Unreported / Non-Citable
Background
On June 10, 2022, Mary McSwain slipped and fell on cottage cheese while shopping at Fiesta Mart #51 in Houston, Texas. Before her fall, McSwain saw a wet floor cone positioned approximately six to ten feet away from the spill. After she fell, a store manager instructed an employee to move the cone, noting it was in the wrong location. McSwain filed a premises liability action on October 9, 2023, in Harris County District Court; the case was removed to federal court on November 1, 2023, based on diversity jurisdiction.
On October 24, 2025, Fiesta Mart filed a Motion for Summary Judgment, arguing no evidence established the store had actual or constructive knowledge of the cottage cheese before McSwain’s fall. McSwain responded on June 9, 2026, and the court issued its decision denying summary judgment on June 30, 2026.
The Court’s Holding
The court denied Fiesta Mart’s Motion for Summary Judgment, finding that McSwain raised a fact issue as to whether the store had actual knowledge of the dangerous condition. Under Texas law, a premises liability plaintiff must prove four elements, including that the property owner had actual or constructive knowledge of the condition causing injury. The dispositive issue was whether circumstantial evidence—specifically, the wet floor cone’s placement and subsequent repositioning—could support an inference of actual knowledge.
The court held that the evidence directly or by reasonable inference supported the conclusion that Fiesta Mart knew of the cottage cheese spill. The court emphasized three facts: (1) the store trained employees to place wet floor cones on top of spills; (2) a cone was placed six to ten feet from the cottage cheese; and (3) immediately after the accident, an employee was told to move the cone closer to the spill. This sequence of events, the court reasoned, permitted a jury to infer the store’s knowledge of the hazard. The court distinguished the case from situations involving mere speculation, citing City of Houston v. Crawford for the proposition that placement of safety cones around a problematic area can permit reasonable inferences of actual knowledge.
Key Takeaways
- Circumstantial evidence, including the placement and repositioning of safety cones, can create a fact issue regarding a property owner’s actual knowledge of a dangerous condition.
- When a store has trained procedures for placing cones on spills, the presence of a cone in proximity to a hazard supports an inference that management knew of the danger.
- A fact issue exists when evidence directly or by reasonable inference establishes actual knowledge; summary judgment is inappropriate when reasonable minds could differ on this point.
- The subsequent movement of a cone after an accident can strengthen the inference that the store was aware of the spill’s location and nature.
Why It Matters
This decision provides practical guidance for premises liability plaintiffs in slip-and-fall cases. Courts will permit jury consideration when circumstantial evidence—such as safety cone placement—creates an inference of actual knowledge. The ruling prevents summary judgment dismissals that might otherwise end cases prematurely, giving injured parties a realistic opportunity to present evidence to a jury about whether the store’s procedures and cone placement demonstrate prior awareness of the hazard. For defendants, the decision underscores that safety measures, when improperly executed, can paradoxically serve as evidence of actual knowledge rather than adequate precaution.
More broadly, the decision reflects Texas premises liability law’s recognition that property owners cannot insulate themselves from liability through safety procedures that are inconsistently applied or that inadvertently signal awareness of the very hazards they purport to protect against.