Cul-Co., Inc. v. Redd

• Decision Date: 08 February 1979
• Docket Number: CUL-CO,No. 18111,18111
• Citation: 577 S.W.2d 557
• Parties: , INC., d/b/a Tom Thumb Super Market # 47, Appellant, v. Lucille REDD, Appellee.
• Court: Texas Court of Appeals

Page 557

577 S.W.2d 557

CUL-CO., INC., d/b/a Tom Thumb Super Market # 47, Appellant, v. Lucille REDD, Appellee.

No. 18111.

Court of Civil Appeals of Texas, Fort Worth.

Feb. 8, 1979.

Rehearing Denied March 8, 1979.

Brown, Herman, Scott, Dean & Miles and Grant Liser, Fort Worth, for appellant.

Leo P. Ferris, Fort Worth, for appellee.

OPINION

HUGHES, Justice.

Trial court denied the plea of privilege of Cul-Co, Inc., doing business as Tom Thumb Super Market # 47, to be sued in Dallas County. Lucille Redd, plaintiff, had controverted. Cul-Co has appealed.

Affirmed.

Ms. Redd urged exception 9a of Tex.Rev.Civ.Stat.Ann. art. 1995 (effective August 29, 1977) alleging Cul-Co was negligent in causing her slip and fall injury. By formal admission Cul-Co admitted that the store where the alleged event occurred is in Tarrant County.

Ms. Redd was the only witness. She testified to going to store # 47 and to its produce section. There her legs went out from under her and her head hit on the floor; a boy named Chip, who Ms. Redd said was a store employee, came out of "the back room" and helped her up. She saw "a bunch of mashed grapes and water and mud on the floor."

She said: "My gosh, why don't you get that mess cleaned up before somebody gets hurt?" He said: "Well, the reason we don't clean it up is because we are having a floor man come in tonight to do the floors so we don't bother to clean the floors up on Tuesday nights." She also testified to her knee bleeding.

Cul-Co did not cross-examine Ms. Redd and presented no testimony.

Cul-Co's only point of error is that Ms. Redd failed to prove an exception to Tex.Rev.Civ.Stat.Ann. art. 1995, specifically exception 9a (effective August 29, 1977) as pled by her.

We must determine if Ms. Redd proved that: Cul-Co knew of the grapes, mud and water on its floor or should have known in the exercise of reasonable care and that such condition would involve an unreasonable risk to Ms. Redd or other customers; should expect customers would not discover the danger or fail to protect themselves against same; and Cul-Co failed to exercise reasonable care to protect customers against such danger. Adam Dante Corporation v. Sharpe, 483 S.W.2d 452 (Tex.1972).

An occupier (i. e., Cul-Co) is under the further duty to exercise reasonable care in inspecting the premises to discover any latent defects, and to make safe Any defects or to give adequate warning. 2 Restatement of Torts 2d, § 343, comment b at 216 (1965). (Emphasis ours.)

Mere presence of a mess on the floor is not enough to raise an inference that Cul-Co placed it there, knew of its presence or that it had been there long enough for its servants to discover and Correct it. (Emphasis ours.) Houtchens v. Kyle's Grocery Corporation, 390 S.W.2d 325 (Tex.Civ.App. Eastland 1965, writ ref'd n. r. e.).

In the evidence...