Tri-State Wholesale Associated Grocers, Inc. v. Barrera

• Decision Date: 15 February 1996
• Docket Number: No. 08-94-00335-CV,TRI-STATE,08-94-00335-CV
• Citation: 917 S.W.2d 391
• Parties: WHOLESALE ASSOCIATED GROCERS, INC., Appellant, v. Robert BARRERA, Appellee.
• Court: Texas Court of Appeals

Page 391

917 S.W.2d 391

TRI-STATE WHOLESALE ASSOCIATED GROCERS, INC., Appellant, v. Robert BARRERA, Appellee.

No. 08-94-00335-CV.

Court of Appeals of Texas,

El Paso.

Feb. 15, 1996.

Rehearing Overruled March 13, 1996.

Michael D. McQueen, Kemp, Smith, Duncan & Hammond, El Paso, for Appellant.

Ben H. Langford, El Paso, Jeffrey T. Weikert, Studdard & Melby, P.C., El Paso, for Appellee.

Before BARAJAS, C.J., and McCLURE and CHEW, JJ.

OPINION

McCLURE, Justice.

This case involves the rescue doctrine. Appellant, Tri-State Wholesale Associated Grocers, Inc. ("Tri-State") complains in its first two points of error that the evidence was legally and factually insufficient to establish that any negligence on its part proximately caused the injuries of Appellee, Robert Barrera. In its third point of error, Tri-State complains that the trial court erred in excluding a performance report of Barrera to be used for impeachment purposes. We affirm.

SUMMARY OF THE EVIDENCE

On August 15, 1990, Louis Calderon ("Calderon"), a Tri-State employee, was operating a forklift to pull pallets of merchandise for pick up. He entered the freezer section of Warehouse B ¹ through one door and proceeded up an aisle. As he approached the end of the aisle, he attempted to turn onto a perpendicular aisle. At this intersection, a sheet of ice had accumulated; Calderon lost control of the forklift and crashed into a rack of merchandise towering "a couple of stories high." Because the forks of the forklift obscured the forward vision, forklift operators typically drove in reverse when maneuvering down the aisles. As a result, Calderon was crushed between the weight of the forklift and the racks of merchandise. Unable to free himself and in severe pain, Calderon cried for help.

At the time, Barrera, a janitor for Tri-State, was sweeping up in the freezer section. He heard Calderon's cries for help, ran to the scene, and saw Calderon pinned in agony. When Calderon begged Barrera to help him, Barrera attempted to free Calderon by removing the boxes of merchandise from beneath him. Calderon then wormed out through the space Barrera created.

Recognizing the proximity of the wrecked forklift to the freezer door, Calderon told Barrera to move it. Because ice often formed around the door and because the vision of employees entering the freezer was blocked by a frost-covered plastic curtain hanging in front of the door, Calderon believed that another forklift entering the warehouse might be in danger if the forklift were not moved immediately. Barrera shared Calderon's fear and made his way into the forklift through the opening he had cleared for Calderon. Once in position, Barrera somehow activated the forklift. ² Instead of the forklift moving away from the rack, it lurched backwards pinning Barrera even farther into the rack than Calderon had been. Although he was able to hit the battery disconnect switch, Barrera was hopelessly trapped and in a great deal of pain.

Calderon, still in extreme pain himself, was unable to help Barrera. He exited through the nearby freezer door and called for assistance. When help arrived, he sat down on a stack of nearby pallets to await attention. Other employees in the warehouse removed the merchandise around Barrera and disassembled the rack to free him. Ultimately, both Barrera and Calderon were taken to Sierra Medical Center. As a result of the accident, Barrera suffered a herniated disc in his back, and suffers from continuous pain and numbness in his right leg. His ability to work has also been impaired.

STANDARD OF REVIEW

In considering a "no evidence," legal insufficiency point, we consider only the evidence that tends to support the jury's findings and disregards all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Texas Tech Univ. Health Sciences Ctr. v. Apodaca, 876 S.W.2d 402 (Tex.App.--El Paso 1994, writ denied). If more than a scintilla of evidence exists to support the questioned finding, the "no evidence" point fails. Tseo v. Midland Am. Bank, 893 S.W.2d 23, 25 (Tex.App.--El Paso 1994, writ denied); Hallmark v. Hand, 885 S.W.2d 471 (Tex.App.--El Paso 1994, writ denied).

A factual sufficiency point requires us to examine all of the evidence in determining whether the finding in question is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Tseo, 893 S.W.2d at 25-26; Hallmark, 885 S.W.2d at 474. The reviewing court cannot substitute its conclusions for those of the jury. If sufficient competent evidence of probative force exists to support the finding, it must be sustained. Tseo, 893 S.W.2d at 26; Apodaca, 876 S.W.2d at 412. We may not interfere with the jury's resolution of conflicts in the evidence or pass on the weight or credibility of the witnesses' testimony. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 796 (1951); Southwest Airlines Co. v. Jaeger, 867 S.W.2d 824, 829-30 (Tex.App.--El Paso 1993, writ denied). Where conflicting evidence is present, the jury's verdict on such matters is generally regarded as conclusive. Montgomery Ward & Co. v. Scharrenbeck, 204 S.W.2d 508, 511-12 (Tex.1947); Tseo, 893 S.W.2d at 26; Hallmark, 885 S.W.2d at 474.

SUFFICIENCY OF THE EVIDENCE

Tri-State complains in its first two points of error that the trial court erred in submitting Question No. 1 ³ to the jury, in entering judgment for Barrera over Tri-State's motion for judgment notwithstanding the verdict, and in denying Tri-State's motion for new trial because there was legally or factually insufficient evidence that any negligence of Tri-State was the proximate cause of Barrera's injuries.

Negligence

Tri-State alleges that a finding of negligence can only be predicated upon three possible theories. It concedes negligence could be established if (1) it knew or should have known of the ice accumulation at the accident site; (2) it negligently maintained the forklift used by Calderon; or (3) Calderon acted negligently in operating the forklift. Because Barrera does not challenge the maintenance of the forklift and because no evidence is presented anywhere in the record that the forklift was negligently maintained, we must necessarily address only the first and third predicates.

The issue of ice accumulation involves a premises liability theory. An employer owes its employees a duty to maintain a safe working environment. See Chemical Express Carriers, Inc., 819 S.W.2d 585, 589 (Tex.App.--El Paso 1991, writ denied) ("An employee must be furnished a safe place to work and must be furnished suitable tools to do the work safely."). This duty encompasses a requirement that the employer inspect the premises for dangerous conditions. Id.; Zaborowske v. OES, Inc., 731 S.W.2d 614, 616-17 (Tex.App.--Houston [1st Dist.] 1987, no writ); H.E.B. Food Stores v. Slaughter, 484 S.W.2d 794, 796 (Tex.Civ.App.--Corpus Christi 1972, writ dism'd). In a premises liability case, an employer is liable only if the plaintiff shows (1) that the defendant had actual or constructive knowledge of some condition on the premises, (2) that the condition posed an unreasonable risk of harm, (3) that the defendant did not exercise reasonable care to reduce or eliminate the risk, and (4) that the defendant's failure to use such care proximately caused the plaintiff's injuries. ⁴ Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992); Wyatt v. Furr's Supermarkets, Inc., 908 S.W.2d 266 (Tex.App.--El Paso 1995, writ requested); cf. H.E. Butt Grocery Co. v. Newell, 664 S.W.2d 116, 118 (Tex.Civ.App.--Corpus Christi 1983, no writ) ("A landowner or occupier has a basic duty to his business invitees to exercise ordinary care to keep his premises in a reasonably safe condition.").

Ample evidence exists to show that Tri-State knew or should have known of the ice buildup at the accident scene. Tri-State admits that it knew ice frequently formed around the door to the freezer creating a slick condition when entering or exiting the freezer, but it claims that the accident was some twenty feet away from the freezer door and that it was not on notice of ice in that particular area. Although ignorance of ice buildup in that specific area may indeed exempt Tri-State of liability, see Keetch, 845 S.W.2d at 268-70 (Mauzy, J., dissenting) (criticizing the Court's establishment of an ignorance rule), the evidence demonstrates that Tri-State was indeed on notice. Calderon testified as follows:

Q. Would you describe the ice that was on the ground there on the concrete where the forklift slid out?

A. I guess like a sheet of ice, you know, due to the cold, due to the, you know, probably the door opening, humidity, you know, from the other part of the warehouse going in. Just like a sheet just builds up from time to time.

Q. Was that cleaned on a regular basis at Tri-State when you worked there?

A. No, not necessarily, no. The supervisor, he would send anybody, no. It could be a janitor. It could be a forklift--ice is built up on the door. The supervisor wants someone to go clean it. So someone will go get it and scrape it up. But not on a regular basis, because sometimes you would be stuck there, and your wheels be spinning just trying to get out of the freezer, because you got merchandise--got merchandise on pallets, and they are trying to get out, you know--there's a little spinning for a while until it burns so much rubber, and then they get a little--or someone will go behind and help them, push them, to get out. But not on a regular basis, no, sir, it wasn't cleaned.

Barrera confirmed the existence of ice at the site of the accident:

Q. All right. What was the floor like right there where the accident occurred, where Louie Calderon had wrecked the forklift?

A. It was frozen. It was icy, and yet dirty, like muddy in a way.

Q. Like slush?

A. Like slush. And that's what made [Calderon] slide and wreck into the rack.

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