## Facts

- Petra Rosa slipped and fell after paying for groceries at a Wal-Mart checkout area.
- A piece of banana was on the floor near the checkout lane where she had completed her purchase.
- Rosa testified the banana looked like it had been on the floor for some time.
- Rosa’s daughter-in-law testified the banana was “brown” and, based on her experience with children dropping banana pieces, it can take 45 minutes to one hour for banana to turn brown.
- Rosa relied on the number and proximity of employees near the area and a wall-mounted mirror that she believed could have allowed employees to see the floor.
- No witness testified that any Wal-Mart employee saw the banana before the fall.

## Issues

1. Whether legally sufficient evidence showed Wal-Mart had actual knowledge of the banana on the floor.
2. Whether legally sufficient circumstantial evidence showed the banana existed long enough to give Wal-Mart a reasonable opportunity to discover and remove it (constructive notice).

## Decision

- The court (en banc) reversed the judgment for Rosa and rendered a take-nothing judgment for Wal-Mart and its manager.
- The court found no evidence of actual knowledge by any employee.
- The court held the proof of constructive notice was legally insufficient because it did not show, as a probability rather than a possibility, how long the banana was on the floor.
- The “brown banana” and lay time-to-brown testimony was treated as speculative and not an objective basis to infer duration.
- Employee proximity and the mirror did not supply the required temporal evidence that the condition existed long enough to be discovered and remedied.

## Legal Principles

- In a Texas slip-and-fall premises-defect claim, the plaintiff must prove: (1) actual or constructive knowledge of the condition; (2) unreasonable risk of harm; (3) failure to use reasonable care to reduce or eliminate the risk; and (4) proximate cause of injury.
- Constructive notice based on circumstantial evidence requires proof that it is more likely than not the condition existed long enough to afford a reasonable opportunity to discover and correct it.
- Evidence that invites speculation about duration, including subjective impressions that a substance “looked like” it had been present for a while, is insufficient without objective indicia supporting the temporal element.
- On legal-sufficiency review, courts credit evidence supporting the verdict and disregard contrary evidence, but the record must still contain more than a scintilla of evidence on each required element.

## Conclusion

The court set aside the plaintiff’s verdict because the record lacked legally sufficient evidence that Wal-Mart knew, or should have known, of the banana on the floor for a sufficient time to discover and remove it; the banana’s color, employee proximity, and a mirror did not establish the required temporal component of constructive notice.


Wal-Mart Stores, Inc. v. Rosa, 52 S.W.3d 842 (Tex. App.—San Antonio 2001) (en banc)