Wal-Mart Stores v Redding, WAL-MART

• Decision Date: 28 June 2001
• Docket Number: WAL-MART
• Citation: 56 S.W.3d 141
• Parties: <!--56 S.W.3d 141 (Tex.App.-Houston 2001) STORES, INC., Appellant v. GENEVA REDDING, Appellee NO. 14-99-00836-CV Court of Appeals of Texas, Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 141

56 S.W.3d 141 (Tex.App.-Houston [14th Dist.] 2001)

WAL-MART STORES, INC., Appellant v GENEVA REDDING, Appellee

NO. 14-99-00836-CV

Court of Appeals of Texas, Houston (14th Dist.)

June 28, 2001.

Rehearing Overruled July 26, 2001

On Appeal from the 149th District Court Brazoria County, Texas Trial Court Cause No. 94M2775

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Panel consists of Justices Anderson, Edelman and Wittig.

MAJORITY OPINION

John S. Anderson, Justice

This is an appeal of a premises liability suit arising from a slip, but no subsequent fall. The jury awarded Geneva Redding ("Redding") $50,000 in damages against Wal-Mart Stores, Inc. ("Wal-Mart"). The trial court reduced the damages to $24,093. In three points of error, Wal-Mart asserts that the evidence is legally and factually insufficient to support both the jury's finding on liability and damages, and that the jury charge contained an element of damages without evidentiary support. We reverse and remand.

Background

Geneva Redding visited a Wal-Mart store on a misty day. After walking through the vestibule and entering the store, Redding slipped on a wet mist on the floor. Redding did not fall, but caught her balance and in doing so sustained painful injuries to her back and neck. Before the accident, because of water accumulation, Wal-Mart mopped the entrance area several times. Immediately after Redding slipped, she reported the incident to a store "greeter." The employee stated the area had been mopped several times that day. The employee also stated she had worried about the damp conditions all day, and she feared someone would get hurt. Redding sued Wal-Mart for negligence. A jury awarded her $50,000; however, they also found Redding to be forty percent negligent, thus the trial court reduced Redding's recovery of actual damages to account for her share of liability. The trial court further remitted $5,907 of the award because Wal-Mart had previously paid that amount in past medical expenses on behalf of Redding. Redding ultimately was awarded $24,093.

I. Actual or Constructive Knowledge

In its first point of error, Wal-Mart contends the evidence was legally and/or factually insufficient to support the element of actual or constructive knowledge of a dangerous condition on the part of an owner/operator in a premises liability suit. Redding was Wal-Mart's invitee. As such, Wal-Mart owed her a duty to exercise reasonable care to protect her from dangerous conditions in the store known or discoverable to it. See Rosas v. Buddies Food Store, 518 S.W.2d 534, 536-37 (Tex. 1975). A premises owner's duty toward its invitee, however, does not make the possessor an insurer of the invitee's safety. Wal-Mart Stores, Inc. v. Gonzalez 968 S.W.2d 934, 936 (Tex. 1998). To recover damages in a slip-and-fall case, a plaintiff 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. Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992).

In slip-and-fall cases, the courts have required that the actual or constructive knowledge requirement be met in one of three ways. Keetch, 845 S.W.2d at 265. The invitee may prove: (1) the owner/operator put the foreign substance on the floor; (2) the owner/operator knew that it was on the floor and negligently failed to remove it; or (3) the substance was on the floor so long that, in the exercise of ordinary care, it should have been discovered and removed. Id.

A. Legal Sufficiency of the Evidence to Support Actual Knowledge

Wal-Mart first contends there is no evidence to demonstrate actual or constructive knowledge of the dangerous condition on the basis that Redding failed to demonstrate the length of time the floor had been wet. Therefore, Wal-Mart concludes the evidence is legally insufficient to support the judgment in favor of Redding.

