Sproles v. L. J. Sharp Hardware, Inc.

• Decision Date: 28 July 1967
• Docket Number: No. 16963,16963
• Citation: 419 S.W.2d 680
• Parties: Elizabeth SPROLES et vir, Appellants, v. L. J. SHARP HARDWARE, INC., Appellee. . Dallas
• Court: Texas Court of Appeals

Page 680

419 S.W.2d 680

Elizabeth SPROLES et vir, Appellants, v. L. J. SHARP HARDWARE, INC., Appellee.

No. 16963.

Court of Civil Appeals of Texas Dallas.

July 28, 1967.

Rehearing Denied Sept. 29, 1967.

Ely Straus, Bowyer & Thomas, Dallas, for appellants.

Edward E. Crowell, Jr., of Gardere, Porter & DeHay, Dallas, for appellee.

CLAUDE WILLIAMS, Justice.

Plaintiffs appeal from a take nothing judgment following the sustaining of defendant's motion for summary judgment. Mrs. Elizabeth Sproles and husband, Earl Sproles, brought this action against L. J. Sharp Hardware, Inc., seeking damages for personal injuries sustained by Mrs. Sproles when she slipped and fell on the floor of defendant's store. Plaintiffs alleged that Mrs. Sproles fell shortly after she entered defendant's store; that she slipped on a substance described as wax or other chemical substance which defendant had applied to the floor. Plaintiffs contended that defendant corporation was negligent in failing to properly inspect the floor; in failing to properly apply the wax or other chemical substance to the floor; and in failing to warn Mrs. Sproles of the slippery condition of the floor. In its answer defendant alleged that Mrs. Sproles was guilty of contributory negligence in failing to keep a proper lookout for her own safety and that such negligence was a proximate cause of the incident in question. Defendant also alleged that the condition of the floor in question was open and obvious to Mrs. Sproles and that she therefore voluntarily exposed herself to the danger of walking upon such surface.

Defendant filed its motion for summary judgment alleging the nonexistence of issuable facts and in support of such motion attached the depositions of Mrs. Elizabeth Sproles and Mr. Raymond P . Smith, manager of defendant's store. Plaintiffs countered this motion with their verified answer to which was attached an affidavit of Mrs. Sam T. Smith.

The facts contained in the depositions and affidavit are practically without dispute. The material portions thereof may be fairly summarized as follows:

Mrs. Sproles, 72 years of age, testified that on December 9, 1964 she entered the Sharp hardware store with a friend, Mrs. Sam T. Smith, for the purpose of doing some shopping. Her eyesight was perfectly all right for seeing at a distance and she only wore glasses for reading. She had been in this same store frequently as a customer on prior occasions. Mrs. Smith preceded her into the store and as she was following Mrs. Smith her left foot slipped and she fell to the floor. At the time of this incident the premises were well lighted and she had no difficulty seeing objects in the store. She was wearing shoes with leather soles and a one and one-half inch heel with a rubber tip. She did not know exactly how many steps she had taken inside the store before she fell but it was only a short distance. As she entered the store and before she fell she did not look at the floor and therefore does not know what its appearance was at the time. She testified she didn't pay any attention to it saying 'You just don't look at things like that. Ordinarily everything in stores is nice, well kept.' She stated that she did not look at the floor either before she fell or after she fell. She testified that she did not know what caused her to fall. She never made an inspection of the floor to determine what caused her to fall because, following her fall, she was suffering too much pain.

Raymond P. Smith testified that he was manager of the Sharp hardware store and had occupied this position for several years. He supervised seven emplioyees, including a porter. The floors in the store were constructed of asphalt tile. Concerning cleaning the floors he related that the floors were swept each morning and mopped once a week. The floors were waxed twice a year with a 'tree-wax' which did not require any buffing. He remembered the occasion when Mrs. Sproles fell on the floor and testified that the floor had been waxed a day or two before this occasion. In addition to the waxing the floor had been swept about two hours prior to Mrs. Sproles' fall with a sawdust mixture with an oil base. He said that the floors 'might have a little gloss' on them when they were clean or swept. He did not actually see Mrs. Sproles fall but his attention was directed to her on the floor. She was some ten or twelve feet inside the front door of the store on the floor. Following her fall he 'kicked his foot around in it on the floor' and said that it was not any more slippery than 'usual'. He observed no marks or scratches on the floor where Mrs. Sproles fell. He testified in answer to a question that he did not warn anyone about the floor being recently waxed and that no one had ever fallen or slipped on the floor before that time. He also said that he did not inspect the floor where Mrs. Sproles fell either before or afterwards but that he had walked over the floor several times during the two-day period following the waxing process and was familiar with the condition the floor was in at the time.

