Hudson v. Buddie's Super Markets, Inc.

488 S.W.2d 143, 1972 Tex. App. LEXIS 2085
CourtCourt of Appeals of Texas
DecidedDecember 1, 1972
Docket17355
StatusPublished
Cited by16 cases

This text of 488 S.W.2d 143 (Hudson v. Buddie's Super Markets, Inc.) 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
Hudson v. Buddie's Super Markets, Inc., 488 S.W.2d 143, 1972 Tex. App. LEXIS 2085 (Tex. Ct. App. 1972).

Opinion

OPINION

BREWSTER, Justice.

This is a slip and fall case, the plaintiffs, Mr. and Mrs. Hudson, having alleged that Mrs. Hudson stepped into a small spot of water on the floor of defendant’s store while she was shopping for groceries and that she was thereby caused to fall and hurt herself. She alleged that her fall was proximately caused by the negligence of the employees of the defendant, Buddie’s Super Markets, Inc.

The defendant pleaded a general denial, several special denials, the volenti doctrine, that the alleged dangerous condition was so open and obvious that defendant owed no duty to warn the plaintiff of its existence, contributory negligence in several respects and unavoidable accident.

After depositions were taken the defendant filed a motion for summary judgment alleging that it was entitled to summary judgment as a matter of law on each and all and several of the following ten grounds:

1. As a matter of law the volenti non fit injuria doctrine precludes plaintiff from recovering.

2. As a matter of law the “no duty” doctrine precludes plaintiff from recovering.

3. As a matter of law there was no foreign substance on defendant’s floor at time in question.

4. As a matter of law there is no evidence that a foreign substance was placed on the floor by defendant or by any of its agents acting in its behalf.

5. As a matter of law there is no evidence that the foreign substance was known to be on the floor by defendant’s agents on the occasion in question.

6. As a matter of law the foreign substance had not been on the floor for so long that it should have been discovered and removed by defendant’s agents in exercise of ordinary care.

7. As a matter of law plaintiff was negligent in failing to keep a proper lookout for her own safety and this was a proximate cause of her injuries.

8. As a matter of law the floor of the store was so patently open and obvious that an ordinarily prudent person in exercise of ordinary care would have seen, observed and had knowledge of and appreciated the danger of walking without looking.

9. As a matter of law the floor of the store was so open and obvious that the plaintiff is charged in law with knowledge and appreciation of the risk of walking upon same without looking where she was going.

10. As a matter of law plaintiff’s failure to look and ascertain where she was walking was the sole .proximate cause of her injuries.

The trial court granted defendant’s motion for summary judgment. And plaintiffs here appeal from that ruling.

The summary judgment being appealed from recited as follows:

“ . . it . . appearing that the motion of Defendant was accompanied with . . . pleadings, affidavits, depositions . . . and the Court . does find that the pleadings and the evidence show and reflect an absence of any genuine issue of material fact, and that Defendant’s Motion for Summary Judgment should be granted upon each and every ground stated in said motion; it is therefore . . . ORDERED, . . . that the Plaintiffs *146 recover nothing . . . from the Defendant . . . for the reason that there is no genuine issue of material fact . . . and the Court does hereby grant the . . . Motion for Summary Judgment on each and every ground stated within such motion. . . . ” (Emphasis ours.)

On this appeal the plaintiffs urge only one point of error, it being: “The Court erred in granting defendant’s motion for summary judgment because the pleadings, depositions and affidavits on file herein failed to conclusively establish as a matter of law that appellants have no cause of action against appellee.”

The statement, argument and authorities set out in the plaintiffs’ brief under this point argue that in order for defendant to have been entitled to a summary judgment in a slip and fall case such as this it had the negative burden of showing that plaintiffs had no cause of action against it. There particular contention is and the particular point they make in their statement, argument and authorities is that defendant had to show, in order to be entitled to have a summary judgment granted in its favor at the summary judgment hearing, conclusively that (1) defendant’s employees did not put the liquid on the floor, and (2) that the defendant’s employees did not know that the liquid was on the floor, and (3) that the liquid had not been upon the floor for such a length of time and under such circumstances that a person of ordinary prudence in the exercise of ordinary care would have discovered and removed it.

