Constructive Notice in Texas Slip-and-Fall Cases Requires Evidence of Hazard Duration at the Time and Place of Injury

I. Introduction

H-E-B, L.P. v. Marissa Peterson is a premises-liability slip-and-fall decision in which the Supreme Court of Texas reaffirmed and applied the “time-notice” requirement for constructive knowledge. Marissa Peterson, a customer, slipped on a clear liquid puddle in HEB’s toy aisle. She alleged HEB knew or should have known about the unreasonably dangerous condition and failed to warn or make the premises safe. HEB obtained summary judgment in the trial court, but the court of appeals reversed—reasoning that evidence of prior roof leaks elsewhere in the store created a fact issue regarding HEB’s constructive knowledge of the puddle.

The Supreme Court’s core issue was narrow: whether Peterson produced some evidence—sufficient to defeat a no-evidence motion for summary judgment—that the puddle existed long enough for HEB to have discovered it at the time and place of the fall.

II. Summary of the Opinion

The Court reversed the court of appeals and reinstated summary judgment for HEB. It held that to raise a fact issue on constructive notice of a transient dangerous condition (like a liquid puddle), a plaintiff responding to a no-evidence motion must adduce some evidence of the condition’s duration—i.e., evidence from which a reasonable factfinder could conclude it is more likely than not the condition existed long enough to give the premises owner a reasonable opportunity to discover it.

Evidence that the store had experienced roof leaks elsewhere, or that it had heightened rain inspection protocols, or that it had rained earlier, did not supply the missing temporal proof of how long the toy-aisle puddle existed before Peterson fell.

III. Analysis

A. Precedents Cited

  • Wal-Mart Stores, Inc. v. Reece (81 S.W.3d 812 (Tex. 2002)) anchored the holding. The Court reiterated Reece’s rule that constructive notice requires evidence the condition existed long enough to be discovered, and that without temporal evidence a factfinder cannot assess whether the owner had a reasonable opportunity to discover the hazard.
  • Wal-Mart Stores, Inc. v. Spates (186 S.W.3d 566 (Tex. 2006)) supplied the familiar framework—longevity, proximity, and conspicuity—and reinforced that longevity is central when the condition is transient.
  • City of San Antonio v. Rodriguez (931 S.W.2d 535 (Tex. 1996)) drove the Court’s rejection of “other-location leak history” as proof of constructive notice. Rodriguez explained that a leaky roof is not itself the dangerous condition; it is at most a cause. Constructive notice still must connect to the water on the floor in the relevant location.
  • Albertsons, LLC v. Mohammadi (689 S.W.3d 313 (Tex. 2024)) and Brookshire Grocery Co. v. Taylor (222 S.W.3d 406 (Tex. 2006)) were invoked for the principle that knowledge concerns the dangerous condition “at the time and place injury occurs,” not an antecedent situation that might have produced it. This directly undercut the court of appeals’ reliance on evidence of leaks elsewhere in the store.
  • Brookshire Brothers, Ltd. v. Aldridge (438 S.W.3d 9 (Tex. 2014)) illustrated what can satisfy temporal proof: video showing employees repeatedly passing a large spill within minutes before the fall. The Court contrasted Aldridge with Peterson’s evidence, which did not speak to when the puddle formed.
  • Wal-Mart Stores, Inc. v. Gonzalez (968 S.W.2d 934 (Tex. 1998)) reinforced that speculative circumstantial evidence cannot support constructive notice, and that certain common inferences (tracks, dirt, “seemed like it had been there awhile”) do not establish duration.
  • CMH Homes, Inc. v. Daenen (15 S.W.3d 97 (Tex. 2000)) was cited both for the concept of constructive knowledge as a substitute for actual knowledge and for the reminder that internal policies do not raise the legal standard of care (owners are not insurers).
  • Austin v. Kroger Tex., L.P. (465 S.W.3d 193 (Tex. 2015)) reinforced that defendants have “no duty” to exceed what an ordinary, reasonable landowner would do—limiting attempts to convert internal inspection protocols into heightened legal duties.
  • Procedural summary-judgment standards were supported by Energen Res. Corp. v. Wallace (642 S.W.3d 502 (Tex. 2022)), Binur v. Jacobo (135 S.W.3d 646 (Tex. 2004)), Timpte Indus., Inc. v. Gish (286 S.W.3d 306 (Tex. 2009)), and City of Keller v. Wilson (168 S.W.3d 802 (Tex. 2005)), which collectively frame de novo review, the no-evidence burden, and viewing evidence in the nonmovant’s favor.
  • The elements of premises liability were restated from Keetch v. Kroger Co. (845 S.W.2d 262 (Tex. 1992)), with United Scaffolding, Inc. v. Levine (537 S.W.3d 463 (Tex. 2017)) clarifying that “occupiers” may owe the premises duty.
  • The Court also noted prior procedural history: Peterson v. HEB Grocery Co., No. 04-19-00688-CV, 2020 WL 1931628 (Tex. App.—San Antonio Apr. 22, 2020, pet. denied).

