Duncan v. Black-Eyed Pea U.S.A., Inc.

994 S.W.2d 447, 1999 Tex. App. LEXIS 5240, 1999 WL 498849

• Court: Court of Appeals of Texas
• Decided: July 15, 1999
• Docket: 09-99-029 CV
• Status: Published

Opinions

OPINION

BURGESS, Justice.

Betty Duncan appeals from a summary judgment granted in favor of Black-Eyed Pea U.S.A., Inc. Duncan brings three points of error on appeal.

This appeal arises from a slip-and-fall premises liability lawsuit. Duncan filed suit against Black-Eyed Pea U.S.A., Inc. (Black-Eyed) alleging she was injured when she slipped and fell as a result of a dangerous condition on the floor of a Black-Eyed Pea restaurant in Beaumont, Texas. The court granted Black-Eyed’s summary judgment in accordance with Tex. R. Civ. P. 166(a)(i) and found there was no evidence 1) that Black-Eyed placed the foreign substance on the floor; 2) that Black-Eyed knew that a substance was on the floor; and 3) that the substance was on the floor for a long enough period of time that in the exercise of ordinary care Black-Eyed should have discovered and removed the substance.

In her first point of error, Duncan complains the trial court erred in concluding there was no genuine issue of material fact as to whether employees of the restaurant knew or should have known of the dangerous condition on the floor.

Duncan was an invitee on Black-Eyed’s premises. As such, Black-Eyed owed her a duty to exercise reasonable care to protect her from dangerous conditions in the store known or discoverable to it. Rosas v. Buddies Food Store, 518 S.W.2d 534, 536-37 (Tex.1975). To recover damages in a slip-and-fall case, Duncan 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 plaintiffs injuries. Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex.1998).

The courts have required that the actual or constructive knowledge requirement be met in one of three ways. Keetch v. Kroger Co., 845 S.W.2d 262, 265 (Tex.1992). An invitee may prove: (1) that the owner/operator put the foreign substance on the floor; (2) that the owner/operator knew that it was on the floor and negligently failed to remove it; or (3) that the substance was on the floor so long that, in the exercise of ordinary care, it should have been discovered and removed. Id.

In its motion for summary judgment, Black-Eyed attached deposition testimony of several witnesses. Katherine Dunlap, a Black-Eyed Pea employee, testified she was walking behind Dunlap when she fell. Dunlap and the manager, Sandy Neale, inspected the floor where Duncan fell. Both testified there was nothing present on the floor. In her deposition testimony, Duncan stated that while she was on the floor after slipping and falling, she saw nothing on the floor that would have caused her to fall.

In her response to Black-Eyed’s motion for summary judgment, Duncan attached her affidavit and deposition testimony. She stated that after she fell, her knee began to swell. She put ice on it while still at the restaurant and then went back and observed grease and a piece of bread on the floor at the spot where she fell. Duncan testified the bread she slipped on was hard and mashed into the brick floor and that she could not remove it from the floor. Duncan stated that it felt as if there were a film of grease on the floor. Duncan also attached portions of Neale’s deposition testimony wherein she indicated that the spot where Duncan fell was a high traffic area in the restaurant. Neale testified that all the bus boys, waiters and waitresses serving certain tables (Neale specifically identified the tables on a drawing) at the restaurant frequently traversed the spot where Duncan fell. On appeal, Duncan argues that her summary judgment evidence indicates that multiple Black-Eyed Pea employees “traversed the exact same area which was the site of [her] injury.” Because the area was heavily traversed by Black-Eyed employees, Duncan urges that “it is only logical to assume that one or more of the various Black-Eyed Pea employees knew or should have known of that condition as they walked back and forth, in and out of the kitchen.”

In Stoner v. Wal-Mart Stores, Inc., 35 F.Supp.2d 958 (S.D.Tex.1999), Judge Kent opined about a similar slip-and-fall case involving a notice issue. Mr. Stoner slipped and fell on a spill located on the floor in a Wal-Mart store. Like the present case, Wal-Mart filed a motion for summary judgment based on notice. The court denied the motion and found that Stoner had raised a fact issue concerning constructive notice because the evidence indicated that Stoner fell in an area of the store where employees were normally stationed:

Where an invitee attempts to prove constructive notice through circumstantial evidence, as Plaintiff appears to do in this case, he must establish that more likely than not the dangerous condition existed long enough to give the proprietor a reasonable opportunity to discover the spill. See Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex.1998). Here, Plaintiff has produced no evidence indicative of the length of time the spill existed before his fateful interaction with it. However, Plaintiff has produced one piece of evidence that has some bearing on the issue of Defendant’s notice. In his deposition, Plaintiff testified that the accident occurred within ten to twelve feet of the nearest cash register. Given the close proximity between the site of the spill and the nearest register, the Court is not convinced that only a showing that the spill had existed for a certain length of time would satisfy the constructive notice requirement. In Gonzalez, the case in which the Texas Supreme Court articulated the length-of-time requirement, the majority opinion does not indicate precisely where the macaroni salad that caused the plaintiffs injury had been spilled, noting only that it was a “heavily-traveled aisle.” See id. 968 S.W.2d at 937. [FN1] Given the apparent lack of such information, Gonzalez’s ruling that the duration of a condition’s existence is determinative of whether the proprietor had constructive notice of it seems sensible. However, where a condition exists within view of a fixed point at which employees are normally stationed, hewing to such a hard-line rule seems much less sensible. This Court is aware that it must tread lightly when applying state law. In this case, though, mechanically applying the rule of Gonzalez to a case that is on its face distinguishable would seem to the Court a greater transgression than would the alternative. [FN2] Given the proximity between the checkout counter and the spill, and given this Court’s mandate to draw all justifiable inferences in favor of the non-moving party, see Matsushita, 475 U.S. at 585-87, 106 S.Ct. at 1355-56, it appears that a question of material fact exists with respect to the issue of constructive notice notwithstanding that Plaintiff has offered no evidence of the how long the spill existed. [FN3] Accordingly, the Court concludes that it cannot grant Defendant’s Motion on the basis of the facts now before it. Defendant’s Motion for Summary Judgment is therefore DENIED.

Id. at 960.

In the present case, Duncan fell at a place on the floor of the restaurant where Black Eyed employees frequently traversed. As in Stoner, although Duncan has offered no evidence concerning how long the condition existed, she has raised a material fact question with respect to the issue of constructive notice. We therefore sustain Duncan’s first point of error and remand this cause for a new trial. We need not address her remaining points of error.

REVERSED AND REMANDED.