Wal-Mart Stores v. Rosa - 52 S.W.3d 842 (Tex. App. 2001)

Rule:

When circumstantial evidence is relied upon to prove constructive notice of a dangerous condition on a premises, the evidence must establish that it is more likely than not that the dangerous condition existed long enough to give the proprietor a reasonable opportunity to discover the condition.

Facts:

After paying for her groceries, Petra Rosa slipped and fell on a piece of banana. She later sued Wal-Mart Stores, Inc. for negligence. After a jury trial, the trial court rendered judgment in Rosa’s favor. Wal-Mart appealed. 

Issue:

Could Wal-Mart be held liable for the injuries suffered by Petra Rosa when the latter slipped on a piece of banana on the floor of Wal-Mart’s store?  

Answer:

No.

Conclusion:

The court noted that in order to recover in a slip-and-fall case, a plaintiff must establish: (i) actual or constructive knowledge of some condition on the premises by the owner/operator; (ii) that the condition posed an unreasonable risk of harm; (iii) that the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and (iv) that the owner/operator's failure to use such care proximately caused the plaintiff's injuries. In this case, the court held that there was no evidence that any Wal-Mart employee had actual knowledge of the piece of banana upon which Rosa fell. Rosa’s only evidence regarding the length of time the piece of banana on which she slipped had been on the floor was testimony that it was brown. This was not evidence the banana had been on the floor long enough to provide appellant with constructive notice of the dangerous condition. It was speculative to decide that the banana began turning brown after it was on the floor. The circumstantial evidence presented only the possibility the dangerous condition existed long enough to give Wal-Mart a reasonable opportunity to discover it. Accordingly, the trial court’s judgment was reversed.