Soto v. Biel Grocery Company

462 S.W.2d 89, 1970 Tex. App. LEXIS 1927
CourtCourt of Appeals of Texas
DecidedDecember 30, 1970
Docket563
StatusPublished
Cited by8 cases

This text of 462 S.W.2d 89 (Soto v. Biel Grocery Company) 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
Soto v. Biel Grocery Company, 462 S.W.2d 89, 1970 Tex. App. LEXIS 1927 (Tex. Ct. App. 1970).

Opinions

OPINION

NYE, Justice.

Mrs. Fermina Soto, joined by her husband, brought this suit to recover damages for the personal injuries she received when she slipped and fell in a self service supermarket food store. The defendant grocery company filed a motion for summary judgment based upon the contention that under the pleadings, affidavits and depositions on file there was no dispute as to any material fact. Therefore, they argued that they were entitled to a judgment as a matter of law. The trial court in response to their motion granted the summary judgment. Mr. and Mrs. Soto have perfected their appeal to this Court.

The deposition testimony of Mrs. Soto, a friend of hers, Juanita Adame, and the store employee Bartolo Pena, reveals that on the morning of the date of the accident in question, Mrs. Soto accompanied by Mrs. Adame, went to the defendant’s grocery store arriving about eleven in the morning. Mrs. Soto first went to the meat market, pushing a grocery basket in front of her. She stopped and made a purchase of ground meat. From this point she went over to the vegetable and produce counter where she chose some vegetables, a watermelon and some celery. She then went on to where the cantaloupes were. She picked up two of them and placed them on the scales. She then picked up another and was in the process of placing it on the scales when she slipped and fell, severely injuring herself.

The appellants claim, in seven points of error, that there were genuine issues of material facts; that after considering all the reasonable inferences favorable to the appellants from the pleadings, affidavits and depositions, the evidence showed that the appellee failed to meet its duty to furnish Mrs. Soto with a reasonably safe place to walk; that the defendant failed to warn her of the substance on the floor; and that the trial court erred in entering the summary judgment convicting her of contributory negligence as a matter of law.

Where a trial court has granted a summary judgment, the appellate court must determine whether the summary judgment record establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of plaintiff’s cause of action. The question is: Does the summary judgment proof establish as a matter of law that there is no genuine issue of fact? Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.Sup. 1970); Harrington v. Young Men’s Christian Ass’n of Houston, 452 S. W.2d 423 (Tex.Sup.1970). The appellee admits that the burden of proof is upon it, and that all doubts as to the existence of a genuine issue as to a matter of fact is to be resolved against it. The other rules regarding summary judgment law relative to the evidence received, require the appellate court to view such evidence in the light most favorable to the party opposing the motion. All conflicts in the evidence are to be disregarded. The evidence which tends to support the position of the party opposing the motion is accepted as true. It is also the rule, that evidence which favors the movant’s position is not to be consid[91]*91ered unless it is uncontradicted. Even if it is uncontradicted, and if it comes from an interested witness, it cannot be considered as doing more than raising an issue of fact, unless it is clear, direct and positive and there are no circumstances in the evidence which tend to discredit or impeach the testimony. Gibbs v. General Motors Corporation, supra; Harrington v. Young Men’s Christian Ass’n of Houston, supra; Broussard v. Moon, 431 S.W.2d 534 (Tex. Sup.1968); Gracey v. West, 422 S.W.2d 913 (Tex.Sup.1968) ; Travis County Water Control & Imp. Dist. No. 12 v. McMillen, 414 S.W.2d 450 (Tex.Sup.1966) and Great American Reserve Insurance Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex.Sup.1965). With these guidelines, we consider the summary judgment evidence.

Mrs. Adame was walking along with Mrs. Soto at the time that she fell. She testified that there were no other people in the area of the vegetable department other than Mrs. Soto, a grocery employee and herself. She stated that at the moment when Mrs. Soto was getting the last cantaloupe, she was looking at the vegetables on the counter when she slipped and fell. Mrs. Adame tried to hold her but was unable to.

The evidence was that Mr. Pena, an employee of the grocery company, was close to the vegetable counter cleaning vegetables. He was throwing particles of vegetables toward a basket. After Mrs. Soto fell she looked at the bottom of her shoe and found a “green beanlike” substance that was slippery and smashed. As she fell, she stuck her fingers into the cantaloupe she was holding. She took the cantaloupe and the green vegetable substance to Mr. Pena, showing him the object that caused her fall. She noticed other small pieces of leaves or substance which were also on the floor. She had not noticed anything on the floor prior to her fall. She stated that she was looking at the vegetable displays and apparently was detracted, momentarily at least, from looking at the floor immediately prior to her fall, by the weighing of the cantaloupe on the grocery company scales. She testified further that Mr. Pena was standing next to the cabbage display while he was cleaning the vegetables. He had a box or basket near him containing the trash that he was throwing the substance into. This was located next to where the cantaloupes were. She testified that he was facing toward the wall but would turn around to throw what he was placing into the box. Mrs. Soto testified that she had to walk around the basket or box where he was putting the trash in to get to the scales. Other testimony was that the object on which Mrs. Soto slipped, could have been on the floor a long time, because it was smashed, slippery and old looking.

Mrs. Adame could not recall the type of vegetable that Mrs. Soto slipped on, but she did remember that it was green in col- or. She stated that she did not see it on the floor, but that when Mrs. Soto had it on her hand showing it to her it seemed to her like a piece of vegetable that had become old.

Mr. Bartolo Pena, the store employee, stated that his job was doing everything— sometimes cleaning, sweeping, sometimes cleaning the vegetables. He had worked for the grocery company about 12 years. He denied that he was working at the location placed by Mrs. Soto, but insisted that he was working at the frozen food counter across the aisle from the scales. He denied that he was trimming vegetables or that he had a basket or box with produce trimmings in it. Mr. Olivarez, the produce department manager, testified that it was everyone’s job to clean up; that at certain times during the day one of the employees would re-arrange the produce. He testified that all of the employees had the job of sweeping the aisle by the produce counter and it was even his job whenever he saw that there was a need to sweep it.

There was no evidence that the vegetable which caused the injury was placed [92]*92there by Mrs. Soto. There is evidence on the other hand, from the circumstances of the testimony, that Mr. Pena threw or dropped the vegetable substance on the floor.

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Soto v. Biel Grocery Company
462 S.W.2d 89 (Court of Appeals of Texas, 1970)

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462 S.W.2d 89, 1970 Tex. App. LEXIS 1927, Counsel Stack Legal Research, https://law.counselstack.com/opinion/soto-v-biel-grocery-company-texapp-1970.