Boyer v. Scruggs

• Decision Date: 28 March 1991
• Docket Number: No. 13-90-427-CV,13-90-427-CV
• Citation: 806 S.W.2d 941
• Parties: Paul BOYER, D/B/A Born Again Auto Sales, Appellant, v. Bill E. SCRUGGS, Jr., Appellee.
• Court: Texas Court of Appeals

Page 941

806 S.W.2d 941

Paul BOYER, D/B/A Born Again Auto Sales, Appellant, v. Bill E. SCRUGGS, Jr., Appellee.

No. 13-90-427-CV.

Court of Appeals of Texas,

Corpus Christi.

March 28, 1991.

Kemper Stephen Williams, III, Cullen, Carsner, Seerden & Cullen, Victoria, for appellant.

David C. Griffin, Houston, Marek & Griffin, Port Lavaca, Cynthia T. Sheppard, Houston, Marek & Griffin, Victoria, for appellee.

Before NYE, C.J., and BENAVIDES, and HINOJOSA, JJ.

OPINION

NYE, Chief Justice.

This is a premises liability case. Paul Boyer, individually and doing business as Born Again Auto Sales (Auto Sales), appeals the jury's findings in favor of appellee, Bill Scruggs, for injuries Scruggs sustained while on the Auto Sales premises. Appellant asserts six points of error. We affirm.

At the time of his injury, appellee worked as a mechanic for a Texaco service station in Victoria, Texas. Appellee testified that he visited the Auto Sales lot, while in the course of his employment, to collect payment for his repair of a van owned by Auto Sales. While inside the Auto Sales office, appellee conversed with Cynthia Livasy, his former girlfriend. He stated that Livasy pushed him into the front door of the Auto Sales office causing him to break the door's glass window and injure his left arm. Appellee testified that the glass in question did not shatter, rather, it broke in jagged edges, "like knives."

Appellant testified that he did not know what type of glass was in the Auto Sales entry doors. Later, he stated that the window was evidently filled with plate glass. He testified that the City, the bank, and his insurance company inspected the building before he purchased it. Earlier, he stated in his deposition that no safety inspections were performed other than "the fire and safety people ... telling [him] how many fire extinguishers [he] needed to keep full and where [he] needs to keep them placed."

Robert Wycoff, a licensed consulting engineer, testified about the use of different types of glass installed in buildings. Two types of glass are used in commercial buildings, namely, plate glass of varying thicknesses or safety glass, whether tempered or laminated. The most popular safety glass is tempered glass because it is designed to break into small particles. In contrast, plate glass breaks into large, sometimes dagger-like pieces. Safety glass is used to reduce the danger of being cut should the glass break. By statute, all safety glass must have a permanently affixed label identifying it as safety glass. Plate glass has no permanent label requirement.

Engineer Wycoff believed that appellee was injured by plate glass. He based his opinion upon his conversations with appellee's counsel as well as his examination of a letter by Dr. Pena, one of appellee's physicians, who described how appellee's injury occurred and the extent of his injuries. Although he did not see the broken glass in question, Wycoff believed that the depth and extent of the wound could not have been caused by safety glass.

Wycoff also testified that the Standard Building Code adopted by the City of Victoria required that safety glass be used in doors and in areas installed with glass within forty-eight inches of a door. This code requirement was effective at the time of appellee's injury and remained effective at the time of trial. Since appellant's building was constructed before the City enacted the safety glass requirement (in areas at or near points of entry to businesses), appellant was not required to have safety glass by virtue of a "grandfather clause." The City now classifies entry doors with windows in them as "hazardous locations." If a window did not have a sticker affixed to it, he would assume that it was not safety glass.

Wycoff opined that it was dangerous to have a plate glass window in the entry door of a business. This is so because it is foreseeable that a person could either be pushed or stumble and fall into the glass or push their hand against the window to open the door, thus breaking the glass. Broken safety glass will cause small, minor cuts, but broken plate glass will cause much larger injuries. Wycoff concluded that a reasonably prudent business owner moving into an older building would have it inspected for safety to protect the public and himself.

Elmer Chappell, a safety consultant, inspected the windows and doors at the Auto Sales office after appellee's injury. He stated that reinforced glass should have been installed in the windows in the doors. Further, even though not required by law, safety glass should be installed in every door which was used in the same manner as the front door at Auto Sales. He was of the opinion that it was much more dangerous to have plate glass in a window or door than safety glass. The front door at Auto Sales was a high-traffic area and plate glass windows heightened the possibility of injury. Chappell stated that an owner was negligent if he maintained plate glass in an entry door because it was foreseeable that a person could put their arm through the glass. Based upon the description of appellee's injuries, he too believed that the window was plate glass.

