Palais Royal, Inc. v. Gunnels

• Decision Date: 30 June 1998
• Docket Number: No. 01-95-00565-CV,01-95-00565-CV
• Citation: 976 S.W.2d 837
• Parties: PALAIS ROYAL, INC., Appellant, v. Frank GUNNELS, Sr.; Jane Gunnels; H.A. Lott, Inc.; Sharpstown Center Associates; Levy Architects Associates, Inc.; and Strange Loop Construction Company, Inc., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 837

976 S.W.2d 837

PALAIS ROYAL, INC., Appellant, v. Frank GUNNELS, Sr.; Jane Gunnels; H.A. Lott, Inc.;

Sharpstown Center Associates; Levy Architects

Associates, Inc.; and Strange Loop

Construction Company, Inc., Appellees.

No. 01-95-00565-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

June 30, 1998.

Rehearing Overruled Sept. 2, 1998.

Kathleen W. Beirne, Richard E. Griffin, Houston, for appellant.

Steve Smith, Fred Wahrlich, Geoffrey L. Harrison, Gregory N. Jones, David S. Lynch, Dianne M. Guariglia, William K. Luyties, Houston, Robert L. Wyatt, Corpus Christi, Ronald Dee Wren, Bedford, Craig Shivers, Houston, for appellees.

Before COHEN, O'CONNOR and TAFT, JJ.

OPINION

COHEN, Justice.

This is a premises-liability case in which the district court, based on the jury's verdict, rendered judgment against appellant Palais Royal, Inc. for $7,387,239.92, ¹ plus pre- and postjudgment interest. Palais Royal appeals with 38 points of error. We affirm in part and reverse in part.

Facts

This lawsuit arises out of a 1992 accident in which appellant Frank Gunnels, Sr. fell from a stockroom ladder, suffering serious injury resulting in a loss of 25 percent of his brain capacity. Mr. Gunnels was chairman of the board and construction manager of Empire Steel, Inc., a company that was a subcontractor on the 1992 renovation of Sharpstown Center Mall. Empire Steel was hired to install steel support beams in Palais Royal and other stores in the mall.

The stockroom ladder from which Mr. Gunnels fell was installed in 1984 as part of a store remodeling project. Palais Royal hired appellee Levy Architects Associates, Inc. to draw up the construction plans, which were later approved and permitted by the City of Houston. Levy's plans called for a 16-foot tall, permanently attached ladder that would enable a worker to climb from the stockroom floor up over the top of a mechanical mezzanine located in the stockroom. As designed by Levy, the worker would be able to step down onto the mechanical mezzanine floor, where air conditioning units were located. Levy's plans indicated there was to be no "drop" ceiling that would obstruct the worker's view while climbing the ladder.

Palais Royal hired appellee Strange Loop Construction Company, Inc. to do the actual remodeling work. Palais Royal itself acted as the construction architect and supervisor in order to save money. Palais Royal's president and chief executive officer Bernard Fuchs appointed Dean Stocker, a window display decorator with no previous construction experience, as the remodeling manager. Stocker changed the design of the stockroom and ladder and instructed Loop to lower the stockroom's ceiling, shorten the ladder, move the ladder on a different wall, and build a "drop" ceiling. Palais Royal did not ask the City to repermit the altered construction plans. As redesigned, the ladder extended up through the "drop" ceiling and did not extend up over the mechanical mezzanine floor such that a worker would be able to step down onto the floor.

Charge Error

In point of error A.1, Palais Royal claims the trial court erred in adopting a jury charge that omitted necessary elements of a premises-defect invitee theory of recovery.

Question 1 in the charge asked, "Did the negligence, if, any, of those named below proximately cause the injury in question?" The jury answered "yes" to Palais Royal and "no" to Mr. Gunnels, Levy, Loop, Lott, and Sharpstown Center. This broadform question apparently attempted to allow the jury to find Palais Royal negligent under either an invitee or licensee theory. The instructions and definitions to the charge used the Pattern Jury Charge definitions for the terms "invitee" and "licensee." See COMM. ON PATTERN JURY CHARGES, STATE BAR OF TEX., TEXAS PATTERN JURY CHARGES--MALPRACTICE, PREMISES & PRODUCTS PJC 60.3 ("sole proximate cause"), 65.1A ("ordinary care"), 65.1B ("negligence" of parties other than premises owner), 65.3 ("proximate cause"), 66.5 ("invitee," "licensee") (1997 ed.) [hereinafter PJC]. The charge did not include the Pattern Jury Charge definitions for "negligence" of the premises owner, i.e., Palais Royal, (PJC 65.1A) or "ordinary care" of parties other than premises owner, i.e., Gunnels, Levy, Loop, Lott, and Sharpstown Center (PJC 65.1B).

