Garcia v. H. E. Butt Grocery Co.

461 S.W.2d 439, 1970 Tex. App. LEXIS 1941
CourtCourt of Appeals of Texas
DecidedDecember 10, 1970
DocketNo. 581
StatusPublished

This text of 461 S.W.2d 439 (Garcia v. H. E. Butt Grocery Co.) 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
Garcia v. H. E. Butt Grocery Co., 461 S.W.2d 439, 1970 Tex. App. LEXIS 1941 (Tex. Ct. App. 1970).

Opinion

OPINION

SHARPE, Justice.

This appeal is from a summary judgment that plaintiff-appellant take nothing against the defendant-appellee.

Plaintiff sued defendant for damages on account of personal injuries caused by her falling on a concrete block used as automobile wheel stops installed by defendant on a parking lot adjacent to its retail grocery store in Alice, Texas. Plaintiff alleged in substance the following: On March 20, 1969 plaintiff was a business invitee of defendant, being a passenger in an automobile which parked on said lot. She was leaving the automobile when she tripped over a concrete block, causing her serious injuries. Plaintiff also alleged that defendant was negligent in several respects proximately causing her injuries, as follows: In failing to provide a safe place and surface on which to descend from an automobile; in failing to provide a safe clearance from said concrete blocks on which its customers could descend from automobiles in a safe manner; in installing and maintaining the concrete blocks at angles and in the manner situated on the parking lot in question; in failing to warn of the concrete blocks and particularly that they would overlap into the areas used [440]*440by passengers when exiting from automobiles; and in failing to paint the concrete blocks so as to warn invitees.

Appellant contends that the trial court erred in granting summary judgment because the pleadings and depositions on file showed the existence of a genuine issue of material fact concerning the negligence of appellee.

By two counterpoints appellee asserts in substance that the trial court properly granted its motion for summary judgment because: (1) That under the undisputed state of the evidence no dangerous condition (or one involving an unreasonable risk of harm) existed upon defendant’s premises on the occasion in question, and for such reason defendant was entitled to judgment as a matter of law; and (2) that by virtue of the open and obvious nature of the condition complained of by plaintiff, defendant owed no duty to plaintiff and was entitled to judgment as a matter of law.

The summary judgment record consists of plaintiff’s original petition, defendant’s first amended original answer, defendant’s motion for summary judgment, plaintiff’s answer to defendant’s motion for summary judgment, and the oral depositions of plaintiff, Minnie P. Garcia, Margarita Garcia, daughter-in-law of plaintiff, and John Wor-sham, an employee of defendant.

Mrs. Minnie P. Garcia, the plaintiff-appellant testified by deposition in substance as follows: On the date of her accident she had ridden in the car with Mrs. Margarita Garcia, her daughter-in-law, to defendant’s store in Alice, Texas, with the intention of purchasing groceries. The weather was clear. The car was parked in one of the marked spaces on the defendant’s lot. When appellant descended from the passenger side of the front seat of the car she tripped over a concrete form. Appellant had not been to this particular parking lot before. She did not see the concrete form when the car pulled up to the parking space. The car door was open at the time appellant fell. Counsel for ap-pellee drew a diagram of the scene and used it in connection with certain questions propounded to appellant. The concrete stops were indicated by a series of lines marked “C.S.”. Lines were also drawn to indicate the yellow stripes for parking spaces. Appellant said there was another car parked on the right side next to her. The diagram showed the concrete stops were installed at an angle next to Almond Street so that, facing it, the right end of the stop is closer to the street and the left end is farther away from it and next to an area in the adjoining parking space where the right side and front door of a parked car would be located. Appellant said that the concrete blocks were not painted and the color was “plain concrete.” The concrete stops are light in color and the parking lot itself is dark in color. She further testified as follows:

“Q * * * Did you see this concrete thing when you opened your door?
A I didn’t see it. No, I didn’t see it.
Q Now, you could have seen it, could you not? I mean, if you had looked down on the ground?
A No, because it was on the other side of the door (demonstrating ducking head).”
⅜ ⅜: ⅜ ⅜ ⅜
“Q All right. I understand that you didn’t see it at all.
A No.
Q Did you?
A No, not at all.
Q And certainly if you had seen it you wouldn’t have fallen on it?
A Oh gosh, I didn’t want to lose my leg, as I have.
Q I’m not arguing with you, at all, now—
A No, that’s all right.
[441]*441Q —about you not seeing it, all I am asking you is that you could have seen it, if you had thought to look down—
A No.
Q —isn’t that true?
A No.
Q It wasn’t hidden from you in any way, was it?
A Yes.
Q And you did see it after you fell over it, didn’t you?
A Yes, I sure did see it. Now I’m seeing them everywhere.
Q All right. Did you fall after taking a step out of the car, or did you first—
A No, I took just a step out of the car.
Q You got out, and took a step, and fell over it then?
A Yes.
Q You were not holding onto the door of the car then, were you?
A No. No, I don’t stay there holding the door.”

Appellant also testified that she suffered injuries from the fall which included a broken knee; that the doctor put her leg in a cast, and that she was unable to get around for six weeks to two months, and that she was in the hospital for twenty-two days.

Mrs. Margarita Garcia testified by deposition in substance as follows: She is the daughter-in-law of plaintiff-appellant and was present when the latter’s oral deposition was taken. On the date of the accident she was driving the car in which her mother-in-law was riding. The witness saw the concrete stop in front of her car and put the wheels against it. She did not see the concrete stop on which her mother-in-law fell until the witness picked her up and put her back in the car. The witness testified to some facts and also her opinion as to whether her mother-in-law could have seen the concrete stop over which she fell along with some conclusions as to the cause of the fall. Her testimony concerning the accident is largely shown by the following:

“Q * * * Now, when you went around there, Mrs. Garcia, to pick up your mother-in-law, did you notice the concrete stop being in the approximate position as indicated here in red on this Defendant’s Exhibit No. 1 ?
A Well, I saw, you know, when I picked her up, and when we tried to open the door, you know, I noticed it was in front, you know, of the door.

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Bluebook (online)
461 S.W.2d 439, 1970 Tex. App. LEXIS 1941, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garcia-v-h-e-butt-grocery-co-texapp-1970.