Johnson v. Tom Thumb Stores, Inc.

• Decision Date: 25 April 1989
• Docket Number: No. 05-88-00434-CV,05-88-00434-CV
• Citation: 771 S.W.2d 582
• Parties: Jeanne O. JOHNSON, Appellant, v. TOM THUMB STORES, INC. and Timber Joint Venture, Appellees.
• Court: Texas Court of Appeals

Page 582

771 S.W.2d 582

Jeanne O. JOHNSON, Appellant, v.TOM THUMB STORES, INC. and TimberJoint Venture, Appellees.

No. 05-88-00434-CV.

Court of Appeals of Texas Dallas.

April 25, 1989.

Rehearing Denied June 5, 1989.

W.W. Mitchell, II, James L. Baldwin, Jr., Dallas, for appellant.

James H. Holmes, III, Joann N. Wilkins, for appelleeTom Thumb Stores, Inc.

Mark M. Donheiser, Jeffrey R. Seckel, Phillip W. Gilbert, Dallas, for appellee Timber Joint Venture.

Before McCLUNG, BAKER and KINKEADE, JJ.

BAKER, Justice.

In this slip and fall case, we affirm the judgment as to Tom Thumb Stores, Inc. and reverse the judgment as to Timber Joint Venture and remand for a new trial.

This action was brought by Jeanne O. Johnson for damages for personal injuries sustained by her when she fell in front of the store leased by Tom Thumb from the landlord Timber.When Ms. Johnson rested her case, the trial court granted a directed verdict in favor of the tenant Tom Thumb.The trial proceeded against the landlord Timber.A jury found Ms. Johnson and Timber were each fifty percent negligent and awarded Ms. Johnson damages for past medical expenses and past lost earnings.The jury awarded no damages for past or future pain and suffering and physical impairment or for future lost earnings or future medical expenses.The trial court refused to grant Ms. Johnson a new trial, and this appeal results.

Ms. Johnson asserts five points of error.Points one and two assert that the jury's failure to find physical impairment and pain in the past, and its failure to find future pain, loss of earning capacity, and physical impairment is so against the great weight and preponderance of the evidence as to be manifestly unjust and clearly wrong.In points three, four, and five, Ms. Johnson contends that the trial court erred in granting Tom Thumb's motion for directed verdict because there was evidence that Tom Thumb knew about the dangerous conditions existing in front of its store and had a duty to warn patrons of the conditions, that there was evidence that Tom Thumb controlled and maintained the sidewalks, walkways, and entranceway to the store, and that there was evidence that Tom Thumb had knowledge of the dangerous condition and failed to notify Timber so the condition could be corrected or eliminated.

We first consider the points concerning Tom Thumb.Ms. Johnson allegedly slipped on a light fixture imbedded in the sidewalk and broke her hip.The sidewalk where the light fixture was located was part of the common area in a shopping center owned by Timber.Tom Thumb leased a portion of the center, which was adjacent to the common area where Ms. Johnson fell.It was stipulated that Tom Thumb was operating the store under a lease agreement with Timber, which lease provides that Timber was responsible for and had control over the common areas of the shopping center.Ms. Johnson fell on the sidewalk some ten feet from the entrance to Tom Thumb's store.The area where Ms. Johnson fell is part of the common area contemplated by the lease between Tom Thumb and Timber.

Ms. Johnson contends that the evidence shows that Tom Thumb had actual knowledge of the dangerous condition prior to her fall.At trial, Ken Kollasch, co-assistant grocery manager of Tom Thumb, testified that he had slipped and fallen on a similar imbedded light at another place in the sidewalk.Mr. Kollasch testified that following Ms. Johnson's fall, he helped her up and told her that he had previously slipped on a similar light.There was additional testimony by Mr. Kollasch that he notified his supervisor at Tom Thumb about his fall.There was also testimony that Tom Thumb did not report this information to Timber.Ms. Johnson contends that the evidence at trial was clear that Tom Thumb knew about the dangerous nature of the imbedded light fixture in the common area and yet failed to take preventative measures to warn its patrons or Timber so that the danger could be eliminated.Ms. Johnson argues that Tom Thumb owed a duty to her about the light fixture in the common area because of the general rule that an owner/occupier of premises owes a duty to its invitees to keep premises in a reasonably safe condition and to warn of dangerous conditions.Ms. Johnson also contends that Tom Thumb assumed a duty by its control and maintenance of the area.Finally, she contends that Tom Thumb owed her a duty to convey the knowledge it had of the light fixture to Timber.

