Wal-Mart Stores, Inc. v. Alexander

827 S.W.2d 420, 1992 Tex. App. LEXIS 445, 1992 WL 29910
CourtCourt of Appeals of Texas
DecidedFebruary 20, 1992
DocketNo. 13-91-392-CV
StatusPublished
Cited by3 cases

This text of 827 S.W.2d 420 (Wal-Mart Stores, Inc. v. Alexander) 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
Wal-Mart Stores, Inc. v. Alexander, 827 S.W.2d 420, 1992 Tex. App. LEXIS 445, 1992 WL 29910 (Tex. Ct. App. 1992).

Opinion

OPINION

NYE, Chief Justice.

Plaintiff Sarah Alexander fell after tripping on a ridge where an entry ramp to a Sam’s Wholesale Club store was higher than the adjoining parking lot. The jury found Sam’s to be 100% negligent and grossly negligent. It awarded $285,000 for Mrs. Alexander’s damages, $105,000 for Mr. Alexander’s loss of household services and loss of consortium, and $400,000 as exemplary damages. The trial court originally entered judgment on the verdict, then reformed its judgment, reducing its award to Mrs. Alexander by $100,000. Wal-Mart Stores, Inc., individually and Wal-Mart Stores, Inc. d/b/a Sam’s Wholesale Club (Sam’s) raise six points of error, challenging the denial of their motion for judgment notwithstanding the verdict, the sufficiency of the evidence on certain issues, the admission of particular evidence, the submission of particular special issues, and the jury’s use of a dictionary during deliberations. We affirm the trial court’s judgment.

Point one attacks the entry of judgment on the verdict. For appellate purposes, a complaint that the trial court erred in refusing to grant a judgment notwithstanding the verdict raises only a no evidence point. Sherman v. First Nat’l Bank, 760 S.W.2d 240, 241-42 (Tex.1988); see Northwest Mall, Inc. v. Lubri-Lon Internat’l, Inc., 681 S.W.2d 797, 801 (Tex.App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.). In deciding a no evidence point, an appellate court must consider only the evidence and inferences tending to support the jury finding and disregard all evidence and inferences to the contrary. Sherman, 760 S.W.2d at 242.

Where Mrs. Alexander fell and broke her hip, the ramp was five-eighths of an inch higher than the abutting asphalt. Sam’s had leased the Brownsville, Texas, building from Roy L. Martin and Associates (Martin) in April 1988, and the lease required Martin to maintain the common areas of the shopping center in which the store was located. Before moving in, Sam’s built a vestibule and concrete ramp connecting its entrance to the parking lot. Martin then repaved the parking lot up to the concrete ramp. The store opened on October 11, [422]*4221988, and Mrs. Alexander fell on January 21, 1989.

Sam’s attacks the jury’s finding that it was negligent by arguing that it owed no duty to Mrs. Alexander. Sam’s relies on its lease from Martin, by which it expressly leased only the interior of the store (from the exterior walls inward), and which provides that Martin must maintain the sidewalks, driveways, and parking lots. It argues that only the owner or occupier of business premises owed a duty of ordinary care to its invitees, that it (Sam’s) did not own or control the place where Mrs. Alexander fell, or create the condition, and thus, as a matter of law, Sam’s is not liable to Mrs. Alexander. Sam’s contends that Martin’s paving created the ridge, and denies that Mrs. Alexander proved that Sam’s owned or controlled the ridge where she fell. Under Sam’s theory, only Martin, to whom the jury ascribed no negligence, owed Mrs. Alexander a duty of care at the site of her fall. (Sam’s further argues that under the law, its knowledge of the defect is not relevant.)

Sam’s cites cases for the proposition that an occupier is not liable for injuries to its invitee if the injuries do not occur on its leased premises. The Alexanders reply that a business has a duty to its invitees to provide safe access and not to cause a dangerous condition, and that Sam’s controlled the area where Mrs. Alexander fell. They argue that the lease does not apply to them because they are not parties to it.

While case law supports the proposition that an occupier of premises’ duty extends beyond the rented premises to the entrances and exits of the premises, even when not under the exclusive control of the occupier, we need not rely on this. See Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 617 (1950); Joseph v. Jet Air Freight Corp., 479 S.W.2d 325, 327 (Tex.Civ.App.—Waco 1972, writ ref’d n.r.e.). The overwhelming evidence shows that Sam’s actively possessed and controlled the area in which Mrs. Alexander fell.

Martin’s agent, William Kent Martin, testified that Sam’s built the ramp without informing the Martins and continued to possess the building, vestibule, and ramp leading into the store. Other evidence showed that after building the ramp onto the parking lot that led up to the store’s entrance, Sam’s responded to traffic problems near the entrance by, under its own authority and with its own funds, building speed bumps and later placing concrete car stops near the ramp. Only Sam’s used the ramp; it was not shared with other stores. The evidence shows that Sam’s created the dangerous condition and controlled the place where Mrs. Alexander fell.

Sam’s cites as controlling Howe v. Kroger Co., 598 S.W.2d 929 (Tex.Civ.App.—Dallas 1980, no writ) and Johnson v. Tom Thumb Stores, Inc., 771 S.W.2d 582 (Tex.App.—Dallas 1989, writ denied). In Howe, the appellate court affirmed a summary judgment for the defendant store after plaintiff Howe fell on ice on the walk outside the store. The store had leased its premises from a landlord who agreed in the lease to be responsible for maintenance of all common areas used jointly by all of the tenants, customers, invitees, and employees. The court held that under the lease, the store had no control over the area, and thus no duty to maintain it in a reasonably safe condition or to warn its business invitees of dangerous conditions. The reasoning in Howe goes back to the general rule that liability follows control. Howe, 598 S.W.2d at 930; see Restatement (Second) of Torts, §§ 328E, 360 (1965). The court also states, “We conclude that an occupier of premises has no greater duty than does the public generally regarding conditions existing outside his premises and not caused by the occupier.” Howe, 598 S.W.2d at 931 (emphasis added). In the case at bar, but for Sam’s’ installation of the ramp, Mrs. Alexander would not have had the ridge to trip on. The jury could have found that Sam’s caused the condition. Certainly, evidence supports a conclusion that Sam’s took control of the ramp and ramp area of the parking lot. Since liability follows control, Howe’s reasoning actually supports the Alexanders’ position.

[423]*423Johnson is also factually distinguishable. There, a customer fell on a light fixture installed in a sidewalk outside of the store. Again, the store leased from a landlord who agreed to maintain the areas common to its multiple tenants. Nothing shows that the store installed, maintained, or controlled the light or sidewalk area.

The Alexanders on the other hand, cite cases in which businesses were held liable for injuries outside their leased premises, or at the boundaries or entrances. See J. Weingarten, Inc. v. Brockman, 134 Tex. 451, 135 S.W.2d 698, 699 (Tex.Comm’n App. 1940, opin. adopted); Chapman v. Parking, Inc.,

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Related

Wal-Mart Stores, Inc. v. Alexander
868 S.W.2d 322 (Texas Supreme Court, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
827 S.W.2d 420, 1992 Tex. App. LEXIS 445, 1992 WL 29910, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wal-mart-stores-inc-v-alexander-texapp-1992.