Case: 24-50403 Document: 57-1 Page: 1 Date Filed: 06/16/2025
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 24-50403
FILED
June 16, 2025
____________
Lyle W. Cayce
Jose Gonzalez, Clerk
Plaintiff—Appellant,
versus
Walgreen Company,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:21-CV-1184
______________________________
Before Elrod, Chief Judge, and Clement, and Ramirez, Circuit
Judges.
Edith Brown Clement, Circuit Judge:
In March 2020, Jose Gonzalez visited a Walgreens store in Austin,
Texas. Prior to his arrival, an unidentified customer at the same store had
used the men’s restroom and clogged the toilet. The customer informed a
Walgreens employee, who gave the customer a plunger to unclog the toilet.
As the customer was plunging the toilet, Gonzalez used the restroom and,
while on his way out, slipped on water that had accumulated on the floor.
Gonzalez sued Walgreen Co. (Walgreens) for his injuries. After the close of
Gonzalez’s case-in-chief at trial, Walgreens moved for judgment as a matter
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No. 24-50403
of law (JMOL), which the district court granted. Gonzalez now appeals.
Because no reasonable jury could find that Walgreens had actual or
constructive knowledge of the wet floor, we AFFIRM.
I.
A.
On March 20, 2020, an unidentified male customer visited the
Walgreens store on W. William Cannon Drive in Austin, Texas. Video
surveillance shows that he entered the hallway leading to the men’s restroom
at 12:17:56 pm, exited at 12:28:31 pm, and then approached the shift lead,
Chris Perez. Speaking to Perez, the customer apparently relayed that he had
clogged the toilet. 1 Perez and the customer then took a brief trip to the
restroom, after which Perez went to speak with the store manager, Lisa
Alexander. Perez informed Alexander that the customer had clogged the
toilet. Perez asked Alexander if he could expense a plunger and give it to the
customer, and Alexander approved. Perez proceeded to give the plunger to
the customer, walk with him to the restroom hallway, and then walk out of
the hallway about eighteen seconds later while the customer remained in the
restroom.
Fewer than ten minutes later, Gonzalez entered the Walgreens store.
Alexander testified that Gonzalez asked her if the store carried a University
of Texas-themed mousepad. Alexander told him the store did not, and the
two briefly chatted about the COVID-19 pandemic. Afterwards, Gonzalez
asked about a public restroom, and Alexander gave him directions to the
men’s room.
_____________________
1
Neither the customer nor Perez testified at trial.
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Surveillance video shows Gonzalez enter the restroom hallway at
12:40:01 pm, around ten minutes after the customer returned to the restroom
with the plunger (at 12:29:34 pm). Gonzalez testified that when he entered
the restroom, he did not see anyone, it was silent, and the stall door was
closed. The only toilet in the restroom was located inside the stall. Gonzalez
did not notice any water on the ground. Gonzalez went straight to use the
urinal, then walked to the sink to wash his hands, and afterwards moved to
exit the restroom. While exiting through the door, Gonzalez’s left foot
slipped, and his right ankle rolled to the right. Gonzalez described that he
“pretzeled down, kind of Indian style,” but was able to grab the hole where
the door latched with his left thumb to prevent himself from falling to the
ground. No one witnessed Gonzalez’s slip.
After recovering from the slip, Gonzalez noticed that his left shoe, but
not his right, was wet, and he tried to remove the water from his left shoe.
Gonzalez exited the restroom hallway about a minute after he entered. He
promptly notified Perez that he had slipped in the restroom. Gonzalez and
Perez then entered the hallway together at 12:41:18 pm.
Gonzalez testified that he and Perez approached the restroom and
looked inside (but did not go in), which is when Gonzalez first saw a thin layer
of liquid that covered about half of the bathroom floor. Gonzalez estimated
the amount of water to be two gallons. On direct examination, Gonzalez
described the location of the water as covering the left side of the bathroom
floor, from the perspective of someone looking into the bathroom from the
entrance. Gonzalez also testified that he could see wet footprints in front of
the urinal and sink. Gonzalez believed the water was seeping from the toilet,
but he could not see the source directly, and his testimony was contradictory
on whether the water was standing or moving when he saw it. Gonzalez exited
the hallway at 12:41:43 pm, fewer than 30 seconds after he entered the
hallway with Perez.
