Kroger Co. v. Keng

• Decision Date: 31 August 1998
• Docket Number: No. 12-97-00267-CV,12-97-00267-CV
• Citation: 976 S.W.2d 882
• Parties: THE KROGER CO., Appellant, v. Sonja KENG, Appellee.
• Court: Texas Court of Appeals

Page 882

976 S.W.2d 882

THE KROGER CO., Appellant, v. Sonja KENG, Appellee.

No. 12-97-00267-CV.

Court of Appeals of Texas Tyler.

Aug. 31, 1998.

Evelyn T. Ailts, Houston, for appellant.

G. Wesley Urquhart, Kenneth A. Zimmern, Houston, for appellee.

Before RAMEY, C.J., and HOLCOMB and HADDEN, JJ.

HOLCOMB, Justice.

Appellant, The Kroger Company ("Kroger") appeals a judgment in favor of Appellee, Sonja Keng ("Keng") for $30,000 in damages. This is a workers' compensation nonsubscriber case in which the jury found that Kroger's negligence caused Keng's injury. Kroger raises two issues on appeal: 1) whether the trial court erred when it failed to submit a jury question on comparative responsibility; and 2) whether there was sufficient evidence to support the jury's verdict. We will affirm.

We will first address the factual sufficiency issue. Kroger alleges that the evidence is factually insufficient to support a finding that it owed Keng a duty, that it breached this duty or that Keng was even injured. When we review questions of factual sufficiency, we consider and weigh all of the evidence, both in support of and contrary to the jury verdict. The verdict must be upheld unless we conclude it is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951); Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex.1985); Brookshire Bros., Inc. v. Lewis, 911 S.W.2d 791, 794 (Tex.App.--Tyler 1995, writ denied). We may not substitute our opinion for that of the jury merely because we might draw different inferences or conclusion. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 797 (1951).

If an employee is injured on-the-job, and the employer is a nonsubscriber, an employee must prove actionable negligence. See J. Weingarten, Inc. v. Sandefer, 490 S.W.2d 941, 944 (Tex.Civ.App.--Beaumont 1973, writ ref. n.r.e.). In proving actionable negligence, he is required to prove a legal duty owed, breach of that duty, and damages proximately caused by that breach. Werner v. Colwell, 909 S.W.2d 866, 869 (Tex.1995). Kroger acknowledges its duty, as an employer, to use ordinary care in providing its employees a safe place to work while not making it an insurer of its employees' safety at work. Id.

An employer must provide rules and regulations for the safety of its employees, furnish safe machinery and instrumentalities, provide a safe place to work, and select careful and competent fellow servants. Burk Royalty Co. v. Walls, 616 S.W.2d 911, 923-24 (Tex.1981). The Texas Supreme Court has instructed us that the duty to provide safe instrumentalities and/or a duty to establish and enforce particular safety measures in a particular case is necessarily fact specific. Therefore, negligence depends on the facts of each case. Great Atlantic & Pac. Tea Co. v. Evans, 142 Tex. 1, 175 S.W.2d 249, 251 (1943). The test may be summed up as stated as follows:

Doubtless many orders by the master expose the servant to some risk of harm; but whether the master is negligent in ordering his servant to perform a task depends upon whether he ought to realize that the order exposes the servant to an unreasonable risk of harm. (emphasis in the original)

Gulf, Colorado & Sante Fe Ry. Co. v. Waterhouse, 223 S.W.2d 654, 659 (Tex.Civ.App.--Beaumont 1949, writ ref'd n.r.e.), as cited in J. Weingarten, Inc., 490 S.W.2d at 945. Thus, the injury at issue must be reasonably foreseeable in the context of the work being performed.

According to the record, Keng had been working in the deli department at the Kroger store located on Airline in Houston, Texas, since September 15, 1991. Her job duties mainly included waiting on customers, making sandwiches and selling pastries. On Saturday, February 26, 1994, the store's assistant manager, Ms. Stacey Sweeney ("Sweeney"), told Keng to move some out-dated pie boxes out of the deli freezer. Keng did not move the pie boxes that day. When Keng returned to work the next day, Sweeney again told Keng to move frozen pie boxes. Keng suggested waiting until the deli manager was on duty so that he could determine whether the pie boxes should be removed. She also complained to Sweeney that moving items such as the pie boxes was not normally part of her job. Sweeney again told Keng to move the boxes and Keng unsuccessfully repeated her proposal that they should wait until the deli manager was present to assist her. Sweeney insisted that Keng move the boxes and engaged the services of an older co-worker named Clarence ("Clarence") to help her. Clarence did not assist Keng in the removal of the boxes from the shelves. Instead, Keng handed the boxes to Clarence, who then placed them on a cart and rolled them into a large freezer. Clarence left to perform other duties before Keng began removing boxes from the top two shelves. Keng described how those boxes stuck out or protruded over the lip of the shelves. In order to reach them, Keng secured a ladder. She testified that the pie boxes each weighed approximately forty pounds and that she had removed approximately fifty pie boxes before the accident. Kroger, on the other hand, presented testimony that some of the pie boxes weighed as little as twenty-five pounds depending on the number of pies in a box. There was no evidence as to the weight of the boxes which fell on Keng.

