Rosas v. Buddie's Food Store

• Citation: 518 S.W.2d 534
• Decision Date: 08 January 1975
• Docket Number: No. B--4730,B--4730
• Parties: Isias ROSAS, Petitioner, v. BUDDIES FOOD STORE, Respondent.
• Court: Supreme Court of Texas

Page 534

518 S.W.2d 534 Isias ROSAS, Petitioner,
v.
BUDDIES FOOD STORE, Respondent. No. B--4730. Supreme Court of Texas. Jan. 8, 1975.
Rehearing Denied March 5, 1975.

Bean, Francis, Ford, Francis & Wills, Gerald W. Livingston, Charles R. Ford, Robert Bean, Dallas, for petitioner.

Crumley, Murphy & Shrull, James P. Wagner and Roswald E. Shrull, Fort Worth, for respondent.

STEAKLEY, Justice.

On a rainy afternoon, Isias Rosas entered Buddies Food Store, slipped on a wet floor and fell. Rosas sued Buddies to recover for the personal injuries he sustained.

Page 536

Buddies' motion for a Summary Judgment was granted by the trial court and this has been affirmed by the Court of Civil Appeals. 509 S.W.2d 451. We reverse and remand for a trial on the merits.

Summary judgment was based on the pleadings of the parties and their depositions. Rosas alleged that he was a business invitee, that the wet floor constituted a danger, that Buddies knew of the danger, that Buddies had a duty to exercise reasonable care to protect its customers, that Buddies breached its duty and that the breach caused his injuries. He testified in his deposition that it had been raining on the day of the accident, that due to the rain he was not at work as a tractor driver for a local farmer, that he drove to Buddies Food Store for groceries late in the afternoon, that it was raining at the time that he parked his car and walked into Buddies, that the sidewalks were wet, that he walked through an automatic door with a mat directly inside the entrance, that this was not his first time in the store, that he slipped and fell on the wet floor just beyond the mat, that he didn't see water on the floor until after he fell and that he suffered injuries thereby. Buddies' store manager, who was present at the time of the accident, deposed that it had been raining since he had started his workshift, that prior to Rosas' fall he and other employees had been mopping the floor around the entrance door in an attempt to hold down water accumulation, that they could not, however, entirely prevent a wet floor, that he was about 15 feet from Rosas when he saw him fall, that from where he stood he saw water on the floor, that he could detect no hesitancy or caution by Rosas but rather thought Rosas entered the store 'naturally as you would anywhere,' that the store had a normal procedure for such incidents as Rosas' fall, that there were better methods of insuring a dry floor than just mopping but the method in use was the generally accepted one and that there had been similar falls previously.

The Court of Civil Appeals in affirming the take-nothing summary judgment held that the wet floor did not amount to a dangerous condition or one involving an unreasonable risk or harm, but was, in fact, a normal result of the rain and that 'under all of the facts presented by this appeal the danger, if any, was open and obvious and there was no duty.'

Negligence is no more than breach of a legal duty; the tort becomes actionable when the breach causes injury. McCall v. Marshall, 398 S.W.2d 106 (Tex.1965); Denison Light & Power Co. v. Patton, 105 Tex. 621, 154 S.W. 540 (1913). More in point, the duties owed by a landowner depend upon the role of the person injured on his premises. The duty of reasonable care is owed to an invitee. Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953); Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950). An invitee has been described as one who enters on another's land with the owner's knowledge and for the mutual benefit of both. Renfro Drug Co. v. Lewis, Supra. Restatement (Second) of Torts § 332 (1965). It is clear from the summary judgment record here that Rosas occupied the status of an invitee.

A further explication of the duty of reasonable care owed by the landowner to an invitee is found in the Restatement (Second) of Torts § 343 (1965), adopted by this Court in Adam Dante Corp. v. Sharpe, 483 S.W.2d 452, 454--455 (Tex.1972):

§ 343. Dangerous Conditions Known to or Discoverable by Possessor

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

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(c) fails to exercise reasonable care to protect them against the danger.

In Adam Dante, we wrote of the basic issues in a conventional occupier-invitee case, and we there pointed out that a defendant-movant in a summary judgment proceeding had the burden of proving as a matter of law the opposite of the burden upon a plaintiff:

. . . Under such issues, it would be Mrs. Sharpe's burden at trial to prove the existence and violation of a legal duty owed to her by Adam Dante. Coleman v. Hudson Gas and Oil Corp., 455 S.W.2d 701 (Tex.1970). That includes her burden to prove that she did not possess actual knowledge of the danger, that she did not fully appreciate the nature and extent of the danger, and that the danger complained of was not so open and obvious as to charge her, as a matter of law, with such knowledge and appreciation. Since this is a summary judgment proceeding, however, Adam Dante had to prove as a matter of law the opposite of what would ordinarily be the plaintiff's burden to prove or it had to prevail as a matter of law on one or more of its defenses.

Here, Buddies' answer consisted of a general denial; no affirmative defenses were alleged. It was under the burden on summary judgment of disproving as a matter of law one or more of the elements of negligence. Guidry v. Neches Butane Products Co., 476 S.W.2d 666 (Tex.1972).

We first consider the holding of the Court of Civil Appeals that the wet floor created no danger and hence Buddies was under no duty. Since the landowner has a duty to discover, warn of and eliminate only those conditions presenting an unreasonable risk of harm, i.e., a danger, the finding that there was no danger would absolve Buddies of any duty. Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752 (T...