Jackson v. Associated Developers of Lubbock

• Decision Date: 16 April 1979
• Docket Number: No. 8962,8962
• Parties: Kerry L. JACKSON, Appellant, v. ASSOCIATED DEVELOPERS OF LUBBOCK and Don Osborne, Appellees.
• Court: Texas Court of Appeals

Page 208

581 S.W.2d 208

Kerry L. JACKSON, Appellant, v. ASSOCIATED DEVELOPERS OF LUBBOCK and Don Osborne, Appellees.

No. 8962.

Court of Civil Appeals of Texas, Amarillo.

April 16, 1979.

Rehearing Denied May 21, 1979.

Crenshaw, Dupree & Milam, Cecil C. Kuhne and J. Orville Smith, Lubbock, for appellant.

Stokes, Carnahan & Fields, Robert N. Carnahan, Amarillo, for appellees.

DODSON, Justice.

Kerry L. Jackson sued Associated Developers of Lubbock and Don Osborne for personal injuries which he sustained in a fall on a steel spiral stairway located in a building owned by Associated Developers. Mr. Jackson was employed by a building tenant. The case was tried to a jury on negligence and contributory negligence issues. The jury found both parties negligent and apportioned the negligence thirty-five percent to Mr. Jackson and sixty-five percent to Associated Developers. ¹ Based on the jury's verdict, the trial court entered judgment for Mr. Jackson in the amount of $16,941.40. Both parties appeal from the judgment. We modify the judgment to decree the full jury award to Mr. Jackson, and as modified, we affirm the judgment.

Mr. Jackson attacks, Inter alia, the unfavorable contributory negligence and proximate cause findings with legal and factual sufficiency points of error. He further maintains that the court erred in submitting these issues because Associated Developers failed to prove a predicating duty on his part. Associated Developers attacks the legal and factual sufficiency of the evidence to support the jury finding of $10,000 for Mr. Jackson's future medical expenses and in the alternative requests a remittitur of $8,000.

Mr. Jackson was employed as manager of the Lubbock office of Firemen's Fund Insurance Company. This company leased office space and basement storage areas in No. 10 Briercroft Office Park, a building owned and maintained by Associated Developers. The Firemen's Fund offices were located on the first floor level. A small hall leads from the office space area through a landing area to the entrance of a spiral stairway extending to the basement. Portions of the landing area adjacent to the spiral stairway entrance were used by Associated Developers to store janitorial equipment and supplies.

On the day of the accident, Mr. Jackson proceeded from the office space area through the landing to the entrance of the metal spiral stairway and descended the stairs to the basement. After obtaining certain supplies from the storage area, he was ascending the spiral stairway when, about halfway up the stairway, he was struck by a falling box containing fluorescent light bulbs. Mr. Jackson fell backwards down the metal stairway, sustaining injuries to his back, left knee, and left foot.

It is undisputed that Associated Developers kept a large box containing fluorescent light bulbs stored in the landing area which was used as a janitorial service area. However, the evidence does not conclusively establish the exact location of the box immediately before the accident. It is further undisputed that Associated Developers had exclusive control of, and was responsible for, the maintenance of the specific areas pertinent to the accident, I. e., the hall, the landing, the metal spiral stairway, and the area leading from the stairway at the basement level to the storage areas. It is also undisputed that Firemen's Fund Insurance Company and its employees had no obligation to maintain or control any of these areas and that Mr. Jackson had a legal right to traverse these areas as a part of his employment with the insurance company.

The jury found, Inter alia, that a box containing light bulbs fell from some point around the top of the spiral stairway, down the stairway, on the occasion in question; that the janitorial employee of Associated Developers had placed the box of light bulbs in whatever position they were in at the time they fell down the stairway; that the act of the janitor in placing the box of light bulbs in such position was negligence; and that such negligence was a proximate cause of the injury to Mr. Jackson. These jury findings are unchallenged by Associated Developers.

The jury also found that Mr. Jackson was negligent in allowing the box of fluorescent light bulbs to remain in a hazardous position, if same constituted a hazardous position, or in not removing the hazardous condition and that such act or omission was a proximate cause of the occurrence in question. Mr. Jackson attacks this jury finding with legal and factual sufficiency points. He also maintains that: the trial court erred in overruling his motion for judgment notwithstanding the jury's answer to this special issue because there was no evidence to raise the issue; the undisputed evidence establishes that Mr. Jackson did not know of the presence of the box of light bulbs around the top of the stairway; there is no evidence that he knew the box of light bulbs was in a precarious position; he was not the person who had management or possession of the box containing light bulbs; he had no duty to inspect the premises for dangerous or precarious conditions; and he had no duty to keep a lookout over the box containing the light bulbs or its location.

