Wal-Mart Stores v. Reece

• Decision Date: 18 October 2000
• Docket Number: No. 10-98-176-CV,WAL-MART,10-98-176-CV
• Parties: (Tex.App.-Waco 2000) STORES, INC., Appellant v. LIZZIE REECE, Appellee
• Court: Texas Court of Appeals

Page 339

32 S.W.3d 339 (Tex.App.-Waco 2000)

WAL-MART STORES, INC., Appellant v. LIZZIE REECE, Appellee

No. 10-98-176-CV

IN THE TENTH COURT OF APPEALS

October 18, 2000

From the 12th District Court Madison County, Texas Trial Court # 7408

[Copyrighted Material Omitted]

Before Chief Justice Davis, Justice Vance, and Justice Gray.

OPINION

REX D. DAVIS, Chief Justice.

Lizzie Reece filed suit against Wal-Mart Stores, Inc. for injuries she allegedly sustained after she slipped and fell in the snack bar area of the Huntsville Wal-Mart store. The jury found in Reece's favor and awarded her $53,512.47 in damages. Wal-Mart claims in three issues that: (1) there is no evidence or factually insufficient evidence to support a finding that Wal-Mart had constructive knowledge of the puddle in which Reece slipped; (2) there is no evidence or factually insufficient evidence to support submission of a mental anguish issue to the jury or the amount awarded for mental anguish; and (3) Wal-Mart is entitled to a new trial because of side-bar remarks made by Reece's counsel during trial.

BACKGROUND

Reece went to the snack bar in the Huntsville Wal-Mart store to purchase a chili dog. After she obtained her chili dog and paid for it, she walked "maybe two steps off" when she stepped in "something slippy" and fell on her right knee. Wal-Mart employee Stephen Cloyd had gone to the snack bar during his break. He was standing between five and eight feet in front of her at the snack bar when she fell. He turned around when he heard her fall and saw her down on one knee.

Cloyd noticed a small puddle of clear liquid near Reece. He described the size of the puddle as similar to a "small pizza, medium pizza, somewhere in there, possibly smaller." He recalled that the puddle was not directly in the path of travel for persons at the snack bar counter but was slightly to the side. Only the snack bar attendant, Reece, Cloyd, and another man and woman were in the snack bar area when Reece fell. No one besides Reece and Cloyd ever saw the puddle.

Reece testified that she had a small red spot on her right knee after the fall. Although her knee hurt, she did not think she had suffered a serious injury at the time. She reported the incident to the Wal-Mart manager on duty. The manager prepared an incident report and helped Reece to her granddaughter's car. The next morning Reece's knee was swollen. Two of her daughters transported her to the hospital where x-rays revealed that she had sustained a severe bruise. A physician later determined that she had suffered a tear of the lateral meniscus ligament as a result of the fall. Reece ultimately required surgery to correct this condition.

CONSTRUCTIVE KNOWLEDGE

Wal-Mart contends in its first issue that there is no evidence or factually insufficient evidence to support a finding that it had constructive knowledge of the puddle in which Reece slipped and fell. Reece responds that, because Cloyd walked by the spill "only moments" before Reece fell, the jury could determine that he "should have noticed the clear liquid and done something about it to protect Mrs. Reece."

When we decide a "no evidence" point, we consider only the evidence and inferences which tend to support the contested issue and disregard all evidence and inferences to the contrary. See Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). We will sustain a no evidence point if: (a) there is a complete absence of evidence of a vital fact; (b) we are barred by rules of law or 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. (citing Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362-63 (1960)). "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.'" Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995) (quoting Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994)).

A factual sufficiency challenge requires us to consider and weigh all the evidence, not just the evidence which supports the verdict. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998); In re King's Estate, 150 Tex. 662, 664-65, 244 S.W.2d 660, 661 (1951). We will set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Maritime Overseas Corp., 971 S.W.2d at 407.

To prevail in a slip-and-fall case, the plaintiff must prove that:

* the defendant had actual or constructive knowledge of a condition on its premises;

* the condition posed an unreasonable risk of harm;

* the defendant failed to exercise reasonable care to reduce or eliminate the risk; and

* such failure proximately caused injury to the plaintiff.

See Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). Generally, the plaintiff establishes constructive knowledge 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 v. Kroger Co., 845 S.W.2d 262, 265 (Tex. 1992) (quoting Robledo v. Kroger Co., 597 S.W.2d 560, 560 (Tex. Civ. App.--Eastland 1980, writ ref'd n.r.e.)); accord Wal-Mart Stores, Inc. v. Tinsley, 998 S.W.2d 664, 667 (Tex. App.--Texarkana 1999, pet. denied).¹

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. See, e.g., Gonzalez, 968 S.W.2d at 936-38; Richardson v. Wal-Mart Stores, Inc., 963 S.W.2d 162, 165-66 (Tex. App.--Texarkana 1998, no pet.); Robledo, 597 S.W.2d at 560-61; Furr's Supermarkets, Inc. v. Arellano, 492 S.W.2d 727, 728 (Tex. Civ. App.--El Paso 1973, writ ref'd n.r.e.). Wal-Mart relies on these authorities because the record in this case contains no evidence of the length of time the puddle in which Reece slipped was on the floor.

On the other hand, some courts have held that evidence of a close proximity between the location of the foreign substance and an employee of the proprietor will support a finding that the employee, in the exercise of ordinary care, should have discovered the substance and removed it, even if the plaintiff fails to offer any evidence of the length of time the substance was on the floor.² See Duncan v. Black-Eyed Pea U.S.A., Inc., 994 S.W.2d 447, 449-50 (Tex. App.--Beaumont 1999, pet. filed) (slippery substance located in an area where "employees frequently traversed"); Furr's Super Market v. Garrett, 615 S.W.2d 280, 281-82 (Tex. Civ. App.--El Paso 1981, writ ref'd n.r.e.) (five employees located within five or six feet of water puddle); Albertson's, Inc. v. Mungia, 602 S.W.2d 359, 362-63 (Tex. Civ. App.--Corpus Christi 1980, no writ) (one employee ten feet away from puddle located beside ice machine and another employee at ice machine handing bag of ice to customer); H.E.B. Food Stores v. Slaughter, 484 S.W.2d 794, 797 (Tex. Civ. App.--Corpus Christi 1972, writ dism'd) (three or four employees unloading produce "a few feet" from "water and grapes intermingled on the floor"); see also Stoner v. Wal-Mart Stores, Inc., 35 F. Supp. 2d 958, 960 (S.D. Tex. 1999) (spill located between ten and twelve feet from cash register). Reece relies on these authorities because of Cloyd's proximity to the puddle.

From these distinct lines of cases, we conclude that a plaintiff can establish constructive knowledge in a premises liability case with evidence that:

* the dangerous condition existed for a sufficient length of time that it should have been discovered and removed in the exercise of ordinary care; see Gonzalez, 968 S.W.2d at 936-38; Richardson, 963 S.W.2d at 165-66; Robledo, 597 S.W.2d at 560-61; Arellano, 492 S.W.2d at 728; or

* the dangerous condition was in sufficient proximity to an employee of the defendant that it should have been discovered and removed in the exercise of ordinary care; see Duncan, 994 S.W.2d at 449-50; Garrett, 615 S.W.2d at 281-82; Mungia, 602 S.W.2d at 362-63; Slaughter, 484 S.W.2d at 797; see also Stoner, 35 F. Supp. 2d at 960.

Reece's case falls into the latter category as the parties concede that the record contains no evidence of the length of time the spill was on the floor.³

Most of the proximity decisions rested on other factors in addition to proximity of employees. In Garrett, the court relied also on the size of the spill to affirm the verdict. See Garrett, 615 S.W.2d at 281-82. The court in Mungia found the evidence sufficient because of employee proximity, the size of the spill, and its opinion that "[t]he dispensing of bags of ice from an ice machine can bring with it water on the floor in the immediate vicinity of the machine. Ordinary care requires that such a place be constantly watched and water removed from the floor frequently." Mungia, 602 S.W.2d at 362-63.

In Slaughter, the court recited several evidentiary factors which supported the verdict:

At the time of the accident there were three or four men unloading produce a few feet from where the plaintiff fell. The plaintiff testified that there were grapes on the floor and that the grapes displayed on the produce counter were displayed loose and in bulk. Other grocery stores displayed such grapes in cardboard boxes or in mesh packages so that they would not fall out easily. A jury would be entitled to believe that if it was the grapes that the plaintiff fell on, then defendant was negligent in displaying the grapes in bulk instead of displaying them in containers as some other stores do.

The men that the plaintiff saw nearby were standing there talking and unloading produce. At the...