Plaintiffs argue in their brief that because the evidence at the summary judgment hearing did not conclusively establish the three matters just referred to as a matter of law that the trial court erred in granting the summary judgment appealed from. This is the only matter that they urge and argue in their appellants’ brief.

Plaintiffs cite the following three cases in support of their contentions: Scott v. T. G. & Y. Stores, 433 S.W.2d 790 (Houston, Tex.Civ.App., 14th Dist., 1968, ref., n. r. e.); Soto v. Biel Grocery Company, 462 S.W.2d 89 (Corpus Christi, Tex.Civ.App., 1970, no writ hist.); and Wampler v. Bill Sears Super Markets, 452 S.W.2d 526 (El Paso, Tex.Civ.App., 1970, ref., n. r. e.).

The point urged by plaintiffs is a general one and is of a scatter-barrelled nature. Our courts have held that a point of this type does not comply with Rule 418, Texas Rules of Civil Procedure, requiring that a point, to be sufficient, direct the attention of the court to the error relied upon as grounds for reversal. A point of this nature is so general as to encompass any and every error that could possibly have been committed by a trial court during the trial or hearing and therefore actually means nothing. See McWilliams v. Muse, 157 Tex. 109, 300 S.W.2d 643 (1957); Texas Reserve L. Ins. Co. v. Texas Rehabilitation Ctr., 332 S.W.2d 403 (San Antonio, Tex.Civ.App., 1960, no writ hist.); Jones v. Hunt Oil Company, 456 S.W.2d 506 (Dallas, Tex.Civ.App., 1970, ref., n. r. e.) ; and Carswell v. Southwestern Bell Telephone Co., 449 S.W.2d 805 (Houston, Tex.Civ.App., 1st Dist., 1969, no writ hist.).

However, it is now settled that even if the point urged is too general to comply with Rule 418, T.R.C.P., if the statement, argument and authorities under the point do point out the particular things that are claimed to constitute reversible error, the appellate court will consider them. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943).

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

Related

Taylor-Made Hose, Inc. v. Wilkerson
21 S.W.3d 484 (Court of Appeals of Texas, 2000)
Taylor Made Hose, Inc. v. Lynne Wilkerson
Court of Appeals of Texas, 2000
Umar v. Scott
991 S.W.2d 512 (Court of Appeals of Texas, 1999)
Wright v. Fowler
991 S.W.2d 343 (Court of Appeals of Texas, 1999)
Scott v. Galusha
890 S.W.2d 945 (Court of Appeals of Texas, 1995)
Lynch v. Port of Houston Authority
671 S.W.2d 954 (Court of Appeals of Texas, 1984)
Newsome v. Grogan
599 S.W.2d 881 (Court of Appeals of Texas, 1980)
Johnson v. Coggeshall
578 S.W.2d 556 (Court of Appeals of Texas, 1979)
Bradley v. Bradley
540 S.W.2d 504 (Court of Appeals of Texas, 1976)
Yandell v. Tarrant State Bank
538 S.W.2d 684 (Court of Appeals of Texas, 1976)
B. L. Nelson & Associates, Inc. v. City of Argyle
535 S.W.2d 906 (Court of Appeals of Texas, 1976)
Nesmith v. Hester
522 S.W.2d 605 (Court of Appeals of Texas, 1975)
Garcia v. Pharr, San Juan, Alamo Independent School District
513 S.W.2d 636 (Court of Appeals of Texas, 1974)
Rodgers v. Insurance Co. of State of Pennsylvania
513 S.W.2d 113 (Court of Appeals of Texas, 1974)
Walker v. Texas Electric Service Company
499 S.W.2d 20 (Court of Appeals of Texas, 1973)

Cite This Page — Counsel Stack

Bluebook (online)
488 S.W.2d 143, 1972 Tex. App. LEXIS 2085, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hudson-v-buddies-super-markets-inc-texapp-1972.