Ovalle v. Cuda, 5627
| Decision Date | 23 September 1976 |
| Docket Number | No. 5627,5627 |
| Citation | 542 S.W.2d 914 |
| Parties | Ernestine OVALLE and Gonzalo Ovalle, Appellants, v. A. A. CUDA, d/b/a Cuda's Grocery & Market, et al., Appellees. |
| Court | Texas Court of Appeals |
Samuel F. Biery and Fred Biery, Biery, Biery, Davis & Myers, San Antonio, for appellants.
J. Michael Myers and Damon Ball, Groce, Locke & Hebdon, San Antonio, for appellees.
This is an appeal by plaintiffs, Ovalle from instructed verdict plaintiffs take nothing in a slip and fall case.
Plaintiffs sued defendants A. A. Cuda, J. F. Cuda, and R. G. Cuda all d/b/a Cuda's Grocery and Market, for personal injuries allegedly sustained by Ernestine Ovalle on December 27, 1974 on defendants' premises at 4803 South Flores, San Antonio.
Mrs. Ovalle alleged she was entering defendants' place of business on a rainy morning on December 27, 1974 about 10 AM, to purchase groceries, and was in the process of taking hold of the safety railing for the purpose of walking up the defendants' concrete entrance ramp, when she slipped and fell because of a patch of grass which defendants allowed to grow onto the concrete entrance ramp. As a result of such fall she alleged she suffered a broken right ankle and fractured tailbone.
After the jury had deliberated for some four hours they reported to the court they were deadlocked. At this point defendants moved the court to withdraw the case from the jury and render judgment for defendants asserting:
1) There is no evidence any one of defendants owned or had any leasehold interest in the premises in question on the date in question.
2) There is no evidence that Ernestine Ovalle was caused to fall by the grass in question.
3) As a matter of law the grass in question did not constitute a dangerous condition creating an unreasonable risk of harm.
4) The grass in question was an open and obvious condition.
The trial court granted such motion and rendered judgment plaintiffs take nothing.
Plaintiffs appeal on 5 points contending the trial court erred in granting defendants' motion for instructed verdict:
1) Because the evidence and inferences therefrom support a finding the defendants owned the premises on the date of the accident.
2) Because the evidence and inferences therefrom support a finding plaintiff was caused to fall by the grass in question.
3) Because the evidence and inference therefrom support a finding the grass did constitute a dangerous condition creating an unreasonable risk of harm.
4) The dangerous condition in question was not as a matter of law an open and obvious...
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