Temporal Evidence Required for Constructive Notice Under Texas “Time-Notice” Rule—Employee Proximity and Inspection Policies Alone Do Not Suffice

Case: Esteves v. Lowe's Home Centers (No. 25-40663)
Court: United States Court of Appeals for the Fifth Circuit
Date: June 3, 2026 (per curiam; not designated for publication)

1. Introduction

Christi and Erasmo Esteves sued Lowe’s Home Centers, L.L.C. after Christi’s foot was injured when a Lowe’s four-wheeled garden cart tipped and was discovered to be missing a front wheel. The claim proceeded as Texas premises liability negligence (with Erasmo asserting loss of consortium/services).

The central appellate issue was narrow but recurring in premises litigation: whether the Esteveses produced sufficient evidence that Lowe’s had constructive knowledge of the alleged dangerous condition—here, a cart missing a wheel—so as to survive summary judgment. The Fifth Circuit affirmed summary judgment for Lowe’s because the record lacked the kind of temporal (“how long”) evidence Texas law requires under the “time-notice” rule.

2. Summary of the Opinion

The Fifth Circuit held the Esteveses failed to raise a genuine dispute of material fact on constructive notice. Even assuming an employee (“Loader”) brought the cart in from the parking lot and Lowe’s policy called for visual checks, the plaintiffs offered no non-speculative evidence establishing how long the wheel had been missing. Texas constructive-notice doctrine demands proof of the hazard’s duration; proximity of employees and the existence of an inspection policy do not substitute for that requirement.

3. Analysis

3.1 Precedents Cited

A. Federal summary-judgment framework applied by the Fifth Circuit

• Am. Fam. Life Assurance Co. of Columbus v. Biles: The court reiterated de novo review and viewing evidence in the nonmovant’s favor, framing the appellate posture.
• Anderson v. Liberty Lobby, Inc.: Provided the “reasonable jury” test for a genuine dispute of material fact.
• Turner v. Baylor Richardson Med. Ctr.: Reinforced that courts do not weigh evidence or make credibility findings at summary judgment.
• Hall v. UiPath, Inc., U.S. ex rel. Farmer v. City of Houston, and Adams v. Travelers Indem. Co. of Conn.: These cases collectively supplied the “burden-shifting” summary-judgment mechanics—once the movant points to an absence of proof on an essential element, the nonmovant must respond with competent evidence rather than speculation or conclusory assertions.

B. Texas premises-liability constructive notice: the “time-notice” requirement

• Wal-Mart Stores, Inc. v. Gonzalez and CMH Homes, Inc. v. Daenen: Cited for the elements of Texas premises liability, including the requirement that the owner have actual or constructive knowledge of the condition.
  The panel also used these authorities (and later Peterson) to underscore that Texas courts reject “relaxed” proof burdens even where evidence is difficult to obtain.
• Wal-Mart Stores, Inc. v. Reece: The doctrinal centerpiece. It supplies the third method of proving knowledge—showing it is more likely than not the condition existed long enough to give the owner a reasonable opportunity to discover it—and emphasizes temporal evidence as the best indicator. The panel quoted Reece for the principle that there must be some proof of how long the hazard was there before constructive notice can be imposed, even if that is “impossible” in a given case.
• H-E-B, LP v. Peterson: A recent Texas Supreme Court decision cited to reinforce the same rule: absent temporal evidence of duration, constructive notice will not be charged; Texas courts continue to reject calls for a relaxed burden where evidence is scant.
• Wal-Mart Stores, Inc. v. Spates: Provided the analytical triad—proximity, conspicuity, and longevity—and the key limitation that employee proximity without evidence of duration is legally insufficient.
• Dixon v. Wal-Mart Stores, Inc.: Used to articulate the “discover and correct” formulation for constructive notice and, through later quotation, to emphasize that temporal evidence is indispensable.
• Murray v. Chick-Fil-A, Inc.: Cited for the Fifth Circuit’s experience applying Reece—summary judgment is routinely granted when temporal evidence is missing—and for the articulation of the “more likely than not” standard in this context.
• Gonzalez v. Walgreen Co.: Provided a recent Fifth Circuit statement (quoting Dixon) that, in Texas, temporal evidence—not proximity—is the “sine qua non” of constructive knowledge.

