Seideneck v. Cal Bayreuther Associates, 4322

• Decision Date: 20 June 1969
• Docket Number: No. 4322,4322
• Citation: 443 S.W.2d 75
• Parties: Page 75 443 S.W.2d 75 Henry SEIDENECK et ux., Appellants, v. CAL BAYREUTHER ASSOCIATES, Appellees. Court of Civil Appeals of Texas. Eastland
• Court: Texas Court of Appeals

Page 75

443 S.W.2d 75

Henry SEIDENECK et ux., Appellants v CAL BAYREUTHER ASSOCIATES, Appellees.

No. 4322.

Court of Civil Appeals of Texas.

Eastland.

Jane 20, 1969.

Rehearing Denied July 11, 1969.

Payne, Pace & Benners, Fred H. Benners, Dallas, for appellants.

Thompson, Knight, Simmons & Bullion, Timothy E. Kelley, Dallas, for appellees.

WALTER, Justice.

Henry Seideneck and his wife Margaret filed suit against Richard C. Seymour and Gloria Bayreuther, doing business as Cal Bayreuther Associates for damages for personal injuries sustained by Mrs. Seideneck when she tripped on a rug and broke her wrist while shopping in defendants' showroom. When the plaintiffs rested, the court granted defendants' motion for an instructed verdict and judgment was rendered against the plaintiffs. The plaintiffs have appealed.

Mrs. Seideneck went to appellees' showroom to purchase merchandise for her gift shop. She approached a display table to check the price tag on a miniature Christmas tree. After checking the price, she backed away from the table and her heel was caught causing her to fall backwards. She then looked to see what had caused her to fall and noticed a small throw rug made with loops and fringe extending out from under the edge of the table. The throw rug was about thirty six inches in diameter. The defendant Seymour described the rug as a loosely woven fringe and tassel type with openings or loops of one inch in diameter. He further testified that the rug extended beyond the edge of the display table six to eight inches or possibly a foot. Mrs. Seideneck was asked 'How far beyond the edge of the table would you estimate that the rug extended?' She answered 'Oh, took two or three steps, I am not very good at judging.'

Appellants contend the court erred in rendering judgment for the defendants because the evidence raised issues of fact as to the defendants' failure to exercise reasonable care in keeping defendants' premises in a reasonably safe condition so that Mrs. Seideneck would not be injured.

Appellants contend there is no evidence that the looped throw rug was 'open and obvious to anyone who entered the shop.' Mrs. Seideneck testified, in effect, that the rug extended two or three steps beyond the edge of the table and that she had walked over the looped throw rug two or three steps to look at the small Christmas tree on the table. As she stepped backwards on the rug that she had been standing on while she was observing the tree, she fell. There was no hidden or latent danger in using the rug. It was just as obvious to her as it was to the owners of the premises. Under such circumstances there was no duty on the part of the appellees to warn her. We find no evidence that use of the rug constituted an unreasonable risk of harm or that the appellees knew or should have known that such use of the rug created a dangerous condition. Mize v. Lavender, 407 S.W.2d 856 (Tex.Civ.App., 1966, error ref. n.r.e.).

The Supreme Court in Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368, at page 378, said:

'The 'no duty' doctrine is this: the occupier of land or premises is required to keep his land or premises in a reasonably safe condition for his invitees. This includes a duty of the occupier to inspect and to discover dangerous conditions. Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 20 A.L.R.2d 853 (1950); Genell, Inc. v. Flynn, Tex., 358 S.W.2d 543 (1962). His duty is to protect his invitees from dangers of which he, the occupier, knows, or (because of his duty to inspect) of which he Should know in the exercise of ordinary care. If there are dangers which are not open and obvious, he is under a Duty to take such precautions as a reasonably prudent person would take to protect his invitees therefrom or to warn them thereof. But if there are open and obvious dangers of which the invitees...