Wal-Mart Stores v. Rosa

• Decision Date: 31 May 2001
• Docket Number: WAL-MART,No. 04-99-00791-CV,04-99-00791-CV
• Citation: 52 S.W.3d 842
• Parties: (Tex.App.-San Antonio 2001) STORES, INC. and Hector Dominguez, Appellants v. Petra ROSA, Appellee
• Court: Texas Court of Appeals

Page 842

52 S.W.3d 842 (Tex.App.-San Antonio 2001)

WAL-MART STORES, INC. and Hector Dominguez, Appellants v. Petra ROSA, Appellee

No. 04-99-00791-CV

Court of Appeals of Texas, San Antonio

May 31, 2001

From the County Court at Law, Starr County, Texas Trial Court No. CC-97-361 Honorable Jesus "Chuy" M. Alvarez, Judge Presiding

Sitting: Phil Hardberger, Chief Justice, Tom Rickhoff, Justice, Alma L. Lopez, Justice, Catherine Stone, Justice, Paul W. Green, Justice, Sarah B. Duncan, Justice, Karen Angelini, Justice

Opinion On Appellee's Amended Motion For Rehearing En Banc

Opinion by: Sarah B. Duncan, Justice

Wal-Mart Stores, Inc. appeals the trial court's judgment against it in Petra Rosa's premise defect suit. The court has reconsidered the case en banc and withdraws the panel opinion and judgment dated October 31, 2000. We hold there is no evidence from which it can be inferred that Wal-Mart had actual knowledge or constructive notice of the premise defect for so long that it should have been discovered and removed. We therefore reverse the trial court's judgment and render judgment in Wal-Mart's favor.

Factual and Procedural Background

After paying for her groceries, Petra Rosa slipped and fell on a piece of banana. She later sued Wal-Mart for negligence. After a jury trial, the trial court rendered judgment in Rosa's favor. Wal-Mart appeals.

Standard of Review

The scope and standard for legal sufficiency review is well-established. To determine whether there is legally sufficient evidence, we review "only the evidence and the inferences tending to support the [jury's] finding and disregard all evidence and inferences to the contrary." Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). If there is more than a scintilla of evidence to support the finding, the legal sufficiency challenge must fail. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1987).

Discussion

To recover in a slip-and-fall case, a plaintiff must establish:

(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). "[W]hen circumstantial evidence is relied upon to prove constructive notice, the evidence must establish that it is more likely than not that the dangerous condition existed long enough to give the proprietor a reasonable opportunity to discover the condition." Wal-Mart Stores Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998).

There is no evidence any Wal-Mart employee had actual knowledge of the piece of banana upon which Rosa fell. To meet the circumstantial evidence standard, Rosa points to the testimony of her daughter-in-law, Melissa Rosa. She testified the piece of banana was "brown," and when her children dropped pieces of banana, it took at least forty-five minutes to one hour for the banana to turn brown. However, this testimony is no evidence that the banana had been on the floor long enough to charge Wal-Mart with constructive notice. See Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983) ("Corbin's testimony that the grapes lying around him were discolored and ruptured does not tend to prove that the grapes had been on the floor a sufficient time to impute knowledge of their location to Safeway."); Furr's, Inc. v. McCaslin, 335 S.W.2d 284, 286 (Tex. Civ. App. El Paso 1960, no writ) ("Where it is equally as probable that the withering, blackening and deterioration ... occurred before it got on the floor, a finding that it took place afterward is an unwarranted inference and may not be sustained.").

Melissa Rosa also testified the piece of banana looked to her to have been there a while. Again, however, this is not evidence from which constructive notice may be inferred. See Gonzalez, 968 S.W.2d at 937-38 ("The testimony that the macaroni salad 'seemed like it had been there awhile' is mere speculative, subjective opinion of no evidentiary value. The witnesses had not seen the macaroni salad prior to the fall and had no personal knowledge of the length of time it had been on the floor.").

Rosa also points to the number and proximity of Wal-Mart employees near where she fell, as well as a 3-inch wide-angled mirror on the wall behind her, as evidence that Wal-Mart should have discovered the piece of banana. In support of this argument, Rosa cites Stoner v. Wal-Mart Stores, Inc., 35 F. Supp.2d 958 (S.D. Tex. 1999), Wal-Mart Stores, Inc. v. Tinsley, 998 S.W.2d 664, 669 (Tex. App. Texarkana 1999, pet. denied), and Furr 's Supermarket v. Garrett, 615 S.W.2d 280, 281 (Tex. Civ. App. El Paso 1981, writ ref'd n.r.e.). However, this evidence does not tend to prove the piece of banana had been on the floor long enough to charge Wal-Mart with constructive notice. See Gonzalez, 968 S.W.2d at 938 ("Gonzalez had to demonstrate that it was more likely than not that the macaroni salad had been there for a long time.").

