Keetch v. Kroger Co.

Decision Date07 November 1990
Docket NumberNo. 05-90-00013-CV,05-90-00013-CV
PartiesLinda KEETCH, Appellant, v. The KROGER COMPANY, Appellee.
CourtTexas Court of Appeals

Michael A. Robertson, Grand Prairie, for appellant.

Brian J. Brendstetter, Scott W. MacLoren, Dallas, for appellee.

Before HOWELL, BAKER and LAGARDE, JJ.

OPINION

LAGARDE, Justice.

Linda Keetch, (hereinafter "Keetch"), appeals from a take nothing judgment rendered by the trial court in favor of the Kroger Company, (hereinafter "Kroger"). Keetch sued Kroger for injuries sustained as a result of a slip and fall accident. In six points of error, Keetch complains that the trial court erred in submitting the charge as drafted, and in excluding certain evidence, and that the jury's answer to the damages question was against the great weight and preponderance of the evidence. We overrule all of Keetch's points of error and affirm the judgment of the trial court.

FACTUAL BACKGROUND

On September 5, 1987, Keetch went to Kroger's to buy groceries. After leaving Kroger's, Keetch realized that she had forgotten to buy bread and reentered the store for that purpose. Having selected a loaf of bread, Keetch started walking towards the checkout counter by way of the floral department. While walking past an L-shaped desk in the floral area, Keetch slipped on an "extra slippery" spot and fell.

In preparing its plants for display in the floral area, Kroger sprays each plant, leaf by leaf, with Green Glo then wipes them to give them a uniform shine. Kroger sprays the plants on top of the desk in the floral area in a direction away from customer traffic. Approximately fifty plants had been sprayed on the day of the accident. Just prior to the accident, Kroger had swept the floral area and mopped it with water.

A witness who heard Keetch fall and saw her on the floor testified that she saw a waxy type substance behind the floral desk about the size of a washtub. However, neither Kroger employee working in the floral department on the day of the accident noticed any slippery spots in the area.

Keetch sought to hold Kroger liable under both a premises defect and a negligent activity theory. The trial court submitted the case to the jury only on a premises liability theory. The jury found that there was a slippery spot on the floor which presented an unreasonable risk of harm to Keetch, but failed to find that Kroger knew or should have known that the spot was on the floor. Because the jury failed to find Kroger had knowledge, the trial court rendered a take nothing judgment in favor of Kroger.

TRIAL COURT'S CHARGE

The charge states, in pertinent part, as follows:

QUESTION 1

On the occasion in question, was there a slippery spot in the Floral Department on Kroger's floor that presented an unreasonable risk of harm to Linda Keetch?

ANSWER: ____

If you have answered Question 1 "Yes," and only in that event, then answer Question 2.

QUESTION 2

Did Kroger know, or in the exercise of ordinary care should it have known, that the slippery spot, if any, was on the floor?

ANSWER: ____

If you have answered Question 2 "Yes," and only in that event, then answer Question 3.

QUESTION 3

Was Kroger's failure to remove the slippery spot, if any, negligence?

ANSWER: ____

Keetch first argues that the trial court deprived her of her cause of action for the negligent activity of spraying plants in the customer area by conditioning Question 3 on an affirmative answer to Question 2. Second, Keetch maintains that the submission of Question 3 deprived her of her negligence cause of action by limiting her to a premises defect theory. Third, Keetch asserts that the trial court erred in refusing to submit her requested issue inquiring whether Kroger created the unreasonably dangerous condition. Finally, Keetch argues that the trial court erred in submitting Question 2 regarding knowledge because Kroger created the condition and was, therefore, charged with knowledge of it as a matter of law.

Standard of Review

The standard of review for a court's charge is whether the trial court abused its discretion. Texas Dep't of Human Services v. E.B., 802 S.W.2d 647, 649 (Tex.1990). A trial court abuses its discretion only when its action is arbitrary or unreasonable. Landry v. Travelers Ins. Co., 458 S.W.2d 649, 651 (Tex.1970). Further, an alleged error in the court's charge is reversible only if, in light of the pleadings, evidence, and the charge in its entirety, it amounted to such a denial of the rights of the complaining party as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. TEX.R.APP.P. 81(b)(1); Island Recreational Dev. Corp. v. Republic of Texas Sav. Ass'n, 710 S.W.2d 551, 555 (Tex.1986).

Keetch's Cause of Action

In points of error one and two, Keetch argues that the trial court erred in failing to submit her negligent activity theory to the jury. Keetch testified that she fell as a result of an "extra slippery" spot on the floor, i.e., the condition of the floor. She concedes that the activity of spraying the plants did not directly cause her injury; nevertheless, she argues that because the spraying activity created the slippery floor condition, she was entitled to a submission of both an activity and a premises defect theory to the jury.

