Wal-Mart Stores Inc. v. Garcia

• Decision Date: 16 August 2000
• Docket Number: WAL-MART,No. 04-99-00344-CV,04-99-00344-CV
• Citation: 30 S.W.3d 19
• Parties: (Tex.App.-San Antonio 2000) Stores, Inc., Appellant v. Leonor GARCIA, Appellee
• Court: Texas Court of Appeals

Page 19

30 S.W.3d 19 (Tex.App.-San Antonio 2000)

WAL-MART Stores, Inc., Appellant v. Leonor GARCIA, Appellee

No. 04-99-00344-CV

For the Court of Appeals Fourth District of Texas

August 16, 2000

From the 293rd Judicial District Court, Maverick County, Texas Trial Court No. 93-10-12160-CVAJA Honorable Rey Perez, Judge Presiding

[Copyrighted Material Omitted]

Sitting: Phil Hardberger, Chief Justice, Sarah B. Duncan, Justice, Karen Angelini, Justice.

OPINION

Opinion by: Phil Hardberger, Chief Justice.

Leonor Garcia ("Garcia") slipped on a jalapeno in a Wal-Mart store and fell, injuring herself. A jury assessed $75,000 in damages against Wal-Mart Stores, Inc. ("Wal-Mart") for past and future physical pain, mental anguish, and medical expenses.

Wal-Mart argues that the evidence is legally and factually insufficient to support the jury's finding that Wal-Mart possessed actual or constructive knowledge of the jalapeno. In addition, Wal-Mart challenges the award of future medical expenses and mental anguish damages on legal and factual sufficiency grounds.

Discussion

1. Standard of Review

In considering legal sufficiency points, a reviewing court considers only the evidence favorable to the decision of the trier of fact and disregards all evidence and inferences to the contrary. See Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex. 1988). If more than a scintilla of evidence is offered on a fact, the evidence is legally sufficient to support the jury's finding on that matter. See Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983).

In considering factual insufficiency points, a reviewing court assesses all the evidence and reverses for a new trial only if the challenged finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. See Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). Under this analysis, the reviewing court does not serve as fact finder, pass upon the credibility of witnesses, or substitute its judgment for that of the trier of fact, even if there is conflicting evidence upon which a different conclusion could be supported. See Thrift v. Hubbard, 974 S.W.2d 70, 76 (Tex. App.-San Antonio 1998, pet. denied).

2. Issue One: Actual or Constructive Notice of the Jalapeno

In its first issue, Wal-Mart argues that no legally or factually sufficient evidence exists to support the jury's finding that Wal-Mart had actual or constructive knowledge of the dangerous condition in the store.

a. Narrowing the Issue

Wal-Mart is the land owner; Garcia was an invitee on Wal-Mart's land. Wal-Mart owed Garcia a duty to exercise ordinary care to protect her from those risks of which Wal-Mart was aware. Wal-Mart also owed Garcia a duty to protect her from those risks of which Wal-Mart should have been aware after a reasonable inspection. See Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996). These duties, however, do not make Wal-Mart an insurer of Garcia's safety on the premises. See Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). Wal-Mart is not liable for every injury arising from a dangerous condition on its premises. In order to hold Wal-Mart liable for the dangerous condition on its premises, Garcia has the burden of proving:

(1)Actual or constructive knowledge of some condition on the premises by Wal-Mart;

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

(3)That Wal-Mart did not exercise reasonable care to reduce or eliminate the risk; and

(4)That Wal-Mart's failure to use such care proximately caused Garcia's injuries.

See id.

