Elizabeth Shirey v. Wal-Mart Stores Texas, L.L.C.
699 F. App'x 427
5th Cir.2017Background
- Elizabeth Shirey slipped on a single green grape in a Wal‑Mart aisle and sustained injuries requiring surgery.
- Store video showed the grape fell from another shopper’s cart onto an off‑white floor; it remained on the floor for about 17 minutes before Shirey slipped.
- A Wal‑Mart employee walked past the grape about 30 seconds after it fell but did not see it; employees are trained to perform visual “sweeps.”
- Shirey sued Wal‑Mart in state court for negligence and premises liability (constructive knowledge); Wal‑Mart removed the case to federal court.
- After discovery, the district court dismissed the negligence claim and granted Wal‑Mart summary judgment on premises liability for lack of constructive knowledge.
- The Fifth Circuit affirmed, finding no genuine fact issue that Wal‑Mart had constructive knowledge of the inconspicuous grape within a reasonable time.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Wal‑Mart had constructive knowledge of the hazardous grape | Shirey argued the grape was on the floor long enough (17 minutes) and employee sweep policy created a basis to impute constructive knowledge | Wal‑Mart argued the grape was inconspicuous and employees were not in proximity long enough to discover it, so no constructive knowledge | Court held no constructive knowledge: grape was nearly invisible and employee proximity/time were insufficient |
| Whether the grape’s conspicuity supports imputation of knowledge | Shirey contended the duration alone sufficed given store duty to monitor aisles | Wal‑Mart countered conspicuity was lacking, making the duration insufficient to charge it with notice | Court held grape was not conspicuous; duration without conspicuity/proximity insufficient |
| Whether an employee’s brief pass-by constituted a reasonable opportunity to discover the hazard | Shirey argued store sweep policy should make that pass relevant | Wal‑Mart argued the employee’s brief passage did not provide an objectively reasonable opportunity to see an almost invisible grape | Court held the few seconds the employee passed by did not create a genuine fact issue |
| Whether summary judgment was appropriate | Shirey asserted factual disputes precluded summary judgment | Wal‑Mart argued absence of evidence on constructive knowledge shifted burden and justified judgment as a matter of law | Court held summary judgment proper because Shirey failed to present specific evidence creating a genuine issue of material fact |
Key Cases Cited
- Wal‑Mart Stores, Inc. v. Reece, 81 S.W.3d 812 (Tex. 2002) (constructive‑knowledge analysis requires showing sufficient time to discover hazard)
- Wal‑Mart Stores, Inc. v. Spates, 186 S.W.3d 566 (Tex. 2006) (courts must analyze proximity, conspicuity, and longevity together)
- CMH Homes, Inc. v. Daenen, 15 S.W.3d 97 (Tex. 2000) (elements of premises‑liability claim)
- Nola Spice Designs, LLC v. Haydel Enters., Inc., 783 F.3d 527 (5th Cir. 2015) (summary judgment standard and reasonable‑jury inquiry)