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Perez then placed a warning cone at the entrance of the restroom
hallway. Seconds later, the unidentified customer exited the restroom and
left the store. Perez paged Alexander and told her that Gonzalez had slipped
in the restroom. Perez remarked to Alexander that the bathroom “looked fine
and that there was nothing on the ground.” About twenty-five minutes after
Gonzalez slipped, Perez returned to the men’s restroom to place a warning
cone inside the restroom. During a later conversation between Perez and
Alexander, Perez stated that he did see water in the drain when he took a
photo of the restroom, but Alexander testified that that did not necessarily
mean there was water on the ground. Sometimes water stayed in the drain
from mopping, she explained.
Gonzalez claims injuries to his spine, right leg, ankle, and foot from
the slip.
B.
In November 2021, Gonzalez sued Walgreens in Texas state court.
Walgreens removed the case to federal court based on diversity jurisdiction.
Gonzalez asserted a theory of vicarious liability and a claim for premises
liability against Walgreens. 2 Walgreens moved to dismiss the vicarious-liability theory, and the district court granted the motion. Walgreens also
moved for summary judgment on all of Gonzalez’s claims, but the district
court denied this motion.
The parties proceeded to a half-day jury trial. After the close of
Gonzalez’s case-in-chief, Walgreens orally moved for JMOL under Federal
Rule of Civil Procedure 50(a), on the grounds that (1) the wet floor was open
and obvious and (2) Walgreens had no actual or constructive knowledge of
_____________________
2
Gonzalez also asserted the “derivative liability” of Walgreens but later
abandoned those claims.
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the wet floor. The district court granted the motion on the second ground,
declining to reach the first. A few days after the trial, the parties submitted
briefing on the oral JMOL motion, and Gonzalez moved for a new trial. The
court entered written reasons for its order granting JMOL and denied the
motion for a new trial.
Gonzalez timely appealed the JMOL and the dismissal of his
vicarious-liability theory.
II.
“This court reviews a district court’s ruling on a motion for judgment
as a matter of law de novo, applying the same standard as the district court.”
N. Cypress Med. Ctr. Operating Co. v. Aetna Life Ins. Co., 898 F.3d 461, 473
(5th Cir. 2018). Federal Rule of Civil Procedure 50 entitles a movant to
JMOL when “a party has been fully heard on an issue during a jury trial and
the court finds that a reasonable jury would not have a legally sufficient
evidentiary basis to find for the party on that issue.” Fed. R. Civ. P.
50(a)(1). “This occurs when the facts and inferences point so strongly and
overwhelmingly in the movant’s favor that reasonable jurors could not reach
a contrary verdict.” Brennan’s Inc. v. Dickie Brennan & Co.,
376 F.3d 356, 362
(5th Cir. 2004).
To survive a Rule 50 motion, the nonmovant “must at least establish
a conflict in substantial evidence on each essential element of their claim.”
Goodner v. Hyundai Motor Co., 650 F.3d 1034, 1039 (5th Cir. 2011) (quoting
Anthony v. Chevron USA, Inc.,
284 F.3d 578, 583 (5th Cir. 2002)).
“Substantial evidence is more than a scintilla, less than a preponderance, and
is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” N. Cypress,
898 F.3d at 473 (quoting Conn. Gen. Life
Ins. Co. v. Humble Surgical Hosp., L.L.C.,
878 F.3d 478, 485 (5th Cir. 2017)).
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“In considering a Rule 50 motion, the court must review all of the
evidence in the record, drawing all reasonable inferences in favor of the
nonmoving party; the court may not make credibility determinations or
weigh the evidence, as those are jury functions.” Brennan’s, 376 F.3d at 362.
“[A]lthough the court should review the record as a whole, it must disregard
all evidence favorable to the moving party that the jury is not required to
believe.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000).
“That is, the court should give credence to the evidence favoring the
nonmovant as well as that evidence supporting the moving party that is
uncontradicted and unimpeached, at least to the extent that that evidence
comes from disinterested witnesses.”
