Wal-Mart Stores, Inc. v. Berry

• Decision Date: 27 May 1992
• Docket Number: WAL-MART,No. 6-91-115-CV,6-91-115-CV
• Citation: 833 S.W.2d 587
• Parties: STORES, INC., d/b/a Sam's Wholesale Club, Appellant, v. Mary Jo BERRY, Appellee.
• Court: Texas Court of Appeals

Page 587

833 S.W.2d 587

WAL-MART STORES, INC., d/b/a Sam's Wholesale Club, Appellant, v. Mary Jo BERRY, Appellee.

No. 6-91-115-CV.

Court of Appeals of Texas,

Texarkana.

May 27, 1992.

Rehearing Denied June 23, 1992.

David R. McAtee, Kelly M. Crawford, Gibson, Dunn & Crutcher, Joe Horlen, Arter & Hadden, Dallas, for appellant.

Joe D. Gregory, Gregory & Gregory, Grapevine, for appellee.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

CORNELIUS, Chief Justice.

Wal-Mart Stores, Inc. appeals from a judgment awarding Mary Jo Berry damages for personal injuries she sustained while shopping in a Sam's Wholesale Club. Berry was shopping when a large stack of canned soft drinks fell on her. The jury found Wal-Mart negligent and awarded Berry actual damages of $345,286.61. The jury also found Wal-Mart grossly negligent and awarded Berry $200,000.00 in punitive damages. The trial judge ordered a remittitur of $100,000.00 of the punitive damages. The court also awarded prejudgment interest on future as well as past damages.

Wal-Mart contests the sufficiency of the evidence supporting the jury's findings on negligence, gross negligence, punitive damages, and future damages. It also challenges the trial court's jury charge and its rulings on admitting and excluding testimony. Berry challenges the remittitur order.

Wal-Mart first attacks the legal and factual sufficiency of the evidence of proximate cause. It contends that the trial court erred in denying its motion for a directed verdict and motion for judgment non obstante veredicto because there was no evidence of cause in fact or of Wal-Mart's actual or constructive knowledge that there was a problem with the soft drink display.

The overruling of a motion for directed verdict may be reviewed on appeal only if it was recited in a formal order or in the judgment. Soto v. Southern Life & Health Ins. Co., 776 S.W.2d 752, 754 (Tex.App.--Corpus Christi 1989, no writ). This record does not contain any such recitation. Although no error was preserved by the motion for directed verdict, Wal-Mart's motion for judgment non obstante veredicto and motion for new trial preserved the legal and factual sufficiency points. Bryan v. Dockery, 788 S.W.2d 447, 449 (Tex.App.--Houston [1st Dist.] 1990, no writ).

A judgment non obstante veredicto is proper only if there is no evidence supporting the jury's findings. Exxon Corp. v. Quinn, 726 S.W.2d 17, 19 (Tex.1987); Bryan v. Dockery, 788 S.W.2d at 449. We examine the evidence in the light most favorable to the verdict, disregarding all contrary evidence and inferences. Navarette v. Temple Independent School Dist., 706 S.W.2d 308, 309 (Tex.1986); see also Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex.1988); Robert Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 TEXAS L.REV. 361 (1960). If there is any probative evidence supporting the verdict, the no evidence point must be overruled. Southern States Transportation, Inc. v. State, 774 S.W.2d 639, 640 (Tex.1989). The factual sufficiency review requires us to examine all the evidence. We sustain the point only if the evidence supporting the verdict is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Robert Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, supra.

Proximate cause has two elements: cause in fact and foreseeability. Travis v. City of Mesquite, 34 Tex.Sup.Ct.J. 231, 233 (Dec. 31, 1990); City of Gladewater v. Pike, 727 S.W.2d 514, 517 (Tex.1987). Cause in fact means that the act or omission was a substantial factor in bringing about the injury, without which the harm would not have occurred. Travis v. City of Mesquite, 34 Tex.Sup.Ct.J. at 233; McClure v. Allied Stores of Texas, Inc., 608 S.W.2d 901, 903 (Tex.1980). Foreseeability means that the actor, as a person of ordinary intelligence, should have anticipated the dangers that his negligent act created for others. Travis v. City of Mesquite, 34 Tex.Sup.Ct.J. at 233. There may be more than one proximate cause of an accident. Id. Only in exceptional cases should jury findings on proximate cause be set aside on the ground that they are not supported by the evidence. Enloe v. Barfield, 422 S.W.2d 905, 908 (Tex.1967).

