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Lee v. Boynton5/27/1999
Elizabeth Boynton brought suit against Wilford Lee, individually, and Wilford Lee, Inc., d/b/a Willee's Discount Foods (Willee's) to recover damages for personal injury . Based upon the jury verdict, judgment was entered in favor of Boynton.
Willee's first issue claims there is no evidence, or alternatively insufficient evidence, on the issue of actual or constructive knowledge.
"A threshold requirement for a slip-and-fall claim is that the premises owner/operator had actual or constructive knowledge of the premises defect. Motel 6 G. P., Inc. v. Lopez, 929 S.W.2d [1,] 3 [(Tex. 1996)]. An invitee must prove that the owner/operator either knew, or after reasonable inspection should have known, of an unreasonably dangerous condition before arguing that the owner/operator has breached a duty by failing to take any one of several precautions. Id. "In slip-and-fall cases, the courts have required that the actual or constructive knowledge requirement be met in one of three ways. Keetch v. Kroger Co., 845 S.W.2d [262,] 265 [(Tex. 1992)]. The invitee may prove: (1) that the owner/operator put the foreign substance on the floor; (2) that the owner/operator knew that it was on the floor and negligently failed to remove it; or (3) that the substance was on the floor so long that, in the exercise of ordinary care, it should have been discovered and removed. Id. ". . ." Richardson v. Wal-Mart Stores, Inc., 963 S.W.2d 162, 165 (Tex. App.--Texarkana 1998, no pet.).
We will consider the sufficiency of the evidence to support the jury's finding under each of these three ways.
Boynton has not claimed Willee's created the dangerous condition. There was no evidence elicited at trial that Willee's put the chicken drippings on the floor.
There is some evidence that the chicken drippings were on the floor so long that, in the exercise of ordinary care, they should have been discovered and removed. See id. (citing Keetch, 845 S.W.2d at 265; Coffee v. F.W. Woolworth Co., 536 S.W.2d 539 (Tex. 1976)). Sandra Hudnall testified she was in line to check-out behind Boynton when Boynton fell. According to Hudnall, the drippings were there the entire time she was in line, approximately five to ten minutes. Hudnall testified the puddle was not created while she was standing in line. In Hudnall's opinion, the drippings were there long enough that somebody from the store could have cleaned it up before she got up to check out.
The present case is unlike that of Gonzalez in that here the witness saw the hazard prior to the fall and had personal knowledge of the length of time it had been on the floor. Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 938 (Tex. 1998). Thus, Hudnall's testimony is not merely a speculative and subjective opinion but has evidentiary value. Id. at 937. We find the record contains some evidence from which the jury could infer the substance had been on the floor long enough to charge Willee's with notice of it. Cf. Gonzalez, 968 S.W.2d at 936.
In considering the factual sufficiency of the evidence, we consider, weigh and examine all of the evidence. See Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). We set aside the verdict only if the evidence supporting the jury's finding is so weak as to be clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
On cross-examination, Hudnall said she did not know where the substance came from or if it came from the customer in front of Boynton. Hudnall acknowledged she could not say if the puddle was created as she walked up to the line, as she was in line, or was from the customer in front of Boynton.
Dana
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