Howe v. Kroger Co.

• Decision Date: 28 April 1980
• Docket Number: No. 20264,20264
• Citation: 598 S.W.2d 929
• Parties: Delores Gail HOWE et vir Dennis Wayne Howe, Appellants, v. The KROGER COMPANY, d/b/a Kroger's, Appellee.
• Court: Texas Court of Appeals

Page 929

598 S.W.2d 929

Delores Gail HOWE et vir Dennis Wayne Howe, Appellants, v.The KROGER COMPANY, d/b/a Kroger's, Appellee.

No. 20264.

Court of Civil Appeals of Texas, Dallas.

April 28, 1980.

Newton J. Jones, Ray, Anderson, Shields, Trotti & Hemphill, Dallas, for appellants.

Charles L. Perry, Seay, Gwinn, Crawford, Mebus & Blakeney, Dallas, for appellee.

Before ROBERTSON, CARVER and HUMPHREYS, JJ.

ROBERTSON, Justice.

AppellantsDelores Gail Howe and Dennis Wayne Howe brought this action to recover for injuries Mrs. Howe sustained from a fall that occurred after she slipped on accumulated ice and snow on the sidewalk outside one of appellee's stores.Appellants alleged that appellee breached its duties to keep its premises in reasonably safe condition and to warn business invitees of dangerous conditions existing on its premises.The trial court entered summary judgment for appellee.We affirm.

On this appeal appellants argue that the summary judgment was erroneously granted 1) because a genuine issue of fact exists concerning whether appellee breached the duties it had, and 2) because insufficient evidence exists to support the judgment.As to appellants' first point of error, both sides agree that the real issue is whether the appellee had any duty to Mrs. Howe.Appellants rely on the general rule of premises liability that the occupier of premises is required to exercise ordinary care to keep his premises in a reasonably safe condition so that his invitees will not be injured, e. g., J. Weingarten, Inc. v. Razey, 426 S.W.2d 538, 539(Tex.1968);Genell, Inc. v. Flynn, 163 Tex. 632, 636, 358 S.W.2d 543, 546(1962);Smith v. Henger, 148 Tex. 456, 464, 226 S.W.2d 425, 431(1950); or to warn his invitees of any dangerous conditions.J. Weingarten, Inc. v. Razey, 426 S.W.2d at 539;Restatement (Second) of Torts§ 343(1965).Furthermore, appellants assert that this rule has been extended to hold a lessee liable to invitees for injuries caused by dangerous conditions existing in common entrances, areas, and passageways, citing Goldstein Hat Manufacturing Co. v. Cowen, 136 S.W.2d 867(Tex.Civ.App. Dallas 1940, writ dism'd judgm. cor.), and Parker v. Highland Park, 565 S.W.2d 512(Tex.1978).In Goldstein, Goldstein was one of several tenants of the building in which the plaintiff, an invitee of Goldstein, was injured.The injury occurred when the plaintiff fell into an elevator shaft which was not properly lighted.Although the elevator shaft was in common use by all the tenants, the trial court's judgment relieved the lessor of liability and Goldstein was held liable.

Appellee contends that rather than being an extension of the general rule, Goldstein represents an application of that rule to a unique set of facts.Appellee first points out that the phrase "occupier of premises," as interpreted by Texas courts, means the party in control of premises.O'Connor v. Andrews, 81 Tex. 28, 33, 16 S.W. 628, 629(1891);Renfro v. Giant Foods, Inc., 501 S.W.2d 357, 358(Tex.Civ.App. Houston(1st Dist.)1973, no writ);seeWallace v. Horn, 506 S.W.2d 325, 328(Tex.Civ.App. Corpus Christi1974, writ ref'd n. r. e.).In O'Connorthe court acknowledged the general rule that when an entire building is leased to one tenant, the tenant is liable for injuries caused by dangerous conditions subsequently occurring thereon, absent lease provisions to the contrary.

When, however, a building consisting of a number of different apartments is divided among several tenants, each one of whom takes a distinct portion, and none of them rent the entire building, the rule must then be applied so as to make each tenant responsible only for so much as his lease includes, leaving the landlord liable for every part of the building not included in the actual holding of any one tenant.

81 Tex. at 33, 16 S.W. at 629.Thus in Goldstein, a provision in Goldstein's lease relieved the lessor of liability for injuries occurring in common areas, and therefore, control of such areas was in Goldstein and the other tenants.Goldstein followed the general rule applied in all of these cases that liability follows control.See generallyRestatement (Second) of Torts§§ 328E, 360(1965).

In Parker the Texas Supreme Court quoted section 360 of the Restatement (Second) of Torts, which holds a lessor liable to lessees and their guests for injuries caused by dangerous conditions on portions of the leased premises over which the lessor retains control.The court then examined several comments to this section, including comment a, which states that the lessee's knowledge of the dangerous condition will not relieve the lessor of liability to a guest of the lessee.The court quoted that comment as follows: "(The lessee's) knowledge may subject him to liability even to his own licensees, if he fails to warn them of the danger.It will not, however, relieve the lessor of liability for his negligence in permitting the entrance to become dangerous."565 S.W.2d at 515(emphasis supplied by Texas Supreme Court).Appellants point to the first quoted sentence as indicating the supreme court's recognition of the extension of the general rule.Read in context, however, it is clear that the court was focusing on the second quoted sentence and that the first was mere surplusage in reaching the conclusion.We conclude that the first quoted sentence has not been adopted as law in Texas, but rather, that it is contrary to the existing law in Texas.That existing law, as exemplified by the cases cited above, is that an occupier of premises owes to his invitees a duty of ordinary care, which encompasses the duties to maintain those premises in reasonably safe condition and to warn of dangerous conditions on the premises.This duty, however, extends only to the limits of those premises and not beyond.We conclude...