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Torts No. 02-01-322-CV, 5/29/2003. Click here for the full text of this decision FACTS: This is a premises liability, slip-and-fall case. On July 13, 2001, the jury found the appellant, Wal-Mart Stores Inc., negligent for failing to exercise ordinary care in protecting the appellee, Selene Diaz, from dangerous conditions in its store and assessed damages at $25,000. The trial court rendered judgment accordingly, and Wal-Mart appeals, challenging the judgment and jury verdict on the ground that there was legally insufficient evidence that it had actual or constructive knowledge of the dangerous condition. HOLDING: Reversed and rendered. In determining whether constructive knowledge exists in the slip-and-fall case the issue is whether the substance had been on the floor for so long a time that a reasonably prudent business owner exercising ordinary care should have discovered it. The duty of the business owner is to protect invitees from dangers of which it should know in the exercise of ordinary care, “growing out of the latter’s duty to inspect.” Martin Theatres of Tex. Inc. v. Puryear, 631 S.W.2d 600 (Tex. App. – Beaumont 1982, no writ). While a business owner’s policy of allowing customers to carry drinks in its store makes spills foreseeable, the effect of the policy only determines what the standard of ordinary care requires under the circumstances. The policy alone does not establish negligence. The holding in Wal-Mart Stores, Inc. v. Rangel, 966 S.W.2d 199 (Tex. App. – Fort Worth 1998, pet. denied), however, had the effect of imputing knowledge of the actual defect based on the fact that the owner should foresee a potential defect solely because it allowed its customers to carry drinks on its premises. By doing so, this court eliminated the duties to inspect and remove, upon which premises liability is based, and made the business owner negligent even before an actual defect occurs. Because the holding in Rangel had this effect, the court overrules it. Instead, the proper standard is to determine whether there was sufficient evidence to show that the business owner actually or constructively knew about the actual defect. Diaz did not present any evidence that Wal-Mart or its employees created the spill that caused her to fall. There is also no evidence that a Wal-Mart employee possessed actual awareness of the spilled drink and failed to clean it up. Thus, there is no evidence of actual notice, leaving Diaz with having to show constructive notice. To prove constructive notice in this case, Diaz needed to show that the spilled drink existed for so long that Wal-Mart should have discovered it and removed it in the exercise of ordinary care. Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812 (Tex. 2002). This showing requires reliance on circumstantial evidence. As such, Diaz had to establish “that it is more likely than not that the dangerous condition existed long enough to give [Wal-Mart] a reasonable opportunity to discover the condition.” Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934 (Tex. 1998). The evidence showed that Wal-Mart trained its employees to look for any potential hazards in the store and to remove them if found, regardless of where the hazards were found. There is no evidence, however, as to how long the spill had been on the floor or that it is more likely than not that the spill and cup had been on the floor for such a lengthy period of time that Wal-Mart should have discovered and removed them. Although Wal-Mart employees were trained to periodically walk around areas of the store to look for hazards, there is no evidence that an inspection of the aisle where Diaz fell did or did not occur at any time before the accident. Therefore, it is impossible based on the evidence to determine if the spill and cup had been on the aisle floor for any length of time before the accident. As a result, the court cannot determine if Wal-Mart breached its duty of ordinary care by not frequently inspecting the aisle. The court holds there is no evidence to support the jury’s finding that Wal-Mart had actual or constructive knowledge of the spill and sustain Wal-Mart’s sole issue. OPINION: Day, J.; before Cayce, C.J.; Day and Walker, JJ. DISSENT: Walker, J. “I respectfully dissent to the majority’s disposition of this appeal. Diaz pleaded and proved her case in reliance on our decision in Wal-Mart Stores, Inc. v. Rangel, 966 S.W.2d 199, 202 (Tex. App. – Fort Worth 1998, pet. ref’d). “The trial court denied Wal-Mart’s motion for judgment notwithstanding the verdict in reliance on our decision in Rangel. “Yet today, the majority overrules our Rangeldecision and renders judgment against Diaz on the very theory Rangel specifically held was “not the standard Ms. Rangel had to meet.” Id.Because Diaz relied upon controlling precedent from this jurisdiction in pleading and proving her case in the trial court, and because we are now overruling that precedent, I would remand this case for a new trial in the interests of justice.”

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