H.E. Butt Grocery Co. v. Warner

• Decision Date: 02 December 1992
• Docket Number: No. D-1476,D-1476
• Citation: 845 S.W.2d 258
• Parties: H.E. BUTT GROCERY COMPANY, Petitioner, v. Mr. and Mrs. Richard WARNER, Respondents.
• Court: Texas Supreme Court

Page 258

845 S.W.2d 258

H.E. BUTT GROCERY COMPANY, Petitioner, v. Mr. and Mrs. Richard WARNER, Respondents.

No. D-1476.

Supreme Court of Texas.

Dec. 2, 1992.

Rehearing Overruled Jan. 27, 1993.

Beverly Willis Bracken, Steve L. Moody, Waco, for petitioner.

Scott Rothenberg, Kevin O'Malley, Houston, Louis S. Muldrow, Waco, for respondents.

OPINION

CORNYN, Justice.

This slip and fall case concerns the pleading and requested submission requirements for independent, alternative theories of recovery. The trial court submitted only the plaintiff's (Warner's) premises liability theory, which the jury answered favorably to H.E.B. Based upon its holding that Warner was erroneously denied submission of an additional theory of recovery, the court of appeals reversed the trial court's take-nothing judgment and remanded the cause for a new trial. 820 S.W.2d 819. Because we hold that Warner pleaded and requested submission of only a premises liability theory of recovery, which was submitted by the trial court, and failed to submit a requested jury question supporting any other basis for recovery, we reverse the judgment of the court of appeals and remand the cause to that court for consideration of the points it has not addressed.

In July 1987 Tami Warner slipped in an eight-inch puddle of water, chicken blood, and other fluids that had accumulated on the floor of an H.E.B. store in Corsicana during a "bag your own chicken" promotion. Soon thereafter Warner and her husband sued H.E.B. to recover the damages occasioned by Warner's fall. At trial the court submitted a five-part premises liability question to the jury regarding H.E.B.'s liability. Based upon the jury's finding that H.E.B. neither knew nor should have known that there was a liquid substance on the floor on the occasion in question, the trial court rendered a take-nothing judgment against Warner and her husband.

The court of appeals held that Warner's pleadings alleged two theories of negligence: one based on a standard premises liability theory and the other based on the failure to "pre-bag" chicken to eliminate the hazardous condition presented. Holding that "[t]he court's charge erroneously submitted the negligence issue in five separate questions which did not include Warner's second theory of negligence," the court of appeals reversed the judgment of the trial court and remanded the cause for a new trial. 820 S.W.2d at 819.

Warner's First Amended Original Petition specifically alleged:

Defendant, and its agents, servants, and employees, at the time and on the occasion in question, engaged in certain omissions, among others, are as follows:

(a) In failing to provide the Plaintiff and the general public with a safe place in which to shop;

(b) In failing to abate a dangerous condition on such premises;

(c) In failing to warn the Plaintiff and the general public of the dangerous condition on such premises.

While Warner's petition alleged specific acts of negligence "among others," we hold that her First Amended Original Petition, fairly read, alleged only a claim based upon premises liability. See Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex.1983). ¹ Although Warner maintains that she has been denied her alternative, negligent failure to pre-bag chicken theory of liability, it is undisputed that she was injured by a condition of the premises--a puddle of water, chicken blood, and other fluids that had accumulated on the floor--rather than a negligently conducted activity. See Keetch v. Kroger, 845 S.W.2d 262 (Tex.1992) (distinguishing premise liability and negligent activity causes of action). Thus, Warner's only potential cause of action is limited to a premises liability theory, which was submitted by the trial court.

Warner also claims that the trial court erred in failing to submit her requested broad-form question, which was based on her premises liability theory. ² Texas Rule of Civil Procedure 277 mandates broad-form submissions whenever they are "feasible." See Texas Dept. of Human Serv. v. E.B., 802 S.W.2d 647, 649 (Tex.1990). Because Warner tendered a proper broad-form question with appropriate instructions, ³ the trial court should have granted her request. However, its failure to do so was not harmful error. TEX.R.APP.P. 81(b)(1). Although submitted in granulated form, the jury questions contained the proper elements of a premises liability action. Because the charge fairly submitted to the jury the disputed issues of fact and because the charge incorporated a correct legal standard for the jury to apply, we hold that the trial court's refusal to submit Warner's tendered question and instructions did not amount to harmful error.

