Seideneck v. Cal Bayreuther Associates

• Decision Date: 04 March 1970
• Docket Number: No. B--1703,B--1703
• Citation: 451 S.W.2d 752
• Parties: Henry SEIDENECK et ux., Petitioners, v. CAL BAYREUTHER ASSOCIATES et al., Respondents.
• Court: Texas Supreme Court

Page 752

451 S.W.2d 752

Henry SEIDENECK et ux., Petitioners, v. CAL BAYREUTHER ASSOCIATES et al., Respondents.

No. B--1703.

Supreme Court of Texas.

March 4, 1970.

Rehearing Denied April 15, 1970.

Payne, Pace & Benners, Fred Benners, Dallas, for petitioners.

Thompson, Knight, Simmons & Bullion, John A. Gilliam and Timothy E. Kelley, Dallas, for respondents.

CALVERT, Chief Justice.

This suit was brought by Margaret Seideneck and husband, Henry Seideneck, against Cal Bayreuther Associates and Richard C. Seymour and Gloria Bayreuther, d/b/a Cal Bayreuther Associates, to recover damages for personal injuries suffered by Mrs. Seideneck when she fell and broke her right wrist at the defendants' place of business. When the plaintiffs rested their case, the trial court granted the defendants' motion for instructed verdict and rendered judgment that the plaintiffs take nothing. The court of civil appeals affirmed. 443 S.W.2d 75. We affirm.

Mrs. Seideneck pleaded that she was tripped by a hole or loop in the defendants' rug while she was a business invitee in the Cal Bayreuther Associates showroom at the Trade Mart in Dallas, where the defendants conducted their business as manufacturers' representatives and distributors of home decoration merchandise. She charges that the injury, for which she asks damages of $40,000, was proximately caused by the defendants' failure to make their showroom reasonably safe for business invitees such as herself; and she specifically charges a breach of the defendants' duty in (1) their use of a rug of inherently dangerous construction, (2) their dangerous placement of the rug, and (3) their failure to warn her of such dangers of construction and placement.

There is little conflict or contradiction in the evidence as it appears in the record. Since this is an instructed verdict case, however, we follow the rule that the evidence is to be considered in its most favorable light in support of the plaintiffs' position. Anderson v. Moore, 448 S.W.2d 105 (Tex.Sup.1969); Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953).

Mrs. Seideneck was in the defendants' showroom to purchase merchandise for her gift shop. She was interested in a small Christmas tree which was displayed, along with other items, on a table located in a corner of the room. The table rested upon the rug in question and there were several other throw-rugs in the display room; but the room had an otherwise smooth asphalt tile floor. Mrs. Seideneck's testimony shows that she 'walked right up' to the table to check the price tag on the Christmas tree; that as she 'stepped backwards' to 'observe the item' her 'heel got caught in the rug' and her body 'went backwards'; that she looked around to see what it was she tripped on and she observed the rug.

The rug was not available to be exhibited at the trial, but its construction was described in the testimony of both Mrs. Seideneck and Mr. Seymour. Mr. Seymour testified that the rug was a wool, pile-type rug, approximately thirty-six inches in diameter; with a loose-weave, mesh-type fringe with tassels, with the loops on the fringe being approximately one inch in diameter. Mrs. Seideneck described the rug in this language: 'Well, it seemed like they used a rug like that in early American where it had little loops in them, and also the fringe out there, * * *.'

On the matter of the placement of the rug, the record indicates that most of it was under the table; that the rug itself was small, but it did extend out from under the table by six inches or a foot to some 'two or three steps,' depending upon whether Mr. Seymour's or Mrs. Seideneck's estimate, respectively, is used; and that there was nothing to call Mrs. Seideneck's attention to the presence of the rug.

