Seideneck v. Cal Bayreuther Associates, No. B--1703

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

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

Page 754

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...