Medallion Stores, Inc. v. Eidt, 7714

• Decision Date: 31 May 1966
• Docket Number: No. 7714,7714
• Parties: MEDALLION STORES, INC., Appellant, v. W. T. EIDT, Appellee. . Texarkana
• Court: Texas Court of Appeals

Page 417

405 S.W.2d 417

MEDALLION STORES, INC., Appellant, v. W. T. EIDT, Appellee.

No. 7714.

Court of Civil Appeals of Texas.

Texarkana.

May 31, 1966.

Rehearing Denied July 5, 1966.

Jack Pew, Jr., Jackson, Walker, Winstead, Cantwell & Miller, Dallas, for appellant.

Charles Gallagher, Carter, Gallagher, Jones & Magee, Dallas, for appellee.

FANNING, Justice.

This is an appeal from a verdict and judgment in favor of appellee, a customer of appellant's store, for injuries sustained when he tripped over the corner of a display platform that constituted the boundary of one of the aisles in the store. There was one and only one liability finding against appellant: that appellant, at the time and on the occasion in question, 'had a display platform without merchandise or other tangible objects resting thereon', which act was negligence and a proximate cause. (Special issues 1, 2 and 3) Appellant has timely complied with all the steps in the appellate process. The points of error presented here are germane to assignments in appellant's motion for judgment non obstante veredicto and to disregard certain special issues, its amended motion for new trial, or both of them.

Appellee went into appellant's store for the purpose of purchasing a television set. He and his wife were proceeding down an aisle in search of the television department; on his way he noticed a display of dishes which he thought was 'mighty pretty'; the various displays of merchandise were placed upon platforms and were arranged to attact the attention of the customer to the various displays; one of these platforms or 'display islands' had no merchandise on it and appellee while looking upwards towards signs in the television department after being told by his wife where to look for them, tripped over the platform or 'display island' which had no objects upon it, and received his injuries from tripping over said platform. He did not see the platform or display island and had not been in the store before. He testified that he was looking up toward the television department signs when he tripped over the platform, but further testified to the effect that he guessed that he could have seen it if he had been looking down instead of up. His wife did not see the accident. The witness Crawford testified that he saw the accident and saw Mr. Eidt trip over the platform or display island. There was also testimony to the effect that an employee of the store was changing the display on the platform in question; however this was not being done at the immediate time when Mr. Eidt tripped over the platform in question, however after the accident merchandise or boxes were placed on said platform or display island. Appellee's attorneys, on cross-examination of appellant's witness and employee, Miss Mason, developed, among other things, testimony as to the art of display and the purpose of display to attact the attention of customers.

The type of the display platform in question is shown in Defendant's Exhibits Nos. 1, 2 and 3, photographs of the interior of appellant's store; appellee's wife measured the height of the platform at 4 3/4 inches and estimated that the platform was 3 or 4 feet wide and 5 or 6 feet long.

It was undisputed that the color of the platform contrasted with the color of the floor and that the store was well lighted. There was testimony to the effect that the display platform was of a standard type and used in 'plenty of stores', which was not disputed . There was also testimony to the effect that stores change their displays or display platforms.

The jury in response to issues 4, 10 and 11 found to the effect: (4) that the failure of defendant to use a display platform boxed in at the bottom, at the time and on the occasion in question, was Not negligence, (10) that at the time and on the occasion in question the display platform in question did constitute an unreasonable hazard to the purchasing public, and (11) that plaintiff at the time he reached the proximity of the platform in question did not have full knowledge of its presence.

There is no evidence or contention that the platform in question was not properly aligned with the other platforms which constituted the boundaries of the aisle. We have examined the photographs of the platforms in the interior of appellant's store and conclude that the platforms are plainly visible, and are open and obvious to anyone who might choose to look at them. The evidence is likewise undisputed that the platforms are plainly visible.

Appellee, a customer in appellant's store, was an invitee. A. C. Burton Co. v. Stasny, Tex.Civ.App., 223 S.W.2d 310, writ refused (1949). A retail store is not an insurer of its invited customers. Parker Food Stores, Inc. v. Pierce, Tex.Civ .App., 374 S.W.2d 699, wr. ref., n.r.e. (1964). The store's liability, if any, must be predicated upon a showing of a breach of a duty. A. C. Burton Co. v. Stasny, supra. (223 S.W.2d 310).

