H.E. Butt Grocery Co. v. Warner

845 S.W.2d 258, 1992 WL 353290

• Court: Texas Supreme Court
• Decided: January 27, 1993
• Docket: D-1476
• Status: Published

Opinions

OPINION

CORNYN, Justice.

This slip and fall case concerns the pleading arid requested submission requirements for independent, alternative theories of recovery. The trial court submitted only the plaintiff’s (Warner’s) premises liability theory, which the jury answered favorably to H.E.B. Based upon its holding that Warner was erroneously denied submission of an additional theory of recovery, the court of appeals reversed the trial court’s take-nothing judgment and remanded the cause for a new trial. 820 S.W.2d 819. Because we hold that Warner pleaded and requested submission of only a premises liability theory of recovery, which was submitted by the trial court, and failed to submit a requested jury question supporting any other basis for recovery, we reverse the judgment of the court of appeals and remand the cause to that court for consideration of the points it has not addressed.

In July 1987 Tami Warner slipped in an eight-inch puddle of water, chicken blood, and other fluids that had accumulated on the floor of an H.E.B. store in Corsicana during a “bag your own chicken” promotion. Soon thereafter Warner and her husband sued H.E.B. to recover the damages occasioned by Warner’s fall. At trial the court submitted a five-part premises liability question to the jury regarding H.E.B.’s liability. Based upon the jury’s finding that H.E.B. neither knew nor should have known that there was a liquid substance on the floor on the occasion in question, the trial court rendered a take-nothing judgment against Warner and her husband.

The court of appeals held that Warner’s pleadings alleged two theories of negligence: one based on a standard premises liability theory and the other based on the failure to “pre-bag” chicken to eliminate the hazardous condition presented. Holding that “[t]he court’s charge erroneously submitted the negligence issue in five separate questions which did not include Warner’s second theory of negligence,” the court of appeals reversed the judgment of the trial court and remanded the cause for a new trial. 820 S.W.2d at 819.

Warner’s First Amended Original Petition specifically alleged:

Defendant, and its agents, servants, and employees, at the time and on the occasion in question, engaged in certain omissions, among others, are as follows:

(a)In failing to provide the Plaintiff and the general public with a safe place in which to shop;

(b) In failing to abate a dangerous condition on such premises;

(c) In failing to warn the Plaintiff and the general public of the dangerous condition on such premises.

While Warner’s petition alleged specific acts of negligence “among others,” we hold that her First Amended Original Petition, fairly read, alleged only a claim based upon premises liability. See Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex.1983).¹ Although Warner maintains that she has been denied her alternative, negligent failure to pre-bag chicken theory of liability, it is undisputed that she was injured by a condition of the premises — a puddle of water, chicken blood, and other fluids that had accumulated on the floor— rather than a negligently conducted activity. See Keetch v. Kroger, 845 S.W.2d 262 (Tex.1992) (distinguishing premise liability and negligent activity causes of action). Thus, Warner’s only potential cause of action is limited to a premises liability theory, which was submitted by the trial court.

Warner also claims that the trial court erred in failing to submit her requested broad-form question, which was based on her premises liability theory.² Texas Rule of Civil Procedure 277 mandates broad-form submissions whenever they are “feasible.” See Texas Dept. of Human Serv. v. E.B., 802 S.W.2d 647, 649 (Tex.1990). Because Warner tendered a proper broad-form question with appropriate instructions,³ the trial court should have granted her request. However, its failure to do so was not harmful error. Tex. R.App.P. 81(b)(1). Although submitted in granulated form, the jury questions contained the proper elements of a premises liability action. Because the charge fairly submitted to the jury the disputed issues of fact and because the charge incorporated a correct legal standard for the jury to apply, we hold that the trial court’s refusal to submit Warner’s tendered question and instructions did not amount to harmful error.

Therefore, without hearing oral argument and pursuant to Texas Rule of Civil Procedure 170, the court reverses the judgment of the court of appeals and remands this cause to that court for consideration of those points of error it did not address.

GAMMAGE, J., concurring. MAUZY, J., joined by DOGGETT, J., dissenting.

1 . Corbin, relied upon by the dissent to suggest that Warner was entitled to submission of a separate negligent failure to pre-bag theory, does not stand for such a proposition. Rather, Corbin was a premises liability case similar to this case, not a negligent activity case. Warner obtained a premises liability submission, the only one she was entitled to under Corbin. See Corbin, 648 S.W.2d at 296.

2 . Warner’s requested issues and instructions, in their entirety, follow with emphasis added:

Negligence by an owner or occupier of premises is the failure to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the occupier knows about or in the exercise of ordinary care should know about.

"Proximate cause" means that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.

An owner or occupiers’ negligence depends on whether he acted reasonably in light of what he knew or should have known about the risks accompanying a premises condition.

“Ordinary care” means that degree of care that would be used by a person of ordinary prudence under the same or similar circumstances.

PLAINTIFF’S INSTRUCTION A

The defendant should know of the liquid substance on the floor of the defendant’s store if a reasonably careful inspection would reveal it.

PLAINTIFF’S QUESTION NO. A-l

Did the negligence, if any, of H.E. Butt Grocery Company proximately cause the occurrence in question?

Answer "Yes” or "No”_

If, in answer to Question No. _, you answered yes, in that event, and only in that event, answer Questions Nos_and_

QUESTION NO. B-l

Did the negligence, if any, of H.E. Butt Grocery Company proximately cause the occurrence in question?

In determining whether H.E. Butt Grocery Company was negligent, consider only the following acts or omissions, if any you so find:

(a) In failing to provide Tami Warner with a safe place in which to shop;

(b) In failing to abate a dangerous condition on such premises;

(c) In failing to warn Tami Warner of the dangerous condition of the premises;

Answer “Yes” or “No"-

If, in answer to Question No. -, you answered yes, in that event, and only in that event, answer Questions Nos-and-

3 . Warner’s submitted question practically mirrored the premises liability broad-form question that we recently approved in Keetch v. Kroger, 845 S.W.2d 262 (Tex.1992).