court rendered a take-nothing judgment for Wal-Mart.


Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934 (Tex. 1998)