C. Limits on inference, speculation, forfeiture, and internal policies

• Zarnow v. City of Wichita Falls: Cited for the proposition that speculation cannot defeat summary judgment. This was decisive because the plaintiffs’ chain of inference required guessing the timing of multiple events (when the wheel came off; how long before retrieval; how long in foyer; how long in plaintiff’s use).
• Rollins v. Home Depot USA: Used to dispose of any actual-knowledge theory: the panel noted the Esteveses forfeited that argument by not challenging it on appeal.
• Hughes v. Johnson: Cited in explaining that reliance on Lowe’s inspection policy tended to resemble an actual-knowledge theory—one the plaintiffs forfeited.
• Boudreaux v. Swift Transp. Co.: Important for the policy point: courts will not impute constructive knowledge based solely on an internal operating procedure requiring inspections.
• McCarty v. Hillstone Rest. Grp., Inc.: Cited as a concluding support for affirmance where an essential element (constructive notice) lacks proof.

3.2 Legal Reasoning

The opinion proceeds in three steps.

1. Identify the dispositive element: Under Texas law, premises liability requires proof of actual or constructive knowledge. Actual knowledge was out (forfeited on appeal), so the case turned entirely on constructive notice via the Reece time-notice method.
2. Apply the time-notice triad (proximity, conspicuity, longevity): Even accepting the plaintiffs’ preferred inference—that a Lowe’s Loader brought the cart from the lot to the entrance area—the court found:
   • Proximity: at most, an employee was near the cart while moving it.
   • Conspicuity: the missing wheel was not shown to be obvious; Christi testified the cart maneuvered normally and she noticed nothing unusual.
   • Longevity: the record contained no measurable duration evidence; any conclusion about “how long” required guessing multiple missing time intervals.
   Under Reece, Spates, and Peterson, that absence of temporal proof is fatal.
3. Reject policy-as-notice and speculation: Lowe’s policy about Loaders visually inspecting carts did not establish constructive notice because it (a) does not supply duration; (b) cannot be used to “impute” knowledge by itself under Boudreaux v. Swift Transp. Co.; and (c) on these facts, even compliance with the policy would not necessarily reveal a non-conspicuous defect.

The court’s bottom line is a doctrinally strict one: without a temporal “touchstone,” a jury cannot non-speculatively find that the hazard existed long enough that the store reasonably should have discovered it.

3.3 Impact

Although unpublished, the decision is a clear signal of how the Fifth Circuit will continue to apply Texas constructive-notice doctrine beyond classic slip-and-fall scenarios.

• Expansion by application (not by new rule): The opinion reinforces that the time-notice rule applies to other premises conditions, including alleged defects in store-provided equipment (e.g., carts), consistent with its statement that the rule is “not limited to slip and fall cases.”
• Evidence-gathering consequences: Plaintiffs alleging defective store equipment will often need concrete time evidence—video surveillance, incident/maintenance logs, cart inventory/repair records, employee testimony about last inspection, timestamps from store operations—to bridge the duration gap.
• Policy and “missed inspection” arguments are constrained: Internal policies can support negligence narratives, but this opinion—relying on Boudreaux v. Swift Transp. Co.—limits using them as a substitute for proof of hazard duration.
• Defense strategy: Defendants can focus summary-judgment briefing on the absence of temporal evidence, even where employee proximity and inspection practices are undisputed.

4. Complex Concepts Simplified

• Constructive knowledge / constructive notice: The law treats the owner as “knowing” about a hazard if it existed long enough that a reasonably careful owner would have found it—whether or not anyone actually did.
• Time-notice rule: A plaintiff must show how long the dangerous condition likely existed. The longer it existed, the more reasonable it is to say the owner should have discovered and fixed it.
• Proximity, conspicuity, longevity: These are the main factors Texas courts use together:
  • Proximity: Were employees near enough to notice?
  • Conspicuity: Would the hazard be easy to see or detect?
  • Longevity: How long did it exist?
  This case turns on longevity: without duration evidence, proximity and policy do not carry the claim.
• Speculation vs. inference: A permissible inference is grounded in evidence; speculation fills an evidentiary gap with guesswork. The court characterized the plaintiffs’ timeline as guesswork because none of the key intervals were supported by proof.
• Summary judgment burden: Once the defendant points to missing proof on an essential element (here, constructive notice), the plaintiff must produce evidence sufficient for a reasonable jury—not merely a plausible story.

5. Conclusion

Esteves v. Lowe's Home Centers affirms a strict and recurring Texas premises-liability lesson: constructive notice requires temporal evidence. Even if an employee handled the instrumentality and the company maintained an inspection policy, a plaintiff must still present non-speculative proof that the dangerous condition existed long enough to give the owner a reasonable opportunity to discover and remedy it. By treating “how long” as indispensable and refusing to let policy or proximity substitute for duration, the Fifth Circuit aligned its analysis with Wal-Mart Stores, Inc. v. Reece, Wal-Mart Stores, Inc. v. Spates, and H-E-B, LP v. Peterson, and signaled continued rigor in constructive-notice cases involving allegedly defective store equipment.