Reliable Consultants v. Jaquez

• Decision Date: 27 July 2000
• Citation: 25 S.W.3d 336
• Parties: (Tex.App.-Austin 2000) Reliable Consultants, Inc. d/b/a Dreamers, Appellant v. Delia Jaquez, Appellee NO. 03-99-00364-CV
• Court: Texas Court of Appeals

Page 336

25 S.W.3d 336 (Tex.App.-Austin 2000)

Reliable Consultants, Inc. d/b/a Dreamers, Appellant v. Delia Jaquez, Appellee

NO. 03-99-00364-CV

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

July 27, 2000

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT NO. 98-03542, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Chief Justice ABOUSSIE, Justices KIDD and B. A. SMITH

MACK KIDD, Justice

Appellee Delia Jaquez sued appellant, Reliable Consultants, Inc. d/b/a Dreamers ("Dreamers"), for the injuries she sustained in a fall at appellant's store. The jury apportioned responsibility between the parties, finding Jaquez forty percent negligent and Dreamers sixty percent negligent in causing the accident. The trial court rendered judgment on the verdict against Dreamers, awarding Jaquez $123,576.41 in damages. Dreamers appeals in seven points of error. We will affirm.

BACKGROUND

The material facts of this case are not in dispute. Dreamers is a Texas corporation that sells adult videos and other sexually oriented products at two locations in Austin. In April of 1996, Jaquez visited one of the locations with her husband. The couple entered the store and walked directly to a wall featuring many popular video rentals. After selecting a video, Jaquez and her husband proceeded to walk to a merchandise display in another part of the store. The area of the store where the display was located was approximately five inches higher in elevation than the rest of the store. At the point where the two sections of the store connected stood a support column. To the right of the column was a six-foot wide ramp that connected the lower level of the store to the upper level. To the left of the support column was a five-inch high step, the perimeter of which was outlined with red tape. Jaquez walked to the right of the column and proceeded up the ramp. She then turned to examine the merchandise on the display to her left. The display, which stood to the left of the ramp, had been placed only one or two feet away from the step. Jaquez and her husband browsed for a short while and then decided to return to the front of the store to rent the video they had chosen. Upon turning to leave, Jaquez failed to notice the step and fell to the floor, twisting and fracturing her ankle in the process.

Jaquez filed suit against Dreamers in April 1998 on a premises liability theory, alleging that the store was negligent in failing to protect Jaquez, a business invitee, from the unreasonable risk of harm presented by the step and display. Jaquez requested actual and consequential damages, including medical expenses, lost wages and earning capacity, and physical and mental pain and anguish. Dreamers responded with a general denial and pleaded an affirmative defense of contributory negligence. At trial, Dreamers argued that there was no unreasonable risk of harm associated with the step because it was in plain view, well lit, and marked with red tape. Dreamers maintained that Jaquez's own negligence was the sole proximate cause of the fall.

After both sides rested, the trial court submitted the case to a jury. The jury was asked to determine (1) whether the negligence, if any, of Jaquez and Dreamers caused the fall, (2) the percentage of negligence attributable to each party, and (3) the amount of damages that would reasonably compensate Jaquez for her injuries. After deliberating, the jury returned with its verdict, finding Jaquez forty percent negligent and Dreamers sixty percent negligent for the fall. The jury found $168,958.74 to be a reasonable amount of compensation for Jaquez's injuries. The trial court rendered judgment on the verdict and, after taking into account the percentage of responsibility that the jury attributed to Jaquez's own negligence, ordered Dreamers to pay Jaquez damages in the amount of $123,576.41. Dreamers filed a motion for judgment notwithstanding the verdict and a motion for new trial. The trial court denied both motions. Dreamers now brings this appeal, raising seven points of error.

