No Timestamp, No Liability: How the Texas Supreme Court Just Made Slip and Fall Defense Stronger in H-E-B v. Peterson
- Zeke Moya
- 2 days ago
- 8 min read
By Zeke Moya · Partner, Roerig, Oliveira & Fisher, L.L.P. · McAllen, Texas · Texas Supreme Court Updates
H-E-B, LP v. Peterson, 732 S.W.3d 541 (Tex. 2026) · No. 24-0310 · Opinion delivered April
10, 2026 · Justice Bland · Corpus Christi-Edinburg Court of Appeals reversed · Trial court summary judgment reinstated
A grocery store patron slips on a puddle of clear liquid in a toy aisle. She has no idea how long the puddle was there. Her shopping companion can't say either. The store manager sees no leak. The plaintiff points to roof leaks elsewhere in the store, a two-hour gap in employee patrols, and a rainstorm that ended before she fell. The court of appeals said that was enough to go to a jury. The Texas Supreme Court said it was not. Result: summary judgment reinstated for the grocer. The lesson: without temporal evidence of how long a dangerous condition existed, there is no constructive knowledge — and without constructive knowledge, there is no liability.
The Case in Brief
On April 10, 2026, the Texas Supreme Court issued its opinion in H-E-B, LP v. Peterson, 732 S.W.3d 541 (Tex. 2026), reversing the Corpus Christi-Edinburg Court of Appeals and reinstating summary judgment in favor of H-E-B. The case arose from a slip and fall in the toy aisle of an H-E-B grocery store in Bexar County. Marissa Peterson slipped on a puddle of clear liquid, fell, and passed out. She had no idea how long the puddle had been there. Her companion estimated the puddle was roughly two feet across and initially thought he saw water dripping from the ceiling, but later recanted.
Peterson sued H-E-B for premises liability. She did not claim H-E-B had actual knowledge of the puddle. Instead, she argued H-E-B should have known — constructive knowledge. As evidence, she pointed to roof leaks elsewhere in the store from an earlier renovation project, a store policy of heightened inspections during rainstorms, and the absence of any employee in the toy aisle in the two hours before she fell.
The trial court granted summary judgment for H-E-B. The court of appeals reversed, concluding that evidence of roof leaks elsewhere in the store was enough to create a fact issue on constructive knowledge. The Texas Supreme Court disagreed, reversed, and reinstated summary judgment for the grocer.
The Three Holdings
Justice Bland's opinion for the Court rests on three separate and independently sufficient grounds, each of which is important for defense counsel to understand and use in motion practice.
Holding 1 — Vicinity of the Leak
Evidence of roof leaks outside the vicinity of the aisle where the plaintiff fell did not create a fact issue as to H-E-B's constructive knowledge of the puddle. The knowledge inquiry — whether actual or constructive — concerns knowledge of the dangerous condition at the time and place injury occurs, not some antecedent situation that produced the condition. To support a constructive knowledge finding in a roof leak case, the leak must be in the vicinity of the liquid on the floor. Leaks elsewhere in the store are not probative of the grocer's knowledge of a specific puddle in a specific aisle at a specific time.
Holding 2 — No Temporal Evidence
Peterson failed to produce temporal evidence of how long the puddle existed before she fell. Absent temporal evidence of the duration the danger existed, the law does not charge a premises owner with constructive notice. This is the time-notice rule — firmly rooted in Texas jurisprudence — and the Court reaffirmed it without qualification. Peterson's evidence addressed the possible cause of the puddle, not when it appeared or how long it had been on the floor.
Holding 3 — Internal Policies Do Not Create a Higher Standard
H-E-B's heightened inspection protocol during rainstorms did not create a fact issue as to constructive knowledge. The Court reaffirmed that a premises owner's internal policy does not subject it to a higher standard of care. An employee's proximity to a hazard, with no evidence of how long the hazard was there, does not show the owner's constructive knowledge of the hazard. No evidence placed any H-E-B employee near the puddle before the accident.
Why the Time-Notice Rule Is the Cornerstone
The time-notice rule is the central legal principle at stake in Peterson, and the Court's reaffirmation of it without modification is significant for defense counsel handling slip and fall cases across South Texas.
The rule exists for a straightforward reason: a factfinder cannot assess whether a premises owner had an opportunity to discover a dangerous condition without some temporal evidence indicating the condition existed long enough for a reasonable owner to have discovered it. Speculation about how long a puddle may have been on the floor — even reasonable speculation — is not evidence. The plaintiff must produce something that actually speaks to duration.
The Court has addressed this question before, and each time it has declined to relax the standard. The governing precedents form a clear line:
Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812 (Tex. 2002): No evidence of constructive knowledge where no evidence showed how long water had been on the floor near a soft-drink machine.
Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934 (Tex. 1998): Tracks, dirt, and testimony that macaroni salad "seemed like it had been there awhile" held insufficient to satisfy the time-notice rule.
Brookshire Brothers, Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014): Video footage showing employees repeatedly passing a large grease spill within five minutes before the plaintiff slipped held sufficient — because that evidence spoke directly to duration.
The contrast between Aldridge and Peterson is the key to understanding where the line is drawn. In Aldridge, the evidence established duration. In Peterson, the only evidence spoke to cause, not duration. Cause and duration are not the same thing, and the Texas Supreme Court will not allow one to substitute for the other.
