Brookshire Grocery Co. v. Taylor

• Decision Date: 01 April 2003
• Docket Number: No. 06-0240122-CV.,06-0240122-CV.
• Citation: 102 S.W.3d 816
• Parties: BROOKSHIRE GROCERY COMPANY, d/b/a Brookshire's Food Stores, Appellant, v. Mary Frances TAYLOR, Appellee.
• Court: Texas Court of Appeals

102 S.W.3d 816

BROOKSHIRE GROCERY COMPANY, d/b/a Brookshire's Food Stores, Appellant, v. Mary Frances TAYLOR, Appellee.

No. 06-0240122-CV.

Court of Appeals of Texas, Texarkana.

Submitted January 15, 2003.

Decided April 1, 2003.

COPYRIGHT MATERIAL OMITTED

Troy A. Hornsby, Miller, James, Miller & Hornsby, LLP, Texarkana, for appellant.

J. Stephen Walker, The Moore Law Firm, LLP, Paris, for appellee.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Justice ROSS.

This is a slip and fall case Mary Frances Taylor filed against Brookshire Grocery Company, d/b/a Brookshire's Food Stores. Both parties filed motions for summary judgment. The trial court granted Taylor's motion for partial summary judgment on the issue of liability, but denied Brookshire's no-evidence motion for summary judgment. A trial was held to determine damages only, and the jury awarded Taylor $103,667.65. Brookshire raises the following issues on appeal: (1) Did Taylor establish the elements of premises liability as a matter of law? (2) Is the affidavit of Dewayne Jenkins some evidence of ordinary care by Brookshire which creates an issue of material fact, thereby defeating Taylor's motion for partial summary judgment? and (3) Did Taylor produce some evidence of constructive knowledge of a dangerous condition in response to Brookshire's no-evidence motion for summary judgment?

Taylor slipped and fell on a wet substance in the delicatessen (deli) section of the Brookshire store. The fall injured Taylor's left knee, requiring surgery the next day. Taylor testified in deposition she did not know how the substance got on the floor, who put it there, or how long it had been there. But, two Brookshire employees, the assistant manager and a deli worker, testified by depositions that after the fall they saw a puddle of water. The assistant manager also said he saw a partially melted ice cube in the puddle. There was a Coke dispenser in the area of Taylor's fall. The deli employee first testified that the dispenser caused ice to fall on the floor on a daily basis. She later qualified that testimony by saying, if not daily, then "fairly regular." She also testified that "little kids are going to spill ice" and agreed that even adults are prone to spill ice from time to time.

The surface of the floor in this Brookshire store is tile. The support for the Coke dispenser rested on the tile floor. There was one rectangular mat, approximately three feet wide, lying on the floor, parallel with the front of the support for the Coke dispenser. Facing the dispenser, the right edge of the mat lined up evenly with the right edge of the support for the dispenser, and there were two similar mats, lying end to end, to the right of the Coke dispenser, parallel with the front of the deli. Deposition testimony showed there was a gap of exposed tile floor between the mat in front of the Coke dispenser and the other two mats. The puddle of water where Taylor fell was on the tile floor just past the mat in front of the dispenser. Brookshire's assistant manager agreed that the store could have put an additional mat to cover the gap of exposed tile between the existing mats and that it could have also put an additional mat in front of the Coke dispenser, making it harder for fallen ice to get to the tile floor. The store manager testified that the store could have used warning signs in this area and that the idea of relocating the Coke dispenser to the center of the counter, so that it would be more to the middle of the mat, "really makes sense." Taylor contends the Coke dispenser was a dangerous condition because it was improperly placed with inadequate matting and no warning signs.

An invitee enters onto another's land with the owner's knowledge and for the mutual benefit of both parties. Rosas v. Buddie's Food Store, 518 S.W.2d 534, 536 (Tex.1975). A premises owner owes an invitee a duty to exercise reasonable care to protect such invitee from dangerous conditions in the store if the conditions were known or discoverable to the owner. Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex.1998). When an owner has actual or constructive knowledge of any condition on the premises that poses an unreasonable risk of harm to an invitee, such owner has a duty to take whatever action is reasonably prudent under the circumstances to reduce or eliminate the unreasonable risk. Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex.1983).

