Wal-Mart Stores, Inc. v. Gonzalez

• Decision Date: 23 July 1997
• Docket Number: No. 04-96-00419-CV,WAL-MART,04-96-00419-CV
• Citation: 954 S.W.2d 777
• Parties: STORES, INC., Appellant, v. Flora L. GONZALEZ, Appellee.
• Court: Texas Court of Appeals

Page 777

954 S.W.2d 777

WAL-MART STORES, INC., Appellant, v. Flora L. GONZALEZ, Appellee.

No. 04-96-00419-CV.

Court of Appeals of Texas San Antonio.

July 23, 1997.

Rehearing Overruled Sept. 15, 1997.

J. Preston Wrotenbery, Kevin D. Jewell, Magenheim, Bateman, Robinson, Wrotenbery & Helfand, Houston, for Appellant.

Calixtro Villarreal, Rio Grande City, Charles A. Nicholson, Law Offices of Pat Maloney, P.C., San Antonio, for Appellee.

Before HARDBERGER, C.J., and LOPEZ and ANGELINI, JJ.

HARDBERGER, Chief Justice.

This is a rare case. The Plaintiff won a jury verdict in a slip-and-fall case, an ever-increasing improbability. Damages of $100,000 were awarded. Wal-Mart appeals.

FACTS

Flora Gonzalez was shopping at a Wal-Mart store in Rio Grande City. While she was going to get her cart, she stepped on macaroni that had been mashed by previous carts running through it. She fell down injuring her shoulder, side, back, and knee. The macaroni, which had once been part of a cooked macaroni salad sold by the store, had visible cart tracks through it. The cart tracks could not have been made by Mrs. Gonzalez as she had no cart. The spillage was dirty and "seemed like it had been there awhile." The store manager came, reports were taken, and Mrs. Gonzalez was taken from the store by ambulance to the hospital. She saw the doctor on numerous occasions following the accident, and was walking with a cane, prescribed by her physician, at the time of trial.

POINTS OF ERROR

a. Insufficient Evidence of Notice (Points of Error One and Two)

Wal-Mart contends in its first and second points of error that the evidence is legally and factually insufficient to support a finding that Wal-Mart had actual or constructive knowledge of a dangerous condition on its premises. Wal-Mart also says there is a lack of evidence to show that it failed to use reasonable care to reduce or eliminate the condition.

In considering a "no evidence" point, we consider only the evidence and reasonable inferences that tend to support the jury's findings. Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 459 (Tex.1992). Evidence and inferences to the contrary are disregarded. Alm v. Aluminum Co. of Am., 717 S.W.2d 588, 593 (Tex.1986).

This court has exclusive jurisdiction in determining the question of factual sufficiency. Turnbough v. United Pac. Ins. Co., 666 S.W.2d 489, 492 (Tex.1984). Wal-Mart, as the appellant, has the burden of demonstrating that there is a lack of factually sufficient evidence to support the jury's finding. The standard of review requires the court of appeals to set aside the finding upon a showing that the evidence is so weak so as to render the finding clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

Gonzalez was Wal-Mart's invitee. Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992), defines the elements that must be proven in this type of case:

(1) Actual or constructive knowledge of some condition on the premises by the owner/operator;

(2) That the condition posed an unreasonable risk of harm;

(3) That the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and

(4) That the owner/operator's failure to use such care proximately caused the plaintiff's injuries.

Keetch, 845 S.W.2d at 264. These elements were established even earlier in Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex.1983). Wal-Mart attacks the elements of "actual or constructive knowledge" and "reasonable care."

Before detailing the evidence, it is important to remember that this court is not jury number two. Whether this court, if it were the original factfinder, would have found for one side or the other is immaterial. A jury in this state has great power. Jurors are "the sole judges of the credibility of the witnesses and the weight to be given to their testimony." TEX.R. CIV. P. 226a, approved instruction III. Their decision is not to be tampered with lightly, whether it favors the plaintiff or the defendant. The jury has, and should have, the final word on facts.

Carr v. Jaffe Aircraft Corp., 884 S.W.2d 797, 799 (Tex.App.--San Antonio 1994, no writ).

Wal-Mart asserts that there is not only insufficient evidence, but no evidence: i.e., a complete absence of evidence of a vital fact, or, if there is anything, it is no more than a mere scintilla of evidence. We think there was legally sufficient evidence to support the verdict. Differing negligence cases, by their nature, require differing amounts of evidence to be legally sufficient. A manufacturing defect might take several experts and several volumes of testimony to be legally sufficient. A car wreck would ordinarily take less, and a slip and fall still less. There is simply less to say. The facts are usually nondramatic, although the results of falling down can produce impressive injuries. The pratfall is a standard routine of the comedian, but in reality it can be a serious thing. This is especially so in an aging, overweight woman such as Mrs. Gonzalez.

