Wal-Mart Stores Tex. v. Autrey

• Decision Date: 01 April 2021
• Docket Number: No. 06-19-00095-CV,06-19-00095-CV
• Parties: WAL-MART STORES TEXAS, LLC, Appellant v. JENNIFER R. AUTREY, Appellee
• Court: Texas Court of Appeals

WAL-MART STORES TEXAS, LLC, Appellant v. JENNIFER R. AUTREY, Appellee

No. 06-19-00095-CV

Court of Appeals Sixth Appellate District of Texas at Texarkana

Date Submitted: December 2, 2020

April 1, 2021

On Appeal from the 349th District Court Anderson County, Texas

Trial Court No. DCCV-17-192-349

Before Morriss, C.J., Burgess and Stevens, JJ.

Memorandum Opinion by Justice Burgess MEMORANDUM OPINION

Jennifer R. Autrey slipped and fell in a Walmart¹ store in Palestine, Texas.² She asserted a premises liability claim against Walmart, arguing that its negligence caused the fall and her resulting injuries. An Anderson County jury determined that Walmart's negligence proximately caused Autrey's injuries and awarded her a total of $732,630.31 in damages for past and future pain, mental anguish, and medical expenses. On appeal, Walmart argues that (1) the evidence was legally and factually insufficient to support the jury's finding that Walmart was negligent, (2) the evidence of proximate cause was legally and factually insufficient to support the jury's award of past and future medical expenses, and (3) the trial court erred in refusing to instruct the jury regarding sole proximate cause.

We affirm the trial court's judgment because (1) the jury's finding that Walmart was negligent was supported by legally and factually sufficient evidence, (2) the jury's award of past and future medical expenses was supported by legally and factually sufficient evidence of proximate cause, and (3) the trial court acted within its discretion by refusing to give a sole proximate cause instruction.

I. Factual and Procedural Background

On September 3, 2016, Breanna Love, a Walmart cashier, was working at the self-checkout area near the store's front doors and vision center. A customer told her about a nearbyspill on the floor. Love testified that, on several occasions, she was trained to handle spills. Love explained that, based on her training, if there was a spill on the floor, she was to assess the size and hazard level of the spill. Depending on the size and nature of the spill, she was to then take one of the following actions: (1) wipe up the spill; (2) place a "wet floor" cone at the spill prior to cleaning it up; or (3) stand by the spill, call for maintenance, and "guard the spill" for the purpose of warning customers.³

Tammy Griffin, Walmart's corporate representative at trial and an assistant manager at the Palestine Walmart, agreed with Love's testimony and said that, according to Walmart's policy and employee training, an employee should never "leave a spill no matter what" until it is cleaned up. According to Griffin, employees are not supposed to leave spills even to return to their register to call maintenance. Moreover, while employees are instructed to place a wet floor warning sign near the spill, they may only do so if the signs are accessible and retrieving them does not to require the employee to leave the spill area. Griffin also admitted that there was not a spill station near the front-door area where the fall occurred.

Love first noticed the spill a few yards from her workstation. Upon seeing the spill, Love retrieved a roll of paper towels from her station near the self-checkout stations and walked back to the spill so she could clean it up. However, a second customer pointed out that there were separate spills stretching from the customer service area to the front doors. Because the spill extended beyond the self-checkout area, Love believed the spill was too large to clean on herown, so she returned to her workstation and called for maintenance; she then stood at the spill site nearest her, where she "guard[ed] the spill" and warned customers. Love testified that she did not retrieve and place warning signs at the spill because there was "nobody else to watch the spill" as well as the self-checkout area while she retrieved a warning cone from the spill station on the other side of the store. Because she was not allowed to leave the general self-checkout area, she moved closer to the front doors, so she could warn customers both entering and leaving the store while still being able to keep an eye on the self-checkout area. She also asked a nearby coworker to call maintenance again.

At that moment, Autrey and her husband entered the store. Autrey testified that Love was walking toward her and even made eye contact with her. There is conflicting evidence regarding whether Love warned Autrey about the spill. Love testified that, as she was telling Autrey to "watch out" for the spill, Autrey slipped and fell. However, in a statement taken after the incident, Love stated that Autrey was "already falling" before she could warn her. A video recording of the incident from the store's security system was admitted into evidence and played for the jury; it showed that less than a minute of time elapsed between Love initially learning of the spill and Autrey's fall.

