Crosby v. Minyard Food Stores, Inc.

• Decision Date: 26 November 2003
• Docket Number: No. 05-02-01766-CV.,05-02-01766-CV.
• Citation: 122 S.W.3d 899
• Parties: Maerene CROSBY, Appellant, v. MINYARD FOOD STORES, INC. d/b/a Sack N' Save a/k/a Sack N' Save # 206, Appellee.
• Court: Texas Court of Appeals

122 S.W.3d 899

Maerene CROSBY, Appellant, v.MINYARD FOOD STORES, INC. d/b/a Sack N' Save a/k/a Sack N' Save # 206, Appellee.

No. 05-02-01766-CV.

Court of Appeals of Texas, Dallas.

November 26, 2003.

Rehearing Overruled January 13, 2004.

Anjel Kerrigan Avant, Kondos & Kondos Law Office, Richardson, for Appellant.

Jerry Fazio, Jason Eric Kipness, Owen & Fazio, P.C., Dallas, for Appellee.

Before Justices MORRIS, O'NEILL, and LANG.

OPINION

Opinion by Justice MORRIS.

In this trip and fall case, Maerene Crosby sued Minyard Food Stores, Inc. for injuries she allegedly sustained after tripping on a mat at the entrance of a grocery store.Although she prevailed at trial, Crosby appeals the jury's verdict finding her 50% negligent and awarding her $488.75 for past medical care.Crosby contends the trial court erred by admitting into evidence the affidavit of Minyard's expert doctor because the contents of the affidavit were hearsay.Crosby further contends the trial court's admission of the affidavit probably caused the rendition of an improper judgment.

In a single cross issue, Minyard contends the trial court erred in refusing to grant it a directed verdict on the ground that Crosby submitted no evidence that Minyard had actual or constructive knowledge of the allegedly dangerous condition that caused her injuries.After reviewing the evidence, we conclude the trial court properly refused to grant Minyard's motion for directed verdict because there was some evidence of probative force to show that Minyard had knowledge of a condition on the premises that posed an unreasonable risk of harm.We also conclude the trial court erred in admitting the affidavit of Minyard's expert doctor.After reviewing the record, however, we conclude the erroneous admission of the affidavit was harmless.Accordingly, we affirm the trial court's judgment.

We first address the issue of the trial court's ruling on Minyard's motion for directed verdict.Minyard claims it was entitled to a directed verdict because the evidence was insufficient to raise a fact issue on an essential element of Crosby's claim.SeeCano v. North Tex. Nephrology Assocs., P.A.,99 S.W.3d 330, 338(Tex. App.-Fort Worth 2003, no pet. h.).To succeed on her claims, Crosby was required to show that Minyard had actual or constructive knowledge of a condition on its premises that posed an unreasonable risk of harm.SeeCMH Homes, Inc. v. Daenen,15 S.W.3d 97, 99(Tex.2000).Crosby claimed in her suit that she tripped because a mat at the entrance of the store was buckled and had a bump in it.According to Minyard, Crosby presented no evidence the store knew or should have known about the bump in the entry mat that caused Crosby to fall.Minyard's focus on the bump in the mat as the dangerous condition is misplaced, however.

Crosby testified at trial that she fell on the mat in the entry of the grocery store.According to Crosby, the mat was buckled causing her to trip.Crosby presented evidence that the mat frequently became buckled due to heavy foot traffic in and out of the store.An employee of the store testified he had to straighten the mat between 48 and 86 times during an eight hour shift.Finally, Crosby submitted accident reports signed by the store's managers showing that several people had tripped and fallen on the mat within a few weeks before Crosby's accident.

The Texas Supreme Court has held that "even in the absence of evidence showing the storeowner's actual or constructive knowledge of the presence on the floor of the specific object causing the fall," the storeowner may be liable if the invitee can show the storeowner was aware of a high risk that the dangerous condition would occur.SeeCorbin v. Safeway Stores, Inc.,648 S.W.2d 292, 295(Tex.1983).In Corbin, evidence showed grapes recurringly fell from a grape display and posed a high risk of customer falls.The supreme court held the store owner's knowledge about the display and the risk the fallen grapes posed was sufficient to allow the issue of negligence to go to the jury despite the fact there was no evidence to show the storeowner knew there were grapes on the floor at the time the plaintiff fell.Id. at 297.Similarly, in National Convenience Stores, Inc. v. Erevia, the evidence was held sufficient to support the jury's finding of liability where it was shown the storeowner was aware that ice on the floor was a common problem associated with its drink display even though there was no showing the storeowner was aware of the ice on the floor at the time of the accident at issue.Nat'l Convenience Stores, Inc. v. Erevia,73 S.W.3d 518, 523(Tex.App.-Houston [1st Dist.]2002, pet. denied).