A plaintiff has the obligation to produce the evidence that exists. If a court requires more than is possible to prove, the court has taken over the legislative function of simply deciding that there will be no negligence cause of action for slip and falls. No court has done this, and the cause of action exists. The great majority of slip-and-fall cases are lost at the trial level and, no doubt, always will be. But this court is not willing to say that an injured person must go beyond the evidence that is created by the operative facts, which would be an impossibility. Of course, there may be cases where there is simply not enough evidence to make a case, even if it is all produced. This is not such a case though.

In Mrs. Gonzalez's case, she had to first prove that there was a dangerous condition on the floor. She did that. The macaroni salad was there. No one has denied it and, in fact, one of the defenses raised was that Mrs. Gonzalez, herself, had spilled the salad. However, the jury chose not to believe this version. It is neither likely that Wal-Mart purposely put their own salad on the floor, nor that they knew about the spillage and simply chose to ignore it. The real issue is whether there was constructive knowledge. In a case such as this, constructive knowledge is proved by the passage of time. Passage of time in a spillage is not usually measured in days, but lesser measures. Once having proved it was there, Mrs. Gonzalez had to prove that it had been there for a sufficient length of time so it should have been cleaned up. Her evidence of the amount of time that the salad was on the floor was as follows: (l ) it had "a lot of dirt" in it; (2) there were cart tracks caused by people walking through the spillage pushing their carts; (3) the tracks were not made by Mrs. Gonzalez as she had no cart; and (4) the spillage "seemed like it had been there awhile." A jury could reasonably infer that Wal-Mart does not sell dirty macaroni salad, and that if the salad was dirty, it was probably because it had been there long enough to get dirty. A jury might reasonably infer that if there are cart tracks running through salad on the floor where people have been walking and pushing their carts, that is evidence that the spill did not just happen moments before. A jury might reasonably believe the description given by the only eyewitnesses that the spillage had the general appearance of being old or, as they succinctly put it, "seemed like it had been there awhile." Wal-Mart was unable to say when the floor had last been cleaned. Instead, Wal-Mart could prove only when it should have been cleaned. As there was also evidence that cleaning was in progress after the event when it was not scheduled to be done, a jury may have reasonably inferred that the cleaning of the floor was off schedule. Because Wal-Mart, with all of its employees and servants, chose not to put anyone on the stand to say when they actually cleaned the area, a jury might have reasonably inferred that it was because it had not been cleaned recently enough to assist Wal-Mart in defeating Mrs. Gonzalez's proof.

What additional proof was possible? Spilled macaroni salad does not lend itself to carbon-14 dating, or any other scientific testing. Circumstantial evidence is the norm; definitive proof is the exception. Circumstantial evidence is not beyond the jury's capabilities. It is commonplace in many jury trials.

Appellate courts reviewing slip-and-fall cases reach differing results. This is appropriate because each case is fact specific. A banana peel that was "gooey," "black with yellow stripes," "brown," and looked like it was several hours old was sufficient evidence to support a jury verdict in J.C. Penney Co., Inc. v. Chavez, 618 S.W.2d 399, 401 (Tex.Civ.App.--Corpus Christi 1981, writ ref'd n.r.e.). On the other hand, cart tracks in water were not sufficient evidence to establish that the water had been there a sufficient time to give the store constructive notice in Robledo v. Kroger Co., 597 S.W.2d 560, 561 (Tex.Civ.App.--Eastland 1980, writ ref'd n.r.e.). It might be observed that tracks in water would be more transitory than tracks through more solid matter. Tracks in water could not show too much, except that the spill was of recent origin. Tracks through solid matter, on the other hand, will presumably last until cleaned up. Evidence that grapes were smashed and dirty was sufficient to establish constructive knowledge in H.E.Butt Grocery Co. v. Heaton, 547 S.W.2d 75, 76 (Tex.Civ.App.--Waco 1977, no writ). An unidentified, clear liquid with cart tracks and footprints, unseen by the plaintiff before or after the accident, did not establish constructive knowledge in Kimbell, Inc. v. Blount, 562 S.W.2d 10, 13 (Tex.Civ.App.--Austin 1978, no writ). Wyatt v. Furr's Supermarkets, Inc., 908 S.W.2d 266, 268-69 (Tex.App.--El Paso 1995, writ denied), upheld a summary judgment for the defendant when the...