Full Opinion

Case: 25-20550 Document: 54-1 Page: 1 Date Filed: 11/05/2026 United States Court of Appeals for the Fifth Circuit United States Court of Appeals ____________ Fifth Circuit FILED No. 25-20550 November 5, 2026 ____________ Thomas B. Plunkett, III Clerk Silvia L. Canales, Plaintiff—Appellant, versus Walmart Texas, L.L.C., Defendant—Appellee. ______________________________ Appeal from the United States District Court for the Southern District of Texas USDC No. 4:24-CV-3203 ______________________________ ON PETITION FOR REHEARING Before Elrod, Chief Judge, Richman and Ramirez, Circuit Judges. Per Curiam: * The petition for panel rehearing is DENIED and the following is substituted in place of the previous opinion. Silvia Canales appeals the district court’s grant of summary judgment dismissing her premises liability claim for personal injuries suffered in a slip- _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 25-20550 Document: 54-1 Page: 2 Date Filed: 11/05/2026 No. 25-20550 and-fall accident at a Walmart. The district court found that there was no genuine dispute of material fact and granted summary judgment for Walmart. We AFFIRM. I. Canales was walking towards the bathroom in a Walmart in Missouri City, Texas, when she slipped and fell on water. Canales told employees that she hurt her knee, hip, and arm. Canales sued in Texas state court, asserting a premises liability claim. Walmart removed the case to federal court based on diversity jurisdiction. Walmart moved for summary judgment, arguing that Canales could not establish the first element of premises liability: Actual or constructive knowledge of the dangerous condition. The district court granted summary judgment, and Canales now appeals. II. We review the grant of summary judgment de novo. Austin v. Kroger Tex., L.P., 864 F.3d 326, 328 (5th Cir. 2017) (citing Ford Motor Co. v. Tex. Dep’t Transp., 264 F.3d 493, 498 (5th Cir. 2001)). Summary judgment is proper where there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A fact is material if its resolution might affect the outcome of the lawsuit. Sossamon v. Lone Star State of Tex., 560 F.3d 316, 326 (5th Cir. 2009) (quoting Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000)). There is a genuine dispute when the evidence would allow a reasonable jury to find for the nonmovant. Austin, 864 F.3d at 328 (citation omitted). We must construe all facts and inferences in the light most favorable to the nonmoving party. 2 Case: 25-20550 Document: 54-1 Page: 3 Date Filed: 11/05/2026 No. 25-20550 Id. at 328–29 (citing Crawford v. Formosa Plastics Corp., La., 234 F.3d 899, 902 (5th Cir. 2000)). “In this diversity case, Texas law applies and under it [Canales] is Wal[m]art’s invitee.” Hensley v. Wal-Mart Stores, Inc., 290 F. App’x 742, 744 (5th Cir. 2008) (citation omitted). Under Texas law: To recover from Wal[m]art, [Canales] bears the burden of proving that (1) Wal[m]art had actual or constructive knowledge of some condition on its premises; (2) the condition posed an unreasonable risk of harm; (3) Wal[m]art failed to exercise reasonable care to reduce or eliminate the risk; and (4) its failure to use reasonable care proximately caused her injuries. Id. (citation omitted). The only element in contention is whether Walmart had actual or constructive knowledge of the water Canales slipped on. “To prove such knowledge, the plaintiff can establish: (1) the defendant caused the condition; (2) the defendant actually knew of the condition; 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.’” Murray v. Chick-Fil-A, Inc., 626 F. App’x 515, 517 (quoting Wal–Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002)). When determining whether there was constructive knowledge, Texas courts consider: (1) the proximity of the employees to the hazard, (2) the conspicuousness of the hazard, and (3) the length of time the hazard existed. Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 567 (Tex. 2006) (citing Reece, 81 S.W.3d at 816). Texas also recognizes the “time-notice rule” which establishes that an employee’s proximity to a hazard is not enough to establish constructive knowledge when there is no evidence indicating how long the hazard was there. Reece, 81 S.W.3d at 816. Thus, temporal evidence 3 Case: 25-20550 Document: 54-1 Page: 4 Date Filed: 11/05/2026 No. 25-20550 is required for a reasonable fact finder to assess whether the premises owner reasonably should have discovered the hazard. Id.; H-E-B, LP v. Peterson, 732 S.W.3d 541, 547 (Tex. 2026). “Following Reece, Texas courts have granted summary judgment motions when the plaintiff did not offer sufficient temporal evidence to establish constructive notice.” Murray, 625 F. App’x at 517. III. Canales primarily relies on security footage in her attempt to create a genuine issue of material fact as to Walmart’s constructive knowledge. The district court correctly found that her evidence did not create a genuine issue of material fact. Video evidence of employees walking near the area where Canales would fall is insufficient evidence without evidence of duration. As for duration, Canales acknowledges that no change to the floor can be observed from the video footage. She argues that the lack of change in conditions proves that the water was on the floor for the entire seventy-five- minute duration of the security footage. The district court properly found that this evidence, or lack thereof, did not create a genuine issue of fact. See TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002) (holding that speculation and improbable inferences do not replace facts in showing a genuine issue for trial); see also Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 29–30 (Tex. 2014) (finding a scintilla of evidence where there is a continuous video and “an employee signaling for help to clean up the spill”). Canales also offers evidence that she describes as a woman slipping and another patron avoiding a puddle. Construing the evidence in her favor, those two instances still fail to satisfy the constructive notice requirement because the first instance happened only eight minutes before Canales’s fall. We have previously held that an inconspicuous hazard that existed for longer 4 Case: 25-20550 Document: 54-1 Page: 5 Date Filed: 11/05/2026 No. 25-20550 than eight minutes was not legally sufficient to show constructive knowledge. Threlkeld v. Total Petroleum, Inc., 211 F.3d 887, 894 (5th Cir. 2000) (holding that a puddle of water existing for a maximum forty-five minutes was not legally sufficient to prove notice); see also Shirey v. Wal-Mart Stores Tex., L.L.C., 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.”). As for the photographs of dirty footprints, the Supreme Court of Texas has held that dirty footprints are not evidence of the duration of a hazard. See Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 937 (Tex. 1998). Canales failed to meet the non-movant’s burden to create a genuine issue of material fact as to Walmart’s constructive notice. Therefore, the district court’s grant of summary judgment is AFFIRMED. 5