When both legal and factual sufficiency points are raised, we are required to rule on the "no evidence," or legal insufficiency, point first. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981). If we find some evidence to support the verdict, we will then review the claim of factually insufficient evidence. Int'l Piping Systems, Ltd. v. M.M. White & Assoc., 831 S.W.2d 444, 447 (Tex. App.--Houston [14th Dist.] 1992, writ denied). In determining whether there is no evidence of probative force to support a jury's finding, all the record evidence must be considered in the light most favorable to the party in whose favor the verdict has been rendered, and every reasonable inference deducible from the evidence is to be indulged in that party's favor. Merrill Dow Pharm. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). A no evidence point will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact. Id. More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Id. 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. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).

Generally, a plaintiff establishes constructive knowledge of a dangerous condition with evidence that the foreign substance was on the floor so long that it should have been discovered and removed in the exercise of ordinary care. Keetch, 845 S.W.2d at 265. Accordingly, Texas Courts have held the evidence insufficient to establish constructive knowledge when the record contained no evidence of the length of time the foreign substance was on the floor. Wal-Mart Stores, 968 S.W.2d at 938 (holding Gonzalez had to demonstrate it was more likely than not that macaroni salad had been there for a long time to establish a basis for charging Wal-Mart with constructive knowledge of the condition). Wal-Mart relies on these authorities because the record here contains no evidence of the length of time the floor had been wet and slippery before Redding arrived.

Wal-Mart's argument, based on the absence of evidence supporting constructive knowledge, arises from the premise that no employee at the store had actual knowledge of the floor's wet and slippery condition. However, there is direct evidence of Wal-Mart's knowledge of the dangerous condition. In the instant case, Redding testified that immediately after she slipped she looked down at the floor and noticed that the floor was covered with a mist of water. Redding immediately told a Wal-Mart employee, who was standing just beyond the area where the incident occurred, that there was standing water on the floor. This Wal-Mart employee, a greeter named Nell, was standing about fifteen feet inside the entrance. Redding stated the employee told her she "had been worried about it all day that somebody was going to get hurt because it had been like that all day."(emphasis added). The Wal-Mart employee also stated that, before the accident, the floor had been mopped several times.¹

As set forth above, a no evidence point will be sustained when the evidence offered to prove a vital fact is no more than a mere scintilla. Merrill Dow, 953 S.W.2d at 711. However, more than a scintilla exists when the evidence supporting the finding rises to a level that would enable reasonable and fair minded people to differ in their conclusions. Id. Here, Nell's statement to Redding that some condition had been a problem all day and she was concerned someone would be injured as a result of the condition is precisely the type of statement a jury is allowed to interpret. It is true, as Wal-Mart suggests, that the exact meaning of Nell's statement is not clear. However, we believe reasonable and fair minded people on a jury could differ on whether Nell was referring to the weather or to the dangerous condition of the mist on Wal-Mart's floor just inside the front door.² Indeed, on redirect examination of Redding, she agreed, without any contemporaneous objection, that Nell made the following statement after Redding approached her complaining about the water on the floor: "I've been worried about that all day. We've tried to mop it a few times, but that water has been....I've been afraid someone was going to get hurt."

The jury's interpretation of Nell's remarks coincides with the interpretation made by Redding at the time the remarks were made. On direct examination, Redding testified she told Nell "the floor was wet, there was water on the floor and she might want to mop it up because somebody could really get hurt, because I had just slipped and I was hurting,...." She further testified she believed, based on Nell's statement that she had been concerned about it all day, that an employee of Wal-Mart had knowledge water was on the floor before Redding told anyone about it. Because the evidence rises to a level allowing reasonable people to reach different conclusions as to its meaning, the evidence constitutes more than a scintilla of evidence Wal-Mart had actual knowledge of the dangerous condition of the floor prior to the time Redding arrived. Therefore, Wal-Mart's no evidence challenge to the jury's implied finding that it had prior knowledge of a dangerous condition, and negligently failed to remove it, is overruled.

B. Factual Sufficiency of the Evidence to Support Actual Knowledge

In addition,...