*1 MARKET, Appellant, FURR’S SUPER
May Garrett, GARRETT
Appellees. Stubbeman, McRae, Sealy, Laughlin & Browder, John Harrell Feldt and Michael B.
El Paso. Midland, McKinney, appellant. for Midland, Smith, appellees. William B.
OPINION PRESLAR, F. Chief STEPHEN Justice. court, In this venue trial 9a, Negligence, reliance Subdivision 1995, Tex.Rev.Civ.Stat.Ann., Article over- Super ruled the of Furr’s Market. We affirm.
Appellee May Appel Garrett entered purpose shop grocery lant’s store for the ping, slipped and fell from substance consisting of a banana skin and liquid. a lot and her husband then She action, brought alleging that she was injured as a result of the and fall and injuries negligence were caused Appel Market. Appellees did not estab lant contends that by prepon 9a lish Section of Subdivision evidence, failing prove derance of the negligence oc that an act or omission County. Appellant Midland re curred in cases have held —that cites what numerous under in order to establish venue Subdivi sion 9a in a (1) prove (2) the de the substance on the was on the fendant knew the substance failed to willfully floor and (3) remove the substance had been for such a of time that care it should have citing Kim been discovered and removed — Roberson, bell, Whitfield Civ.App. Tyler— writ). Appellant then no evidence or insuffi urges that finding of to sustain a cient evidence *2 conditions. are opin (Tex.1976). three We of the S.W.2d 539 In that the ion that the must sustained on jury had that the found defendant knew or the employees the basis that of should have known of the condi- care, in the exercise of ordinary should have tion, granted judgment but the trial court the known that on the was floor. n.o.v. a trip That was and fall case in which a merchandise shelf protruded into The Court employ found that five the aisle and Mrs. Coffee tripped over it. store, ees of the Defendant who were in the The Appeals upheld judg- the scope course of employment and their on n.o.v., ment and focused its attention on the occasion, the were place located near the of finding that defendant knew or the should closer; the to fall —five six or feet that have known the of the of condition shelf were employees there for a continuous protruding being into the aisle and empty fell, time the before Plaintiff and they were merchandise, of saying: “There also a there at time of her and the immediate total of regarding absence evidence the ly thereafter. Court also made a find ‘gondola’ time emptied when the was or ing thereof, that or one combination how long empty it had been before Mrs. employees of such knew that the substance over tripped it.” 526 was floor the S.W.2d 793 at exercise of care, reversing the Pope should the substance was on the discussed how the rule developed floor. This is the the application duty correct of produce the of reasona some evidence that by ble care the Appellant Appellee, owed to the foreign substance had been (2d) its invitee. of Restatement Torts sec. length a sufficient of time to give pro- the (1965), adopted by Supreme the prietor notice. There was no evidence in of Corporation Texas in Adam Dante time, the case the length as to of but Jus- Sharpe, pro tice Pope wrote of other things which sus- vides: tained the jury’s that the defendant Dangerous
Sec. 343.
Conditions Known
knew or
danger-
should
known of the
to
by
or Discoverable
Possessor
ous condition.
in
before
us,
possessor
subject
length
A
evidence of
of land is
liability
to
time
physical
harm
the substance
caused
had been
invitees
if,
if,
a condition on the
but
but there is other
only
up-
land
evidence that
findings
he
holds the
that the
ees of Appellant, with the exercise of ordi-
(a)
knows
the exercise of reasona-
care,
nary
should have known
sub-
condition,
ble care would discover the
and
stance was on the floor.
should realize that
it involves an unrea-
invitees,
sonable risk
harm to such
Appellee testified with the aid of a
(b)
expect
they
will not dis-
rough plat
plan
store.
cover
danger,
or realize
will fail to
testimony
Prom her
plat,
protect
it,
against
themselves
to us that
was
there
such an amount of
(c)
fails
exercise reasonable care to
water present on the
and the five
against
protect
danger.
them
water,
employees
were so close to that
in
occupier,
care,
Whether
it. Appellee
reasonable
would discover the condi-
observed
entered the
is, then,
tion
proper
occupi-
in an
store and
an
issue
fell in
area between the entry
way
stands,
er/invitee case. One
to establish that
door and the check-out
which is occupier
should have
an
known
dan-
area
displayed.
where merchandise was
gerous
condition is
that the
There
proximi
were five
in close
such a
ty
existed for
as would
fall —within five or six
give
occupier
opportunity
reasonable
feet of
Appellee
fact.
testified that
Pope
discover it. Justice
discusses this
“[qjuite
liquid;”
a lot of
that her
wet;”
Coffee v. F. W.
clothing
“soaking
Woolworth
that there was
Inc.,
Weingarten,
check-out stand to O’Neal v. J.
a trail of water from the
328 S.W.2d
door;
pool
and that
there was a
— Beaumont
water where she fell.
went
Great Atlantic & Pacific Tea
“[T]he
around this desk here.
It went around the
Giles,
Company v.
along
comer
the desk and
here.” This
Hall v.
— Dallas
*3
plat
was sketched in on a
to be from check
Stores, Inc.,
Safeway
(Tex.
tion where the invitee fell is not sufficient liability.
to establish Some five months
later, the Court now does an about face and presence
concludes that the store
employees in proximity close
fall is sufficient to establish liability.
Finally, majority opinion totally fails recognize and discuss the issue wheth
er the substance had been on the
floor for such a period of time that it not discovered,
only would have been but that it
also would have been removed the De *4 in the
fendant If as to the of time substance had
how can there abe determination that care the substance been both discovered and re prior
moved to Mrs. Garrett’s fall? See:
Dissenting Opinion, Kimbell, Inc. v. Her
nandez, 572 at 786-7 having
Without made effort to estab- what,
lish if any, knowledge
ees may near concerning accident, the evidence has
not been developed remanded for hearing. another
But, I dissent from the decision af-
firms the order of the trial Court. Jennings, Montgomery,
Elton M. Mont- Turner, gomery, Graham, for appel- Dies & FINDER, Appellant, Richard M. lant. Jr., Firm, Simpson, The Carlton Dal- O’CONNOR, Appellant. Harold E. las, for appellee. GUITTARD, C.J., Before and AKIN and Civil CARVER, JJ. Dallas. CARVER, Justice. Finder, below, M. ap- Richard peals overruling from a trial court order under subdivision article since 1995. Finder contends that petition overriding seeks title certain