Conclusion

As in Gonzalez, "the circumstantial evidence ... supports only the possibility that the dangerous condition existed long enough to give Wal-Mart a reasonable opportunity to discover it." Gonzalez, 968 S.W.2d at 936. We therefore reverse the trial court's judgment and render judgment in Wal-Mart's favor.

Justice Rickhoff concurring.

RICKHOFF, Justice, concurring.

Generally, concurrence writing is wasted effort. However, this is another case, determined not by the facts, law, or analysis, but by the predisposition of judges.¹ The result is a refined tort reform analysis that largely eliminates both the equity power of jury judgments and another cause of action the slip and fall. If as Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934 938 (Tex. 1998), says, Rosa must demonstrate "that it was more likely than not" that discolored macaroni salad or a banana "had been there for a long time" most slip and fall cases will be exceedingly hard to prove. I concur, but I am very uncomfortable with the trend that makes us senior jurors.

I see a distinction between our case and the Supreme Court's guidance in Gonzalez. In both, the central issue was whether the store had constructive knowledge of the spill and, in each, meager evidence (age of a fallen banana estimated from discoloration/age of fallen macaroni from dirt and cart tire tracks) supported "equally plausible but appropriate inferences." The distinction is that on the day of the accident here, the Wal-Mart staff acquiesced in letting a baby transverse the store dangling a peeled banana. That is exactly what happened in J.C. Penney Co. v. Chavez, 618 S.W.2d 399 (Tex. Civ. App. Corpus Christi 1981, writ n.r.e.).

In J.C. Penney, store personnel condoned the practice of allowing customers to consume food (a banana) and drinks in the store and were aware this occurred regularly. Id. at 401. The evidence showed it took approximately thirty-six hours for a fresh, unpacked banana to turn a dark color, i.e., from yellow to brown. Several witnesses saw the peel after Chavez fell. It was discolored, "gooey," and "black with yellow strips." A witness who was standing in line behind Chavez said the banana peel looked like it was several hours old. Id.

Like our case, the "record showed that the counter at which Chavez fell was built so that it had an indentation under it where a customer could place his feet when standing at the cash register." Id. Unlike our case, the evidence showed the store sold only fresh bananas, but the court concluded the jury, like ours, could "have reasonably concluded that it was such a fresh banana when it was dropped, and that it turned dark and discolored only after lying on the floor for a long time." Id. A more exhaustive and eerily identical listing of the facts appears in Justice Bissett's dissent in J.C. Penney.

The inescapable conclusion is that, if you allow children to eat bananas in your store, customers will slip, fall, and injure themselves. Chavez, Gonzalez, and Rosa were all invincibly innocent victims of the store policy. To me, the facts, law, and analysis from 1981 (Chavez) to 1998 (Gonzalez) are the same only the judges performing the analysis differ. While the holdings of Justice Nye and Chief Justice Hardberger appeal to my sense of fairness, I recognize much has changed since I took the bench, and I must, for now, follow the new. Justice Nye and Chief Justice Hardberger allowed the jury to subjectively determine from the circumstantial evidence that discolored bananas were more likely long on the ground, while the Gonzalez court subjectively finds discoloration inconclusive. Finally, although Chief Justice Hardberger believes Lozano affects the analysis in Gonzalez, I find Lozano unhelpful but remain hopeful that the new members of the court will bring us the clear guidance we all seek.

Here, the jury was asked whether "the negligence of any person or entity . . . proximately cause[d] the occurrence or injury in question?" The jury was instructed that Wal-Mart was negligent if, among things, it "knew or reasonably should have known of the danger[.]" The jury found Wal-Mart negligent. I would leave it to the jury if I were free to do so.

Chief Justice Hardberger joined by Justice Lopez and Justice Stone, dissenting.

1. Like Justice Duncan I know we are bound by Gonzalez and Gonzalez controls the result here. I write separately to express my confusion now over the role of jurors and judges.

Hardberger, Chief Justice, dissenting.

The question posed in ...