The ruling that reset the constructive-notice fight
On April 10, 2026, the Supreme Court of Texas reinstated summary judgment for the grocer in H-E-B, L.P. v. Peterson, No. 24-0310, and drew a hard line under a question premises practitioners have argued around for years: how much proof of duration does a plaintiff need before a slip-and-fall reaches a jury? The answer is unforgiving. Constructive notice requires evidence that the specific hazard existed at the specific place of injury long enough that a reasonable owner should have found and removed it. Nothing softer survives a no-evidence motion.
Marissa Peterson slipped on a clear puddle in an H-E-B toy aisle. To defeat summary judgment she pointed to prior roof leaks elsewhere in the store and to the chain's general inspection policies. The Thirteenth Court of Appeals thought that raised a fact issue. The Supreme Court disagreed, holding that leaks in other parts of the building, generalized housekeeping protocols, and speculation about how the water arrived cannot substitute for proof of how long that puddle sat in that aisle. This is a plaintiff-side wake-up call, and it travels well beyond Texas.
Why "it must have been there a while" keeps losing
Peterson is an heir to Wal-Mart Stores, Inc. v. Reece, where the court held more than two decades ago that temporal evidence, some proof of how long the condition existed, is the linchpin of constructive notice. Peterson refuses to let a plaintiff paper over a missing timeline with evidence of the defendant's general sloppiness. If your only theory is that a large store with imperfect maintenance probably had the spill on the floor for a while, you do not have a timeline. You have a hunch, and a hunch draws a directed verdict.
The lesson for case-building is to stop treating notice as something you argue and start treating it as something you clock. Duration is a fact with a beginning and an end, and you prove it the way you prove any interval: with a before and an after.
What actually counts as temporal evidence
- Dry-to-wet testimony: a witness or employee who walked the same aisle minutes earlier and saw a clean floor.
- Age on the hazard itself: cart-track marks through a spill, drying or crusted edges, footprints, dirt and debris worked into the substance.
- Time-stamped video showing the substance reaching the floor, or showing how long it has been since the last inspection pass.
- Inspection records tied to the exact location and time, not a corporate policy binder describing what should have happened.
Build the clock before you file
The counter to Peterson is preservation, and it starts on intake. Most retail surveillance systems overwrite on a 14 to 30 day loop, so a preservation demand that goes out in week six is often a demand for footage that no longer exists. Send the litigation hold and evidence-preservation letter the day you sign the client, identify the camera coverage by register or aisle, and specify the window in hours on either side of the fall. Then follow with targeted discovery.
Ask for sweep logs and zone-inspection sheets for the specific department, the maintenance and work-order history for that ceiling or cooler if a leak is in play, and the incident report the store manager filled out within minutes of the fall. That report frequently contains the store's own estimate of how long the hazard was present, an admission that can carry the temporal element by itself. For a broader treatment of preservation workflow, see our coverage under slip-and-fall.
Mode-of-operation states play by different rules
Peterson tracks the majority approach, under which the plaintiff proves notice in every case. A shrinking set of jurisdictions recognize the mode-of-operation doctrine, which lets a plaintiff skip the notice element where a self-service method makes recurrent spills foreseeable, think of a self-serve salad bar or a loose-grape display without floor mats. Even there the doctrine is narrowing, and courts increasingly demand that the plaintiff tie the fall to the specific self-service operation rather than to the store's general character. Know which framework governs before you plead, because it dictates whether the timeline is dispositive or merely helpful.
The open-and-obvious problem sits on the other side
Even a clean notice record runs into the open-and-obvious defense, which many states treat as bearing on duty rather than only on comparative fault. The answer is usually distraction and foreseeability: a grocer arranges displays precisely to pull a shopper's eyes to the shelf, so a hazard at foot level is not obvious in any meaningful sense. Preserve that argument in the complaint and in your client's testimony rather than conceding the point in deposition.
The takeaway
Peterson does not make premises cases unwinnable. It makes sloppy ones losable at summary judgment and disciplined ones stronger. Treat duration as the case within the case, move on preservation immediately, and read every new premises ruling as a checklist item. Practitioners tracking how appellate courts are tightening these standards should follow our case-law and settlements reporting, and firms refining intake and evidence-hold procedures will find more in practice operations.