The charge also contained the following instruction, which substantially followed the Pattern Jury Charge:

If Frank Gunnels was a "licensee", then, with respect to the condition of the premises, Palais Royal, Inc. was negligent only if:

a. the condition posed an unreasonable risk of harm, and

b. Palais Royal, Inc. had actual knowledge of the danger, and

c. Frank Gunnels did not have actual knowledge of the danger, and

d. Palais Royal, Inc. failed to adequately warn Frank Gunnels, Sr of the condition or make the condition reasonably safe.

See id. PJC 66.5. No similar instruction told the jury what it must have found if Mr. Gunnels was an invitee. See infra note 3.

The elements of a premises-defect invitee theory of recovery are:

(1) a condition of the premises created an unreasonable risk of harm to the invitee;

(2) the owner knew or reasonably should have known of the condition;

(3) the owner failed to exercise ordinary care to protect the invitee from danger; [and]

(4) the owner's failure was a proximate cause of injury to the invitee.

State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex.1992); see also Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992); RESTATEMENT (SECOND) OF TORTS § 343 (1965).

The elements of a premises-defect licensee theory of recovery are:

(1) a condition of the premises created an unreasonable risk of harm to the licensee;

(2) the owner knew of the condition;

(3) the licensee did not know of the condition;

(4) the owner failed to exercise ordinary care to protect the licensee from danger; [and] ²

(5) the owner's failure was a proximate cause of injury to the licensee.

Payne, 838 S.W.2d at 237 (citing State v. Tennison, 509 S.W.2d 560, 562 (Tex.1974)); see RESTATEMENT (SECOND) OF TORTS § 342 (1965); PJC 66.5.

The charge contained all the required elements of the premises-defect licensee theory of recovery, but Palais Royal argues the charge omitted the first two elements of the premises-defect invitee theory of recovery, i.e., (1) a condition of the premises created an unreasonable risk of harm to the invitee and (2) the owner knew or reasonably should have known of the condition. ³ The charge given required Mr. Gunnels to prove there was an unreasonable risk of harm and that Palais Royal "had actual knowledge of the danger." This benefitted Palais Royal because the charge authorized Mr. Gunnels to recover only as a licensee, which requires a higher burden of proof (actual knowledge rather than constructive knowledge).

We, therefore, overrule point of error A.1. ⁴ See TEX.R. APP. 44.1(a) (standard for reversible error).

In points of error G.1 and H.2, Palais Royal contends the trial court erred in refusing Palais Royal's requested question regarding Mr. Gunnels's status as an invitee or licensee. We do not reach these points, having concluded above that any such error was beneficial to Palais Royal by raising the burden of proof on Mr. Gunnels and requiring him to prove Palais Royal "had actual knowledge" of the danger.

In point of error B.1, Palais Royal argues that Mr. Gunnels waived any possible recovery as a licensee based on the alternate theory that Palais Royal's conduct was willful, wanton, or grossly negligent. See Payne, 838 S.W.2d at 237 (describing elements of two theories of recovery for licensee injured by premises defect); PJC 66.7. ⁵ Palais Royal correctly points out that Mr. Gunnels has only sought to recover as a licensee based on the following elements: (1) the ladder created an unreasonable risk of harm; (2) Palais Royal knew about the ladder; (3) Mr. Gunnels did not know about the ladder's condition; (4) Palais Royal failed to exercise ordinary care to protect Mr. Gunnels from danger; and (5) Palais Royal's failure was a proximate cause of Mr. Gunnels's injury. This theory of recovery requires Mr. Gunnels to prove both his and Palais Royal's knowledge about the ladder, which the alternate theory of willful, wanton, or grossly negligent conduct does not. ⁶

We agree Mr. Gunnels did not seek to recover as a licensee based on the alternate theory that Palais Royal's conduct was willful, wanton, or grossly negligent. Point of error B.1, however, does not attack any action of the trial court. Accordingly, we overrule point of error B.1.

In point of error G.2, Palais Royal contends the trial court erred in refusing the following proposed definition:

"Negligence," with respect to H.A. Lott, Inc., means failure to use ordinary care in the exercise of its control over the worksite at the time of the occurrence in question.

The charge submitted to the jury included the following definition:

"Negligence," when used with respect to the conduct of H.A. Lott, Inc., Levy Associates Architects, Inc., Loop Construction Company, Sharpstown Center Associates, and Frank Gunnels, Sr. means failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.

Palais Royal does not demonstrate why the general definition of negligence in the submitted charge was not sufficient. Instead, Palais Royal cites to Barham v. Turner Construction Co., in which the Dallas Court of Appeals upheld the following specific definition:

"Negligence," with respect to [general contractor] means the failure to use ordinary care in the exercise of its control, if any, over the details of the work performed by [subcontractor].

Barham, 803 S.W.2d 731, 734 (Tex.App.--Dallas 1990, writ denied). The Dallas Court of Appeals held that the specific definition was...