Kroger Stores, Inc. v. Hernandez
| Decision Date | 03 March 1977 |
| Docket Number | No. 19120,19120 |
| Citation | 549 S.W.2d 16 |
| Parties | KROGER STORES, INC., Appellant, v. Henry HERNANDEZ, Appellee. |
| Court | Texas Court of Appeals |
William T. Hankinson, Thompson, Knight, Simmons & Bullion, Dallas, for appellant.
David Alexander, Dallas, for appellee.
In this slip-and-fall case, judgment was rendered on a verdict for plaintiff. Defendant appeals on the ground that the evidence was both legally and factually insufficient to support the jury's finding that the foreign substance on which plaintiff slipped had been on defendant's floor for such a length of time that it should have been discovered. We hold that the evidence was sufficient and, accordingly, we affirm the judgment.
The only evidence bearing on the issue of how long the substance had been on the floor is the testimony of plaintiff. He testified that he entered defendant's store as a customer and that he fell as he was walking down an aisle. After he fell, he saw on the floor, and also on his shoes and clothing, a substance which he recognized as vomit. When asked to describe its appearance, he said, He said that it had wheel tracks through it that extended "a little bit past" where it was on the floor. On cross-examination, plaintiff could give no estimate as to how long the substance had been on the floor except that it was "more than two or three minutes."
Defendant's manager testified that the practice of the store was to sweep the floor twice before noon and twice after noon and to clean up spills and breakage as soon as discovered. He said that on the occasion in question he received no report of anything on the floor until plaintiff pointed it out to him, and then he ordered one of the employees to clean it up immediately.
On this appeal defendant argues that the evidence shows only that the substance had been on the floor "more than two or three minutes," which is too short a period to establish that a reasonable shopkeeper should have realized its presence and cleaned it up. We do not think that the jury's consideration is confined to this estimate of the time. More significant is plaintiff's description of the substance as "already dried where it looks like cake." No expert testimony was produced to estimate how long a period would be required for the substance to reach this condition, but we conclude that the jury was properly allowed to make its own estimate, based on its general experience and plaintiff's description of what he saw.
Moreover, plaintiff's...
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Cox v.
...have discovered and removed it. Constructive notice can be proven by the quality of the substance on the floor. See Kroger Stores, Inc. v. Hernandez, 549 S.W.2d 16, 17 (Tex. Civ. App.—Dallas 1977, no writ) (plaintiff's undisputed testimony that vomit was "already dried where it looks like a......
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Kofahl v. Randall's Food & Drugs, Inc., 10-02-00053-CV.
...there for a sufficient length of time to charge the premises owner with constructive knowledge of its presence.1 See Kroger Stores, Inc. v. Hernandez, 549 S.W.2d 16, 16-17 (Tex.Civ.App.-Dallas 1977, no writ); Furr's, Inc. v. McCaslin, 335 S.W.2d 284, 286-87 (Tex.Civ.App.-El Paso 1960, no wr......
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Richardson v. Wal-Mart Stores, Inc.
...on the floor. All she had to do was prove that it was there so long that it should have been discovered and removed. Kroger Stores, Inc. v. Hernandez, 549 S.W.2d 16, 17 (Tex.Civ.App.--Dallas 1977, no writ) (plaintiff's description that a vomited substance was "already dried where it looks l......
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Seigler v. Wal-Mart Stores Tex., L.L.C.
...the premises owner. See Kofahl v. Randall's Food & Drugs, Inc. , 151 S.W.3d 679, 681 (Tex. App. 2004) ; Kroger Stores, Inc. v. Hernandez , 549 S.W.2d 16, at 16–17 (Tex. Civ. App. 1977) ; Furr's, Inc. v. Bolton , 333 S.W.2d 688, 689–690 (Tex. Civ. App. 1960).In Hernandez , for example, the p......
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Discovery
...v. General Manager of Scurlock’s Supermarket , 546 S.W.2d 76 (Tex. Civ. App.—Corpus Christi 1977); Kroger Stores, Inc. v. Hernandez , 549 S.W.2d 16 (Tex. Civ. App.—Dallas 1977). In a wrongful death action, the appellate court approved the following spoliation instruction concerning the dest......
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Table of cases
...Kroger Co. v. Warren , 420 S.W.2d 218 (Tex. Civ. App.—Houston [1st Dist.] 1967, no writ), §30:8.C Kroger Stores, Inc. v. Hernandez , 549 S.W.2d 16 (Tex. Civ. App.—Dallas 1977), §40:11.G Kroger Tex. Ltd. P’ship v. Suberu , 113 S.W.3d 588, 597 (Tex. App.—Dallas 2003, rev’d 216 S.W.3d 788 (Tex......
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Discovery
...v. General Manager of Scurlock’s Supermarket , 546 S.W.2d 76 (Tex. Civ. App.—Corpus Christi 1977); Kroger Stores, Inc. v. Hernandez , 549 S.W.2d 16 (Tex. Civ. App.—Dallas 1977). In a wrongful death action, the appellate court approved the following spoliation instruction concerning the dest......
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Discovery
...v. General Manager of Scurlock’s Supermarket , 546 S.W.2d 76 (Tex. Civ. App.—Corpus Christi 1977); Kroger Stores, Inc. v. Hernandez , 549 S.W.2d 16 (Tex. Civ. App.—Dallas 1977). In a wrongful death action, the appellate court approved the following spoliation instruction concerning the dest......