Hukill v. H.E.B. Food Stores, Inc.

• Decision Date: 31 August 1988
• Docket Number: No. 13-87-374-CV,13-87-374-CV
• Citation: 756 S.W.2d 840
• Parties: Evvy May HUKILL and Bill Hukill, Appellants, v. H.E.B. FOOD STORES, INC., and H.E.B. Grocery Company, each doing business as "H.E.B." and Both doing business as H.E.B. Food Stores, and as H.E.B. Food Stores, Inc., Appellee.
• Court: Texas Court of Appeals

Page 840

756 S.W.2d 840

Evvy May HUKILL and Bill Hukill, Appellants, v. H.E.B. FOOD STORES, INC., and H.E.B. Grocery Company, each doing business as "H.E.B." and Both doing business

as H.E.B. Food Stores, and as H.E.B.

Food Stores, Inc., Appellee.

No. 13-87-374-CV.

Court of Appeals of Texas,

Corpus Christi.

Aug. 31, 1988.

Rehearing Denied Sept. 22, 1988.

William J. Chriss, Corpus Christi, for appellants.

Rudy Gonzales, Jr., Chris J. Rodriguez, Corpus Christi, for appellee.

Before DORSEY, UTTER and KENNEDY, JJ.

OPINION

DORSEY, Justice.

Appellant, Evvy May Hukill, brought suit against appellee, H.E.B. Food Stores, Inc., for personal injuries resulting from her slip and fall in an H.E.B. store. ¹ The jury found neither party negligent, and the trial court then entered a take-nothing judgment, of which appellant now complains in five points of error. We reverse and remand.

On July 15, 1984, Mrs. Hukill entered appellee's Annaville store in Corpus Christi, Texas. While shopping, she slipped in a puddle of children's bubble blowing solution and fell, injuring her knee.

Appellant's third and fourth points of error assert that the trial court erred in refusing to grant a new trial because the jury's responses to Special Issues 2 and 3 are against the great weight and preponderance of the evidence. These issues read as follows:

SPECIAL ISSUE NO. 2

Did H.E. Butt Grocery Co. know, or in the exercise of ordinary care should they have known, that the liquid was on the floor?

Answer: "Yes" or "No.".

Answer: No If you have answered Special Issue No. 2 "yes," and only in that event, then answer the following Issue; otherwise do not answer same.

SPECIAL ISSUE NO. 3

Was H.E. Butt Grocery Co.'s failure to clean the liquid negligence?

Answer: "Yes" or "No".

Answer: N/A

Courts of appeal have jurisdiction to determine whether the jury's affirmative answer is supported by the evidence or whether its failure to find affirmatively is against the great weight and preponderance of the evidence. Cropper v. Caterpillar Tractor Company, 754 S.W.2d 646 (1988). In determining either question, all of the evidence will be considered. Before we can reverse on such a point of error, we must detail the evidence and clearly state why the jury's finding is so against the great weight and preponderance of the evidence to be manifestly unjust and why it shocks our conscience. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986).

It is within the jury's province to "judge the credibility of witnesses and the weight to be given their testimony, and to resolve conflicts and inconsistencies in the testimony of any one witness as well as testimony of different witnesses." Salazar v. Hill, 551 S.W.2d 518, 520 (Tex.Civ.App.--Corpus Christi 1977, writ ref'd n.r.e.). See also Approved Jury Instructions, Rule 226a, Texas Rules of Civil Procedure. We are sensitive to the tension between the constitutional right of a litigant to have the jury determine disputed facts and factual review by courts of appeal.

When the jury fails to make an affirmative finding and complaint is made on appeal, the traditional test is easily stated: whether the verdict is so against the great weight and preponderance of the evidence to be manifestly unjust. That requires all of the evidence, although viewed consistently with the verdict, to preponderate against it, so as to mandate an affirmative response from the jury.

At trial, appellant testified that while she was walking down an aisle in appellee's store a little after 12:00 noon, her right foot slipped and she fell, first on to her left knee and then on to her buttocks. Then she noticed that the liquid she was sitting in was "clear" and "soapy" and that there was an empty bottle of bubble blowing solution underneath the shelf next to her. She placed her left hand in the center of the puddle in an attempt to get up, but her hand slipped because the substance was wet and slick. Appellant wiped her hand on her pants and then, reaching outward several inches, found an area which felt "sticky." She was then able to push herself up off the floor. There was no evidence of tracks through the solution nor otherwise of its condition on the floor to indicate it had been walked through.

Appellant called Edgar Kunkel, a chemical engineer, as her expert witness. Kunkel had conducted several tests on the drying time of bubble blowing solutions such as that on the floor. He stated that according to these tests, in order for the solution to have partially dried and become "sticky" on the outer edges, as appellant testified it did, the substance would have had to remain on appellee's floor three to five hours.

Appellee's cross-examination established that Kunkel: 1) did not conduct any type of independent chemical analysis of the solution; 2) failed to take into account the air movement at appellee's store; 3) did not duplicate the store's temperature; 4) failed to perform any type of friction test on the flooring used by H.E.B.; and 5) failed to account for the fact that appellant fell in the solution, causing it to be displaced outward, thus disturbing the former edges of the puddle.

H.E.B. store manager Douglas Cowan testified that a maintenance crew should sweep, mop, and wax the floor each day between midnight and 8:00 a.m.; before the crew is discharged at 8:00 a.m., the store manager should walk throughout the store with the maintenance supervisor inspecting all the aisles. The store employees tour the store every two hours to check for spilled items; thus, it was "very unlikely" that a substance would remain on the floor undetected for three or more hours prior to the fall. Cowan admitted that the only way such an accident could occur would be through employee negligence. The aisle in which the fall occurred has a lot of traffic around the time of Mrs. Hukill's fall, as it is one of the main routes to the area of the store in which cold beer is kept. Cowan was not on duty on the day of the fall and had no first hand knowledge of circumstances surrounding the incident.

Appellant relied almost entirely on Kunkel's testimony as to how long the substance was on the floor in her attempt to prove appellee negligently failed to discover and remove the solution. The jury apparently did not believe the liquid was on the floor from three to five hours before the fall. As trier of fact, the jury could give the seemingly conflicting evidence as much weight as it deemed appropriate. We conclude that the jury resolved evidentiary conflicts against appellant. She failed to carry her burden of persuasion that the defendant knew, or should have known, the substance was on the floor. See Salazar, 551 S.W.2d at 520.

Although appellee called no eyewitnesses or experts to the stand, it is settled law that a jury's failure to find those facts of negligence essential to the appellant's recovery need not be supported by affirmative evidence. Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex.1973); Salazar, 551 S.W.2d at 520. We therefore find that the responses to Special Issues 2 and 3 are not so against the great weight and preponderance of the evidence as to be manifestly unjust. Points three and four are overruled.

Appellant argues in her second point of error that the trial court erred in instructing the...