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Home / Personal Injury Blog

What evidence can prove Walmart had constructive notice of a spill in Texas?

Examine Spates, the 2026 Peterson decision, witness accounts, video and inspection records when investigating constructive notice of a Texas Walmart spill.

October 19, 2026
Aaron A. Herbert

Written by Aaron A. HerbertTexas Bar #24036761 · Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization since 2008.
The Law Firm of Aaron A. Herbert, P.C. · Dallas, Texas

Water spill in a grocery aisle with a distant employee and overhead surveillance camera.

Home  >  Personal Injury Blog  >  What evidence can prove Walmart had constructive notice of a spill in Texas?

Monday, October 19, 2026 | By Aaron A. Herbert
What evidence can prove Walmart had constructive notice of a spill in Texas?

Quick answer

You need evidence of time. If nobody can establish that Walmart actually knew about the spill, a constructive-notice claim asks whether the store had a reasonable opportunity to discover it. That requires some evidence of how long the particular spill was there. A nearby employee, an overdue inspection or a photograph of dirty water won't necessarily supply it. Video can help, but so can a witness who saw the condition earlier. Texas courts consider duration alongside the hazard's visibility and the employees' proximity.

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The hard part of this question is the word “before.” You may have photographs of the water, an incident report and medical records showing a serious injury. None of those necessarily explains what was happening on the floor before you fell.

A constructive-notice claim turns on that earlier stretch of time, so that is where the digging starts. Two Texas Supreme Court decisions show why, and after them comes a list of records worth tracking down. Other parts of a premises-liability claim are covered in the Walmart knowledge hub.

An employee nearby: the problem in Spates

Kathy Spates was shopping in the soft-drink aisle when her toe and sandal caught in an empty plastic six-pack ring. She went down on one knee and injured her shoulder. The ring lay three to five feet behind a Walmart employee who was working on the shelves. Spates testified that nobody else had been in the aisle for at least thirty to forty-five seconds.

It is easy to see why a customer would think those facts were enough. An employee was right there. But “right there” describes distance, and the Texas Supreme Court also needed evidence about time. The court found the proof of constructive knowledge insufficient.

Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566 (Tex. 2006), applies the analysis from Reece: proximity, conspicuity and longevity. Those factors belong together. The ruling does not establish that thirty seconds, forty-five seconds or any other fixed interval is always too short. It addresses the proof in that case.

A roof leak still needs a timeline

H-E-B, LP v. Peterson, No. 24-0310 (Tex. Apr. 10, 2026), involved a puddle whose age the evidence could not establish. Roof leaks had occurred elsewhere. There was also a gap in inspections. Neither supplied the missing proof of how long the water at the accident site had been present. The Supreme Court reinstated judgment for H-E-B.

Working from a witness’s recollection

Say another shopper remembers seeing water in that aisle earlier. Their receipt shows when they paid, not when they walked past the spill. It helps only if they can put that moment somewhere in their trip, such as before or after they picked up something two aisles over.

Write a time estimate down exactly as the witness gives it, including any “maybe” or “about.” Store video has the same problem in a different form. When the first frame of a clip already shows the liquid, the clip proves the liquid was there at that point and says nothing about earlier. Footage that starts sooner, and possibly angles from nearby cameras, would be needed to see it arrive.

Footage of the fall may tell you little about how long the spill was there. Review the same patch of floor in the minutes before the fall. Look for employees walking by, someone stocking or mopping nearby, and shoppers pushing carts through. Record the camera and timestamp for any frame that may show when the liquid appeared. Another reviewer can then find that moment in the recording.

Store-aisle photograph, inspection record and surveillance views arranged for an evidence review.
Conceptual illustration. Compare records and images to establish the sequence; these are not evidence from an actual case.

An inspection entry needs an explanation

A name and a timestamp may refer to an assigned task, a completed check or a later submission. Find out which, and identify the area actually checked. Compare those entries with the video and other records before placing them on a single chronology.

Where photographs fit

Take a close-up, if it can be done safely, but also show the approach to the spill. A close-up can make a patch of clear liquid look obvious because the viewer already knows where to look. A wider photograph may show glare, a display blocking the view, or the distance from an employee's position.

Photos like these go to how visible the spill was. On their own, they don’t tell you how old it is. Footprints and cart tracks work the same way. A puddle with tracks through it may look like it sat there a while, but someone has to back that up. The photo doesn’t prove it by itself.

Bring the originals to counsel, with an explanation of where each time came from. The review needs a supported interval and evidence of the opportunity to discover the hazard during it.

If the investigation instead finds that an employee had already been told about this spill, actual notice becomes relevant. That changes the knowledge inquiry, though it does not dispense with the need to establish the remaining elements of liability.