The Court specifically addressed and rejected the three arguments Peterson made in an attempt to satisfy the time-notice rule:
The rain argument: Because rain ended two hours before her fall, Peterson argued the puddle must have existed for at least two hours. The Court rejected this — rain outside the store speaks to a possible cause of moisture inside the store, not to when any particular puddle appeared on the floor or how long it was there.
The drip argument: Peterson observed water dripping from a ceiling rafter above the puddle after she fell. The Court held that a drip addresses cause — it says nothing about when the drip created the puddle or how long the puddle had been on the floor before she slipped.
The size argument: Peterson's companion estimated the puddle at roughly two feet across. The Court held that puddle size, without more, does not allow a jury to infer duration. A large puddle could have formed quickly; a small puddle could have accumulated over hours.
What This Means for Defense Counsel in South Texas
Peterson is a defense-favorable decision on a high-volume issue. Slip and fall defense claims are among the most common premises liability cases filed in South Texas courts, and constructive knowledge is the most frequently contested element in grocery store, retail, and commercial property cases where the defendant had no actual knowledge of the condition.
Summary Judgment Is the Right First Move
Where the plaintiff has no direct evidence of how long the dangerous condition existed — no video footage of employees passing the condition, no prior incident reports for that specific location, no witness who observed the condition for any period of time before the plaintiff arrived — a no-evidence motion for summary judgment on the constructive knowledge element should be filed and seriously pressed. Peterson confirms that courts should grant that motion where the plaintiff's evidence addresses only the possible cause of the condition, not its duration.
The Plaintiff's Common Playbook Is Now Weaker
Peterson specifically addressed and rejected the three arguments plaintiffs most commonly make in transient-condition cases: pointing to other incidents or leaks elsewhere on the premises, arguing that the cessation of rain establishes a minimum time window, and relying on the size of the spill as circumstantial evidence of duration. All three failed. Defense counsel can now cite this decision directly when plaintiff's counsel makes these arguments.
Internal Policies Do Not Create a Higher Standard
The Court's reaffirmation that a premises owner's internal inspection policy does not subject it to a higher standard of care is equally important. In South Texas, plaintiffs regularly use a store's own safety procedures against the defendant. Peterson confirms that even a heightened rainstorm inspection protocol does not supply the missing temporal evidence of the condition's duration. The question remains what the premises owner actually knew or should have known.
Vicinity Matters in Leak Cases
Peterson clarifies that evidence of leaks or spills elsewhere on the premises is not probative of the defendant's constructive knowledge of a different condition at a different location. Defense counsel in grocery store, retail, and hospital premises cases should use Peterson to exclude or limit the relevance of evidence about conditions in other areas of the building.
Key Quotes From the Opinion
The following holdings are directly useful in motion practice and at trial.
"[A] party responding to a no-evidence motion for summary judgment in premises liability action must adduce some evidence showing the duration an unreasonably dangerous condition existed to raise a fact issue as to whether the premises owner had constructive notice of the condition at the time and place of the plaintiff's injury." — H-E-B, LP v. Peterson, 732 S.W.3d 541 (Tex. 2026)
"Absent temporal evidence of the duration that a danger existed, the law does not charge a premises owner with constructive notice of a dangerous condition, for purposes of a premises liability claim." — H-E-B, LP v. Peterson, 732 S.W.3d 541 (Tex. 2026)
"The proximity of a premises owner's employee to a hazard, with no evidence indicating how long the hazard was there, does not show the owner's constructive knowledge of the hazard." — H-E-B, LP v. Peterson, 732 S.W.3d 541 (Tex. 2026)
"A premises owner's internal policy does not subject it to a higher standard of care, for purposes of a premises liability claim." — H-E-B, LP v. Peterson, 732 S.W.3d 541 (Tex. 2026)
One Procedural Note Worth Flagging
The Court noted in footnote 8 that the amended version of Rule 166a — which took effect March 1, 2026 — did not apply to H-E-B's summary judgment motion because it was filed before that date. The Court confirmed, however, that the substantive caselaw on summary judgment standards remains unchanged by the amended rule. Courts should carry forward substantive caselaw preceding the amendments unless superseded by the new deadlines. This is consistent with the Texas Supreme Court's accompanying comments, which stated that the revisions were "not intended to substantively change the law."
For clients and adjusters tracking both the Peterson decision and the Rule 166a deadline changes covered in an earlier post, the procedural takeaway is clear: the law governing what evidence is required to survive summary judgment in a constructive knowledge case is unchanged.
The Bottom Line for Adjusters and Risk Managers
If you are managing a premises liability file in which the plaintiff cannot identify a witness who observed the dangerous condition before the fall, cannot produce video footage showing the condition was present for any meaningful period, and cannot point to a prior incident report or inspection record for that specific location — you have a legitimate argument for summary judgment on constructive knowledge under Peterson.
That is not a guarantee of dismissal. Courts still view the evidence in the light most favorable to the plaintiff on summary judgment, and the facts of every case are different. But Peterson confirms that circumstantial arguments about cause, size, and proximity are not substitutes for temporal evidence of duration, and that Texas courts will not relax this standard simply because evidence is difficult to obtain in transient-condition cases.
"Our Court repeatedly has rejected calls for a relaxed burden of proof in slip-and-fall cases when the evidence is scant." — H-E-B, LP v. Peterson, 732 S.W.3d at 548. That is the rule in Texas, and it applies in South Texas courts with equal force.