Therefore, without hearing oral argument and pursuant to Texas Rule of Civil Procedure 170, the court reverses the judgment of the court of appeals and remands this cause to that court for consideration of those points of error it did not address.

GAMMAGE, J., concurring.

MAUZY, J., joined by DOGGETT, J., dissenting.

GAMMAGE, Justice, concurring.

I concur in the judgment of the majority but not its reasoning. I cannot agree with the majority's conclusion that the evidence makes it "undisputed that she was injured by a condition of the premises ... rather than a negligently conducted activity." At 259. The two are not separate and distinct theories of recovery. Both the premises-liability basis for recovery and the negligent-activity basis are negligence causes of action. I agree with the dissenting opinion that absent special exceptions the plaintiff's petition must be construed liberally in favor of the pleader. Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982). The Warners' pleadings, however, even when reasonably construed in their favor, did not give fair notice that they were asserting a negligent activity theory in the alternative to their premises liability theory. The negligent activity theory was not tried by implied consent because the evidence to support it also supported the premises liability theory expressly plead. See generally TEX.R.CIV.P. 67. The Warners' pleadings reasonably supported only the premises liability negligence grounds, on which the jury found against them. I therefore concur in the majority's result but not its reasoning.

MAUZY, Justice, dissenting.

Torts professors, revise your syllabi. The court today recognizes a new, distinct cause of action that must be plead as an independent claim: negligent failure to pre-bag chickens.

Early common law required that a plaintiff search a register of writs for a "form of action" that fit the particulars of the complaint; if there was none, or if the plaintiff chose the wrong one, the king's court would provide no remedy at all. ¹ Today the majority tells Tami Warner that she may not submit her claim to the jury because she chose the wrong form. Her complaint about the unbagged chickens is rendered a nullity on the reasoning that it is too peculiar to fall within a general claim of premises liability, and too vaguely plead to permit consideration on a separate basis. Evidently, the complaint is actionable only if specifically plead as an independent tort.

The majority opinion defies modern rules of pleading, which require only that a plaintiff put the defendant on notice of the claim involved. Tex.R.Civ.P. 47(a) (an original pleading setting forth a claim of relief shall contain "a short statement of the cause of action sufficient to give notice of the claim involved"); Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982) (in the absence of special exceptions a petition must be construed liberally in favor of the pleader). Warner's pleadings accomplished no less. H.E.B. did not specially except to the form of the pleadings and did not object at trial when Warner pursued her premises liability theory on the basis of the failure to bag. The majority acknowledges that the petition asserted a claim of negligence, and articulated a theory of premises liability. Still, it finds the pleadings deficient.

This retrograde analysis runs counter not only to modern tenets of procedure, but also to this court's plainly stated determination that "an invitee's suit against a store owner is a simple negligence action." Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex.1983) (citing Rosas v. Buddies Food Store, 518 S.W.2d 534, 536-37 (Tex.1975); Parker v. Highland Park, Inc., 565 S.W.2d 512, 521 (Tex.1978)). Citing Corbin, the majority holds that Warner alleged only a claim based upon premises liability. The majority runs afoul of Corbin, however, when it defines the scope of a premises liability theory of recovery to exclude the complaint that a storeowner displayed goods in an unsafe condition. Corbin recognized that a "storekeeper may be held liable for any dangerous condition about which he should be aware, not just for specific objects left on the floor by customers." Id. at 298.

Corbin also recognized that a plaintiff asserting a negligence action against a storeowner need not establish "a specific set of facts or a specific breach of duty." 648 S.W.2d at 295. Neither is the plaintiff required to plead a specific set of facts. In holding that "an invitee's suit against a storeowner is a simple negligence action," the court rejected special prerequisites for asserting the claim. Id. at 295.

Further, Corbin explicitly approves of a premises liability claim supported by evidence of a grocer's failure to pre-bag a food item. The essence of the Corbin complaint was that the remains of unbagged food resulted in injury--there grapes, here chicken. The court observed:

Safeway acknowledges that it took no other action, such as bagging the grapes ... to minimize the hazard. Under these circumstances, because reasonable minds could conclude that Safeway did not use reasonable care to take some preventive measure against a foreseeable harm, the question of its negligence was for the jury to decide.

648 S.W.2d at 297 (emphasis added). This...