In this case, Crosby presented evidence that Minyard was aware of the fact that the mat at the entry to the store was often buckled and caused customers to fall.Because Crosby presented evidence that the mat itself was a problem creating a frequent risk of injury, it was not necessary for her to show that Minyard was aware or should have been aware of the specific bump in the mat that caused her to fall.SeeCorbin,648 S.W.2d at 297;Erevia,73 S.W.3d at 523.

Although Minyard attempts to analogize the facts of this case to cases in which property owners were found not liable because they were unaware of the unsafe condition at the time the accident occurred, the cases cited by Minyard address a storeowner's knowledge of a specific, non-recurring condition rather than claims based on a continuing hazard of which the storeowner was aware.SeeWal-Mart Stores, Inc. v. Gonzalez,968 S.W.2d 934(Tex.1998);Brookshire Food Stores, L.L.C. v. Allen,93 S.W.3d 897(Tex.App.-Texarkana 2002, no pet.);Wal-Mart Stores, Inc. v. Bolado,54 S.W.3d 837(Tex. App.-Corpus Christi 2001, no pet.).A claim that something used by the storeowner is inherently dangerous is fundamentally different than a claim that a dangerous condition arose in the store and caused injuries.

In CMH Homes v. Daenen, the Texas Supreme Court addressed the legal consequences of a premises owner's awareness that the premises, although originally safe, would become unsafe over time.SeeCMH Homes,15 S.W.3d at 101.The court specifically distinguished the facts before it from those cases such as Corbin in which the injury-causing instrument was unsafe from the moment it was used.Id.In the case before us, the mat did not become unsafe over time but was unsafe from the moment it was put on the floor because of its tendency to buckle frequently when subjected to foot traffic.

In Wal-Mart Stores, Inc. v. Reece, a customer slipped in a puddle of clear liquid by the store's snack-bar.The snack-bar contained a self-service drink and ice machine.SeeWal-Mart Stores, Inc. v. Reece,81 S.W.3d 812, 813(Tex.2002).Although the store manager conceded at trial that the self-service drink and ice machine generally increased the likelihood of spills in the snack bar area, there was no evidence that the spilled liquid causing the customer to fall was a drink or ice.Id. at 817.Furthermore, in contrast to the case before us, there does not appear to have been any evidence of a history of falls in the snack bar caused by spilled drinks or ice that would have put the store on notice that the self-service machine itself posed an unreasonable risk of injury.

All the evidence in this case showed that the mat at the entrance of the store had a tendency to buckle and required frequent straightening.The evidence also showed that Minyard was aware that the recurrent bumps in the mat were causing customers to fall.This evidence was sufficient to allow the issue of Minyard's negligence to be presented to the jury.The trial court did not err in denying Minyard's motion for directed verdict.We resolve Minyard's cross issue against it.

We turn now to Crosby's issue relating to the trial court's admission of an affidavit created by Minyard's expert physician, Dr. Jack Kern.Kern's affidavit sets forth his opinions about Crosby's medical condition and her treatment by Dr. Mark Rayshell, a chiropractor.During Crosby's direct examination of Rayshell at trial, Rayshell was asked if he had read Kern's affidavit.Rayshell said he had.Rayshell was then asked to go over the affidavit.

In response to Crosby's direct examination about the affidavit, Rayshell testified he did not know whether Kern knew anything about chiropractic care or the orthopedic tests performed on Crosby.Rayshell further testified he concluded from reading the affidavit that Kern never examined Crosby personally and it did not appear that he had read her medical records closely.In Rayshell's opinion, a doctor could be found to say whatever the person hiring him wanted him to say, including that the treatment the...