Id. (quotations omitted).
III.
We begin with the JMOL of Gonzalez’s premises-liability claim. To
prevail on a premises-liability claim under Texas law, the plaintiff must prove
four elements: (1) the property owner had actual or constructive knowledge
of the injurious condition; (2) the condition posed an unreasonable risk of
harm; (3) the property owner failed to take reasonable care to reduce or
eliminate the risk; and (4) the property owner’s failure to use reasonable care
was the proximate cause of the plaintiff’s injuries. McCarty v. Hillstone Rest.
Grp., Inc., 864 F.3d 354, 358 (5th Cir. 2017).
In granting JMOL to Walgreens, the district court focused on the first
element: actual or constructive knowledge. A plaintiff satisfies this element
by showing that (1) the defendant placed the substance on the floor, (2) the
defendant actually knew that the substance was on the floor, or (3) it is more
likely than not that the condition existed long enough to give the premises
owner a reasonable opportunity to discover it, also known as “constructive
knowledge.” Id. (citing Wal-Mart Stores, Inc. v. Reece,
81 S.W.3d 812, 814
(Tex. 2002)); id. at 359 (“In premises cases constructive knowledge can be
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established by showing that the condition had existed long enough for the
owner or occupier to have discovered it upon reasonable inspection.”
(quotations omitted)).
On appeal, Gonzalez makes three main arguments for why the district
court was incorrect that a reasonable jury would not be able to find that
Walgreens knew or should have known of the wet floor: (A) The customer’s
knowledge must be imputed to Walgreens under an agency theory;
(B) Walgreens’s knowledge of the clogged toilet is sufficient; and (C) the
evidence creates a fact question as to constructive knowledge. We plunge into
a discussion of each argument below.
A.
Gonzalez first argues that “[t]he Customer became Walgreens’s
agent when management deputized him to repair the store’s clogged toilet.”
And because “any knowledge an agent had of a dangerous condition must be
imputed to the principal,” Union Pac. R.R. Co. v. Prado, 685 S.W.3d 848, 862
(Tex. 2024) (quotations omitted), the court must charge Walgreens with the
customer’s knowledge of the wet floor. In response, Walgreens argues that
the evidence at trial did not support an agency relationship and in any event,
there was no evidence that the customer knew of the wet floor before
Gonzalez slipped.
Under Texas law, “an ‘agent’ is one who is authorized by a person or
entity to transact business or manage some affair for the person or entity.”
Townsend v. Univ. Hosp.-Univ. of Colo., 83 S.W.3d 913, 921 (Tex. App.—
Texarkana 2002, pet. denied). “An essential element of the principal-agent
relationship is the alleged principal’s right to control the actions of the
alleged agent.”
Id. “This right includes not only the right to assign tasks, but
also the right to dictate the means and details of the process by which an agent
will accomplish the task.”
Id. “[A]gency will not be presumed, and the party
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asserting the relationship has the burden of proving it.” Coleman v. Klockner
& Co. AG, 180 S.W.3d 577, 588 (Tex. App.—Houston [14th Dist.] 2005, no
pet.).
Gonzalez’s only evidence of an agency relationship is that Perez gave
the customer a plunger after Alexander granted Perez permission to do so,
and that the customer apparently attempted to unclog the toilet with that
plunger. While the customer arguably acted on Walgreens’s behalf, “a party
is not an agent simply because he acts on behalf of another.” Del Carmen
Flores v. Summit Hotel Grp., 492 F. Supp. 2d 640, 644 (W.D. Tex. 2006).
Thus, the customer plunging the toilet is not alone sufficient to create an
agency relationship. And while Walgreens’s permitting the customer to
plunge the toilet on its behalf was no doubt imprudent, that does not answer
the agency question. “Authorization to act and control of the action are the two
essential elements of agency.” Reliant Energy Servs., Inc. v. Cotton Valley
Compression, L.L.C.,
336 S.W.3d 764, 783 (Tex. App.—Houston [1st Dist.]
2011, no pet.) (emphasis added).
