J. Weingarten, Inc. v. Razey

• Decision Date: 03 April 1968
• Docket Number: No. B--330,B--330
• Citation: 426 S.W.2d 538
• Parties: J. WEINGARTEN, INC., Petitioner, v. Patsy Ruth RAZEY et vir, Respondents.
• Court: Texas Supreme Court

Page 538

426 S.W.2d 538

J. WEINGARTEN, INC., Petitioner, v. Patsy Ruth RAZEY et vir, Respondents.

No. B--330.

Supreme Court of Texas.

April 3, 1968.

Vinson, Elkins, Weems & Searls, Raybourne Thompson, Jr., and Jeff Crane, Jr., Houston, for petitioner.

Freeman M. Bullock and W. C. Shead, Houston, for respondents.

HAMILTON, Justice.

This is an action by Patsy Ruth Razey and husband, Respondents, to recover damages for personal injuries resulting when Mrs. Razey slipped and fell on the sidewalk during a heavy rain outside a grocery store owned and operated by J. Weingarten, Inc., Petitioner. The judgment of the trial court awarding the Plaintiff's damages on the jury verdict was affirmed by the Court of Civil Appeals. 414 S.W.2d 532. We reverse and remand.

The evidence considered in the light most favorable to the jury verdict shows that potted flowers and shrubs were exposed for sale in a border along the covered concrete walkway in front of the main store and adjacent to the parking area; displayed plants were rooted in soil, many in metal cans of one to three gallon capacity, and others in boxes with some of the larger varieties of shrubs having their roots balled in moss and burlap wrapped. All plants were outside the store proper and divided into sections leaving occasional openings or aisles of about twenty-four (24) inches in width for customers to enter upon the covered walkway or porch from the parking lot. Some of the plants were under the covered porch and some were outside. The roof was of a height that permitted falling rain to be swept by air currents so as to fall upon plants and their containers.

The stock plants had been arranged and displayed for sale for a period of two months prior to the time Mrs. Razey alighted from an automobile at the edge of the parking area and proceeded toward a store entrance passing near one of the roof support columns, and along an aisle separating the plants and on to the covered walkway. There was a heavy downpour of rain preceding and at about the time of Mrs. Razey's appearance at the store. Mrs. Razey fell in the aisle on the concrete and was injured. A light skim of mud and silt was observed by her husband on the surface of the walkway at the place she fell. No source of mud and silt in the vicinity except the plant containers is suggested by the evidence.

The jury found that there was mud or silt at the time and place where Respondent, Mrs. Razey, fell: and that it came from the potted plants near such place. It found, also, that the failure of petitioner to remove the potted plants before respondent fell was negligence and proximate cause. The jury found, further, that the failure of petitioner to remove such mud and silt before the occurrence in question was negligence and proximate cause. Petitioner assigned as grounds for a new trial that there was no evidence to support the jury's finding to either of the negligence issues and has preserved these points on appeal. Admittedly the respondent was a business invitee on the occasion in question. We recognize the rule that the occupier of premises holds a duty to use ordinary care to keep his premises in a reasonably safe condition for his invitees, or to warn of the hazard. This Court has at least three times cited with approval Section 343 of the Restatement of Torts. ¹ As applicable here that section provides:

"A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereof if, but only if, he

"(a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and

"(c) invites or permits them to enter or remain upon the land without exercising reasonable care

"(i) to make the condition reasonably safe, or

"(ii) to give a warning adequate to enable them to avoid the harm.

It appears that each spring petitioner customarily displayed nursery plants across the front of its store, extending some seventy or eighty feet. Prior to the occasion in question they had been displayed there for two months. It knew that the plants would be exposed to the rain. However, there is no evidence of any kind that petitioner realized, or should have realized, that the display of the nursery plants in the way that they were displayed involved an unreasonable risk or...