Robledo v. Kroger Co.

• Citation: 597 S.W.2d 560
• Decision Date: 03 April 1980
• Docket Number: No. 5418,5418
• Parties: Dolores ROBLEDO, Appellant, v. The KROGER COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 560

597 S.W.2d 560

Dolores ROBLEDO, Appellant, v. The KROGER COMPANY, Appellee.

No. 5418.

Court of Civil Appeals of Texas, Eastland.

April 3, 1980.

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.

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 evidence tending to show the substance had been on the floor for a length of time sufficient to give defendant constructive notice and demonstrates that it had been there for a sufficient length of time to have been discovered and removed by the exercise of ordinary care. We do not agree. It is just as likely that the tracks were made by customers traversing the aisle only minutes or even seconds before plaintiff's fall. We fail to see how the mere presence of grocery cart tracks, standing alone, would constitute competent evidence tending to show the length of time a food item has been on the floor. See Kimbell, Inc. v. Blount, 562 S.W.2d 10 (Tex.Civ.App.-Austin 1978, no writ history); Furr's Supermarkets, Inc. v. Arellano, 492 S.W.2d 727 (Tex.Civ.App.-El Paso 1973, writ ref'd n.r.e.).

Plaintiff relies on several cases which are distinguishable. In Rosas v. Buddies Food Store, 518 S.W.2d 534 (Tex.1975) and H. E. Butt Grocery Company v. Lucille...