The heart of the agency test is the principal’s right to control the
actions of the agent, and Gonzalez offers no evidence on this point, even
though he bears the burden of proving the agency relationship. See Del
Carmen, 492 F. Supp. 2d at 644 (deeming right to control the “defining
feature of agency relationship”); Coleman, 180 S.W.3d at 588 (noting that
party asserting agency relationship bears the burden of proving it). We have
neither Perez’s nor the customer’s account of events, but the surveillance
footage shows that the customer sought out Perez after exiting the restroom.
It could be that the customer volunteered to try and unclog the toilet, rather
than Perez assigning him the task. There is no evidence that Perez demanded
or required the customer to plunge the toilet. And Perez did not accompany
the customer into the restroom to direct or supervise his actions.
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What’s more, Walgreens introduced evidence of a work order that
was placed after the customer left and that documented a visit from a plumber
who quickly unclogged the toilet. The fact that the toilet was still clogged
when the customer left further indicates that Walgreens had no control over
his actions; unlike an employee, the customer clearly felt no obligation to solve
the problem, only attempt to do so. The customer was free to leave at any
time, and he did leave before completing “the task” he was supposedly
“assigned”—hardly an instance of control over the customer’s actions. See
Walker v. Fed. Kemper Life Assurance Co., 828 S.W.2d 442, 452 (Tex. App.—
San Antonio 1992, writ denied) (“[E]ven if a person acts for or
accommodates another, if the accommodating person is not under that
person’s control, the relationship of agency does not exist.”).
Additionally, there is no evidence that Walgreens “dictate[d] the
means and details of the process” of unclogging the toilet to the customer.
Townsend, 83 S.W.3d at 921. All we know is Perez gave the customer a
plunger; we are unaware of any directions or details that accompanied the
handoff. In sum, Gonzalez provided no evidence that Walgreens gained the
right to control the customer’s actions merely because he accepted a plunger
from the store. With nothing backing up Gonzalez’s argument besides the
customer acting on behalf of Walgreens, we reject the agency theory and
refuse to impute the customer’s knowledge to Walgreens.
B.
Gonzalez’s next argument in support of Walgreens’s knowledge of
the hazardous condition is that both Perez and Alexander knew about the
clogged toilet and the customer’s unsupervised presence in the restroom.
And under Corbin v. Safeway Stores, Inc., a storeowner’s knowledge of the
source of a hazardous condition can create a genuine dispute of fact as to the
knowledge element, “even in the absence of evidence showing the
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storeowner’s actual or constructive knowledge of the presence on the floor
of the specific object causing the fall.” 648 S.W.2d 292, 295 (Tex. 1983). In
other words, according to Gonzalez, knowledge of the clogged toilet is
sufficient, even if Walgreens did not know and should not have known about
the wet floor.
In Corbin, the plaintiff slipped on grapes that had fallen off a selfservice display in a Safeway store. Id. at 294. The trial court granted
Safeway’s motion for directed verdict, the court of appeals affirmed, but the
Supreme Court of Texas reversed.
Id. at 294, 298. Safeway had no knowledge
of the grape the plaintiff slipped on, and although Safeway “knew of [the]
unusually high risk associated with its grape display,” the store argued that
“it [was] not obligated to protect customers from the acts of other customers
in causing grapes to fall to the floor.”
Id. at 296. The Supreme Court of Texas
disagreed, noting that Safeway knew grapes to fall on prior occasions, knew
this created a slippery surface, and failed to place a mat in front of the display,
despite its own policy requiring a mat.
Id. at 296–98. This was enough to send
the liability question to the jury, even if Safeway was unaware of the specific
grape that caused the fall.
Id. at 296. Gonzalez compares Safeway’s
knowledge of the risk posed by the grape display with Walgreens’s awareness
of the clogged toilet.
In the same vein as Corbin, Gonzalez cites Hernandez v. Kroger Texas,
L.P., No. 01-18-00562, 2019 WL 3949458 (Tex. App.—Houston [1st Dist.]
Aug. 22, 2019, no pet.) (mem. op.). There, the plaintiff slipped on water in
front of a water-tank refill station in a store. Id. at *1. Citing Corbin, the court
explained that under some circumstances, “[i]nstead of needing evidence of
knowledge of a specific item on the floor, a slip-and-fall plaintiff can, under
appropriate facts, rely on the storeowner’s knowledge that its display, itself,
presented an unreasonable fall risk to patrons.” Id. at *4.
