COURT CONCLUDES THAT WATER ON FLOOR FOR TEN MINUTES IS LEGALLY INSUFFICIENT TO ESTABLISH CONSTRUCTIVE NOTICE OF THE CONDITION; DISMISSES PREMISES-LIABILITY CLAIM
Last week, the United States District Court for the Northern District of Texas concluded that the presence of water on the floor of a Kroger store for ten minutes was legally insufficient to establish that Kroger had constructive notice of the alleged dangerous condition. Consequently, the court dismissed the customer’s premises-liability claim. In Leeuw v. Kroger Texas, L.P., No. 3:19-CV-1771-L, 2021 WL 4295405 (N.D. Texas, Sept. 21, 2021, mem. op.), Sheri Leeuw slipped on water in a Kroger store, and fell. The water was a one-half to one-inch wide strip/stream of water, dribbled in a straight line across an area of no more than two feet in length. Leeuw contended that the water was on the floor for about ten minutes before she slipped. Kroger contended that the water could have been on the floor for as little as five minutes.
Leeuw sued Kroger for premises liability. In response, Kroger filed a motion for summary judgment, contending that there was no proof that the water was present long enough for Kroger to have discovered it in the exercise of reasonable care. In other words, Kroger contended that it did not have constructive notice of the alleged dangerous condition.
The court agreed with Kroger, granted summary judgment and dismissed Leeuw’s claim. The court concluded that “[e]ven assuming that the water was on the floor ten minutes … such evidence is legally insufficient based on the facts of this case to raise a genuine dispute of material fact regarding Kroger's constructive knowledge.” Robbins v. Sam's East, Inc., 2021 WL 3713543, at *2 (5th Cir. Aug. 20, 2021) (explaining that “the ten minutes during which the inconspicuous fruit was on the floor did not afford...employees a reasonable time to discover and remove the hazard.”); Shirey v. Wal-Mart Stores Texas, LLC, 699 F. App'x 427, 429 (5th Cir. 2017) (“[T]he 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.”); Brookshire Food Stores, LLC v. Allen, 93 S.W.3d 897, 901 (Tex. App.—Texarkana 2002, no pet.) (“evidence indicating grapes were not on [the] floor for longer than fifteen minutes, and no one saw grapes on [the] floor before customer fell, was legally insufficient to show constructive knowledge).