Winn-Dixie Texas, Inc. v. Buck

• Decision Date: 15 October 1986
• Docket Number: No. 2-86-003-CV,WINN-DIXIE,2-86-003-CV
• Citation: 719 S.W.2d 251
• Parties: TEXAS, INC., Appellant, v. H.C. BUCK, Appellee.
• Court: Texas Court of Appeals

Page 251

719 S.W.2d 251

WINN-DIXIE TEXAS, INC., Appellant, v. H.C. BUCK, Appellee.

No. 2-86-003-CV.

Court of Appeals of Texas,

Fort Worth.

Oct. 15, 1986.

Cantey, Hanger, Gooch, Munn & Collins and Stephen L. Tatum, Beth Krugler and

Paul Broudloche, Fort Worth, for appellant

Jenks Garrett, Arlington, for appellee.

Before JOE SPURLOCK, II, HILL and FARRIS, JJ.

OPINION

HILL, Justice.

Winn-Dixie Texas, Inc., appeals from a judgment in favor of H.C. Buck for damages due to injuries he sustained as a result of a fall in a Winn-Dixie supermarket located in Arlington, Texas. The jury, in response to special issues, found that water on the floor of the supermarket constituted an unreasonable risk of harm to Buck and was a proximate cause of his injuries. The jury found that Winn-Dixie's conduct in regard to Buck's accident constituted gross negligence. Damages found by the jury included $14,000 for past and future physical pain and mental anguish and $8,000 for past and future loss of physical ability. The jury determined that exemplary damages should be awarded in the amount of $75,000. Winn-Dixie presents six points of error.

We reform the judgment to conform the award of exemplary damages to the amount pled and affirm the judgment as reformed.

Winn-Dixie urges in point of error number one that the trial court erred by failing to submit to the jury an issue regarding any actual or constructive knowledge by Winn-Dixie of the condition which caused Buck's injuries. Winn-Dixie objected at trial to the omission of the issue, and the trial court overruled its objection.

The undisputed evidence showed that the reason for the water being on the floor at the time of Buck's fall was due to a clogged drain in the produce section of the store causing water from the produce case to run out on the floor. The assistant store manager testified by deposition that there was a problem with the produce drain, that the area had been swept and mopped several times during the day prior to Buck's fall, and that he did not know if the drain had ever been repaired. The manager of safety and security for Winn-Dixie's Texas division testified that if the store employees knew that the drain was blocked up, they would know that it was going to accumulate water. He said that if the employees had mopped two or three times because water was dripping, it could be foreseen that the water would accumulate again. There was no testimony that the employees of Winn-Dixie were unaware that there was water on the floor in the produce section. We believe that the undisputed testimony shows that the employees of Winn-Dixie either knew or should have known of the water on the floor. The trial court is not required to submit undisputed issues to the jury. Texas Emp. Ins. Ass'n v. Miller, 596 S.W.2d 621, 625 (Tex.Civ.App.--Waco 1980, no writ). We overrule point of error number one.

Winn-Dixie asserts in points of error numbers two and three that there is no evidence or that there is insufficient evidence to support the jury's finding of gross negligence on the part of Winn-Dixie.

In determining a "no evidence" point, we are to consider only the evidence and inferences which tend to support the finding of the jury and disregard all evidence and inferences to the contrary. See Larson v. Cook Consultants, Inc., 690 S.W.2d 567, 568 (Tex.1985); International Armament Corp. v. King, 686 S.W.2d 595, 597 (Tex.1985); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951). If there is any evidence of probative force to support the finding of the jury, the point must be overruled and the finding upheld. In re King's Estate, 244 S.W.2d at 661-62.

A "no evidence" point of error must and may only be sustained when the record discloses one of the following: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence; or (4) the evidence establishes conclusively the opposite of a vital fact. Commonwealth Lloyd's Ins. Co. v. Thomas, 678 S.W.2d 278, 288 (Tex.App.--Fort Worth 1984, writ ref'd n.r.e.); Calvert, "No Evidence " and "Insufficient Evidence " Points of Error, 38 TEXAS L.REV. 361 (1960).

Where the challenge to a jury finding is that there was "insufficient evidence" to support the finding, we are to consider all the evidence in the case, both that in support of and that contrary to the finding, to determine if the challenged finding is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. See Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex.1985); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). If the court so determines, the finding should be set aside and a new trial ordered. Garza, 395 S.W.2d at 823.

In order to support a finding of gross negligence, the plaintiff must show that the defendant was consciously, i.e., knowingly, indifferent to his rights, welfare, and safety. Burk Royalty Co. v. Walls, 616 S.W.2d 911, 922 (Tex.1981). The plaintiff must show that the defendant knew about the peril, but his acts or omissions demonstrated that he did not care. Id. A showing of "some care" on the part of the defendant is no longer sufficient to defeat a finding of gross negligence. Id.

The store manager's testimony indicates that he was aware of the problem with the drain in the produce area. He was not aware of any effort to repair the drain. The testimony indicates that no effort was made to block off the area, put up a sign in the area, or to post someone at the area where the store employees knew or should have known that water was accumulating. We believe that this evidence is sufficient to show that Winn-Dixie's employees, although aware that water was going to be accumulating on the floor, took no action to prevent customers from walking in the area of the water accumulation. Since water on the floor is such an obvious hazard and since the store employees did not take any reasonable action to prevent customers from walking in the area of the accumulation, nor, apparently, to repair the drain, it would not be unreasonable for the jury to conclude that Winn-Dixie's employees simply did not care whether any...