For the broader litigation process, read How to Litigate a Walmart Injury Case in Texas.

Discuss a Texas Walmart injury claim

Contact The Law Firm of Aaron A. Herbert, P.C., at (214) 200-4878 or request a consultation. Free consultation. No fees or expenses unless you recover.

This is general information about Texas law, not advice for a particular case. Reading it does not create an attorney-client relationship. Deadlines, available evidence and the applicable legal duties depend on the facts.

Aaron A. Herbert

ABOUT THE ATTORNEY

Aaron A. Herbert

Founding Attorney

Board Certified in Personal Injury Trial Law

Texas Board of Legal Specialization · Since 2008

Licensed in Texas since 2002

Aaron founded The Law Firm of Aaron A. Herbert in 2010 to focus on developing each client's case and seeking its maximum value. For over a decade, he has represented people seriously injured in major accidents and industrial catastrophes, pursuing trial verdicts and settlements while working to reduce the stress of litigation.

Education

  • Texas A&M University · B.S., Criminal Justice, 1999
  • University of Oklahoma College of Law · J.D., 2002; graduated in the top of his class
Read Aaron's full biographyVerify Board Certification with TBLS
Trial experience & approach

Aaron earned numerous jury verdicts at boutique personal injury litigation firms. According to his biography, he spent a year as the top-earning litigation attorney at a firm that frequently appeared in verdict searches as having one of the highest numbers of trial wins in Texas. At another Dallas personal injury firm, he moved from managing pre-litigation attorney to managing litigation attorney over seven years as the firm grew into one of Dallas's largest personal injury firms.

His biography describes a reputation as one of America's most aggressive trial lawyers, with noteworthy recoveries from judges and juries and substantial pretrial settlements. Most of those settlements included confidentiality agreements requested by the defense. Aaron has said the recoveries were justified by the injuries and losses involved, which no amount of money could make someone choose to experience.

His approach combines passion, preparation, persistence and courtroom imagination. He believes a well-supported, engaged and motivated team working cooperatively helps deliver strong representation, with the goal of achieving the best possible result for every client.

Dallas roots, military service & publication

Born and raised in Dallas, Aaron enlisted in the United States Marine Corps after high school and later received an Honorable Discharge. He completed his university and law degrees after his military service and became a lifelong Sooners football fan in law school.

Publication: “Litigating Dog Bite Cases,” Texas Dog Law Seminar, Dallas, 2009.

Professional affiliations & recognition

Professional affiliations and recognition listed in Aaron’s biography:

  • State Bar of Texas
  • American Bar Association
  • Association of Trial Lawyers of America (now American Association for Justice)
  • Texas Trial Lawyers Association
  • Dallas Trial Lawyers Association
  • Dallas Bar Association
  • Tarrant County Bar Association
  • Million Dollar Advocates Forum
  • The National Trial Lawyers – Top 100 Trial Lawyers

Trial experience & approach

Aaron earned numerous jury verdicts at boutique personal injury litigation firms. According to his biography, he spent a year as the top-earning litigation attorney at a firm that frequently appeared in verdict searches as having one of the highest numbers of trial wins in Texas. At another Dallas personal injury firm, he moved from managing pre-litigation attorney to managing litigation attorney over seven years as the firm grew into one of Dallas's largest personal injury firms.

His biography describes a reputation as one of America's most aggressive trial lawyers, with noteworthy recoveries from judges and juries and substantial pretrial settlements. Most of those settlements included confidentiality agreements requested by the defense. Aaron has said the recoveries were justified by the injuries and losses involved, which no amount of money could make someone choose to experience.

His approach combines passion, preparation, persistence and courtroom imagination. He believes a well-supported, engaged and motivated team working cooperatively helps deliver strong representation, with the goal of achieving the best possible result for every client.

Dallas roots, military service & publication

Born and raised in Dallas, Aaron enlisted in the United States Marine Corps after high school and later received an Honorable Discharge. He completed his university and law degrees after his military service and became a lifelong Sooners football fan in law school.

Publication: “Litigating Dog Bite Cases,” Texas Dog Law Seminar, Dallas, 2009.

Professional affiliations & recognition

Professional affiliations and recognition listed in Aaron’s biography:

  • State Bar of Texas
  • American Bar Association
  • Association of Trial Lawyers of America (now American Association for Justice)
  • Texas Trial Lawyers Association
  • Dallas Trial Lawyers Association
  • Dallas Bar Association
  • Tarrant County Bar Association
  • Million Dollar Advocates Forum
  • The National Trial Lawyers – Top 100 Trial Lawyers

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