B. Legal Reasoning

  1. Pinpointing the dispositive element: constructive knowledge. Peterson conceded no evidence of actual knowledge. The Court therefore focused entirely on whether the record contained some evidence that HEB should have known of the puddle—i.e., constructive notice.
  2. Rejecting “storewide leak history” as a substitute for notice at the fall location. The Court held that earlier roof leaks, buckets, cans, or warning signs elsewhere in the store did not make it more likely than not that HEB had constructive notice of a puddle in the toy aisle at the time Peterson fell. Under Rodriguez and Mohammadi/Taylor, the notice inquiry must correlate to the dangerous condition at the specific time and place of injury.
  3. Enforcing the time-notice requirement. The Court reiterated that without evidence of how long the puddle existed, a jury cannot decide whether HEB had a reasonable opportunity to discover it. The record contained:
    • No testimony establishing how long the puddle had been present (Peterson had “no idea”).
    • No evidence of employees traversing the aisle shortly before the fall.
    • No reliable inference of duration from puddle size alone.
    • No temporal link from the fact that rain stopped two hours earlier (cause does not establish when the puddle formed indoors).
    • No duration evidence from alleged dripping (at most a possible source, not a timeline).
  4. Internal inspection protocols do not cure missing temporal proof. Even if HEB had heightened inspections during rain, the policy did not establish how long the hazard existed; and internal rules do not raise the legal duty beyond ordinary reasonable care (CMH Homes and Austin).
  5. Procedural posture matters: a no-evidence motion requires evidence, not conjecture. Applying Rule 166a standards, the Court concluded Peterson’s proof showed only the possibility the puddle existed long enough, which is legally insufficient under Gonzalez and Reece.

C. Impact

  • Reinforced bright line for transient hazards. Plaintiffs must come forward with evidence supporting a reasonable inference of duration; generalized evidence of maintenance issues or prior incidents elsewhere will not substitute for temporal proof tied to the location of the fall.
  • Limits “roof leak history” theories. Evidence that a building “often leaks when it rains” may help explain possible causation, but it will not establish constructive notice of a particular puddle absent a location-specific and time-specific link.
  • Likely effect on summary judgment practice. Defendants in slip-and-fall cases can more confidently frame no-evidence motions around the absence of duration evidence. Plaintiffs, in turn, will need to prioritize time-based proof (video, inspection logs, witness timelines, employee proximity coupled with duration, recurring leak documentation in the same area, etc.).
  • Clarifies what evidence is “immaterial” to notice. Rain timing, internal policies, and proof of hazards in different store areas may be insufficient unless they establish when the specific floor condition arose and whether it existed long enough to be discovered.

IV. Complex Concepts Simplified

Premises liability (invitee claim)
A customer must prove, among other elements, that the owner/occupier knew or should have known of an unreasonably dangerous condition and failed to use reasonable care to reduce the risk.
Actual knowledge vs. constructive knowledge
Actual knowledge means the owner actually knew of the hazard. Constructive knowledge means the hazard existed long enough, and was sufficiently discoverable, that the law treats the owner as if it should have known.
Time-notice rule (temporal evidence)
In slip-and-fall cases involving transient conditions (water, food, spills), courts require evidence of how long the hazard was present before the fall. Without that, a jury would be guessing whether the owner had a reasonable chance to find and fix it.
No-evidence summary judgment
After adequate discovery time, a defendant may seek judgment on the ground that there is no evidence of one or more essential elements. The plaintiff must then produce some evidence raising a genuine fact issue; speculation or “could have happened” is not enough.
Cause vs. condition
A roof leak (or rain) may be a possible cause of water on the floor, but the dangerous condition is the water on the floor where the plaintiff fell. Notice must be tied to the condition at the time and place of injury.

V. Conclusion

The Supreme Court of Texas reaffirmed a strict and recurring requirement in slip-and-fall litigation: to establish constructive notice of a transient hazard, a plaintiff must present some evidence of the hazard’s duration at the time and place of injury. Evidence of roof leaks elsewhere in the building, generalized storm protocols, and proof of rainfall or possible dripping may suggest an explanation for how water could appear, but they do not substitute for temporal proof that the specific puddle existed long enough for the premises owner to discover it. The decision strengthens predictability in premises cases by preventing constructive notice from resting on storewide maintenance history untethered to the particular hazard that caused the fall.