Several elements of the plaintiff's required proofs in a landowner-invitee case are readily apparent from a statement of the fundamental concept of such actions. The basic duty of a landowner or occupier to his invitees is to exercise ordinary care to keep the premises in a reasonably safe condition. Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368, 378 (Tex.Sup. 1963); Robert E. McKee, General Contractor v. Patterson, 153 Tex. 517, 271 S.W.2d 391, 393 (1954); Carlisle v. J. Weingarten, Inc., 137 Tex. 200, 152 S.W.2d 1073, 1074 (1941); Walgreen-Texas Co. v. Shivers, 137 Tex. 493, 154 S.W.2d 625, 628--629 (1941); Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 615, 23 A.L.R.2d 1114 (1951). Thus, the first steps in the proof of an injured invitee-plaintiff's case are to show (1) that the owner or occupier created or maintained on the premises some condition involving an unreasonable risk, of harm, McKee, 271 S.W.2d at 393; and (2) that the plaintiff's injury resulted from his contact with that condition. Additionally, because the owner or occupier is charged with knowledge of any dangerous condition that a reasonable inspection would have revealed, the plaintiff must show as a matter of law or through a finding of fact that the owner 'knew or should have known of the existence of the condition and that he should have appreciated its dangers.' 271 S.W.2d at 395.

Mrs. Seideneck's testimony that her heel 'got caught in the rug,' and that her body 'went backwards,' is some evidence that she tripped on the rug; and considered with the fact that the remainder of the floor nearby was covered with smooth asphalt tile which presented no obstacle to impede walking, it is enough that a jury could reasonably have inferred that the rug was the cause of the fall. However, even though there was a jury question raised on this one issue, a verdict was nevertheless properly instructed if there was no evidence that the condition and location of the rug created an unreasonable risk of harm.

A condition presenting an unreasonable risk of harm is defined as one in which there is a sufficient probability of a harmful event occurring that a reasonably prudent person would have foreseen it or some similar event as likely to happen. See 2 Harper and James, The Law of Torts 928 et seq. (1956); Prosser, Handbook of the Law of Torts 148 et seq. (1964); Restatement (Second) of Torts § 282, 283 (1965); Annot., 64 A.L.R.2d 335, 345 et seq. (1959); Annot., 61 A.L.R.2d 110, 122 et seq. (1958). It follows that an owner or occupier of land can be charged with knowledge and appreciation of a dangerous condition on his premises only if from a reasonable inspection a reasonably prudent person should have foreseen a probability that the condition would result in injury to another. See Restatement (Second) of Torts § 343(a) (1965).

As might be expected with a matter involving the 'reasonable man' concept, there seems to be no definitive, objective test which may be applied to determine whether a condition presents an unreasonable risk of harm. Obviously, evidence of other falls attributable to the same condition, or evidence of defectiveness of the rug, floor, or other condition causing the fall would be probative, although not conclusive, on the question. See generally, and Annot., 61 A.L.R.2d 110, 122 et seq. and Annot., 61 A.L.R.2d 110, 122 et seq. (1958).

There is no evidence in this record that during the time the rug had been on the floor anyone had previously tripped on it. There was neither an allegation nor is there evidence that the rug was defective in any manner. There is no evidence that this type of rug, with 'regular pile' and a decorative fringe of loose weave and tassels, was unusual; or that its particular construction and placement would have served as a suggestion or warning to the defendants that it presented the prohibited degree of danger, even if they had attempted a formal survey of the shop for dangerous conditions. See Mize v. Lavender, 407 S.W.2d 856 (Tex.Civ.App.--Eastland 1966, writ. ref'd n.r.e.); and Medallion Stores, Inc. v. Eidt, 405 S.W.2d 417 (Tex.Civ.App.--Texarkana 1966, writ ref'd n.r.e.).

In this case, as often happens, the question of whether there is more than a scintilla of evidence to support the finding of a vital fact is close. There is, perhaps, a glimmer of evidence to support the plaintiffs' position that the rug presented an unreasonable risk of harm and that such...