Wal-Mart Stores, Inc. v. Surratt

• Decision Date: 10 April 2003
• Docket Number: No. 11-02-00113-CV.,11-02-00113-CV.
• Citation: 102 S.W.3d 437
• Parties: WAL-MART STORES, INC., Appellant, v. Linda Ruth SURRATT, Appellee.
• Court: Texas Court of Appeals

102 S.W.3d 437

WAL-MART STORES, INC., Appellant, v. Linda Ruth SURRATT, Appellee.

No. 11-02-00113-CV.

Court of Appeals of Texas, Eastland.

April 10, 2003.

Rehearing Overruled May 8, 2003.

J. Woodfin Jones, Douglas W. Alexander, Scott, Douglass & McConnico, L.L.P., Attorneys At Law, Austin, and Michael H. Bassett, Grau & Bassett, Attorneys At Law, Dallas, for appellant.

Wendel A. Withrow, John Mongogna, Withrow, Fiscus & Mongogna, Attorneys At Law, Carrollton, for appellee.

Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.

Opinion

TERRY McCALL, Justice.

This appeal addresses the duty of a business owner/operator to protect its invitees from conditions caused by a natural accumulation of frozen precipitation on its parking lot.¹ Linda Ruth Surratt suffered a serious ankle injury when she slipped and fell on Wal-Mart's parking lot. The parking lot was covered at the time by an accumulation of frozen precipitation caused by a recent ice storm. Citing cases from other jurisdictions, Wal-Mart argues that it did not have a duty to protect its invitees from the conditions caused by natural accumulation of frozen precipitation on its parking lot. We agree.

Background Facts

The accident in question occurred on December 23, 1998, at one of Wal-Mart's retail stores located in Grayson County. The record reflects that an ice storm had occurred in the area on this date. The event records of the National Climate Data Center describe the ice storm as follows:

A strong arctic cold front moved through North Texas on [December 21, 1998] bringing freezing temperatures to all of North Texas by the morning of [December 22, 1998]. Southwest winds aloft produced overrunning conditions, resulting in cloudy skies and a mixture of freezing rain, sleet, and snow. The precipitation began in the western part of North Texas and spread eastward covering the entire area by [December 23, 1998]. At various times, all North Texas counties had icy streets, bridges, overpasses, and highways. The ice caused at least 2,000 accidents, mainly in the Dallas/Fort Worth Metropolitan area, killing six persons, closing many highways, and cancelling over 400 flights at the Dallas/Fort Worth International Airport. Two homeless persons died of hypothermia, and dozens of people were injured from falling on the ice.

www.ncdc.noaa.gov.

Surratt worked as a manager of a home improvement store. She was not scheduled to work on December 23, 1998. She decided to go to work at approximately 11:00 a.m., however, because several employees of the home improvement store were unable to report for duty as a result of the ice storm. Surratt stopped at Wal-Mart's store on her way to work in order to purchase deicer. Surratt testified that she knew prior to leaving her home that conditions were bad as a result of the ice storm. She drove to the Wal-Mart store in her four-wheel drive vehicle, and she wore hiking boots in order to deal with the treacherous conditions.

Surratt parked approximately 30 feet from the store's entrance. She observed that the parking lot was "slushy" because the frozen precipitation which covered it had begun to melt. Surratt made one trip inside the store and then returned to her vehicle without incident. She slipped and fell in the parking lot while returning to her vehicle after making a second trip inside the store. The record shows that Wal-Mart did not take any measures to either remove the frozen precipitation from its parking lot or lessen the risk posed by the frozen precipitation.

The jury determined that the negligence of both Wal-Mart and Surratt proximately caused the occurrence in question. The jury apportioned 70 percent of the responsibility for the occurrence to Wal-Mart's negligent conduct and the remaining 30 percent to Surratt's negligent conduct. After making the appropriate reduction for the percentage of responsibility attributed to Surratt, the trial court entered judgment in Surratt's favor in the amount of $196,175. We reverse and render.

Issues Presented

Wal-Mart asserts two issues on appeal. Wal-Mart presents its no-duty argument in the first issue. In its second issue, Wal-Mart attacks the evidence supporting the jury's award of $150,000 for Surratt's past medical expenses. We do not address Wal-Mart's second issue because our ruling on the first issue is dispositive of this appeal.