The disputed issue in this case is whether Wal-Mart had actual or constructive knowledge of the jalapeno on the floor before Garcia slipped and fell. Constructive knowledge means that Wal-Mart should have known or discovered the jalapeno after a reasonable inspection. See Lopez, 929 S.W.2d at 3. To show that Wal-Mart had constructive knowledge of the jalapeno, Garcia has the burden to demonstrate "that it was more likely than not that the [jalapeno] had been there" for a period of time within which Wal-Mart should have been aware of the condition. See Gonzalez, 968 S.W.2d at 938; Lopez, 929 S.W.2d at 3. Proving merely that the jalapeno "could possibly have been there long enough to make Wal-Mart responsible for noticing it" is insufficient. Gonzalez, 968 S.W.2d at 938.

b. Garcia's Argument

Garcia argues that Wal-Mart was on notice of the dangerous condition in the snack bar area and failed to take appropriate action in keeping the area clean. By failing to keep the area clean, Wal-Mart did not exercise reasonable diligence that would have led to the discovery of the jalapeno. Garcia states that there were no customers in the area at the time of her accident who had food items from which a jalapeno could have dropped. As a consequence, the jalapeno must have been on the floor for an adequate period of time within which Wal-Mart should have discovered it, especially considering the employees were looking directly at the area.

Garcia testified that, while waiting in line, she noticed the floor was dirty. She saw "trash, Styrofoam cups" on the floor. She also explained that the trash bins were "full . . . it was so full that the lid was open and there were some on the floor." Garcia waited for her order for seven to nine minutes; during that time, she did not see anyone clean the area. After Garcia left the counter, she slipped and fell. Garcia's daughter, Patricia Gonzalez ("Gonzalez"), later discovered a jalapeno on Garcia's sandal.

Gonzalez testified that "the floor was dirty, and the trash was very full. There were cups on the floor, napkins." She said the jalapeno was wrinkled and was not fresh. She explained that after Garcia fell, the employees "were starting to clean up, cleaning the tables, the floor."

c. Wal-Mart's Argument

Three Wal-Mart employees testified; two of the employees indicated the snack bar area was clean before the accident. Maria Ofelia Regaldo, who works at the snack bar, could not remember the last time the area had been cleaned before Garcia fell. Maria Isabel Fuentes ("Fuentes"), the snack bar manager, gave testimony that was generally favorable to Wal-Mart, but that was frequently contradicted. She said also that prior to the accident, "[a]s always, I was cleaning the areas in the snack bar." But she could not recall "exactly where I was" at the time of the accident. She testified that from behind the counter, she could "pretty much see the entire snack bar area." The jury also heard excerpts from her deposition in which the following exchange occurred:

[Q:] And are you not saying that you looked at that; that you went out there and cleaned that floor right before she fell? Are you?

...

A: No, because we never knew we never knew he is going to fell or not. [sic] We cannot be looking at who is going to be throwing things on the floor, who is going to be falling and who is not going to be falling.

...

Fuentes' then contradicted herself again. She stated, "We don't have time to be cleaning. Every time that the area needs cleaning, we clean it." Jesus Rodriguez ("Rodriguez"), the store manager, agreed that "it would be a matter of a few seconds to scan the floor and detect a jalapeno [sic] on the floor."

Wal-Mart argues the jalapeno went unnoticed by snack bar personnel because it fell immediately prior to Garcia's accident. It argued that the jalapeno was fresh at the time of Garcia's accident. Rodriguez speculated that because the jalapeno still had juice in it, as evidenced by its streak mark, it was fresh. Yet, Rodriguez agreed with the proposition that "if somebody else had dropped a jalapeno [sic] 5, 10, 15 minutes before, it still would have had juice in it." Rodriguez testified that the jalapeno came from Martha Rodriguez ("Martha"), a customer who was sitting next to the area where Garcia fell. Rodriguez recalled that "no one else [was] eating nachos." Martha, however, testified that she ordered popcorn and soda only, and never had any nachos.

d. Factual Sufficiency

The testimony by the six witnesses is conflicting. We conclude, however, that factually sufficient evidence exists to support the jury's verdict.

e. Legal Sufficiency

In reviewing the legal sufficiency point, we set aside the evidence that does not support the verdict. Testimony by Martha and Gonzalez provide a scintilla of evidence that the jalapeno...