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The problem with Gonzalez’s reliance on Corbin and Hernandez, as
the district court identified, is that in both cases “there was clear evidence
that the defendants actually knew the conditions frequently caused a condition
that posed an unreasonable risk of harm.” By contrast, Alexander testified
that in her two years of experience, this was the first time anyone alleged that
the toilet overflowed. Also, not every clogged toilet presents the risk of
overflowing.
On appeal, Gonzalez counters that no prior incidents had occurred by
the water dispenser in Hernandez, and so there should be no need for prior
incidents at the Walgreens store. But “there was evidence that . . . water
spills occurred in the traffic area daily, and that there were repeated instances
of the mat proving inadequate to absorb the spilled water.” Id. *8. Thus, even
if there were no incidents, the Hernandez court emphasized the store’s
knowledge of prior instances of a dangerous condition created by the display,
of which there is no evidence in this case. Hernandez is therefore
distinguishable.
The Supreme Court of Texas recently clarified its view of Corbin.
After noting that several recent decisions have declined to apply Corbin, the
court explained, “To the extent Corbin’s approach could ever be employed
after our more recent cases, it would only be in a situation where—as in
Corbin—the defendant had a policy or practice that it knew routinely created
an unreasonable risk of harm.” Albertsons, LLC v. Mohammadi, 689 S.W.3d
313, 319 (Tex. 2024). This view aligns with the district court’s interpretation
of Corbin and Hernandez.
Because Gonzalez fails to identify a policy or practice of Walgreens
that it knew routinely created an unreasonable risk of harm, the district court
rightly washed its hands of Corbin and Hernandez. Walgreens’s knowledge of
the clogged toilet could not substitute for knowledge of the wet floor.
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C.
Gonzalez’s third and final argument as to the knowledge element is
that the evidence at trial raised at least a fact question as to whether
Walgreens had constructive knowledge of the wet floor. “Constructive
knowledge is a substitute in the law for actual knowledge.” CMH Homes, Inc.
v. Daenen, 15 S.W.3d 97, 102 (Tex. 2000). Constructive knowledge “requires
proof that an owner had a reasonable opportunity to discover the defect,”
and “that question requires analyzing the combination of proximity,
conspicuity, and longevity.” Wal-Mart Stores, Inc. v. Spates,
186 S.W.3d 566,
567 (Tex. 2006) (per curiam). Nevertheless, “the rule in Texas is that
temporal evidence, not proximity evidence, is the sine qua non of a premises
owner’s constructive knowledge.” Dixon v. Wal-Mart Stores, Inc.,
330 F.3d
311, 315 (5th Cir. 2003). 3
“Without some temporal evidence, there is no basis upon which the
factfinder can reasonably assess the opportunity the premises owner had to
discover the dangerous condition.” Reece, 81 S.W.3d at 816. “[W]hen
circumstantial evidence is relied upon to prove constructive notice, 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.” Wal-Mart Stores, Inc. v. Gonzalez,
968 S.W.2d
934, 936 (Tex. 1998). “[M]eager circumstantial evidence from which equally
plausible but opposite inferences may be drawn is speculative and thus legally
_____________________
3
“[A] particularly conspicuous hazard, or an employee’s close proximity to an
inconspicuous hazard for a ‘continuous and significant period of time,’ may reduce the
amount of time within which a ‘premises owner should have become aware of the
dangerous condition.’” Shirey v. Wal-Mart Stores Tex., L.L.C., 699 F. App’x 427, 428 (5th
Cir. 2017) (per curiam) (quoting Reece,
81 S.W.3d at 816).
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insufficient to support a finding.” Id.; Threlkeld v. Total Petrol., Inc., 211 F.3d
887, 894 (5th Cir. 2000).
As for the temporal evidence in this case, the customer first emerges
from the restroom hallway at 12:28:31 pm, and Gonzalez enters the restroom
hallway at 12:40:01 pm. Drawing the inference that the toilet was overflowing
as soon as the customer sought out Perez, the temporal evidence in this case
is about ten minutes.