I.

In Harvey v. Seale, 362 S.W.2d 310 (Tex.1962), our Supreme Court returned this type of premises case, I. e., landlord-tenant, "to trial upon negligence principles, that is, whether the plaintiff and defendant acted reasonably." See also Parker v. Highland Park, Inc., 565 S.W.2d 512, 519 (Tex.1978). The duty of Associated Developers is unchallenged; therefore, we speak to matters related to the duty of Mr. Jackson.

Although Mr. Jackson had no duty to inspect the premises for latent precarious conditions, he had the duty to exercise ordinary care for his own safety. See Peck v. Peck, 99 Tex. 10, 87 S.W. 248, 249 (1905); Camp v. J. H. Kirkpatrick Co., 250 S.W.2d 413, 417 (Tex.Civ.App. San Antonio 1952, writ ref'd n. r. e.). Contributory negligence is a breach of duty to exercise ordinary care to avoid injury. In Camp, the court stated:

An invitee is also under a duty to exercise reasonable care for his own self-protection against dangers of which he knows or ought to know. . . . Actually, an invitee's knowledge of danger or the existence of facts from which he ought to have knowledge is relevant on the issue of the invitee's own contributory negligence.

In Kenny v. El Paso Electric Company, 371 S.W.2d 777, 780 (Tex.Civ.App. El Paso 1963, writ ref'd n. r. e.), the court also stated:

It is the essence of contributory negligence that the person to be charged therewith knew, or by the exercise of ordinary care should have known, of the circumstance or circumstances out of which the danger arose.

Knowledge of the peril which subsequently results in injury gives rise to the duty to exercise ordinary care to avoid injury. This duty knowledge consists of actual knowledge, as well as constructive or implied knowledge. See Camp v. J. H. Kirkpatrick Co., supra; Kenny v. El Paso Electric Company, supra. Each phase of knowledge presents different duty considerations. See 57 Am.Jur.2d Negligence § 338 (1971); 65A C.J.S. Negligence § 119 (1966). In the absence of knowledge, I. e., actual or constructive, there is no duty, and without duty there can be no breach.

The determination of the existence of a legal duty is a question of law for the court. Oldaker v. Lock Construction Company, 528 S.W.2d 71, 77 (Tex.Civ.App. Amarillo (1975), writ ref'd n. r. e.); Webb v. City of Lubbock, 380 S.W.2d 135, 136 (Tex.Civ.App. Amarillo 1964, writ ref'd n. r. e.). The determination is based upon the facts surrounding the occurrence in question. Webb v. City of Lubbock, supra. In contributory negligence considerations, duty knowledge is tested by the objective standard. See Massman-Johnson v. Gundolf, 484 S.W.2d 555, 557 (Tex.1972); Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368, 379 (Tex.1963).

The challenged issue, I. e., that Mr. Jackson was negligent in not removing the hazardous condition, relates to the actual duty knowledge. It assumes that Mr. Jackson actually did see or knew the box of light bulbs was in a precarious position, if it was, and then questions whether Mr. Jackson was negligent in allowing the box to remain in a hazardous position or in not removing the hazardous condition. In essence, the issue assumes Mr. Jackson had a duty to remove the box because he saw or knew it was in a precarious position.

Mr. Jackson objected to the submission of the challenged issue on the following grounds:

Object to Special Issue No. 5D for the reason that he could not be guilty of allowing the box of florescent light bulbs to remain in a hazardous position unless he knew that it was there, and there is not one line of evidence or suggestion that he knew or placed them there, and therefore he could not have had the duty to not allow the box of light bulbs to remain in a hazardous position.

Mr. Jackson testified in clear and unequivocal language that he did not see the box of light bulbs and that he did not know where the box was situated on the occasion in question. His pertinent testimony follows:

Q Mr. Jackson, we have have shown and are showing to the jury pictures of the spiral stairway that you were on at the time that you got hurt.

On April 8, 1975, were you on that stairway at the time you got hurt?

A Yes, sir.

Q At that time, where were you going or where had you been?

A I had been to our storage room in the basement and was coming back up the steps.

Q I wish you'd tell the jury, please, as to this spiral stairway, how often did you run up and down those stairs?

A Once or twice a month, I use those stairs.

Q And was it did you ever, as you used those stairs, look around this storage area to see if everything that was stored there was carefully stored?

A I used it. I didn't go in there and examine the area before I used it. If the way was clear, I went through.

Q Had you ever had the...