How do a Walmart spill’s size, color and visibility affect constructive notice in Texas?

Once someone circles a wet patch in a photograph, it is hard to look anywhere else. That is useful for locating the condition. It can also make the condition seem easier to see than it was to someone approaching through the store.

Preserve the unmarked photograph too. A reviewer needs the scene as recorded, not only the version prepared to explain the claim.

What “conspicuity” adds to the notice question

A clear plastic ring was behind the employee in Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566 (Tex. 2006). She was three to five feet away. The shopper had stood beside her for roughly 30 to 45 seconds. On those facts, the Texas Supreme Court held that the evidence did not establish constructive knowledge.

Spates does not rule out claims involving clear substances. It requires an examination of the circumstances, including time and proximity.

Photograph the route as well as the liquid

If it can be done safely, record a wider view showing where the customer came from. Then show the condition more closely. The wider view may reveal a display, a change in flooring, overhead reflection or the distance between the spill and an employee's position.

A picture taken after cleanup needs that explanation. The same goes for a cone brought over after the fall. Ask the person who took the picture about both before using it to describe what the customer encountered. Save the untouched file alongside any edited copy.

Size is not a clock

An entire bottle can empty onto the floor at once. A little liquid can also sit undisturbed for a while. How much liquid appears in the photograph therefore tells us little about when it arrived. Look instead for someone who saw the spill earlier or a recording of its source. Record tracks through the liquid, but do not guess when those tracks were made.

Once a period is supported by evidence, visibility helps assess the opportunity to discover the spill. That is part of the constructive-notice inquiry.

Different observers may have different views

An employee standing at the end of the aisle may face the floor from a different angle than a customer turning a corner. Glare can change with position. Merchandise can hide a low patch of floor from one route while leaving it visible from another.

Use the employee’s position when assessing the store’s opportunity to discover the spill. The customer’s approach matters to the separate open-and-obvious defense. One person’s view does not establish everyone else’s.

Useful observations to record

Record the substance as you actually observed it. If you do not know whether clear liquid was water, cleaning solution or something else, describe it as clear liquid rather than guessing. Note the location, approximate extent, lighting and obstructions.

Get accounts from people who saw the floor before cleanup. Retain observations that the floor looked dry as well as observations of liquid. Compare where each person stood and when they passed.

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

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.