H.E. Butt Grocery Co. v. Resendez

989 S.W.2d 768, 1997 Tex. App. LEXIS 4098, 1999 WL 225204
CourtCourt of Appeals of Texas
DecidedJuly 31, 1997
DocketNo. 13-96-076-CV
StatusPublished
Cited by2 cases

This text of 989 S.W.2d 768 (H.E. Butt Grocery Co. v. Resendez) 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
H.E. Butt Grocery Co. v. Resendez, 989 S.W.2d 768, 1997 Tex. App. LEXIS 4098, 1999 WL 225204 (Tex. Ct. App. 1997).

Opinion

OPINION

Opinion by

Justice DORSEY.

This is a premises liability suit. Maria and Jose Resendez sued HEB after Maria allegedly slipped on a grape and fell in an HEB store. The jury found that HEB’s negligence proximately caused her injuries and awarded $150,000 in damages.1 The trial court reduced the award and entered judgment for $153,785.83 in actual damages and prejudgment interest. HEB appeals by six points of error. We affirm.

The incident occurred on March 7, 1993 at an HEB store in San Benito. At that time, HEB displayed its grapes in bags or boxes in the produce section. The HEB store in this suit also displayed some of its grapes loose (not bagged or boxed) in bowls on a table. Other grapes were displayed on another table. Both tables had railings on them. The store’s produce section had a non-skid floor and the store placed floor mats, approximately an inch or an inch and a half thick, near the grape displays. Warning cones were also in the produce section.

Maria Resendez and her husband, Jose Resendez, went grocery shopping at this [771]*771store about 8:00 p.m. Maria pushed a shopping cart to the produce section and picked up a bag of potatoes. She then went to where the grapes were located. After parking her cart by the grapes, she walked back to the potatoes to get a plastic bag. While getting the bag, her right foot slipped, and she fell near the potatoes. When counsel asked her if she knew what she had slipped and fell on, she said, “I didn’t know, but when they helped me get up, then I turned around looking for my shoe. And then that’s when I saw that it was the grapes that were there.” The grapes were on the floor in front of the potatoes. Prior to her fall, she did not look at the floor in the area where the potatoes were located. However, when she put her cart in front of the grapes, she saw some grapes there.

A couple of HEB employees helped her into a wheelchair. She advised them that she had fallen on grapes and that her left knee was hurting. The employees checked the bottom of her left shoe. She was sure that they did not check her right shoe.

Rene Garcia, Maria’s nephew, went to the HEB store to grocery shop about the same time that Maria did. Garcia overheard a conversation between an HEB employee, Roy Lopez, and the store’s service manager, Rene Guardiano. When counsel asked Garcia what he had heard Lopez say to Guardi-ano, Garcia said:

[H]e was trying to tell the manager that ... she had stepped on, I believe, it was some grapes. And that he had gotten the grapes. You know, they were all ready smashed. And he had, I guess, pushed them underneath a rug that is provided to all ... customers who come in; that he had cleaned up the ... area where she had fallen; that he wanted to avoid another customer from falling.

Garcia testified that Maria had informed him that she had stepped on some grapes.

Jose Resendez, Maria’s husband, entered the HEB store soon after Maria had fallen. He asked her what had happened, and she advised him she had fallen down “‘[w]here the grapes were.’” He overheard Lopez inform Guardiano that “‘[w]e just swept them underneath the mat. We swept them underneath the mats.’ ”

Jorge Luis Vela was the manager at the HEB where Maria fell. His testimony showed that all of the employees were responsible for cleaning or washing the floors at the HEB. The employees were trained at the initial store orientation and throughout their employment. The employees were trained to “wash floors for safety” and if a hazard existed, they were trained to immediately take care of it. If a spill occurred, an employee could use a paper towel to clean it up. However, if a spill was too large for a paper towel, an employee would “flag somebody down” to get a mop. At the time Maria fell, this HEB had a maintenance department. During the 1:00 p.m. to 10:00 p.m. shift (the time period during which Maria fell), the maintenance department had the primary responsibility to maintain the floors with dry mopping or with a push broom. When the store closed, employees used a Clark scrubber, a mop, or both to completely wet down the floor. Afterwards, the floor was dried and buffed, and a push broom was used to shine it. During the day shift, the floor was swept all day long. Vela said that a person could possibly run a broom through the entire floor every half hour or hour.

Rene Guardiano, the HEB service manager, investigated Maria’s fall. He inspected the general area of the floor where Maria fell. He found nothing on the floor. He checked both of her shoes and saw nothing on the bottom of them. He was not able to determine what caused Maria to fall. He was in charge of the maintenance schedule. In March 1993, the store stayed open from 6:00 a.m. to midnight. A maintenance employee worked from midnight to 8:00 a.m. His responsibilities were to fully sweep, mop, do some waxing on the floors, and clean the bathrooms. When the midnight to 8:00 a.m. shift ended, the store assigned courtesy clerks or sackers to sweep and spot mop the floors. From 6:00 a.m. to 10:00 p.m., the whole store was swept once every 30 to 45 minutes. When counsel asked him if his investigation had revealed the last time someone had swept the floor, he responded, “I got information from the produce guy, [772]*772Johnny, that he had just seen the floor care guy just go by there. I can’t recall whether it was 10, 15 minutes before.” He said that the grapes were packaged in clear, little bags. The bags had little tears or air pockets in them to prevent spoilage. He said that some customers tore the bags and removed the grapes that they wanted. He had also seen customers tear the bags in order to taste the grapes. He did not remember Rene Garcia overhearing a conversation. Prior to Maria’s fall, Guardiano had no knowledge of anyone falling on grapes in that store.

Johnny Muniz was a produce employee on duty when Maria fell. Part of his responsibility was to clean the floor in the produce section. He said that sometimes people ate the grapes that were on display and dropped one or two of them. If he saw the grapes fall, he picked them up right away. In his experience, if a grape fell, it stayed on the mat. He agreed that grapes on the floor caused a danger. He said that “[Ajnything that is on the table and if it falls, it could be dangerous, if it is not picked up.” He arrived on the scene soon after Maria had fallen. He found her in the middle of the floor. Not more than one-half hour after Muniz found her, he and Roy Lopez cheeked the area. They did not find anything. Mun-iz said that after he and Roy had checked the area, there was a grape next to the pallet, and “the grape was just stepped on.” Muniz and Guardiano checked Maria’s shoes and found no evidence of stains, smears, or moisture. Muniz saw someone sweeping the floor no more than ten minutes before Maria fell. Prior to the incident, he had no knowledge of any customers slipping and falling on a grape. He saw no grapes on the floor before the incident occurred.

Roy Lopez worked as a greeter for the HEB store where Maria fell. He arrived on the scene soon after she fell and found her between the potatoes and the apples. When counsel asked him if she told him what she had slipped on, he said, “She told me it was a grape.” He did not see any grapes on the floor after Maria had slipped. However, he checked a second time and found a crushed grape between two pallets. This was not in the area where customers walked. He checked the sole of one of her shoes and found nothing on it.

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Related

Clayton Edward Presswood v. Julia W. Goehring
Court of Appeals of Texas, 2005
HE Butt Grocery Company v. Resendez
988 S.W.2d 218 (Texas Supreme Court, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
989 S.W.2d 768, 1997 Tex. App. LEXIS 4098, 1999 WL 225204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/he-butt-grocery-co-v-resendez-texapp-1997.