The jury found that, on the occasion in question, the glass in the door of appellant's building presented an unreasonable risk of harm, that appellant should have discovered this unreasonable risk, that appellant was 70% negligent and appellee 30% negligent for the injury and that appellant should pay damages for appellee's past and future injuries.

By his fifth and first points of error, respectively, appellant asserts that the evidence was legally and factually insufficient to support the jury findings that appellee was an invitee and that the glass presented an unreasonable risk of harm. Appellant asserts by his third and fourth points of error, respectively, that the evidence is legally and factually insufficient to support the jury's award of past and future medical expenses and a finding that appellee suffered a loss of earning capacity.

In considering a "no evidence", "insufficient evidence", or an "against the great weight and preponderance of the evidence" point of error, we will follow the well-established tests set forth in Pool v. Ford Motor, Co., 715 S.W.2d 629 (Tex.1986); Dyson v. Olin Corp., 692 S.W.2d 456 (Tex.1985); Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400 (Tex.1981); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Allied Fin. Co. v. Garza, 626 S.W.2d 120 (Tex.App.--Corpus Christi 1981, writ ref'd n.r.e.); and Calvert, No Evidence and Insufficient Evidence Points of Error, 38 Tex.L.Rev. 361 (1960).

The duties owed by a landowner depend upon the role of the person injured. Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex.1975); Cameron County v. Velasquez, 668 S.W.2d 776, 781 (Tex.App.--Corpus Christi 1984, writ ref'd n.r.e.); see also Adam Dante Corp. v. Sharpe, 483 S.W.2d 452, 454-55 (Tex.1972). An "invitee" is defined as a person who goes on the premises of another in answer to the express or implied invitation of the owner or occupant of the business of the owner or occupant or for their mutual advantage. Atchison, Topeka and Santa Fe Ry. Co. v. Smith, 563 S.W.2d 660, 666 (Tex.Civ.App.--Waco 1978, writ ref'd n.r.e.). A servant or employee of another person who enters the premises on the business of his master, in which business the master and the owner or occupant have a mutual interest, occupies the status of an invitee. Atchison, 563 S.W.2d at 666; see also Rosas, 518 S.W.2d at 536.

Appellee testified that he repaired a van bearing Auto Sales tags. For the Texaco station to pay appellee for his work, appellee first had to obtain payment in full from the automobile owner. Appellee went to the Auto Sales office to collect the amount due Texaco for his work on the van. This is sufficient evidence for the jury to find in Question No. 1 that appellee was a business invitee at the time of his injury.

The owner of the premises owes a duty to the business invitee to keep the premises in a reasonably safe condition and to inspect the premises in order to discover any latent defects and to make safe any defects or give adequate warnings. Adam Dante Corp., 483 S.W.2d at 454-55; H.E. Butt Grocery Co. v. Godawa, 763 S.W.2d 27, 29 (Tex.App.--Corpus Christi 1988, no writ); H.E.B. Food Stores, Inc. v. Flores, 661 S.W.2d 297, 299 (Tex.App.--Corpus Christi 1983, writ dism'd). A possessor of land is subject to liability for physical harm occurring on the land if he (1) knows or by the exercise of reasonable care should discover the dangerous condition, and should realize that it involves an unreasonable risk of harm to invitees, and (2) should expect that the invitees will not discover or realize the danger, or will fail to protect themselves against it, and (3) fails to exercise reasonable care to protect the invitees against the danger. Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex.1983); Physicians & Surgeons Gen. Hosp. v. Koblizek, 752 S.W.2d 657, 658-59 (Tex.App.--Corpus Christi 1988, writ denied). Moreover, when an occupier of land has actual or constructive knowledge of any condition on the premises that presents an unreasonable risk of harm to invitees, he has a duty to take whatever action is reasonably prudent under the circumstances to reduce or eliminate the unreasonable risk from that condition. Corbin, 648 S.W.2d at 296; Godawa, 763 S.W.2d at 29; Flores, 661 S.W.2d at 299.

An invitee's suit against a store owner is a simple negligence action. Corbin, 648 S.W.2d at 295; Parker v. Highland Park, Inc., 565 S.W.2d 512, 517 (Tex.1978); Godawa, 763 S.W.2d at 29; Tanner v. BDK Prod. Co., 671 S.W.2d 941, 943-44 (Tex.App.--Corpus Christi 1984, no writ). The standard of conduct required of a premise occupier toward an invitee is the ordinary care that a reasonably prudent person would exercise under all relevant circumstances. Consequently, an occupier's liability to an invitee...