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Wal-Mart Stores6/21/2000
Opinion by:Paul W. Green, Justice
Concurring opinion by: Phil Hardberger, Chief Justice, joined by Justice López
REVERSED IN PART AND RENDERED
In this personal injury case, appellant, Wal-Mart Stores, Inc., appeals from a jury verdict in favor of appellee, Paula Garza. In three issues, Wal-Mart complains (1) there is no evidence of a premises defect to support the jury's verdict against Wal-Mart, (2) if the case was properly submitted as a premises defect case, there is no evidence or insufficient evidence the defect proximately caused Paula Garza's injury, and (3) remittitur is required because there is no evidence or insufficient evidence of future medical damages. In a single cross-point, Garza alleges Wal-Mart's employee, Melecio Garza, should have been found negligent as a matter of law; therefore, the verdict against Wal-Mart may be upheld on a theory of vicarious liability. We reverse the trial court's judgment in part and render judgment in favor of Wal-Mart.
Background
Paula Garza (Garza) was shopping at Wal-Mart on December 26, 1996, when she was struck in the back of the head and neck by a boxed television being lifted down from a storage riser by a Wal-Mart employee, Melecio Garza (Melecio). Geronimo Rios, another employee, had used a ladder to climb up on the display and asked a second employee, Juan, to get a second ladder to help him. Melecio came along and lifted the television box off the riser. The set was a 19" television weighing about 30-35 pounds. Melecio testified he had no problem with the weight of the small television but as he turned to hand the set to the customer, he simply did not see where Garza was standing and struck her with the box. Rios says the box slipped out of Melecio's hands and fell on Garza. It is undisputed the stacked television boxes were stable and not likely to fall, and the riser was well able to bear the weight of the television boxes.
Garza sued both Wal-Mart and the employee, Melecio Garza. The jury was given the following instructions:
"NEGLIGENCE" when used with respect to WAL-MART STORES, INC., means failure to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the owner or occupier knows about or in the exercise of ordinary care should know about.
"NEGLIGENCE" when used with respect to Melecio Garza means failure to use ordinary care; that is to say, failure to do that which a person of ordinary prudence would have done under the same or similar circumstances, or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.
A single liability question was presented to the jury:
Did the negligence, if any, of those named below proximately cause the occurrence in question? Answer "Yes" or "No" for each of the following
WAL-MART STORES, INC. __________
MELECIO GARZA __________
The jury answered "No" as to Melecio Garza and "Yes" as to Wal-Mart.
Wal-Mart argues because the jury answered "No" to the negligence of Melecio Garza, Wal-Mart cannot be held liable under a negligent activity claim. Wal-Mart then complains the question of Wal-Mart's liability is presented as a "premises defect" question, yet there is no evidence of a premises condition or premises defect to support the jury's "Yes" answer as to Wal-Mart.
(1) Premises Defect or Negligent Activity?
Garza characterizes the claim as a "premises defect" case. Wal-Mart asserts it is a negligent activity case. Both parties agree the definition of negligence presented to the jury with rega
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