Supreme Court of Texas Reinstates Summary Judgment for H-E-B in Slip-and-Fall Case, Holding Earlier Roof Leaks Elsewhere in Store Did Not Show Constructive Knowledge of Puddle

The decision

On April 10, 2026, the Supreme Court of Texas reversed a judgment of the Court of Appeals for the Thirteenth District and reinstated a trial court’s summary judgment for H-E-B, LP in a premises liability suit brought by a customer who slipped on a puddle in a store aisle. In an opinion by Justice Jane N. Bland, the court held that “a party responding to a no-evidence motion for summary judgment must adduce some evidence showing the duration an unreasonably dangerous condition existed” in order to raise a fact issue on whether the premises owner had constructive knowledge of the condition. The court concluded that evidence of earlier roof leaks elsewhere in the store did not supply that evidence, and that the record contained no evidence of how long the puddle had been on the floor.

Background

According to the opinion, Marissa Peterson slipped on a clear liquid puddle and fell while shopping in the toy aisle of an HEB grocery store. She sued HEB for premises liability, alleging that HEB knew or should have known of the risk the puddle presented and failed to warn of it or make the premises reasonably safe.

Peterson testified in her deposition that after she fell she noticed a puddle about six or seven inches wide and saw water dripping from a ceiling rafter above it. She could not remember whether there were tracks through the puddle and had “no idea” how long it had been there. Her shopping companion testified that the two had arrived at the store two or three minutes before the fall and estimated the puddle was “probably two feet across.”

The responding store manager observed a “small spot of water” but no leak or drip. He listed “rain” as the source on the incident report because it had rained earlier that day and no other source was apparent. He did not report a leak for repair.

The opinion recounts that HEB conducted heightened inspections during rainstorms and that, in the year before the fall, the store had experienced numerous leaks connected to a remodeling project. Roof repair records for the year before and the year after the fall show leak repairs throughout that period, but “do not reveal any reports of a leak above the toy aisle or corresponding roof repairs ahead of the incident,” nor any such report afterward.

After the trial court excluded a report and testimony from Peterson’s expert, HEB moved for traditional and no-evidence summary judgment, arguing that no evidence showed its actual or constructive knowledge of the puddle or when the puddle formed. In response, Peterson did not dispute that HEB lacked actual knowledge. She argued a fact issue existed on whether HEB should have known of the puddle. Her evidence included the incident report listing “rain” as the source; video showing the rain had stopped two hours before the fall; footage of the walkways at the ends of the aisle, which the opinion says “indicates no HEB employee had walked down the aisle in the two hours before Peterson’s fall”; testimony from a representative of the property owner that the roof leaked “every time it rain[ed]” because of the renovation, with leaks concentrated in the southern portion of the store rather than near the toy aisle; the manager’s testimony about the inspection protocol; and her own observation of the dripping rafter.

The trial court granted summary judgment for HEB. The court of appeals reversed, concluding that earlier roof leaks need not be in the area of the puddle to support a finding of constructive knowledge, and held that the trial court partially erred in excluding the expert’s deposition testimony. HEB petitioned for review on both rulings. The case was argued December 3, 2025.

The court’s reasoning

The standard

The court reviewed the summary judgment de novo, viewing the evidence in the light most favorable to Peterson. Citing Keetch v. Kroger Co., it listed the elements of a premises liability claim by an invitee and stated: “In this appeal, the only element at issue is whether HEB, as the occupier of the premises, possessed constructive knowledge of the puddle.” Because Peterson conceded HEB had no actual knowledge, she was required to present some evidence that, in the words of Wal-Mart Stores, Inc. v. Reece, “it is more likely than not that the condition existed long enough to give the premises owner a reasonable opportunity to discover it.”

Earlier roof leaks elsewhere in the store

The court first held that evidence of earlier roof leaks outside the vicinity of the toy aisle did not raise a fact issue on constructive knowledge. It relied on City of San Antonio v. Rodriguez, a 1996 decision in which the court reversed a verdict for a plaintiff who slipped on a wet floor and had relied on evidence of earlier roof leaks. In Rodriguez, the court had said that “[t]he leaky roof was not itself a dangerous condition; it could only cause a dangerous condition,” and that whether such evidence supported constructive knowledge depended on the position of the leaks above the floor and the amount of rain. From this, the court stated: “To support a constructive knowledge finding, a roof leak must be in the vicinity of the liquid on the floor.”

Even with knowledge of a leak, the court continued, that notice must correlate to the alleged dangerous condition. Quoting Albertsons, LLC v. Mohammadi and Brookshire Grocery Co. v. Taylor, it stated that the knowledge inquiry concerns the condition “at the time and place injury occurs, not some antecedent situation that produced the condition.” The court concluded that the court of appeals “removed the time and place element in error.” It noted that the buckets, trash cans and signs observed on the day of the fall were not in the toy aisle, and that Peterson conceded no records showed a leak in that vicinity in the year before her fall. Although roof repair records “may support other elements of a premises liability claim,” the court stated, older, repaired leaks elsewhere in the store were not probative of HEB’s constructive knowledge of a puddle in the toy aisle at the time and place of injury.

The remaining evidence

The court then addressed Peterson’s other evidence and concluded that none of it tended to prove how long the puddle had been on the floor. Citing Reece, it stated that absent temporal evidence, the law does not charge a premises owner with constructive notice, because a factfinder cannot assess whether the owner had an opportunity to discover a condition without some indication that it existed long enough to be found.

Applying that rule, the court wrote: “Rain speaks to a possible cause of the condition, but not to the condition itself or when it arose inside the store.” It added: “A drip from a rafter similarly addresses a cause; it says nothing about when the drip created the puddle or the puddle’s duration on the floor before Peterson slipped.” The size of the puddle, without more, did not allow a jury to infer duration.

As to the rainstorm inspection protocol, the court stated that nothing about it indicated how long the puddle had existed. Quoting Reece, the court said an employee’s proximity to a hazard, without evidence of how long the hazard was there, does not show constructive knowledge, and it found: “No evidence suggests an HEB employee neared the puddle before the accident.”

The court acknowledged that proving constructive knowledge of transient conditions such as puddles is difficult, but stated that it has repeatedly rejected calls, in the words of Gonzalez, “for a relaxed burden of proof in slip-and-fall cases when the evidence is scant.” It concluded: “Constructive knowledge of a dangerous condition requires evidence that the condition existed for a sufficient duration before the time and place of the injury for a premises owner to have discovered it.”

Issues not decided

The court stated it did not address HEB’s challenge to the court of appeals’ reinstatement of some of the expert’s testimony, because that testimony did not show how long the puddle existed. The court did not decide whether the puddle was unreasonably dangerous, whether HEB exercised reasonable care, or causation.

Separate opinions

None.

Status

The court reversed the court of appeals’ judgment and reinstated the trial court’s summary judgment for HEB. The opinion does not order a remand. As of publication, the decision had been noted in a post by the Texas Civil Justice League and in a client alert by Cozen O’Connor.