In each case relied upon by Keetch to support her entitlement to a negligent activity theory, the plaintiff was injured during the course of an activity or directly by an instrumentality: Moore v. Texas Co., 299 S.W.2d 401, 403 (Tex.Civ.App.--El Paso 1956, writ ref'd n.r.e.) (plaintiff injured while changing the oil seal on a pumping unit); Redinger v. Living, Inc., 689 S.W.2d 415, 417 (Tex.1985) (plaintiff injured by a box blade on a tractor); Hernandez v. Heldenfels, 374 S.W.2d 196, 197 (Tex.1963) (plaintiff injured when struck by a truck); J.A. Robinson Sons, Inc. v. Ellis, 412 S.W.2d 728, 731-32 (Tex.Civ.App.--Amarillo 1967, writ ref'd n.r.e.) (plaintiff killed when a cable broke during a construction operation). Because Keetch's injuries resulted from a condition of the premises and not from an activity or instrumentality, we hold that the trial court properly submitted the case to the jury solely on a premises liability theory. See Physicians & Surgeons General Hospital v. Koblizek, 752 S.W.2d 657, 659 (Tex.App.--Corpus Christi 1988, writ den.). Accordingly, we overrule Keetch's first two points of error.

Elements of a Premises Liability Case

An owner or occupier of premises owes a duty to his invitees to use reasonable care to protect them against dangerous conditions on the premises of which he has either actual or constructive knowledge. Williams v. Texas City Refining, Inc., 617 S.W.2d 823, 825 (Tex.Civ.App.--Houston [14th Dist.] 1981, writ ref'd n.r.e.). The elements a plaintiff must prove in a premises liability action are as follows:

(1) the defendant had actual or constructive knowledge of some condition on the premises;

(2) the condition posed an unreasonable risk of harm to the plaintiff (3) the defendant failed to exercise reasonable care to reduce or eliminate the risk; and

(4) the defendant's failure to use such care was a proximate cause of the plaintiff's injuries.

Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex.1983).

As a grocery store patron, Keetch was an invitee of Kroger. Id. However, Kroger owed no duty to Keetch unless it had either actual or constructive knowledge of the slippery spot on the floor.

In points of error three and four, Keetch argues that the trial court erred in submitting the knowledge question instead of her requested question inquiring whether Kroger caused the slick spot to be on its premises. Keetch argues this was error because, if it is shown that Kroger created the slippery spot, then Kroger is charged with knowledge of it as a matter of law. To support this contention, Keetch relies on Coffee v. F.W. Woolworth Co., 536 S.W.2d 539 (Tex.1976). In Coffee, the jury found both that the defendant created the condition and also that it had knowledge of the condition. Id. at 540. The trial court granted the defendant's motion for judgment notwithstanding the verdict. The Supreme Court merely held that some evidence that the defendant created the condition could create an inference that the defendant had the requisite knowledge. Id. Coffee in no way relieves the plaintiff of its burden to establish knowledge on the part of the defendant.

Moreover, the Texas Supreme Court has held that an owner or occupier of premises may be charged with knowledge only, if upon reasonable inspection, a reasonably prudent person would have foreseen a probability that the condition would result in injury to another. Seideneck v. Cal Bayreuther Assoc., 451 S.W.2d 752, 754 (Tex.1970). Knowledge is one of the four essential elements of proof in a premises liability case. Evidence that the defendant created the condition is simply a method by which the plaintiff may attempt to establish the knowledge element.

The question of whether the defendant created the condition is submitted in the place of the knowledge question in a premises liability case only when the defendant is neither the owner nor occupier of the premises. City of Denton v. Van Page, 701 S.W.2d 831, 835 (Tex.1986). In Sanchez v. Excelo Building Maintenance, 780 S.W.2d 851 (Tex.App.--San Antonio 1989, no writ), the plaintiff fell in a restroom at Kelley Air Force Base. Sanchez sued the company responsible for cleaning the restroom. The jury was asked whether the defendant had created the condition, but not whether the defendant had knowledge of the condition. Id. at 852. In approving the charge, the court held that because the defendant did not own nor have possession or control over the premises, it could only be held liable to the plaintiff if it created the condition. Id.

Keetch cites several court of appeals cases in her brief which say that a plaintiff, in...

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10 cases
  • Keetch v. Kroger Co.
    • United States
    • Texas Supreme Court
    • December 2, 1992
    ...of the slippery spot, so the trial court rendered a take nothing judgment. The court of appeals affirmed the judgment of the trial court. 845 S.W.2d 276. We affirm the judgment of the court of Keetch argues the trial court erred: (1) when the court refused to submit Keetch's negligent activ......
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    ...the 51% bar instruction does not make the instruction proper. Texas Pattern Jury Charges are not law. See Keetch v. Kroger Co., 845 S.W.2d 276, 281 (Tex.App.--Dallas 1990), aff'd, 845 S.W.2d 262 I would also hold that the trial court's abuse of discretion was harmful, and therefore, reversi......
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