Wal-Mart Stores, Inc. v. Hinojosa

827 S.W.2d 43, 1992 WL 41358
CourtCourt of Appeals of Texas
DecidedMarch 5, 1992
DocketNo. 13-91-208-CV
StatusPublished
Cited by5 cases

This text of 827 S.W.2d 43 (Wal-Mart Stores, Inc. v. Hinojosa) 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. Hinojosa, 827 S.W.2d 43, 1992 WL 41358 (Tex. Ct. App. 1992).

Opinion

OPINION

BISSETT, Justice (Assigned).

This is an appeal by Wal-Mart Stores, Inc., defendant in the trial court, from a judgment notwithstanding the verdict in a personal injury case, which resulted in a judgment in favor of Dorina Hinojosa, plaintiff. We reverse and render.

On or about April 28, 1989, during normal business hours, Dorina Hinojosa, (“plaintiff”) came into the business premises of Wal-Mart Stores, Inc. (“defendant”), occupied and maintained by defendant in Brownsville, Texas, as a discount store. [44]*44While in the store, plaintiff was injured when some full length mirrors fell on her while she was examining them. She alleged that on the occasion in question, defendant and its agents, servants and employees, who were at all times acting in the course and scope of their employment, were negligent toward her in the following respects:

1. In improperly stacking the mirrors on the particular display shelf even though Defendant knew or should have known that in doing so Defendant was creating an unreasonably dangerous condition for invitees on the premises.
2. In failing to inspect the premises in order to discover the dangerous condition created by the improperly stacked mirrors on display, such that Plaintiff and other invitees would likely touch in order to inspect the display items.
3. In failing to correct the dangerous condition which was created by the improperly stacked display items.
4. In failing to take preventive safety measures by placing safety fencing on the edge of the display shelf and thus preventing the mirrors from falling forward.
5. In failing to warn invitees, including Plaintiff, that a dangerous condition existed which required extra care to be taken by them in handling the items on display.

She further alleged that “each of the foregoing negligent acts and omissions, whether taken singularly or in any combination, was a proximate cause of Plaintiff’s injuries and damages....”

In answer to jury questions presented in the court’s charge, the jury found that defendant was not liable for the incident made the basis of this suit. The jury responded to the damage question due to the fact that it was not predicated on any of the liability questions contained in the charge. The total amount of damages as set out in the verdict was $47,000.

Thereafter, counsel for defendant moved that the judgment be rendered according to the jury verdict. Plaintiff filed a motion for judgment notwithstanding the verdict, alleging that there was no probative evidence to sustain the verdict. Plaintiff further requested that the court set aside each of the jury’s responses pertaining to liability, and render a judgment for her in accordance with the damage findings. Defendant filed a response to plaintiff’s motion for judgment notwithstanding the verdict requesting the court to deny plaintiff’s motion and to render a take-nothing judgment based on the jury’s responses. Thereafter, the court granted plaintiff’s motion for judgment notwithstanding the verdict and remanded a judgment in favor of plaintiff in the amount of $47,000, together with pre-judgment interest compounded annually from November 30, 1989, until December 2, 1990; post-judgment interest from December 2, 1991, until the judgment is paid, and costs of court.

Defendant then filed a motion to set aside the judgment notwithstanding the jury’s verdict and to render a take-nothing judgment, pursuant to Tex.R.Civ.P. 324(b) and 329(b). The trial court denied this motion without hearing on April 8, 1991.

Defendant contends in a single point of error that the trial court erred in granting plaintiff’s motion for judgment notwithstanding the verdict and in refusing to render a take-nothing judgment based on the jury verdict. Defendant argues in this appeal that there is ample evidence which supports the jury’s responses and that there is no evidence which supports the rendition of judgment notwithstanding the verdict. We agree.

The standard of review for this appeal is well-established. The trial court cannot render judgment notwithstanding the verdict unless there is no evidence to support one or more jury findings on issues necessary to liability. Williams v. Bennett, 610 S.W.2d 144, 145 (Tex.1980). In determining a “no evidence” question, an appellate court considers only that evidence and reasonable inferences therefrom that tend to support the jury findings, disregarding all contrary evidence and inferences. Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex.1990). If more than a scintilla of evidence supports the [45]*45jury finding, it must be upheld. Garcia v. Insurance Co. of Pa., 751 S.W.2d 857, 858 (Tex.1988) (per curiam). Appellate courts must consider the evidence and inferences as they tend to support the verdict and not with a view towards supporting the judgment. Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227-228 (Tex.1990).

This is a premises liability case. Defendant was the occupier of the premises and plaintiff was an invitee. In order for an invitee to recover damages in an action against the occupier, the burden is on the invitee to prove: 1) that the occupier had actual or constructive knowledge of some condition on the premises that poses an unreasonable risk of harm to the invitee; 2) that the occupier did not exercise reasonable care to reduce or eliminate the risk; and 3) that the occupier’s failure to use such care proximately caused injury or harm to the invitee. Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295-296 (Tex.1983).

The incident that gave rise to this lawsuit occurred on April 28, 1989, at approximately 4:30 p.m. The store had been open since 9:00 a.m. Just prior to the incident, Ms. Diana Rousett, a sister of plaintiff, walked through the area where full-length mirrors were displayed; she looked at herself, and did not notice anything unusual about “a bunch of mirrors stacked there.”

Plaintiff entered the store for the purpose of shopping. She was looking for a full-length mirror and went to the area where the mirrors were displayed. She testified that “there were three rows of these (mirrors), one after another one, and it was standing up straight like that, all three rows.” She further testified that in each row there were many mirrors stacked back to back, and “were sitting on that little rack, about a foot away from the floor,” and nothing was holding them back. In describing what happened when she started to look for the price of the mirrors, she said:

I looked at them in the first row and I touched, of course, it would be this corner, and mostly for the price of the glass, and I didn’t see anything so I went for the first one; and pulled it toward me. There was nothing on the second one. When I did the third one, the second one started flipping and then the third row. So I stuck my right arm to try to stop them, but the first row started flipping towards me and I couldn’t hold them back.

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Bluebook (online)
827 S.W.2d 43, 1992 WL 41358, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wal-mart-stores-inc-v-hinojosa-texapp-1992.