Investigating when a warehouse-club spill was reported or discovered.
Short answer: Look for evidence from before the fall: a report to Costco, an employee’s observation or proof that a worker created the spill. If the claim depends on what Costco should have discovered, you will need evidence of how long the liquid was there. A later photograph can document the wet floor, yet leave that timing question unanswered.
For actual knowledge, look for an observation or communication tied to this hazard. Useful leads include a customer’s warning, a radio call, a manager’s message, a cone or a worker’s account of a leaking package. Establish the time and location for each. “Water near the coolers” could describe a different aisle, and a message sent after the injury does not establish an earlier warning.
How long was this spill on the floor? That is the question behind constructive notice. In Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 816 (Tex. 2002), an employee’s proximity did not supply the missing time evidence. Put the available records together, but ask what each actually establishes:
- Video: the first visible spill, any cleanup and the fall.
- Inspection entry: when the location was checked and what was observed.
- Witness: a firsthand observation, with an explanation of the time estimate.
- Transaction or employee record: check whether its time helps place a person in the aisle. Do not treat that record alone as evidence of a wet floor.
For an example of insufficient timing proof, read H-E-B, LP v. Peterson, No. 24-0310 (Tex. Apr. 10, 2026). The earlier leaks discussed there were at other locations. The inspection evidence also failed to date the puddle that caused the fall. A history of problems may prompt questions, but it does not answer when this spill appeared.
To check whether an employee could see the liquid, work through the physical details:
- Mark the worker’s position and the direction they faced.
- Identify any cart, display or shelving between the worker and the spill.
- Check the lighting and how the liquid looked against the floor.
Being close to a spill is not the same as seeing it. The time analysis also depends on the circumstances, rather than a fixed number of minutes. The companion article discusses how long a spill must exist.
Three distinct routes to notice
If you warned an employee before the fall, write down what you remember saying. Identify the employee if you can, or describe where they were and what they were doing. Mark the wet area on a diagram. Tell your lawyer whether you are sure of the time or are estimating it. “By the coolers” may mean different places to different people, so the location deserves as much attention as the warning itself.
Preserve the witness’s first account as given. Later, compare its time estimate with any radio recording, message or footage of a cone being placed. Retain the original timestamps. If two clocks disagree, find out why before assigning an exact time to the warning.
Employee creation is a separate route to investigate. A worker carrying a leaking package may explain how liquid reached the floor, but the footage or testimony must connect that activity to the spill. Stocking shelves somewhere in the aisle is not enough. Follow the package, the worker’s path and the resulting condition as far as the evidence permits.
Before subtracting times, check what the earlier entry actually says:
- “Floor clean at 2:02.” Here, the entry records an inspection before any observed spill. Nothing in that entry dates the liquid’s arrival. It leaves open both an early spill and one just before the fall.
- “Same spill visible at 2:02.” This puts liquid at the start of the interval. To measure a minimum duration, check that the spill remained there through the time of the fall.
Look for cleanup, a different spill or a gap in the recording before treating two observations as one continuous condition.
Worked evidence example
In this hypothetical, the shopper falls at 2:20:
| Time | What the footage shows | What still needs checking |
|---|---|---|
| 2:02 | Liquid at the later fall location | Is it liquid rather than a reflection? Does it remain there? |
| 2:12 | A worker crosses that patch | Could the worker see the floor? Was anything blocking the view? |
| 2:20 | The fall | Do the cameras use synchronized clocks? |
After checking the footage and clocks, the example supports at least 18 minutes of liquid on the floor. Is that enough time for reasonable care to find it? The answer also requires the circumstances described above, including visibility and the employees’ opportunity to discover it. Eighteen minutes is a fact in this example, not a legal cutoff.
Now suppose the 2:02 image shows a dry floor. The next customer enters at 2:19. That sequence leaves a gap; it does not prove the customer caused the spill. Watch what the customer does and compare the footage with firsthand accounts. You may still be unable to date the spill, even with a clear image of the fall.
Case-building questions
Use the investigation to answer concrete questions: What put the liquid there? What is the earliest reliable observation of it? Who could see it from the approach to the aisle? Was anyone warned before the fall? Where was the warning placed, and what happened next? A gap in one answer should guide the next request for evidence.
Ask counsel about preserving and requesting these records for a reasonable period around the fall:
- The original video files and a diagram showing what each camera covers.
- The inspection entries that actually concern this part of the store.
- Messages about the incident and original photo files.
- Witness accounts that identify what the witness personally observed and when.
For summary judgment, identify the actual record supporting the proposed route to notice. Reece, Spates and Peterson do not allow employee proximity or a general policy to stand in for missing evidence about the condition.
Investigation and courtroom application
At a deposition, give the witness a diagram that accurately depicts the relevant aisle. Ask them to mark where they saw liquid, where the employee stood and the route taken. Record what the witness actually said to the employee. The employee can then explain what they understood and what they did. Compare the answers with the camera’s view. Conflicting accounts should remain identifiable in the case chronology.
A radio message may challenge a worker’s statement that no warning was received. Check who spoke, who received it and which spill they discussed. No recording does not necessarily mean no warning: staff may have spoken face to face. If you gave the warning, describe the person and the time as accurately as you remember them. A report you made after being injured should be identified as a later report.
The jury should be able to follow the evidence from the first warning or observation through the fall. Who knew? What did they know? How much time did they have to respond? For constructive notice, counsel can show the earliest supported spill image alongside the image of the fall, explain the interval and identify any missing footage. Proof of notice alone does not establish the other required elements of a premises claim.
For the broader claims framework, see the Texas Costco injury claims and litigation guide and how to litigate a Costco injury case in Texas.
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