DISCUSSION

Legal and Factual Sufficiency of the Evidence

The appellant's burden in this appeal is a heavy one. By its first three points of error, Dreamers seeks a reversal of the trial court's judgment on grounds that the evidence is legally and factually insufficient to support the jury's findings that (1) the condition presented an unreasonable risk of harm, (2) Dreamers knew or should have known of that unreasonable risk of harm, and (3) Dreamers' failure to exercise reasonable care by failing to adequately warn Jaquez of the condition or make it safe was a proximate cause of Jaquez's injuries.¹

When reviewing a no-evidence point, we consider only the evidence and inferences tending to support the jury's fact finding. We disregard all evidence and inferences to the contrary. See Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995); Simons v. City of Austin, 921 S.W.2d 524, 527 (Tex. App.--Austin 1996, writ denied). We will uphold the finding if more than a scintilla of evidence supports it. See Crye, 907 S.W.2d at 499; Simons, 921 S.W.2d at 527. Evidence amounts to more than a scintilla if reasonable minds could arrive at the finding given the facts proved in the particular case. See Crye, 907 S.W.2d at 499; Simons, 921 S.W.2d at 527.

When reviewing a jury verdict to determine the factual sufficiency of the evidence, we consider and weigh all of the evidence. See Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). When the challenge is to a finding on which the prevailing party had the burden of proof, we may reverse the judgment only if the challenged finding shocks the conscience, clearly shows bias, or if the evidence supporting the finding is so weak as to make the judgment clearly wrong and manifestly unjust. See Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); Cain, 709 S.W.2d at 176. We may not substitute our judgment for that of the jury merely because we reach a different conclusion. See Peco Constr. Co. v. Guajardo, 919 S.W.2d 736, 739 (Tex. App.--San Antonio 1996, writ denied); Westech Eng'g, Inc. v. Clearwater Constr., Inc., 835 S.W.2d 190, 196 (Tex. App.--Austin 1992, no writ).

By its first point of error, appellant complains that the evidence is legally and factually insufficient to support the jury's finding that the step and adjacent display presented an unreasonable risk of harm. We disagree. "A condition presenting an unreasonable risk of harm is one in which there is such a probability of a harmful event occurring that a reasonably prudent person would have foreseen it or some similar event as likely to happen." Seideneck v. Cal Bayreuther & Assoc., 451 S.W.2d 752, 754 (Tex. 1970). According to the testimony of Justin Bertelson, one of Dreamers' former store managers, the sales counter at one time stood flush with the step. At some point, Dreamers rearranged the store and moved the sales counter to the front, exposing the step in the process. It then placed a display in close proximity to the step and stocked the shelves with merchandise, thereby creating a visual distraction. Although appellant sought to eliminate the hazard by constructing a ramp over a portion of the step, it chose not to extend the ramp over the entire length of the step. Thus, the remaining portion of the step remained unguarded and unmarked, except for a strip of red tape that was placed around the perimeter.

At trial, William Senkowski, the plaintiff's expert witness on loss prevention and occupational health and safety issues, testified how the step and its surrounding conditions presented a hazard. Senkowski explained that customers approaching the step from the elevated level of the store would not see the step unless they were looking directly at the floor. He also discussed the visual distraction created by the videos and merchandise and pointed out that there were no visual cues or warnings at eye level to alert customers that a step was imminent. Senkowski suggested many reasonable precautions that could have been taken to adequately warn customers or eliminate the risk, such as (1) placing "lobby ropes" along the step to direct traffic towards the ramp, (2) posting a sign or other visual warning at eye level, (3) dividing the display shelf at the step so as to create a visual cue that would attract customers' attention, or (4) blocking the step with a table or display in a manner similar to the store's previous configuration. Considering this testimony alone, the jury may very well have found that Dreamers' failure to take more precautions was unreasonable.

Next, Justin Bertelson testified that during his employment as the store's manager, he had observed between twelve and fifteen people stumble or react with surprise after failing to see the same step that caused Jaquez to fall. Bertelson also testified that the red tape appellants had placed around the step's perimeter was often scuffed and worn--sometimes almost black--suggesting that persons had stumbled across the step on numerous occasions. The testimony of Sendowsky and Bertelson, coupled with the photographic evidence in the record, constitute more than a scintilla of evidence from which the jury could reasonably infer that the condition presented an unreasonable risk of harm. Consequently, we find the evidence legally sufficient to support the jury's finding. Furthermore, after weighing and considering all of the evidence equally, we are unable to conclude that the jury's finding is so shocking or biased or that the evidence is so weak as to make the jury's verdict clearly wrong and manifestly unjust.

Appellant nevertheless cites a line of cases in which courts of this state have reversed premises liability judgments rendered in favor of plaintiffs, holding that, as a matter of law, certain...