The invitee's case contains at least three essential elements. The first is described in Restatement of Torts, 2d § 343, as follows .

'A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

'(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

'(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

'(c) Fails to exercise reasonable care to protect them against the danger.'

In other words, the invitee 'is under a burden to prove the presence of a danger on the premises and that the owner knew or ought to have known of that danger.' Camp v. J. H. Kirkpatrick Co., Tex.Civ.App., 250 S.W.2d 413, wr. ref., n.r.e. (1952). In the second place, even if the condition is one that constitutes a danger of which the owner knew or ought to have known, the store owner is not liable unless the invitee can overcome the 'no duty' doctrine. In this connection see Halepeska v. Callihan Interests, Inc., Tex., 371 S.W.2d 368, wherein it was stated:

'The 'no duty' doctrine is this: the occupier of land or premises is required to keep his land or premises in a reasonably safe condition for his invitees. This includes a duty of the occupier to inspect and to discover dangerous conditions. Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 20 A.L.R.2d 853 (1950); Genell, Inc. v. Flynn (163 Tex. 632), 358 S.W.2d 543 (1962). His duty is to protect his invitees from dangers of which he, the occupier, knows, or (because of his duty to inspect) of which he Should know in the exercise of ordinary care. If there are dangers which are not open and obvious, he is under a Duty to take such precautions as a reasonably prudent person would take to protect his invitees therefrom or to warn them thereof. But if there are open and obvious dangers of which the invitees know, or of which they are charged with knowledge, then the occupier owes them 'no duty' to warn or to protect the invitees. This is so, the cases say, because there is 'no duty' to warn a person of things he already knows or of dangerous conditions or activites which are so open and obvious that as a matter of law he will be charged with knowledge and appreciation thereof. This Court said in Harvey v. Seale, 362 S.W.2d 310 (1962):

'And there is no duty whatsoever with respect to conditions that are so open and obvious, with dangers therein so apparent, that the same are or should be known and appreciated by the visitor. One who has no right to enter except by virtue of the landowner's consent can remain off the premises if he does not wish to subject himself to the risk of injury from such conditions. Where he has an opportunity to exercise an Intelligent choice as to whether the advantage to be gained by his entry is sufficient to justify his incurring the risk, the landowner owes him no further duty to protect him from harm.' (Emphasis throughout is here added.) 362 S.W.2d at 312--313.

'So in a suit by an invitee against the occupier, the invitee must not only prove that he was injured as a proximate result of encountering a condition on the premises involving an unreasonable risk of harm, but he must also prove, as part of the plaintiff's case, that the occupier owed him a Duty to take reasonable precautions to warn him or protect him from such danger, i.e., the plaintiff must negative 'no duty.' This is the 'no duty' referred to in the cases. Academically, it may be a rather clumsy concept, but it is still the law. Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374 (1948)'.

and in the third place there can be no liability unless the negligence complained of was a proximate cause of the invitee's injuries. Baumler v. Hazelwood, 162 Tex. 361, 347 S.W.2d 560 (1963) .

After carefully reviewing the record in this cause it is our opinion that the judgment of the trial court should be reversed and that a 'take nothing' judgment should be rendered in favor of defendant-appellant for the following reasons:

1. There was no evidence of probative force in the record to show that it was dangerous for appellant to have a large, standard display platform, (as shown by this record) in plain sight, without merchandise or other tangible objects thereon. In this connection see the following authorities: 61 A.L.R.2d 122; Smith v. Safeway Stores, Inc., 206 A.2d 264 (D.C.App., 1965); Engdal v. Owl Drug Co., 183 Wash. 100, 48 P.2d 232 (1935); Letiecq v. Denholm & McKay Co., 328 Mass. 120, 102 N.E.2d 86 (1951).

2. There was no evidence of probative force in the record to show that appellant knew or should have known that it was dangerous to have such display platform without merchandise or other tangible objects thereon. In this connection see Camp v. J. H. Kirkpatrick Co., supra (250 S.W.2d 413). There was nothing which occurred prior to appellee's accident which might...