Autrey testified that she felt pain immediately after she fell. Love immediately ran to Autrey's side; said, "I am so sorry"; asked if Autrey was ok; and asked if she needed an ice pack or an electric cart. Love overheard Autrey's husband tell his wife that she should go to the hospital, and when she said she did not want to go, he insisted. Autrey did not want Love to call an ambulance for her. At that time, Griffin arrived, and Love returned to her station at the self-checkouts. Griffin testified that Autrey told her that she heard Love's warning, but that she did not have time to react.

Griffin testified that Autrey's husband helped her into a wheelchair and pushed her back to their car. Autrey's husband then drove her to the Palestine Regional Hospital. Griffin testified that she did not fault Autrey "in any way for having fallen that day." After viewing the video recording of the incident, Griffin testified that, even though Love left the spill to return to her register "for a second," in her opinion, Love "did everything perfectly and according to Walmart's procedures." Autrey "just entered the store, and there was a spill on the floor." Griffin called Autrey within the next twenty-four hours, and although she could not remember what was said in the conversation, she did remember that Autrey was polite and cordial.

The day after her fall, Autrey woke feeling pain in her neck, something she said she had never experienced in the previous twenty-five years. Because the first three orthopedic doctors she called refused her as a patient when she disclosed that her fall was at Walmart, she visited the Texas Spine and Joint Urgent Care facility in Tyler, Texas, when her neck pain worsened. She eventually saw Dr. Duane Griffith, an interventional pain-management specialist. Dr. Griffith administered epidural steroid injections and prescribed physical therapy for her, but it failed to help her neck pain. Dr. Griffith referred her to a Tyler neurosurgeon, Dr. Charles Gordon, for an evaluation, and, after examining her MRI and x-rays, performing a physical examination, taking her patient history, and considering the failure of more conservative treatments, Dr. Gordon recommended spinal fusion surgery and a discectomy.

After the surgery, Autrey's neck pain improved, but did not end. She also experienced pain on her left side, which was attributed to nerve damage. Hoping to solve Autrey's pain, Dr. Griffith implanted a spinal cord stimulator. Autrey said the stimulator provided her about seventy-percent relief. Dr. Alex Willingham, a physician and life care planner, testified that, over the course of Autrey's life, the cost of maintaining and replacing the spinal stimulator would be $452,630.31.

The jury determined that Walmart's negligence proximately caused Autrey's injuries and awarded her a total of $732,630.31 in damages, including $100,000.00 for past medical expenses and $452,630.31 in future medical expenses. Due to pretrial stipulations regarding the amount of Autrey's past medical expenses and the award of prejudgment interest and court costs, the trial court entered judgment on the verdict awarding Autrey a total of $751,720.59. Walmart appeals from the jury's verdict.

II. The Evidence of Negligence Was Legally and Factually Sufficient

In its first point of error, Walmart contends that the evidence was legally and factually insufficient to support the jury's finding that Walmart was negligent.

A. Standard of Review

In resolving a legal sufficiency issue, an appellate court determines "whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Basley v. Adoni Holdings, LLC, 373 S.W.3d 577, 582 (Tex. App.—Texarkana 2012, no pet.). "In looking at the evidence, we credit favorable evidence if a reasonable jury could and disregard contrary evidence unless areasonable jury could not." Petrohawk Props., L.P. v. Jones, 455 S.W.3d 753, 770 (Tex. App.—Texarkana 2015, pet. dism'd) (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)). As we have stated previously,

The evidence is legally insufficient if (1) there is a complete absence of evidence of a vital fact; (2) the rules of law or of evidence bar the court from giving weight to the only evidence offered to prove a vital fact; (3) there is no more than a mere scintilla of evidence offered to prove a vital fact; or (4) the opposite of the vital fact is conclusively established by the evidence.

Id. (citing Jelinek v. Casas, 328 S.W.3d 526, 532 (Tex. 2010)). "More than a scintilla of evidence exists when the evidence reaches a level enabling reasonable and fair-minded people to differ in their conclusions." Id. (citing Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). "Less than a scintilla of evidence exists when the evidence is 'so weak as to do no more than create a mere surmise or suspicion' of a fact." King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting ...