Massman-Johnson v. Gundolf
| Decision Date | 26 July 1972 |
| Docket Number | MASSMAN-JOHNSON,No. B--3109,B--3109 |
| Citation | 484 S.W.2d 555 |
| Parties | , a Joint Venture, et al., Petitioners, v. Edwin A. GUNDOLF, Respondent. |
| Court | Texas Supreme Court |
Strong, Pipkin, Nelson, Parker & Powers, Pike Powers, Jr., Beaumont, for petitioner.
Seale & Stover, Sid S. Stover, Jasper, for respondent.
Plaintiff Edwin A. Gundolf sued Massman-Johnson for damages arising out of injuries sustained when he slipped on algae while inspecting the construction of a dam. The trial court rendered judgment on the verdict for defendant, but the court of civil appeals reversed the judgment and rendered judgment for Gundolf. 473 S.W.2d 70. We refuse Massman-Johnson's application for writ of error, because we find no reversible error.
The jury made findings that Gundolf fell on the algae, defendant had agreed to clean off the algae, Gundolf believed defendant had removed it, and defendant had undertaken to clean off the algae but failed to remove all of it, the last being negligence and a proximate cause of the accident. The jury refused to find that plaintiff voluntarily assumed the risk or failed to keep a proper lookout. Those findings should entitle Gundolf to a favorable judgment. The question before us is whether the findings on three other issues will defeat such right.
The trial court submitted an issue which placed the burden on Gundolf to prove that the condition was not open and obvious to him. The court then posed alternative answers, and the jury refused to find that it was not open and obvious, answering, 'It was open and obvious.' Defendant says in its petition for writ of error that the finding negated its duty toward plaintiff. Gundolf says that the issue was an immaterial one and that the finding means only that Gundolf failed to discharge its burden to prove the issue. See C. & R. Transport, Inc., v. Campbell, 406 S.W.2d 191, 194 (Tex.1966). The jury also answered, 'We do' to the inquiries whether Gundolf 'in the exercise of ordinary care should have known and appreciated the risk of walking in the area of the damsite where he fell,' and whether 'the failure of the plaintiff, Edwin Gundolf, to know and appreciate the risk . . . of walking in the area where he fell . . . was a proximate cause of his fall.' Defendant says that those additional findings defeat Gundolf's right of recovery because they are findings that he was contributorily negligent.
We disagree with the statement in the majority opinion of the court of civil appeals that this is an ordinary negligence case and that, therefore, the duty rules applicable to an occupier-invitee relationship should be disregarded. We view, however, the jury's refusal to find that the condition was not open and obvious to Gundolf and the finding that he should have known and appreciated the danger as immaterial findings. An occupier owes a duty to protect an invitee from a danger which is latent, as was here proved. Coleman v. Hudson Gas and Oil Corporation, 455 S.W.2d 701 (Tex.1970). But, a defendant owes no duty to an invitee who actually knows and appreciates the nature and extent of a specific danger or who is charged in law with such knowledge. One is charged in law with that knowledge and appreciation if the condition is open and obvious to the invitee. The evidence in this case does not establish conclusively that the condition was open and obvious. It was probably for that reason the trial court submitted the issue to the jury. Whether a condition is or is not open and obvious to an invitee is not a question of fact. The phrase, 'open and obvious,' is often incorrectly used in such a manner as to suggest that it concerns a separate concept or issue. Its correct use means that there is no dispute in the evidence concerning the facts which charge him with knowledge and full appreciation of the nature and extent of the danger, and that those two facts are established as a matter of law. See Adam Dante Corporation v. Sharpe, 483 S.W.2d 452 (Tex.1972); Wesson v. Gillespie, 382 S.W.2d 921 (Tex.1964); Hausman Packing Co. v. Badwey, 147 S.W.2d 856 (Tex.Civ.App.1941, writ ref'd); Marshall v. San Jacinto Bldg., Inc., 67 S.W.2d 372 (Tex.Civ.App...
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Parker v. Highland Park, Inc.
...of the condition. A condition that is open and obvious is proof of knowledge and appreciation as a matter of law, Massman-Johnson v. Gundolf, 484 S.W.2d 555 (Tex.1972), but that phrase is not "a separate concept." Adam Dante, supra, 483 S.W.2d at 459. Knowledge and appreciation, though prov......
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Abalos v. Oil Development Co. of Texas
...issues in Adam Dante Corporation v. Sharpe, 483 S.W.2d 452 (Tex.1972) and explained the correct use of that phrase in Massman--Johnson v. Gundolf, 484 S.W.2d 555 (Tex.1972). Instead of an independent defense to an action, the phrase 'open and obvious' is merely descriptive of that state of ......
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United Scaffolding, Inc. v. Levine
...as to claims against a "general contractor on a construction site, who is in control of the premises"); Massman-Johnson v. Gundolf , 484 S.W.2d 555, 556 (Tex. 1972) (applying distinction to determine proper claim against contractor in control of the premises).9 A claim against a contractor ......
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...of any duty or to charge Rosas with knowledge and full appreciation of the nature and extent of the danger. See Massman-Johnson v. Gundolf, 484 S.W.2d 555 (Tex.1972). For these reasons, all members of the Court agree that the judgment of the Court of Civil Appeals is to be reversed and the ......