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Click here for the full text of this decision FACTS:In her summary judgment affidavit, Kathy Spates avers that while shopping in the soft-drink aisle at a Wal-Mart in Lake Jackson, “her toe and sandal became entangled in an empty plastic six-pack ring,” causing her to go down on one knee and extend her shoulder upward, injuring the latter. The ring “was directly behind” a Wal-Mart employee, “within 3-5 feet of her.” “At no time was there any other person on the aisle [other than the employee] for at least 30-45 seconds.” Spates concedes there is no evidence that Wal-Mart created or knew of the hazard. Instead, she relies on constructive notice, which requires proof that an owner had a reasonable opportunity to discover the defect. While a Wal-Mart employee was near this clear plastic ring, the only evidence is that it was behind her as she worked on the shelves. The trial court granted summary judgment to Wal-Mart, and the court of appeals reversed. HOLDING:The court reverses the court of appeals’ judgment and reinstates the trial court’s opinion. The court notes that the court of appeals relied on opinions specifically disapproved of in Wal-Mart Stores Inc. v. Reece, 81 S.W.3d 812 (Tex. 2002). In Reese, this court unanimously held that the mere proximity of an employee to a spill, without evidence of when or how it came to be on the floor, was legally insufficient to charge a premises owner with constructive notice of the hazard. The only evidence here is that the alleged hazard was behind an employee’s back for 30 to 45 seconds. To find constructive knowledge, jurors would have to find the employee should have noticed the plastic ring behind her. Had there been evidence it had been on the floor for an extended period of time, reasonable jurors might assume that the employee should have seen it unless she sidled into the aisle or never took her eyes off the shelves. But on this record, that would be pure speculation, the court decides. The court holds the summary judgment record contained no evidence that Wal-Mart should have discovered the six-pack ring Spates alleges was hazardous. Consistent with Reece, the 13th Court of Appeals should have affirmed. OPINION:Per curiam.

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