Mrs. Sam T. Smith executed an affidavit in which she related that she was with her friend Mrs. Sproles on the occasion; that she, Mrs. Smith, preceded Mrs. Sproles into the store on the morning in question. She said she was walking about ten feet inside the store when she 'noticed and felt that the floor was unusually slippery under foot and felt that it had been newly waxed or in the process of being waxed.' She related that she was 'about to turn around and warn Mrs. Sproles about the condition of the floor when I heard Mrs. Sproles say 'Oh' and Mrs. Sproles had fallen to the floor.' She aided in assisting Mrs. Sproles to the hospital and while at the hospital she said she noticed 'something on the heel of one of her shoes. I removed the shoe from her foot and found that it had a substance on the heel which resembled floor wax. I smelled the substance and it smelled like floor wax.'

OPINION

Appellants, in five points of error briefed together, contend that the trial court was in error in granting the motion for summary judgment filed by appellee corporation in that the record before the court demonstrated the issuable facts, i.e., (1) that appellee had breached its duty to Mrs. Sproles, a business invitee, by failing to properly inspect the waxed floor and to warn her of its slippery condition; and (2) that the question of whether the condition of the floor was open and obvious to Mrs. Sproles presented an issue of fact. Appellee, in its responding brief, contends that the record demonstrates conclusively (1) no duty on the part of appellee corporation to Mrs. Sproles; and (2) that Mrs. Sproles was guilty of contributory negligence as a matter of law which proximately caused her injuries.

In determining whether the trial court was correct in sustaining a motion for summary judgment our path of appellate review is well lighted by established principles enunciated by our Supreme Court in Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (1965). These rules, simply stated, are (1) the burden of proof is on the movant, and all doubt as to the existence of a genuine issue as to a material fact is resolved against him; (2) the evidence must be viewed in the light most favorable to the party opposing the motion; (3) if the motion involves the credibility of affiants or deponents, or the weight of the showings or a mere ground of inference, the motion should not be granted; and (4) all conflicts in the evidence are disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true.

Guidelines for determining the liability of an owner or occupant of premises to an invitee are also clearly delineated.

While an occupier of the land or premises is not held by the law to be an insurer of the safety of invitees* such occupier is required to keep his land or premises in reasonably safe condition for invitees, and has the duty thereunder to inspect and discover dangerous conditions, and if dangers are not open and obvious he has the duty to take such precautions as reasonably prudent persons would have taken to protect such invitees therefrom and to warn them thereof. Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex . Sup.1963); Strakos v. Gehring, 360 S.W.2d 787 (Tex.Sup.1962); Harvey v. Seale, 362 S.W.2d 310 (Tex.Sup.1962); J. Weingarten, Inc. v. Tyra, 381 S.W.2d 215 (Tex.Civ.App., Tyler 1964); 40 Tex.Jur.2d, § 58, p. 532 et seq.

Ordinarily a guest or invitee upon premises has the right to presume that such premises are kept in safe condition for his use and is under no legal obligation to search out defects. Blanks v. Southland Hotel, Inc., 149 Tex. 139, 229 S.W.2d 357 (1950); Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953); City of Fort Worth v. Barlow, 313 S.W.2d 906 (Tex.Civ.App., Fort Worth 1958, writ ref'd n.r.e.). The liability of the owner or occupant for failure to render the premises safe for an invitee, or to warn him of dangers thereon, must be predicated on knowledge thereof which is superior to that of the invitee. Camp v. Kirkpatrick Co., 250 S.W.2d 413 (Tex.Civ.App., San Antonio 1952, writ ref'd n.r.e.); Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.Sup.1963).

The 'no duty' doctrine relied upon by appellee was clearly enunciated by the Supreme Court in Halepeska v. Callihan Interests, Inc., supra:

'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. (Citing cases.) 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...