When Tom Thumb moved for a directed verdict at the close of Ms. Johnson's case, Tom Thumb relied on this Court's opinion in Howe v. Kroger Co., 598 S.W.2d 929(Tex.Civ.App.--Dallas 1980, no writ).Tom Thumb cited Howe for the proposition that if the lease relieves the tenant of any responsibility for maintenance of sidewalks, then the tenant has no duty to third parties, even invitees, to keep the sidewalks free from dangerous conditions.SeeHowe, 598 S.W.2d at 931.Ms. Johnson concedes that the lease agreement provides that responsibility for maintaining the common areas, including the sidewalk where the light fixture is located, falls upon Timber.However, Ms. Johnson contends that Howe is not dispositive of this case because there are other cases where liability has been imposed upon a tenant for injury occurring outside of the premises actually under control.Ms. Johnson first relies on the Texas Supreme Courtcase of Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609(1950), in support of her position that Tom Thumb's duty extended beyond the leased premises to include an area under the exclusive control of another.The Renfro case is distinguishable.In Renfro, the dangerous condition that brought about the injury was a doorway common to a motor garage and the Renfro drugstore.This fact contrasts to the facts in this case where the alleged dangerous condition is only part of the common area and not a part of an entranceway contiguous to Tom Thumb's leased premises.Secondly, the lease agreement specifically provided that the tenant, the drugstore, agreed to keep a passageway open at all times during the hours the drugstore was open for business between the motor garage, the drugstore, and the rest of the building.The owner of the building, a bank, was obligated to keep "corridors, halls, and entrances" leading to the drugstore's premises in good repair.The supreme court held that the provisions of the lease did not vest such exclusive control of the passageway in the landlord as to relieve the tenant of its duty of care to its invitees.We reject Ms. Johnson's argument that Renfro supports her position.

In her brief, Ms. Johnson relies upon opinions of other courts of appeal to support her argument that liability has been imposed upon a tenant for injury occurring outside the premises under the tenant's control.SeeNorthwest Mall, Inc. v. Lubri-Lon Int'l, Inc., 681 S.W.2d 797(Tex.App.--Houston [14th Dist.]1984, writ ref'd n.r.e.);Joseph v. Jet Air Freight Corp., 479 S.W.2d 325(Tex.Civ.App.--Waco1972, writ ref'd n.r.e.);Parking, Inc. v. Dalrymple, 375 S.W.2d 758(Tex.Civ.App.--San Antonio 1964, no writ);Chapman v. Parking, Inc., 329 S.W.2d 439(Tex.Civ.App.--San Antonio1959, writ ref'd n.r.e.).Tom Thumb, at trial and before this Court, relies on this Court's holding in the Howe case.At oral argument it was conceded by Ms. Johnson that resolution of the issue depended on whether this Court would follow Howe or whether it would follow what Ms. Johnson contends to be an extension of a tenant's liability as set out in the casesshe relies on.

In Howe this Court affirmed summary judgment in Kroger's favor and held:

[A]n 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 that an occupier of premises has no greater duty than does the public generally regarding conditions existing outside his premises and not caused by the occupier.SeeAbalos v. Oil Development Co., 544 S.W.2d 627, 633(Tex.1976)(bystander not required to prevent injury to others).

Howe, 598 S.W.2d at 931.We concluded in Howe that under the lease agreement between Kroger and the premises' owner, the area where the plaintiff fell was a part of the common area for which the landlord was responsible.Therefore, Kroger "had no liability regarding injuries occurring on the sidewalk because no duty existed relative to areas outside the leased premises."Howe, 598 S.W.2d at 931.We decline Ms. Johnson's invitation to disregard Howe, and we hold that the Howe rationale is applicable under the facts of this case.We overrule Ms. Johnson's points of error numbers three, four, and five.

Before we consider Ms. Johnson's remaining two points of error complaining about the jury's failure to find in her favor for additional damages, we must first consider Timber's first reply point and Timber's second cross point of error.

In its first reply point, Timber contends that Ms. Johnson has failed to preserve her factual insufficiency points of error because her motion for new trial was filed before the trial court entered judgment.Timber argues that the points were not preserved because the trial court overruled her prematurely filed motion for new trial in the same instrument that granted the judgment and because the trial court's decision to deny the motion for new trial does not specify the grounds for such order.Timber contends that this Court should presume that the trial court denied Ms. Johnson's motion for new trial because the trial court felt compelled to grant judgment on the verdict before considering the factual insufficiency of the evidence.Timber argues that since the factual insufficiency points were not reurged after the trial court rendered judgment, we should presume that ...