Keng testified that she was on the ladder moving boxes from the top shelf next to the freezer motor when she was called to the deli counter. When she started down the ladder, three boxes fell from the top shelf and hit her on the back. The force of the boxes knocked her off the ladder and she fell, hitting her chest on the cart. Keng stated that she immediately felt pain. She reported her injury, but continued to work the rest of her shift. Keng went to the emergency room about a week later, and again on March 13th. Kroger's Risk Management became involved and made an appointment for Keng to see a physician who they routinely used, Dr. Larry Likover ("Likover"). Keng told Likover that she was in pain, but the doctor concluded that he could not find anything wrong with her and ordered her back to work. While Keng was at work on March 17th, she began shaking. Kroger's employees placed her in a wheelchair and called her mother, who took her home. Keng's mother then called an ambulance to transport Keng to the emergency room. On October 28, 1994, Kroger sent Keng notice that she was on "unauthorized leave of absence." Kroger eventually terminated her.

Dr. John Cianca, a specialist, testified for Keng that she suffered from a sacroiliac joint hypomobility with myofacial pain. Kroger offered Dr. Likover, Dr. Anderson Kant and Dr. Ken Mathis, who all testified that they could find no objective evidence of injury. Kroger's safety manual was also introduced into evidence. The manual indicated that it was company policy that anyone using a ladder was required to keep one hand on the ladder at all times. Additionally, there was evidence that appliances were in existence which would have aided in moving heavy items off of high shelves. The store in question, however, did not have this type of appliance small enough to fit into the freezer.

The jury found that Kroger was negligent because it failed to furnish necessary appliances and/or materials to carry on the work requested of Keng in a proper condition and with reasonable safety, and it also failed to provide adequate help and/or assistance under the circumstances for the performance of required work. Our review of the record shows that there was some evidence from which the jury could have inferred that Kroger was negligent under the above standards. Keng testified that some of the pie boxes were piled three high and were partially hanging over the top shelf. Three of these boxes fell on her. Kroger argues the evidence reflected Keng herself moved the boxes which, in turn, caused the boxes to fall. We disagree. As we understand it, Keng had moved and loaded fifty boxes from the bottom shelves and was beginning to move boxes from the top shelves. She had only moved a few of the boxes from around the freezer fan motor when she was summoned to wait on a customer. There was no evidence that she had moved the actual boxes which struck her in the back. The jury could have inferred that another Kroger employee had previously improperly stacked the boxes, causing the dangerous condition. In addition, there was evidence that not all of the boxes were full of pies. The jury could have concluded that when these boxes were placed near the front of the shelf, it was a foreseeable danger that they would fall if slightly disturbed.

Keng stated that moving pie boxes was not part of her normal duties. The jury could have found negligence in Sweeney's order to do this particular work knowing that Keng was untrained in that area. The jury could also have found negligence in Kroger's failure to adequately inspect the condition of the boxes and/or adequately explain how they could be removed in a safe manner or by failing to ensure that adequate assistance was available. The jury could have determined that Kroger did not furnish adequate lifting equipment and appliances to carry out the task of removing heavy boxes from the top shelf. Although Clarence was initially assigned to help Keng, there was evidence that he was not instructed in the proper manner to assist her. Implicit with safety instructions is the responsibility to see that they are followed. Morgan v. Pool, 641 S.W.2d 370, 373 (Tex.App.--Dallas 1982, writ ref'd n.r.e.). A combination of the above factors could reasonably have been viewed by the jury as negligence on the part of Kroger.

Keng could not reach the boxes on the top shelf without a ladder. Kroger's own safety manual required that while using a ladder, an employee must keep one hand on it at all times. Keng argues this indicates a foreseeability of an...