Wal-Mart Stores, Inc. v. Gonzalez

954 S.W.2d 777, 1997 WL 426322
CourtCourt of Appeals of Texas
DecidedSeptember 15, 1997
Docket04-96-00419-CV
StatusPublished
Cited by8 cases

This text of 954 S.W.2d 777 (Wal-Mart Stores, Inc. v. Gonzalez) 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. Gonzalez, 954 S.W.2d 777, 1997 WL 426322 (Tex. Ct. App. 1997).

Opinions

HARDBERGER, Chief Justice.

This is a rare case. The Plaintiff won a jury verdict in a slip-and-fall case, an ever-increasing improbability. Damages of $100,-000 were awarded. Wal-Mart appeals.

FACTS

Flora Gonzalez was shopping at a Wal-Mart store in Rio Grande City. While she was going to get her cart, she stepped on macaroni that had been mashed by previous carts running through it. She fell down injuring her shoulder, side, back, and knee. The macaroni, which had once been part of a cooked macaroni salad sold by the store, had visible cart tracks through it. The cart tracks could not have been made by Mrs. Gonzalez as she had no cart. The spillage was dirty and “seemed like it had been there awhile.” The store manager came, reports were taken, and Mrs. Gonzalez was taken from the store by ambulance to the hospital. She saw the doctor on numerous occasions following the accident, and was walking with a cane, prescribed by her physician, at the time of trial.

POINTS OF ERROR

a. Insufficient Evidence of Notice (Points of Error One and Two)

Wal-Mart contends in its first and second points of error that the evidence is legally and factually insufficient to support a finding that Wal-Mart had actual or constructive knowledge of a dangerous condition on its premises. Wal-Mart also says there is a lack of evidence to show that it failed to use reasonable care to reduce or eliminate the condition.

In considering a “no evidence” point, we consider only the evidence and reasonable inferences that tend to support the jury’s findings. Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 459 (Tex.1992). Evidence and inferences to the contrary are disregarded. Alm, v. Aluminum Co. of Am., 717 S.W.2d 588, 593 (Tex.1986).

This court has exclusive jurisdiction in determining the question of factual sufficiency. Turnbough v. United Pac. Ins. Co., 666 S.W.2d 489, 492 (Tex.1984). Wal-Mart, as the appellant, has the burden of demonstrating that there is a lack of factually sufficient evidence to support the jury’s finding. The standard of review requires the court of appeals to set aside the finding upon a showing that the evidence is so weak so as to render the finding clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

Gonzalez was Wal-Mart’s invitee. Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992), defines the elements that must be proven in this type of case:

[779]*779(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.

Keetch, 845 S.W.2d at 264. These elements were established even earlier in Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex.1983). Wal-Mart attacks the elements of “actual or constructive knowledge” and “reasonable care.”

Before detailing the evidence, it is important to remember that this court is not jury number two. Whether this court, if it were the original factfinder, would have found for one side or the other is immaterial. A jury in this state has great power. Jurors are “the sole judges of the credibility of the witnesses and the weight to be given to their testimony.” Tex.R. Civ. P. 226a, approved instruction III. Their decision is not to be tampered with lightly, whether it favors the plaintiff or the defendant. The jury has, and should have, the final word on facts.

Carr v. Jaffe Aircraft Corp., 884 S.W.2d 797, 799 (Tex.App.—San Antonio 1994, no writ).

Wal-Mart asserts that there is not only insufficient evidence, but no evidence: i.e., a complete absence of evidence of a vital fact, or, if there is anything, it is no more than a mere scintilla of evidence. We think there was legally sufficient evidence to support the verdict. Differing negligence cases, by their nature, require differing amounts of evidence to be legally sufficient. A manufacturing defect might take several experts and several volumes of testimony to be legally sufficient. A car wreck would ordinarily take less, and a slip and fall still less. There is simply less to say. The facts are usually nondramatic, although the results of falling down can produce impressive injuries. The pratfall is a standard routine of the comedian, but in reality it can be a serious thing. This is especially so in an aging, overweight woman such as Mrs. Gonzalez.

A plaintiff has the obligation to produce the evidence that exists. If a court requires more than is possible to prove, the court has taken over the legislative function of simply deciding that there will be no negligence cause of action for slip and falls. No court has done this, and the cause of action exists. The great majority of slip-and-fall cases are lost at the trial level and, no doubt, always will be. But this court is not willing to say that an injured person must go beyond the evidence that is created by the operative facts, which would be an impossibility. Of course, there may be eases where there is simply not enough evidence to make a case, even if it is all produced. This is not such a case though.

In Mrs. Gonzalez’s ease, she had to first prove that there was a dangerous condition on the floor. She did that. The macaroni salad was there. No one has denied it and, in fact, one of the defenses raised was that Mrs. Gonzalez, herself, had spilled the salad. However, the jury chose not to believe this version. It is neither likely that Wal-Mart purposely put their own salad on the floor, nor that they knew about the spillage and simply chose to ignore it. The real issue is whether there was constructive knowledge. In a case such as this, constructive knowledge is proved by the passage of time. Passage of time in a spillage is not usually measured in days, but lesser measures. Once having proved it was there, Mrs. Gonzalez had to prove that it had been there for a sufficient length of time so it should have been cleaned up. Her evidence of the amount of time that the salad was on the floor was as follows: (Z) it had “a lot of dirt” in it; (2) there were cart tracks caused by people walking through the spillage pushing their carts; (3) the tracks were not made by Mrs. Gonzalez as she had no cart; and (4) the spillage “seemed like it had been there awhile.” A jury could reasonably infer that Wal-Mart does not sell dirty macaroni salad, and that if the salad was dirty, it was probably because it had been there long enough to get dirty. A jury might reasonably infer that if there are cart tracks run[780]*780ning through salad on the floor where people have been walking and pushing their carts, that is evidence that the spill did not just happen moments before.

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Wal-Mart Stores, Inc. v. Gonzalez
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Wal-Mart Stores, Inc. v. Gonzalez
954 S.W.2d 777 (Court of Appeals of Texas, 1997)

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