The Texas Supreme Court has granted review of a Corpus Christi Court of Appeals decision reversing a Bexar County trial court’s grant of summary judgment in favor of HEB in a slip-and-fall case.
Marissa Peterson v. HEB Grocery Co., L.P. (No. 24-0310, granted September 5, 2025; No. 13-23-00205-CV, March 21, 2024) arose from a slip-and-fall on the toy aisle for an HEB store in San Antonio. Plaintiff alleged that she slipped on water that had accumulated in the aisle, and that HEB knew or should have known of the “unreasonable risk of harm” posed by the wet floor but failed to make it safe. She sought actual damages, including past and future medical damages and lost wages. HEB answered and filed no evidence and traditional motions for summary judgment. The trial court granted the motions. Plaintiff appealed to the San Antonio Court of Appeals, which reversed and remanded. That court determined that there was more than a scintilla of evidence that HEB had actual or constructive knowledge of the allegedly dangerous condition. On remand, HEB filed a Daubert/Robinson motion to exclude the testimony of Plaintiff’s expert, which the trial court granted. HEB once again moved for summary judgment. The trial court again granted it. Plaintiff appealed. SCOTX transferred the appeal from San Antonio to Corpus Christi.
In an opinion by Justice Contreras, the court of appeals reversed and remanded. First, the court reviewed the trial court order granting HEB’s Daubert/Robinson motion. At issue was Plaintiff’s expert’s opinion that HEB was aware of several roof leaks that had occurred during two days of rain immediately prior to the date of the accident, that it failed to take adequate precautions to protect shoppers, and that it failed to adequately train its employees on how to deal with the apparently frequent roof leaks at the store’s location. He further opined that HEB did not have an adequate system of planned floor safety inspections nor had any sweep logs to document inspections. Finally, the expert performed a “test” showing that the roof had to have leaded for several hours to produce a puddle of the size Plaintiff claimed. The court found that: (1) the expert was qualified (which HEB didn’t dispute), (2) that his drip test was unreliable (because it depended “on an assumption that an individual drop of water from a small plastic bottle is equivalent in volume to an individual drop of water falling from the ceiling of a supermarket after a rainstorm), (3) and that the expert’s opinion that a wet polished concrete floor is slippery was within the factfinder’s common knowledge and was properly excluded. As to whether HEB failed in its duties to maintain the roof, inspect the floor, and contain the leak, however, the trial court abused its discretion in excluding the expert’s opinion because the expert was qualified and his testimony pertained directly to the whether HEB exercised reasonable care to reduce or eliminate the unreasonable risk of harm.
Turning to the summary judgment issue, the court recited the United Supermarkets premises liability factors, the first of which asks whether the owner had actual or constructive knowledge of the dangerous condition. Since no one suggested that HEB put the water on the floor or actually knew it was there, the question became whether “it [was] more likely than not that the condition existed long enough to give the premises owner a reasonable opportunity to discover it” (citation omitted). HEB argued that Plaintiff produced no evidence that it had actual or constructive knowledge of the puddle because Plaintiff’s “[t]estimony about the existence and size of a puddle, in itself, does not establish more than a possibility that water existed on the floor long enough to provide a reasonable opportunity to discover it.” The court disagreed, holding that Plaintiff produced more than a scintilla of evidence showing that, “with the use of reasonable care, HEB should have known about the puddle in the toy aisle prior to [Plaintiff’s] fall.” Though Plaintiff and her companion differed widely on how big the puddle was and existence of the puddle itself did not show how long it had been there, the court found Plaintiff’s evidence of the frequency of leaks in the store’s roof during rainstorms, roof repairs in the months preceding the accident, and the fact that the rain stopped two hours before the accident was enough to get over the summary judgment bar.
Oral argument has been scheduled for December 3.