This duty toward the invitee, however, does not make the owner an insurer of the invitee's safety. Gonzalez, 968 S.W.2d at 936. To prevail under a premises liability claim, an invitee must prove (1) actual or constructive knowledge of some condition on the premises by the owner/operator; (2) that the condition posed an unreasonable risk of harm; (3) that the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and (4) that the owner/operator's failure to use such care proximately caused the plaintiff's injuries. Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992).

The two parties in this case disagree about what should be defined as the dangerous condition. Taylor complains Brookshire has "inaccurately limited the definition of `dangerous condition' to include only the particular melted ice cube on which Mrs. Taylor fell." Taylor asserts that the primary basis for her negligence claim is that "Brookshire's created the dangerous condition — a Coke dispenser with inadequate matting, improper placement and no warning signs — that was regularly causing ice to fall on the tile floor, posing a danger to customers." From Taylor's perspective, the Coke dispenser was the dangerous condition; from Brookshire's point of view, the puddle was the dangerous condition.

The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). Where the motion is supported by affidavits, depositions, and other extrinsic evidence sufficient on their face to establish facts which, if proven at trial, would entitle the movant to an instructed verdict, the opponent must show opposing evidentiary data which will raise an issue as to a material fact, or must justify its inability to do so and seek appropriate protection. Allen v. W. Alliance Ins. Co., 162 Tex. 572, 349 S.W.2d 590, 594 (1961). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant must be taken as true, and every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Nixon, 690 S.W.2d at 548-49.

The Texas Supreme Court has said a slip and fall plaintiff satisfies the notice element of a claim by establishing that (1) the defendant placed the substance on the floor, (2) the defendant actually knew the substance was on the floor, or (3) it is more likely than not the condition existed long enough to give the premises owner a reasonable opportunity to discover it. Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex.2002). Brookshire contends Taylor produced no evidence of its actual knowledge of the specific water on the floor at the time of the accident or of how long the water was actually on the floor.

If a plaintiff relies on circumstantial evidence to prove constructive knowledge of a dangerous condition, then the Texas Supreme Court has required that the evidence establish it is more likely than not the dangerous condition existed long enough to give the proprietor a reasonable opportunity to discover the condition. Gonzalez, 968 S.W.2d at 936.

In Reece, the court reaffirmed the importance of the "time-notice rule" as the best indicator of whether the owner had a reasonable opportunity to discover and remedy a dangerous condition; without some temporal evidence, there is no basis on which the fact-finder can reasonably assess the opportunity the premises owner had to discover the dangerous condition. Reece, 81 S.W.3d at 816. In this case, there was no evidence of how long the water had been on the floor; therefore, Brookshire contends Taylor failed to establish the temporal element of constructive knowledge, which causes Taylor to fail in establishing the knowledge element of premises liability, making summary judgment inappropriate.

Taylor, on the other hand, contends the placement of the Coke dispenser on the floor with inadequate matting around it, and with no warning signs, was the dangerous condition, not just the particular piece of ice on the floor. Brookshire acknowledges adding additional mats and moving the Coke dispenser to the middle of the counter would make it much more unlikely that ice would get on the tile floor. The deli employee acknowledged in her deposition that, had there been another layer of mats in place at the time of Taylor's fall, the ice would have been on the mat instead of the tile floor. Moreover, the deli employee said Brookshire employees had to clean up ice from the floor on a regular basis. Even so, there were no warning signs in the area. Taylor contends the evidence establishes that the melted ice on which Taylor fell came from the Coke dispenser in question and that Brookshire knew this specific machine was causing a specific risk in the deli area because of the ice falling on the floor.

In Corbin, the Texas Supreme Court made clear that, in a slip and fall case, the dangerous condition can be defined more broadly than the particular substance on the floor. Corbin, 648 S.W.2d at 296. In Corbin, the invitee slipped and fell on a grape that had fallen from a self-service grape display. Id. at 294. Safeway admitted it knew of the unusually high risk associated with its grape display: an open, slanted bin above a green linoleum tile floor. Id. at 296. But, Safeway argued it was not obligated to protect customers from the acts of...