Albertson's, Inc. v. Mungia

• Decision Date: 26 June 1980
• Docket Number: No. 1611,1611
• Citation: 602 S.W.2d 359
• Parties: ALBERTSON'S, INC., Appellant, v. Annie MUNGIA, Appellee.
• Court: Texas Court of Appeals

Page 359

602 S.W.2d 359

ALBERTSON'S, INC., Appellant, v. Annie MUNGIA, Appellee.

No. 1611.

Court of Civil Appeals of Texas, Corpus Christi.

June 26, 1980.

David J. Dunn, Kleberg, Dyer, Redford & Weil, Corpus Christi, for appellant.

Jack P. Kelso, Corpus Christi, for appellee.

OPINION

BISSETT, Justice.

This slip and fall case involves an appeal by Albertson's, Inc., defendant in the trial court, from a judgment awarding Annie Mungia, plaintiff in the trial court, $7,192.79 for injuries she allegedly sustained in defendant's grocery store. Trial of the cause was to a jury which answered special issues favorably to plaintiff. Judgment was rendered on the verdict for plaintiff.

Defendant's points of error may be grouped into four general areas of contention. First, defendant complains that the evidence is legally and factually insufficient to support any finding that water which allegedly caused plaintiff's fall had been on defendant's floor for such a period of time that it should have been discovered and removed by defendant in the exercise of ordinary care. Second, defendant claims that the evidence is legally and factually insufficient to support any finding that defendant was negligent in failing to remove water from its floor. Third, defendant asserts that the evidence is overwhelming that plaintiff was comparatively negligent in failing to keep a proper lookout while she was leaving defendant's store. Finally, defendant alleges jury misconduct for which a new trial should have been granted by the trial court.

We begin by reviewing the testimony of the various witnesses as a prelude to addressing the evidentiary points raised by defendant. Plaintiff testified that she and two of her children went to defendant's store in Corpus Christi on July 30, 1978, to eat at the store's snack bar. They entered through a side exit, walked to the snack bar past some cash registers, spent about thirty minutes eating, and then returned to exit the store the same way they entered. As they passed an ice machine, plaintiff said that she slipped on "a lot of water" which she had not previously noticed. The water was clear and in front of the ice machine "sort of like a stream way down toward the cashier." The ice machine was about ten feet from the closest cash register and plaintiff was about five feet from the ice machine. She was wearing tennis shoes at the time and was watching where she was walking. When she slipped she "sort of gave out a yell" and "there was this girl there" who "just came and stood there" and "hollered to this boy, this sack boy there . . . Hey, would you come over here, and would you get the mop and come mop here. There is water there on the floor. There is going to be some more people falling down here." Plaintiff described the girl as "young, probably about seventeen or eighteen years, and she was anglo. She had her hair sort of blondish." Plaintiff also testified that after her fall she saw the water around the ice machine and underneath the machine. At the time of the fall, there was a sack boy standing at the ice machine who was handing a bag of ice to a customer. It was drizzling rain on the day in question, but plaintiff did not see any muddy footprints around the ice machine. She had no way of knowing how long the water had been there before she slipped and fell.

Most of plaintiff's testimony was confirmed by her daughter, who was with her on the day in question. She was walking behind her mother and did not see the water before the fall. She did not remember the exact words used by the blond, anglo employee described by her mother. But, she stated that the water was around the ice machine and was leading like a "little stream or something from the ice machine to the check-stand." She also stated that there was an employee at the ice box handing a bag of ice to a lady consumer. The daughter also had no idea how long the water had been on the floor.

The testimony of plaintiff and her daughter was contradicted by employees of defendant. The store manager testified that he did not become aware of the alleged accident until the following day. According to the manager, he talked to the front-end manager in charge at the time of the accident who did not have any personal knowledge of the incident. In fact, he had contacted everyone who was working at the store in the area of the alleged accident on the day in question and had found no person with any personal knowledge of the incident. The store had never had any problem with the ice machine regarding water running out from under it, although occasionally a piece of ice might fall off a bag and create a small puddle.

According to the store manager, the only employee who fit the description by plaintiff of the girl who gave instructions for someone to get a mop was the assistant front-end manager. She testified that she did not recall anyone slipping and falling in the front of the store on the day in question. Furthermore, she did not recall any large puddle of water running out from underneath the ice machine on that day. Other witnesses corroborated her testimony. Obviously, since all defendant's witnesses disavowed any knowledge of the accident, there was no testimony which contradicted plaintiff's claim that she was watching where she was walking immediately prior to the alleged slip and fall.

In a slip and fall case, it is incumbent upon the plaintiff, in order to establish liability against the defendant operator of the store, to show: 1) defendant put the foreign substance upon the floor; or 2) defendant knew the foreign substance was on the floor and willfully or negligently failed to remove it; or 3) the foreign substance had been upon the floor for such a period of time that it would have been discovered and removed by defendant had defendant exercised ordinary care. H. E. Butt Grocery Company v. Tester, 498 S.W.2d 683 (Tex.Civ.App. Corpus Christi 1973, no writ); H. E. Butt Grocery Company v. Marroquin, 466 S.W.2d 837 (Tex.Civ.App. San Antonio 1971, no writ).

In the case at bar, the jury was asked whether the water had been on defendant's floor for such a period of time that it would have been discovered and removed by defendant in the exercise of ordinary care. The jury was instructed to find whether the failure of defendant to remove the water prior to plaintiff's fall was negligence. The jury answered both questions affirmatively. It also found that plaintiff slipped and fell in defendant's store on July 30, 1978, as the result of water on the floor. This latter finding is not attacked by defendant in this appeal.

In reviewing the evidence in order to address defendant's complaints regarding the jury findings that the water was on defendant's floor for a sufficient period of time, and that defendant was negligent in failing to remove it, we follow the well established rules applicable to a case of this type. In reviewing defendant's no evidence points we consider only the evidence and inferences tending to support the jury findings (the testimony of plaintiff and her daughter), and we disregard all contrary evidence and inferences (testimony of defendant's employees). Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup. 1965). In reviewing defendant's factual insufficiency and great weight points we consider all the evidence to determine whether the jury findings are manifestly unjust. In Re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The facts of the case at bar closely resemble those of H. E. B. Food Stores v. Slaughter, 484 S.W.2d 794 (Tex.Civ.App. Corpus Christi 1972, writ dism'd). In Slaughter, plaintiff slipped and fell in defendant's store. At the time she fell, plaintiff heard a man who was unloading produce a few feet away state: "She fell on those grapes." Plaintiff testified that there were grapes and puddles of water on the floor. We held that the spontaneous res gestae type statement made by the man unloading the produce created the reasonable inference that defendant's employees knew that loose grapes were on the floor a sufficient length of time, so that such grapes should have been removed in the exercise of ordinary care.

Defendant asserts that the statement allegedly uttered by the "blond, anglo" employee of defendant in the case at bar to the effect that someone ought to get a mop and clean the water off the floor to avoid other accidents was not a spontaneous res gestae type statement. Defendant also contends that the alleged utterance is not...