Standard of Review

Wal-Mart filed a motion for judgment notwithstanding the verdict which alleged in part that the jury's liability finding against it was not supported by legally sufficient evidence. Wal-Mart contends that the trial court erred in denying its motion for judgment notwithstanding the verdict. TEX.R.CIV.P. 301 provides that a court may render judgment non obstante veridicto (judgment notwithstanding the verdict) if a directed verdict would have been proper and may disregard any jury finding that has no support in the evidence. A trial court may grant a judgment notwithstanding the verdict if there is no evidence to support one or more of the jury findings on issues necessary to liability. Brown v. Bank of Galveston, National Association, 963 S.W.2d 511, 513 (Tex.1998).

We review the denial of a motion for judgment notwithstanding the verdict under a legal sufficiency standard. Navarette v. Temple Independent School District, 706 S.W.2d 308, 309 (Tex.1986). In reviewing the legal sufficiency of the evidence, an appellate court must consider all the evidence in the light most favorable to the prevailing party and must indulge every reasonable inference in favor of the prevailing party. Associated Indemnity Corporation v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex.1998); Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997), cert. den'd, 523 U.S. 1119, 118 S.Ct. 1799, 140 L.Ed.2d 939 (1998). An appellate court will sustain a no-evidence issue when: (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the only evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of the vital fact. Uniroyal Goodrich Tire Company v. Martinez, 977 S.W.2d 328, 334 (Tex.1998). If there is more than a scintilla of evidence to support the jury's findings, the motion for judgment notwithstanding the verdict was properly denied. Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 228 (Tex.1990).

Duty

The threshold inquiry in a negligence case is duty. Greater Houston Transportation Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990); El Chico Corporation v. Poole, 732 S.W.2d 306, 311 (Tex.1987). Tort liability depends on both the existence and the violation of a duty. Greater Houston Transportation Co. v. Phillips, supra at 525; El Chico Corporation v. Poole, supra at 311. Whether a duty exists in a particular case is a question of law for the court to decide from the facts surrounding the occurrence in question. Texas Home Management, Inc. v. Peavy, 89 S.W.3d 30, 33 (Tex.2002); Greater Houston Transportation Co. v. Phillips, supra at 525. As recently noted by the Texas Supreme Court in Texas Home Management:

The question of legal duty is a multifaceted issue requiring us to balance a number of factors such as the risk and foreseeability of injury, the social utility of the actor's conduct, the consequences of imposing the burden on the actor, and any other relevant competing individual and social interests implicated by the facts of the case. Although the formulation and emphasis varies with the facts of each case, three categories of factors have emerged: (1) the relationship between the parties; (2) the reasonable foreseeability of harm to the person injured; and (3) public policy considerations. (Citations omitted)

Texas Home Management, Inc. v. Peavy, supra at 33-34.

We use the same three "categories of factors" which the supreme court used in Texas Home Management to resolve Wal-Mart's "no duty" contention in this case. The first element concentrates on the relationship between the parties. This element does not support Wal-Mart's contention as evidenced by the multitude of cases which recognize that a premise owner/operator generally owes a duty to its business invitees to exercise reasonable care. The second element examines the foreseeability of harm to the person injured. This element also does not support Wal-Mart's contention because of the obvious foreseeabilility that someone will slip and fall on a parking lot covered by frozen precipitation. The success of Wal-Mart's no-duty contention is therefore dependent upon the third element which focuses on public policy considerations.

With respect to a slip-and-fall case, the owner/operator owes a duty to its invitees to exercise reasonable care to protect them from dangerous conditions on the premises known or discoverable to it. Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex.1998); Rosas v. Buddies Food Store, 518 S.W.2d 534, 536-37 (Tex.1975). "However, a land possessor's duty toward its invitee does not make the possessor an insurer of the invitee's safety." Wal-Mart Stores, Inc. v. Gonzalez, supra at 936; McElhenny v. Thielepape, 155 Tex. 319, 285 S.W.2d 940, 941 (1956). The liability elements of a slip-and-fall case involving a business invitee are welldefined. The invitee must prove:

(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.

Wal-Mart Stores, Inc. v. Gonzalez, supra at 936; Keetch v. Kroger Company, 845 S.W.2d 262, 264 (Tex.1992); Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex.1983).²...