Ceiling Fan Warehouse Inc. 3 v. Morgan

723 S.W.2d 195, 1986 Tex. App. LEXIS 9207
CourtCourt of Appeals of Texas
DecidedNovember 26, 1986
DocketNo. 01-86-0141-CV
StatusPublished
Cited by5 cases

This text of 723 S.W.2d 195 (Ceiling Fan Warehouse Inc. 3 v. Morgan) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ceiling Fan Warehouse Inc. 3 v. Morgan, 723 S.W.2d 195, 1986 Tex. App. LEXIS 9207 (Tex. Ct. App. 1986).

Opinion

OPINION

HOYT, Justice.

This suit arises out of personal injuries sustained by appellee, John D. Morgan, when a lava rock display board in the store operated by appellant, Ceiling Fan Warehouse, Inc. #3, (“Ceiling Fan”), fell on Morgan, injuring his left heel.

The case was tried to a jury and the jury answered the special issues as follows: (1) that the display board presented an unreasonable risk of harm to Morgan; (2) that Ceiling Fan knew or should have known of the condition of the display; (3) that Ceiling Fan was negligent in failing to correct the condition; (4) that Ceiling Fan’s failure to correct the condition was a proximate cause of Morgan’s injuries; (5) that Ceiling Fan failed to warn Morgan of the condition of the display; (6) that Ceiling Fan was negligent in failing to warn; (7) that Ceiling Fan’s failure to warn was a proximate cause of Morgan’s injuries; (8) that the display board fell because Morgan pulled it away from the wall; and (9) that Morgan’s conduct did not constitute negligence.

In answer to Special Issue No. 12 on damages, the jury awarded $5,000 for past physical pain and mental anguish; $1,500 for past loss of earnings; $10,000 for loss of earning capacity in the future; $5,000 for past medical expenses; and $5,000 for future medical expenses.

The trial court disregarded the jury’s finding as to the $5,000 damages for future expenses, reduced the jury award for past medical expenses from $5,000 to $2,300, and entered judgment for the damages found by the jury consisting of $5,000 for past physical pain and mental anguish, $1,500 for loss of earnings in the past, and $10,000 for loss of earning capacity that, in reasonable probability, Morgan will sustain in the future.

In points of error five through eight, Ceiling Fan maintains that the evidence is insufficient or against the great weight and preponderance of the evidence to support the jury’s finding that: (1) the display board presented an unreasonable risk of harm to Morgan; (2) its failure to correct the condition was negligence and a proximate cause of the incident and Morgan’s injuries; and (3) Morgan’s action in pulling the display board away from the wall was not negligence.

In a “factual insufficiency point,” this Court is required to review all the evidence, including any evidence contrary to the finding of the court, and decide whether the judgment is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (Tex.1951); Pfeffer v. Southern Texas Laborers’ Pension Trust Fund, 679 S.W.2d 691, 694 (Tex.App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.).

Ceiling Fan’s argument on the above points appears to be based on the assumption that Morgan could not pull the lava rock display board away from the wall [197]*197without that act consisting negligence. This position is not supported by the jury’s verdict or the great weight and preponderance of the evidence.

The record reflects that Morgan went to the Ceiling Fan Warehouse intending to purchase three ceiling fans. Although he testified that he never touched the display board, that he had no interest in lava rock for a fireplace, and that he did not pull the display board over on himself, the jury found that he did, in fact, examine it. Implicit in the jury’s finding is the finding that Morgan and others were invited by Ceiling Fan to examine all merchandise in the store and that Ceiling Fan had a duty to either warn its customers of the hazard or to secure each display in such a manner as to protect the customer who, unsuspectingly, may examine it and injure himself in the process.

In Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex.1983), the Texas Supreme Court held:

[Wjhen an occupier has actual or constructive knowledge of any condition on the premises that poses an unreasonable risk of harm to invitees, he has a duty to take whatever action is reasonably prudent under the circumstances to reduce or to eliminate the unreasonable risk from that condition. The occupier is considered to have constructive knowledge of any premises defects or other dangerous conditions that a reasonably careful inspection would reveal.

Id. at 295.

The standard of conduct required of a premises occupier toward his invitees is the ordinary care that a reasonably prudent person would exercise under all the pertinent circumstances. An occupier’s liability to an invitee depends on whether he acted reasonably in light of what he knew or should have known about the risks accompanying a premises’ condition. Id. at 297.

In the instant case, evidence presented indicated that a dangerous condition existed, that Ceiling Fan knew or should have known of the hazard, and that no action had been taken to minimize the risk of harm from that dangerous condition. Pulling the display board away from the wall to examine it was not, as a matter of law, contributory negligence. See Parker v. Highland Park, Inc., 565 S.W.2d 512, 521 (Tex.1978).

Points of error five through eight are overruled.

In points of error nine and ten, Ceiling Fan contends that the trial court erred in calculating prejudgment interest, on the award of $2300 for past medical expenses and, by doing so, deprived it of due process of law in violation of article 1, section 19 of the Texas Constitution. It argues this point because Morgan’s injury occurred November 8, 1980, and the medical evidence related to an operation which occurred in July and August 1984; therefore, Morgan did not lose the use of the money in question until four years after the accident.

In Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549 (Tex.1985), the Supreme Court of Texas ruled that in both wrongful death and personal injury cases, prejudgment interest shall begin to accrue on both pecuniary and non-pecuniary damages from a date six months after the occurrence of the incident giving rise to the cause of action at the prevailing rate that exists on the date judgment is rendered according to the provisions of Tex.Rev.Civ. Stat.Ann. art. 5069-1.05, sec. 2 (Vernon Supp.1986).

The judgment provided for an award of prejudgment interest on both the pecuniary and non-pecuniary damages awarded, excluding the $10,000 award for loss of future earning capacity. The prejudgment interest was figured at the rate of 10% compounded daily from May 8, 1981 (six months after the date of the accident), through September 23, 1985 (the date of judgment).

We agree with Ceiling Fan’s premise that Cavnar never intended that trial courts ignore conclusive evidence in assessing prejudgment interest. We interpret [198]*198Cavnar to hold that a claimant should not be forced to establish precisely when an element of damage was incurred as a basis for recovering prejudgment interest. 696 S.W.2d at 555.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

First Valley Bank of Los Fresnos v. Martin
55 S.W.3d 172 (Court of Appeals of Texas, 2001)
Metropolitan Life Insurance Co. v. Haney
987 S.W.2d 236 (Court of Appeals of Texas, 1999)
Borden, Inc. v. Guerra
860 S.W.2d 515 (Court of Appeals of Texas, 1993)
Morgan v. Ceiling Fan Warehouse, Inc. No. 3
725 S.W.2d 715 (Texas Supreme Court, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
723 S.W.2d 195, 1986 Tex. App. LEXIS 9207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ceiling-fan-warehouse-inc-3-v-morgan-texapp-1986.