Wal-Mart Stores Texas, LLC v. Dawn Bishop
553 S.W.3d 648
Tex. App.2018Background
- On July 7, 2012, Dawn Bishop was shopping in Walmart’s open "clearance" area with temporary, wheeled plant racks; a box fell from an upper shelf and struck her head while she was bent over looking at curtains. A contemporaneous incident report and customer statement recorded the box hitting her head and a candle later hitting her foot.
- Walmart employee Bhola Gajurel (a cashier) was in the clearance area restacking merchandise; he testified he was sick, had no training for stocking that area, and denied knowing how the box fell. He previously gave inconsistent sworn statements blaming Bishop for manipulating the merchandise.
- Bishop received immediate urgent-care treatment and continuous medical care thereafter, ultimately undergoing cervical fusion surgery and claiming ongoing neck pain, physical impairment, and mental anguish. Walmart’s medical expert opined the injuries were degenerative/age-related; Bishop’s treating orthopedic testified the box caused an axial flexion injury leading to the surgery.
- A jury found Gajurel negligent within the course and scope of employment and awarded Bishop $1,393,484.52; the trial court entered judgment and Walmart appealed raising six issues (sufficiency of proximate cause, expert disclosure, section 18.001 counteraffidavits, jury-charge language, damages sufficiency, and improper jury argument).
- The court of appeals reviewed legal and factual sufficiency, abuse of discretion on evidentiary rulings, and jury‑argument preservation and harm; it affirmed the trial court on all issues.
Issues
| Issue | Bishop's Argument | Walmart's Argument | Held |
|---|---|---|---|
| 1. Whether evidence supports that Gajurel’s negligence proximately caused the box to fall | Gajurel was stocking without training or standards in a known hazard area; testimony and contemporaneous reports support causation | No evidence identified what caused the box to fall or what conduct violated a standard of care; challenged both legally and factually | Affirmed: legal and factual sufficiency exist; jury could infer negligence and foreseeability from evidence of stocking activity, lack of standards/training, and hazard of falling merchandise |
| 2. Whether box caused Bishop’s neck injury and admissibility of Dr. Stanley as rebuttal expert | Injury began immediately, continuous treatment and treating expert causation testimony; Dr. Stanley rebutted defense expert | Walmart contended Dr. Stanley was not properly disclosed and not a proper rebuttal witness; causation disputed | Affirmed: evidence legally and factually sufficient for causation; trial court did not abuse discretion allowing Stanley as rebuttal on causation |
| 3. Whether trial court erred by denying leave to file late §18.001 counteraffidavit and excluding Walmart’s expert on medical expenses | Bishop relied on timely §18.001 affidavits; exclusion spared her cost of live testimony | Walmart argued its timely expert designation sufficed to give notice and court should allow late filing | Affirmed: trial court within discretion to deny late counteraffidavit; exclusion of Walmart’s counter‑expert proper under §18.001 |
| 4. Whether jury charge was ambiguous by failing to limit negligence definitions to Gajurel’s conduct | Jury question explicitly stated Walmart negligent only if Gajurel was negligent in course/scope; definitions were standard | Walmart argued definitions could confuse jurors and allow liability on other bases | Affirmed: no reversible error — the liability question tied negligence to Gajurel and Walmart proposed similar language at charge conference |
Key Cases Cited
- Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194 (Tex. 2011) (legal‑sufficiency standard when appellant lacked burden of proof)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (standards for reviewing legal sufficiency and juror credibility)
- Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757 (Tex. 2003) (factual‑sufficiency standard — great weight and preponderance review)
- King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. 2003) (legal sufficiency principles)
- Havner v. E–Z Mart Stores, Inc., 825 S.W.2d 456 (Tex. 1992) (proximate cause may be established by circumstantial evidence and reasonable inferences)
- Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472 (Tex. 1995) (proximate cause not established by speculation; foreseeability standard)
- Stanfield v. Neubaum, 494 S.W.3d 90 (Tex. 2016) (cause‑in‑fact and foreseeability elements of proximate cause)