Caselaw from within this circuit overflows with examples of courts
finding that temporal evidence of ten minutes, without more, is insufficient
to establish constructive knowledge. See, e.g., Shirey, 699 F. App’x at 429
(holding that “the seventeen minutes during which the inconspicuous grape
was on the floor did not afford Wal-Mart a reasonable time to discover and
remove the hazard”); Threlkeld,
211 F.3d at 894 (noting that at worst, the
restroom went unobserved for forty-five minutes, yet affirming JMOL for
defendant); Brookshire Food Stores, L.L.C. v. Allen,
93 S.W.3d 897, 901 (Tex.
App.—Texarkana 2002, no pet.) (holding that grapes on the floor for no
longer than fifteen minutes did not give store constructive knowledge);
Robbins v. Sam’s E., Inc., No. 21-20050,
2021 WL 3713543, at *2 (5th Cir.
Aug. 20, 2021) (per curiam) (“[T]he ten minutes during which the
inconspicuous fruit was on the floor did not afford the Crossmark employees
a reasonable time to discover and remove the hazard.”); Agbonzee v. Wal-Mart Stores Tex., L.L.C. #772, No. 21-20395,
2022 WL 3137428, at *3 (5th
Cir. Aug. 5, 2022) (per curiam) (noting temporal evidence of twelve minutes
“cuts against finding constructive knowledge”). Flush with this caselaw, we
cannot find a genuine dispute based on Gonzalez’s temporal evidence alone.
But Gonzalez argues that he has more than just temporal evidence of
ten minutes; he also testified to witnessing roughly two gallons of water on
the floor. In support of this eyewitness testimony creating an issue of fact as
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to constructive knowledge, Gonzalez relies on two cases: Moreno v. Wal-Mart
Stores Tex., LLC, 506 F. Supp. 3d 503 (S.D. Tex. 2020) and Casey v. Walmart
Stores Tex., LLC, No. 4:21-CV-02735,
2023 WL 2652262 (S.D. Tex. Mar.
26, 2023). The district court distinguished Moreno on the grounds that
“[t]here, store employees walked past the puddle nine times within thirty
minutes prior to plaintiff’s injury,” meaning “it was not the puddle’s size
alone that satisfied the temporal requirement, but also the puddle’s
proximity to store employees.” Moreno, 506 F. Supp. 3d at 508. Gonzalez has
no evidence of proximity in this case, so Moreno is distinguishable.
Casey is a closer call. The plaintiff in Casey slipped on a puddle of
water while walking down the meat aisle of a Wal-Mart store. 2023 WL
2652262, at *1. The district court found a genuine issue of material fact as to
whether Wal-Mart had constructive knowledge of the water and denied
summary judgment. Id. at *6. The court noted that the plaintiff “personally
observed the liquid seeping from the cooler,” and that a customer who came
to the plaintiff’s aid after her fall observed the ongoing leak too. Id. at *4. The
parties also agreed that the puddle was significant. Id. In finding an issue of
fact, the court focused on “the gradual nature yet substantial size of the
leak,” supported by Casey’s firsthand observation of the leak itself. Id. The
key was that Casey saw the liquid seeping from the meat cooler, indicating
that the puddle had formed slowly over time and therefore had to be present
for a while before the slip.
By contrast, Gonzalez did not actually see whether the water was
leaking from under the toilet or overflowing from the bowl. Looking at
whatever portion of the toilet was visible from outside the stall, Gonzalez only
saw that “the side of the toilet was shiny and wet, and the back of it was dry
and dull.” Indeed, on appeal, Gonzalez equivocates between an “overflow”
causing the puddle and a “leak” doing the same.
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The distinction is relevant because a leak from between the toilet and
floor would indicate a slow, ongoing seepage (as in Casey), as opposed to a
quick puddle forming from water overflowing due to the customer’s plunging
or the toilet backing up from the clog. In the latter scenarios, it is unlikely the
puddle would have been present the full ten minutes; it could have formed
moments before Gonzalez entered. Thus, Gonzalez’s eyewitness testimony
of the puddle alone, without a source, is the kind of “meager circumstantial
evidence from which equally plausible but opposite inferences may be
drawn,” meaning it cannot support a finding of constructive knowledge.