Wal-Mart contends that there is no evidence as to why the display fell. Berry was injured when two "pallets" containing between 4,000 and 6,000 cans of Pepsi Cola and stacked over sixteen feet high fell on her. Vendors deliver soft drinks to Sam's in these pallets, which are "shrink-wrapped" with heavy plastic. Sam's then stacks the pallets in three rows in the main shopping area. The first two rows are stacked three high, reaching a height of approximately sixteen feet from the shopping floor. The middle row is stacked two high. The aisle row is stacked one pallet high so customers will have easy access to the drinks. Sam's general manager, Jan Burd, testified that the pallets were shrink-wrapped in heavy plastic to give them "stability" and that unwrapped pallets were either rejected or rewrapped to avoid a safety hazard. He testified that shrink-wrapping is an appropriate safety precaution and that only pallets passing the safety inspection are stacked on the wall in the sales area. Three witnesses, however, testified that the pallets which fell and injured Berry were not shrink-wrapped, and photographs introduced in evidence tended to corroborate that testimony. Sam's frozen food supervisor, Kenneth Bowles, testified that unwrapped pallets were sometimes stacked on the very top of the display towers. There was also testimony that an assistant manager of Sam's said after the accident that the pallets were dangerous and that Sam's was in the process of putting shelves on the walls because that would be safer. One witness testified that after the accident, a Sam's employee said it looked like one of the Sam's employees stacked the pallets wrong. No rope or any device was used to secure the tower of pallets to the wall and prevent their leaning or falling. Just before the cans began to fall, the towers were leaning toward the aisle. Sam's frozen food manager said that they recognize the danger posed by leaning stacks of merchandise.

From the foregoing recitation, it can be seen that there is evidence that shrink-wrapping the pallets is necessary for their stability and to avoid a safety hazard. Lack of stability can cause the stacks to lean and, possibly, fall. The pallets were leaning just before the accident occurred. There is no evidence that anything else caused the pallets to fall. All this constitutes circumstantial evidence that the pallets leaned and fell because of a lack of stability brought about by the failure to shrink-wrap them as required by safety precautions.

As to foreseeability, in addition to the evidence that Sam's required the pallets to be shrink-wrapped to give them stability and considered unwrapped pallets dangerous, it is uncontradicted that the pallets were stacked, often three pallets high. This and the other evidence previously outlined constitutes some evidence from which the jury could infer that Sam's could reasonably foresee that the displays could fall if not properly wrapped and stacked.

Wal-Mart also contends that there is no evidence of its actual or constructive knowledge of the risk posed by the particular display involved here. See, e.g., Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex.1983). However, Berry was not required to show knowledge of this specific hazard. Id. at 296. Rather, she had to prove knowledge of the foreseeable harm from some course of conduct. Id. The evidence that Sam's required the pallets to be shrink-wrapped before being stacked allows the inference that it knew of the danger of stacking unwrapped pallets. This is some evidence of knowledge.

The evidence is also factually sufficient to support the verdict. With respect to proximate cause, Wal-Mart points to the testimony of two witnesses to the accident who testified that they did not know what caused the cans to fall. Wal-Mart also contends that no one else, such as an expert, testified to the precise cause of the occurrence. The evidence previously outlined, however, is sufficient to support a finding of cause in fact, as well as foreseeability. The jury was authorized to believe such evidence as it chose and to reject any conflicting evidence. Creech v. Thompson, 156 Tex. 561, 297 S.W.2d 817, 820 (1957); Burelsmith v. Liberty Mutual Ins. Co., 568 S.W.2d 695, 698 (Tex.Civ.App.--Amarillo 1978, no writ). Considering the favorable evidence discussed under the no evidence points, the evidence is factually sufficient to support the jury findings of proximate cause and knowledge.

Wal-Mart, by its third point of error, alleges that the trial court's jury charge ¹ was improper because it did not ask the jury to find whether an unreasonable risk of harm existed and it did not define "unreasonable risk of harm." Wal-Mart objected to the charge and submitted an issue and a definition. ² It contends that the court's refusal to submit a special question and definition excluded an essential element of Berry's case from the jury.

Generally, in cases involving premise defects, the jury must find that an unreasonable risk of harm existed. Physicians & Surgeons Gen. Hosp. v. Koblizek, 752 S.W.2d 657, 659 (Tex.App.--Corpus Christi 1988, writ denied). If the action is based on negligent activity on the premises rather than a defect and the plaintiff is indisputably an invitee, the case may be submitted as an ordinary negligence case. Tovar v. Amarillo Oil Co., 692 S.W.2d 469 (Tex.1985); Redinger v. Living, Inc., 689 S.W.2d 415 (Tex.1985); Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex.1978); Physicians & Surgeons Gen. Hosp. v. Koblizek, 752 S.W.2d 657; 3 STATE BAR OF TEXAS, TEXAS PATTERN JURY CHARGES PJC 66.04 (1990)....