Goodson v. Southland Corporation

• Decision Date: 25 February 1970
• Docket Number: No. 6066,6066
• Citation: 454 S.W.2d 823
• Parties: Earl Wayne GOODSON et ux., Appellants, v. The SOUTHLAND CORPORATION d/b/a Cabell's Minit Markets, Appellee.
• Court: Texas Court of Appeals

Page 823

454 S.W.2d 823

Earl Wayne GOODSON et ux., Appellants, v. The SOUTHLAND CORPORATION d/b/a Cabell's Minit Markets,

Appellee.

No. 6066.

Court of Civil Appeals of Texas,

El Paso.

Feb. 25, 1970.

On Motion for Rehearing May 6, 1970.

Rehearing Denied May 6, 1970.

Milburn & Hirsch, T. Thomas Hirsch, Odessa, for appellants.

Turpin, Smith, Dyer, Hardie & Harman, Max N. Osborn, Midland, for appellee.

OPINION

WARD, Justice.

This is a slip and fall debris case where plaintiffs appeal from a take-nothing judgment in favor of a drive-in Minit Market. Trial was to a jury which found that there was an Icee on the floor near the market's entrance, an Icee being a flavored carbonated ice product sold in paper cups; that Mrs. Ophelia Goodson slipped on the Icee; that the Icee had been on the floor for a sufficient period of time for the Minit Market, in the exercise of ordinary care, to have known of its presence; that its failure to remove the Icee was negligence and a proximate cause of the accident; that Mrs. Goodson did not fail to keep a proper lookout; that the condition of the floor where Mrs. Goodson fell was open and obvious; and finally, that she did not know of the condition of the floor, nor of the Icee, on the occasion in question.

The appellants' first three points are that there is no evidence or insufficient evidence, to support the jury's finding that the condition of the floor where Mrs. Goodson fell was open and obvious; and that this finding is against the great weight and preponderance of the evidence. These points, and the assignments of error upon which they are based, are to the effect that Mrs. Turner, the store manager, emphatically testified that she had a clear view of the area where the fall occurred and that she could not see any Icee on the floor.

First, considering only the evidence and the inferences favorable to the jury finding, and disregarding all the evidence and inferences to the contrary, we have the testimony of Mrs. Goodson, the injured lady, who stated that she did not see the substance before she fell, but that after she fell she observed a brownish substance on the floor, part of which was sticky and part just wet, six inches long and three inches wide; that it was clearly visible; that the lighting was good, and she stated emphatically on at least three separate occasions that if she had looked at the floor before she fell, she could have seen the substance. The no-evidence points are overruled.

Considering all of the evidence in the case on the questioned jury finding, only two people testified to the event--the injured Mrs. Goodson and the store manager, Mrs. Turner, who gave conflicting versions of the event. Other than agreeing on the time of the occurrence, the excellent lighting conditions in the store, and the fact that the appellant fell, their versions are at opposite poles. Mrs. Goodson stated she was wearing tennis shoes; that as she entered the store she was looking at the merchandise at eye level; that she took one or two steps and fell. That when the manager came to her assistance, the manager ran her foot through a substance on the floor and stated it was an Icee, and that children were always spilling it. Mrs. Turner, on the other hand, testified that she had run a dust mop over the area some thirty minutes before the occurrence; that the area was clean; that she had observed it several times and it was clean; that Mrs. Goodson was wearing small shoes with hard soles and heels; that there was nothing on the floor and there was no conversation with respect to any Icee and no explanation as to how Mrs. Goodson had fallen. The court, in its submission of the 'open and obvious' issue, submitted the following definition: 'By the term 'open and obvious', as used herein, is meant a condition that is in plain sight and clearly perceptible and a condition which would be seen by a person who chose to look'. It seems to us that the jury accepted Mrs. Goodson's version of the entire transaction and rejected that of the store manager in its answers to all of the issues submitted, including that of the open and obvious issue in the form it was submitted. Mrs. Goodson entered the store looking in a normal manner at the merchandise and fell on the Icee which she stated was clearly visible and that if she had looked at the floor before she fell, she would have seen the substance. The substance was in plain sight and clearly perceptible and could be seen by a person who chose to look. The insufficient evidence point is overruled.

We wish to emphasize that we are overruling these points as they relate to the manner in which the issue and definition were submitted. The no-evidence point might well apply to the theory of 'open and obvious', but we will dispose of it under the next and final point of the appellants. This final point is that the trial court erred in granting judgment for the appellee because the answer is evidentiary and the court should have disregarded the same. We feel that the point must be sustained. The issue on 'open and obvious' together with the definition as above quoted is a submission which is condemned as it is in an objective form and here is of no value to a defendant occupier. As defined, it was a condition that is in plain sight and clearly perceptible which could have been seen by a person who chose to look. This does not apply to Mrs. Goodson in a subjective manner:

'However, a condition is not open and obvious unless it is so to the invitee, and unless he fully appreciates the danger. The question of whether a plaintiff knows of the condition and knows of and appreciates the danger is a subjective one, that is, did this particular plaintiff know and did he appreciate the danger or the defect must be so obvious as to charge plaintiff with knowledge of it. Greenhill, Assumed Risk, XVI Baylor Law Review 111.' El Rancho Restaurants, Inc. v. Garfield, 440 S.W.2d 873 (Tex.Civ.App., San Antonio 1969, wr. ref., n.r.e.).

The following is from Scott v. Liebman, 404 S.W.2d 288 (Tex.1966):

'* * * the occupier owes a duty of ordinary care to his invitees. That duty remains unless it is in some manner discharged or removed.

'Under the principles of assumed risk, the duty owed by an occupier to an invitee may be reduced to zero if the invitee assumes the risk or is held to have assumed the risk * * *

'Stated differently, the cases say that the occupier owes no duty if the invitee has actual knowledge of the condition knowledge of the danger, and appreciation of the danger. Or, if the condition is so patently open and obvious that the plaintiff must have seen it, the Court will charge him with knowledge of the condition. It is sometimes stated that the plaintiff may not close his eyes to obvious conditions'.

Therefore, the occupier owes no duty if the invitee has (a), actual knowledge of the condition and (b), knowledge of the danger and (c), appreciation of the danger. This being a purely subjective concept, the issue as submitted in the trial court by the appellee is only evidentiary and does not reach the point of whether Mrs. Goodson had actual knowledge of the condition, knowledge of the danger, and appreciation of the danger. See the discussion in Lieck's Texas Trial Aid (Second Edition), p. 223. The issue as submitted approaches the concept of what Mrs. Goodson, as the plaintiff below, should have known and should have realized, the 'should have' issues being only proper under contributory negligence, which would then be followed by issues of proximate cause. Scott v. Liebman, supra.

Again under this same concept, the occupier owes no duty if the invitee has constructive or charged knowledge of...