Gonzalez, 968 S.W.2d at 936.
This case is closer to Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d
934. There, the plaintiff slipped and fell on macaroni salad on the floor of a
Wal-Mart aisle.
Id. at 936. Wal-Mart argued there was no evidence the
macaroni had been on the floor long enough to charge it with constructive
notice, and the Supreme Court of Texas agreed.
Id. at 936–38. The plaintiff
testified that the macaroni contained dirt, footprints, and cart tracks,
indicating it “had been there a while.”
Id. at 936. But the court determined
that this testimony “can no more support the inference that it accumulated
dirt over a long period of time than it can support the opposite inference that
the macaroni had just been dropped on the floor and was quickly
contaminated by customers and carts traversing the aisle.”
Id. at 937.
The same could be said about Gonzalez’s testimony here. With no
evidence of the puddle’s source, it is just as likely that the customer plunged
and splashed water on the ground the minute before Gonzalez entered the
restroom than it is that the puddle began forming as soon as the toilet clogged
(or before, as could be the case with a leak). Thus, the district court was
correct to find the evidence insufficient as to constructive knowledge.
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…
In sum, the district court properly held that a reasonable jury would
not have had enough evidence to find that Walgreens had actual or
constructive knowledge of the wet floor. We therefore affirm the JMOL
dismissing Gonzalez’s premises-liability claim.
IV.
Gonzalez also appeals the Rule 12(b)(6) dismissal of his theory of
vicarious liability against Walgreens.
“We review a district court’s grant of a motion to dismiss for failure
to state a claim de novo, ‘accepting all well-pleaded facts as true and viewing
those facts in the light most favorable to the plaintiff.’” Bustos v. Martini
Club, Inc., 599 F.3d 458, 461 (5th Cir. 2010) (quoting True v. Robles,
571 F.3d
412, 417 (5th Cir. 2009)). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
In dismissing Gonzalez’s theory, the district court reasoned that
vicarious liability requires Walgreens’s employees or agents to have
committed a negligent act in the course and scope of their employment that
is separate from Walgreens’s duty to keep its premises safe. “[B]ecause this
is solely a premises liability action, and because the pleadings do not support
an inference that any other individual could have committed an actionable
tort,” the district court flushed away Gonzalez’s vicarious-liability theory.
Gonzalez argues on appeal that he alleged that Walgreens is
vicariously liable for the customer’s actions because the customer was
Walgreens’s employee, borrowed employee, or agent. He also claims
Walgreens could be vicariously liable for Alexander and Perez. But “[o]nly
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Case: 24-50403 Document: 57-1 Page: 17 Date Filed: 06/16/2025
No. 24-50403
the owner or occupier, not its employees, owe a duty to keep the premises
safe for invitees.” Moya v. Sam’s E., Inc., No. 7:19-cv-00390, 2021 WL
4084517, at *4 (S.D. Tex. Mar. 17, 2021) (citing TXI Operations, L.P. v. Perry,
278 S.W.3d 763, 764 (Tex. 2009)). Gonzalez did not allege a breach of any
duty other than the duty to keep the premises safe. And to the extent
Gonzalez alleges that the customer, Perez, or Alexander failed to keep the
premises safe, such allegations constitute his premises-liability claim, not a
basis for holding Walgreens vicariously liable. See Del Lago Partners, Inc. v.
Smith,
307 S.W.3d 762, 776 (Tex. 2010) (“[N]egligent activity encompasses
a malfeasance theory based on affirmative, contemporaneous conduct by the
owner that caused the injury, while premises liability encompasses a
nonfeasance theory based on the owner’s failure to take measures to make
the property safe.” (footnote omitted)).
The Supreme Court of Texas “has consistently treated slip/trip-andfall cases as presenting claims for premises defects.” Sampson v. Univ. of Tex.
at Austin, 500 S.W.3d 380, 386 (Tex. 2016). This is obviously one such case.
The district court was right to dismiss Gonzalez’s theory of vicarious
liability.
V.
For these reasons, we AFFIRM the JMOL and the dismissal of
Gonzalez’s vicarious-liability theory.
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