H.E. Butt Grocery Co. v. Newell

• Decision Date: 30 June 1983
• Docket Number: No. 13-83-059-CV,13-83-059-CV
• Citation: 664 S.W.2d 116
• Parties: H.E. BUTT GROCERY COMPANY, Appellant, v. Rosemary C. NEWELL, Appellee.
• Court: Texas Court of Appeals

Page 116

664 S.W.2d 116

H.E. BUTT GROCERY COMPANY, Appellant, v. Rosemary C. NEWELL, Appellee.

No. 13-83-059-CV.

Court of Appeals of Texas,

Corpus Christi.

June 30, 1983.

Douglas E. Chaves, Kleberg, Dyer, Redford & Weil, Corpus Christi, for appellant.

Lola L. Bonner, Rockport, for appellee.

Before NYE, C.J., and YOUNG and NOAH KENNEDY, JJ.

OPINION

NYE, Chief Justice.

Appellant, H.E. Butt Grocery Company, appeals an order of the 156th District Court, Aransas County, overruling its plea of privilege. Appellee, Rosemary Newell, brought an action in that court for damages to recover for personal injuries she sustained when she tripped on a wire "coat hanger" and fell to the pavement in the parking area in front of the appellant's Rockport store on the evening October 27, 1980. Appellant filed a plea of privilege to be sued in Nueces County, the county of its domicile. Appellee filed a controverting plea alleging that venue was proper in Aransas County under TEX.REV.CIV.STAT.ANN. art. 1995, subd. 9a (Vernon Supp.1982). After a hearing before the court, the trial judge overruled the plea of privilege.

Appellant contends that the trial court erred in overruling its plea of privilege because there was no evidence, or in the alternative insufficient evidence, to prove the necessary facts to sustain venue under subdivision 9a, the negligence exception to the venue statute.

In deciding whether there is any evidence to support the trial court's judgment, we must consider only the evidence and inferences tending to support the trial court's findings and disregard all contrary evidence and inferences. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). In determining whether the evidence is factually sufficient, we consider all the evidence to decide whether the supporting evidence is so weak or the contrary evidence is so overwhelming that the trial court's findings should be set aside and a new trial ordered. Garza v. Alviar, supra.

Subdivision 9a of article 1995, supra, provides that a suit based upon negligence "may be brought in the county where the act or omission of negligence occurred or in the county where the defendant has his domicile." To sustain venue in a county other than the defendant's domicile under this section, the plaintiff must establish the essential elements of the cause of action by a preponderance of the evidence. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91 (1935); H.E. Butt Grocery Company v. Stastny, 645 S.W.2d 314 (Tex.App.--Corpus Christi 1982, no writ). Subdivision 9a describes these elements as:

"1. That an act or omission of negligence occurred in the county where the suit was filed.

2. That such act or omission was that of the tortfeasor, in person, or that of his servant, agent or representative acting within the scope of his employment, or that of the person whose estate the defendant represents as executor, administrator, or guardian.

3. That such negligence was a proximate cause of the plaintiff's injuries."

A landowner or occupier has a basic duty to his business invitees to exercise ordinary care to keep his premises in a reasonably safe condition. Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752, 754 (Tex.1970). This includes the duty to inspect the premises to discover any latent defects and to make safe any defects or give adequate warnings. Adam Dante Corp. v. Sharpe, 483 S.W.2d 452 (Tex.1972). It follows that a landowner is liable for injuries suffered on his premises by invitees as a result of an unreasonably dangerous condition if (1) the landowner created or maintained the condition which gave rise to an unreasonable risk of injury to persons on the premises and, (2) the owner knew or should have known of the existence of the condition and should have appreciated its danger. Seideneck v. Cal Bayreuther Associates, supra; H.E. Butt Grocery Company v. Stastny, supra; H.E. Butt Grocery Company v. Reyna, 632 S.W.2d 890 (Tex.App.--Corpus Christi 1982, no writ); H.E. Butt...