Quick answer
A sign in a photograph does not answer the warning question by itself. The customer's approach, the hazard the sign addressed, and the time available to react all matter. An adequate warning can satisfy a premises owner's duty; whether a warning was adequate depends on the evidence in that case.
A photograph shows two cones in an entryway. Does that end the case? In Sparkman, it did not.
The Walmart knowledge hub explains the broader claim. This article looks at the warning itself, which is a different question from whether a cone establishes knowledge of the condition.
Two warning cases
Two warning cases: what the records showed
| Case | What the court considered |
|---|---|
| Sparkman: signs at the entrance | Kimberly Sparkman slipped as she entered the Hickory Creek Walmart on a rainy day. Two caution signs were in the entryway. Employees had used a dust mop that spread the water rather than absorbing it, while the glossy floor made the accumulated water difficult to spot. The court evaluated the warning evidence in light of that record. In Wal-Mart Stores, Inc. v. Sparkman, No. 02-13-00355-CV (Tex. App.—Fort Worth Dec. 11, 2014), the court upheld the jury's finding that the warnings were inadequate. The record included testimony about their small size, low height and placement. Two signs did not establish an adequate warning as a matter of law. That decision addressed the evidence before the court. It did not prescribe a universal cone height or establish that two signs are always inadequate. |
| Autrey: a disputed verbal warning | In Wal-Mart Stores Texas, LLC v. Autrey, No. 06-19-00095-CV (Tex. App.—Texarkana 2021), the evidence concerning a verbal warning conflicted. The court upheld the jury's finding on the record, which included differing accounts of whether the warning came before the fall. |
What danger did the warning communicate?
Look at which condition the warning identifies. A sign at the entrance may concern water tracked in from outside. If a different spill is farther inside the store, its position and wording must be evaluated against what a customer approaching that spill could understand.
Where it is safe to photograph the area, record the customer's approach as well as the sign. Include obstructions and the edges of the wet area. A close-up alone leaves that setting out.
Keep the original photographs and identify when they were taken; a later scene may differ from the one the customer encountered.
A verbal warning raises a timing question
A warning can be spoken. Evidence still has to address the words, the person who heard them and their timing. A warning given as someone falls presents a different question from one given in time to avoid the condition.
Keep separate accounts from people who spoke or heard a warning. Silent video may help establish where people stood and when they moved; it cannot, by itself, supply disputed words.
Warning and making safe
Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (Tex. 2015), explains the general premises-liability rule and its limited exceptions. A premises owner ordinarily may satisfy the relevant duty by making a concealed danger reasonably safe or adequately warning the invitee. It is inaccurate to state that the owner must always do both.
The warning must fit the condition at issue. Whether the danger was known or obvious is a separate duty question, and the answer depends on the facts.
Preserve the warning as it happened
Warning evidence to preserve
| Evidence | What to record |
|---|---|
| Position | Where the sign stood, relative to the spill and the customer’s route. |
| Timing | When it was placed or moved. |
| Verbal warning | Who heard a verbal warning and what they remember. |
| Scene changes | Changes to the scene after the fall. |
Keep the original spill report and response records if they are available.
For the broader litigation process, read How to Litigate a Walmart Injury Case in Texas.
Questions about warning evidence
Does a cone automatically prove the warning was adequate?
No. A cone's placement, visibility, timing and connection to the wet condition are questions for the evidence. Sparkman concerned the particular record before that court.
Can a spoken warning count?
Yes. The evidence still needs to establish the words, who heard them and when. The accounts in Autrey conflicted.
Should I keep the original records?
Yes. Keep the spill report and response records in their original form, together with any photographs or video showing the warning in context.
Discuss a Texas Walmart injury claim
Contact The Law Firm of Aaron A. Herbert, P.C., at (214) 949-1657 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.
ABOUT THE ATTORNEY
Aaron A. Herbert
Founding Attorney
Board Certified in Personal Injury Trial Law
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
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