Nevills v. H.E. Butt Grocery Co.

38 S.W.3d 294, 2001 Tex. App. LEXIS 1803, 2001 WL 257836
CourtCourt of Appeals of Texas
DecidedMarch 15, 2001
DocketNo. 09-00-435-CV
StatusPublished
Cited by2 cases

This text of 38 S.W.3d 294 (Nevills 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
Nevills v. H.E. Butt Grocery Co., 38 S.W.3d 294, 2001 Tex. App. LEXIS 1803, 2001 WL 257836 (Tex. Ct. App. 2001).

Opinion

OPINION

JOHN HILL, Justice (Assigned).

Marie Nevills appeals from a directed verdict resulting in a judgment that she take nothing in her suit against H.E. Butt Grocery Company d/b/a/ H.E.B. Pantry Foods for injuries that she sustained when she tripped over a stock cart that was being used to display black-eyed peas on New Year’s Day. Nevills contends in a single issue that the trial court erred by granting H.E. B.’s motion for directed verdict.

We reverse the judgment and remand for trial because the trial court erred by granting H.E. B’s motion for directed verdict since there was more than a scintilla of evidence that the display of black-eyed peas on a stock cart closely adjacent to a shelf of groceries posed an unreasonable risk of harm.

When reviewing a trial court’s ruling with respect to an instructed or directed verdict, we must consider all of the evidence in the light most favorable to the party against whom the verdict was instructed, discarding all the contrary evidence and inferences. See Porterfield v. Brinegar, 719 S.W.2d 558, 559 (Tex.1986). The trial court may properly withdraw a case from the jury and instruct a verdict only if there is no evidence to support a material issue. Id.

To recover damages in a slip and fall case, a plaintiff 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)

Nevills testified that on January 1, 1998, she entered an H.E.B. grocery store with a friend. She said that after entering the store the two stayed together for a while, then split up. She related that she went to the shelves where the store had a big display of black-eyed peas. According to Nevills, as she turned to her right to leave after picking two cans of black-eyed peas off the shelf, she tripped and fell over a stock cart. H.E.B. placed the cart, which contained a waist-high display of black-eyed peas, near shelves containing black-eyed peas so that there would be an adequate supply readily available to meet the New Year’s Day demand.

Keith Rogers, the store director of the H.E.B. store where Nevills fell, testified that if it were feasible he would not have stock carts on the shopping floor while customers are there. He indicated that in terms of customer safety the best shopping area is a clean, clear area without any obstacles. He stated that a possibility existed that a stock cart on the floor can cause a tripping injury. Rogers acknowledged that a few years previously a customer had tripped on a stock cart, one that was not used as a display but was being used for stocking. He later stated that on the other occasion the customer tripped while attempting to step over the stock cart.

Rogers testified that when such a cart is used for stocking he prefers for the cart to be up next to the case for safety reasons and that a stocker be present with the cart to assist customers. He indicated that if [296]*296the cart were to be further out that he preferred it to be at least three to six feet from the shelves. He suggested that a person looking at a shopping area would generally stand from eighteen inches to two feet from that area. While stating that a cart containing trash would be considered a hazard and aesthetically displeasing, Rogers stated that a cart with product display at least three feet from a shelf would not be considered by H.E.B. as a safety hazard. Rogers acknowledged that he understood that in a situation “like this” he understood that the customer’s attention would be focused on what he or she is buying. He recognized that H.E.B. wants to draw customers’ attention to the goods on the shelves, putting little “special” stickers on the shelves so that customers will be looking at something potentially to buy. Rogers indicated that carts like the one in question are from five to six feet long; have six wheels; and have orange handles on both ends that are five to six feet in height. Pictures of such a cart show that the floor of the cart is only a few inches from the floor.

At the close of evidence presented by Nevills, H.E.B. moved for a directed verdict on the basis that since the cart in question was large and clearly visible, and since Nevills could have seen it had she been looking, it could not be characterized as an unreasonable risk of harm. The trial court granted the motion, stating that an obvious, clearly visible object could not, as a matter of law, constitute an unreasonable risk of harm.

We hold that the trial court erred in granting the directed verdict because the evidence presented constitutes more than a scintilla of evidence that the stock cart as placed in the H.E.B. store on the occasion in question created an unreasonable risk of harm. See Gulfport Winn-Dixie, Inc. v. Taylor, 246 Miss. 332, 149 So.2d 485, 488 (1963); Gourges v. Schwegmann Bros. Giant Super Mkt., Inc., 339 So.2d 929, 930 (La.Ct.App. 4th Cir.1976); Phillips v. Montgomery Ward & Co., 125 F.2d 248, 249 (5th Cir.1942).

In arguing that the evidence is insufficient to show that the stock cart display posed an unreasonable risk of harm, H.E.B. relies upon the cases of Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992); Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898); Seideneck v. Cal Bayreuther Assoc., 451 S.W.2d 752, 755 (Tex. 1970); and H.E. Butt Grocery Co. v. Resendez, 988 S.W.2d 218 (Tex.1999). It relies upon Keetch only to show that a condition that poses an unreasonable risk of harm is a necessary element of a premises liability action. It apparently relies on Joske to show the level of proof one must produce to defeat a motion for instructed or directed verdict, because the case is not a slip and fall case. Neither case is inconsistent with our opinion because we rely upon the same principles that are expressed therein.

In Seideneck, a customer got her heel caught in a rug, thirty-six inches in diameter, that was underneath a display table. Seideneck, 451 S.W.2d at 753. The court noted that the rug was a wool, pile-type rug with a loose-weave, mesh-type fringe of tassels. Id. The court indicated that the loops on the fringe were approximately one inch in diameter.

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Bluebook (online)
38 S.W.3d 294, 2001 Tex. App. LEXIS 1803, 2001 WL 257836, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nevills-v-he-butt-grocery-co-texapp-2001.