Robledo v. Kroger Co., No. 5418
| Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
| Writing for the Court | McCLOUD |
| Citation | 597 S.W.2d 560 |
| Parties | Dolores ROBLEDO, Appellant, v. The KROGER COMPANY, Appellee. |
| Decision Date | 03 April 1980 |
| Docket Number | No. 5418 |
Page 560
v.
The KROGER COMPANY, Appellee.
Rehearing Denied April 24, 1980.
William H. Berry, Jr., Corpus Christi, for appellant.
Abraham Moss, Law Offices of Guy H. Allison, Corpus Christi, for appellee.
McCLOUD, Chief Justice.
Dolores Robledo sued the Kroger Company seeking damages for injuries sustained when she slipped on a foreign substance in a Kroger Store. The trial court entered judgment for Kroger notwithstanding a jury verdict in favor of Robledo. Plaintiff appeals. We affirm.
To recover, plaintiff must prove that defendant put the foreign substance on the floor; or knew that it was on the floor and negligently failed to remove it; or that the foreign substance was on the floor so long that it should have been discovered and removed in the exercise of ordinary care. Sherwood v. Medical & Surgical Group, Inc., 334 S.W.2d 520 (Tex.Civ.App.-Waco 1960, writ ref'd). Plaintiff concedes there is no evidence that defendant put the foreign substance on the floor or knew that it was there. She argues, however, the jury could properly infer from circumstantial evidence that the substance, water, had been on the floor a sufficient period of time to have been discovered and removed. Defendant urges that there is no evidence to support the jury finding that the substance was on the floor long enough to charge Kroger with constructive notice of its presence. We agree with defendant.
Plaintiff testified that she entered the store on a dry sunny day and almost immediately slipped and fell in an area of dirty water. Brigidio Perez III testified that he saw plaintiff slip and fall in a puddle of dirty water, measuring three feet by three feet. There was testimony that car tracks were visible in the water. Plaintiff's witnesses admitted that they did not know how long the water had been there.
There is no evidence from which the jury could infer how long the water had been on the floor. H. E. Butt Grocery Co. v. Pena, 592 S.W.2d 956 (Tex.Civ.App.-Austin 1980, no writ); Kimbell, Inc. v. Blount, 562 S.W.2d 10 (Tex.Civ.App.-Austin 1978, no writ); Sherwood v. Medical & Surgical Group, Inc., supra.
Page 561
In Kimbell, Inc. v. Roberson, 570 S.W.2d 587 (Tex.Civ.App.-Tyler 1978, no writ), the court said:
Plaintiff argues that his testimony showing that 2 or 3 other grocery carts had made tracks through the substance constitutes some...
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Keetch v. Kroger Co., D-0671
...was on the floor so long that it should have been discovered and removed in the exercise of ordinary care. Robledo v. Kroger Co., 597 S.W.2d 560, 560 (Tex.App.--Eastland 1980, writ ref'd n.r.e.) (numbers added); see also cases cited in note 3, supra. Keetch relies on the first of the three ......
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Wal-Mart Stores v. Reece, WAL-MART
...and removed in the exercise of ordinary care." Keetch v. Kroger Co., 845 S.W.2d 262, 265 (Tex. 1992) (quoting Robledo v. Kroger Co., 597 S.W.2d 560, 560 (Tex. Civ. App.--Eastland 1980, writ ref'd n.r.e.)); accord Wal-Mart Stores, Inc. v. Tinsley, 998 S.W.2d 664, 667 (Tex. App.--Texarkana 19......
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Wal-Mart Stores, Inc. v. Gonzalez, WAL-MART
...evidence to establish that the water had been there a sufficient time to give the store constructive notice in Robledo v. Kroger Co., 597 S.W.2d 560, 561 (Tex.Civ.App.--Eastland 1980, writ ref'd n.r.e.). It might be observed that tracks in water would be more transitory than tracks through ......
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Wal-Mart Stores, Inc. v. Gonzalez, WAL-MART
...made by customers traversing the aisle only minutes or even seconds before plaintiff's fall." Id. at 590; see also Robledo v. Kroger Co., 597 S.W.2d 560, 560-61 (Tex.Civ.App.--Eastland 1980, writ ref'd n.r.e.) (recognizing that cart tracks through dirty water was no evidence of constructive......