*1 Lynn MILLER, Appellant, Brian STORES, INC., Appellee.

WAL-MART

No. 13-99-701-CV.

Court of

Corpus Christi.

Aug. 2001.

Rehearing Overruled Oct. *2 down, leading.

Cox On the Miller fell backwards, injuries resulting in to his neck right and shoulder. presented court with a

charge provided, part: With to conditions of respect premis- es, INC., STORES WAL-MART negligent if— a. The condition unreasonable Crane, P. Law Randall Offices of harm; risk and Crane, Benito, appel- Randall P. San for STORES, INC., lant. b. WAL-MART had danger; actual knowledge of and Jewell, Magenheim, Kevin D. Bateman c. LYNN MILLER BRIAN Helfand, Houston, Roberts, & E. Barbara danger; Drabek, Associates, Jaime Drabek & and Harlingen, appellee. STORES, INC.,

d. WAL-MART failed BRIAN warn LYNN adequately condition; and MILLER of the OPINION STORES, e. WAL-MART INC. failed reasonably conditions safe. make the Opinion Justice DORSEY. thirty Miller percent found Lynn appeals judg- Brian Miller from a seventy negligent percent and Wal-Mart notwithstanding ment entered verdict $74,681.75 negligent, and awarded Miller Stores, of Wal-Mart favor Inc. Miller damages. filed a motion for Wal-Mart judgment by challenges the three issues. judgment notwithstanding the judgment We reverse the court the trial again arguing that Miller’s knowl- and judgment plaintiff. render for the edge precluded recovery. Miller, employed by who plumbing a granted The trial Wal-Mart’s mo- court company, was at a Wal Mart to show store tion. Cox, a employee, fellow Leslie where to issues, By Miller first and second eyewash install an machine. A Wal-Mart in granting contends court erred the trial and manager walked Cox Miller to a door judgment notwithstanding the verdict be- go told them to ahead and do what support cause there was evidence each they needed to do. and Cox en- element of of action. his cause a storeroom where Wal Mart em- tered ployees unloading judgment notwithstanding merchandise. A no a mezza- verdict is if evidence to leading proper There was area, jury findings nine where the machine was to be or more of installed, liability. Tex.R. necessary had on on placed been issues Galveston, 301; Bank went with Civ. P. Brown v. (Tex.1998). Ass’n, leading way. upstairs, Once Nat. in a most showed Cox where to the We install review all the machine, down, every and then with favorable and make started to the verdict thus, this no inference in of the ver conduct evidence review reasonable favor Engi against charge measuring dict. Formosa Plastics v. Presidio the evidence neers, actually submitted. judgment if there is

will reverse n.o.v. licensee, owner As to a *3 a scintilla evi competent more than of un- liable if “the condition support jury’s findings. dence the Gre to harm; of [the] reasonable risk defendant Inc., Builder, v. Al gorcyk Hogan 884 knowledge danger; of the [the] had actual 523, (Tex.App. Corpus 525 — of plaintiff knowledge not have actual 1994, denied). writ Christi danger; [the] defendant failed Normally, lia when a ordinary protect plaintiff care to exercise bility independent case involves an con failing danger, adequately from both tractor, independent contractor failing of the condition and plaintiff warn as a business purposes treated invitee for reasonably that condition safe.” make determining of the standards by which Williams, 583, 940 S.W.2d State may premises keeper negligent. be held Comm, Jury (Tex.1996); 584-85 on Pattern Lamb, Shell Co. v. Chemical Charges, Bar of Texas Pat- State 742, v. Indian Montes Jury Charges 66.4 PJC tern Premises Ranch, Inc., 103, 107 946 S.W.2d Cliffs (2000). denied). (Tex.App. pet. Paso — El Wal-Mart there is no evidence asserts independent was an con jury’s finding support that Miller should as an tractor and have been treated knowledge did not have actual of the dan- invitee, jury if Miller charged as gerous stairway. dis- We was a licensee rather than an invitee. agree. object did not to the elements as follows, regarding Miller testified charge set forth com- and never when he went up circumstances plained that the charge improperly re- day his accident: quired him to he did not have danger. fact, stairs, going Miller’s are you As proposed charge own to the contains you anything unusual notice about the elements, including the same element anything or different from when stairs not have he you previous had been there week? [the] danger, charge given jury. as the to the employees A There were Wal-Mart

The El Paso Court of has held room, receiving the back stock or un- objection, the absence of an “[i]n or loading they a truck whatever were sufficiency usually of the evidence is mea day. doing that And there is a lot against the con sured statement of law in. placing material were charge, if defec tained even it is on stairs. Serv., tive.” Household Credit Inc. v. actually place Did see them

Driscol, (Tex.App. 989 S.W.2d — El stairs? boxes on the denied); pet. Hammer Paso see also I Well, exactly can’t if I remember Oaks, Edwards, ly them, there was boxes on the seen but (Tex.1997) (court erred in appeals reviewing sufficiency of the evidence Q. Do recall which side of measure, damages by its own on? stairs that the boxes stacked rather than measure submitted sides, I A. Both believe. jury). agree approach, with this way- Miller also testified that on his This amounts to some evidence day, actually down the he noticed that did not know of the slippery stairway. He said that condition of the they were slick. he remembered were not found that Miller did not days when he was there few earlier. He of the condition of testified on his down the at the time he fell. he had to release the handrail because the justified trial way the court was enter blocking point, boxes were it. At that ing judgment finding n.o.v. on this is if boxes, caught slipped foot one of the on upon there existed no evidence which the floor, steps. and fell down the jury could have found that Miller did not *4 cross-examination, attorney On knowledge attempted Wal Mart to establish that Mil- steps prior condition of the to his fall. See had, fact, way ler noticed on his 301; Tex.R. Civ. P. Brown v. Bank of stairs not that the were stacked boxes Galveston, N.A., If 963 S.W.2d at on the that was but the handrail evidence is viewed in the most favor and that were partially blocked verdict, considering only evi able to the slippery. following testimony was dence and inferences therefrom reasonable

taken: it, there is that tend to sufficient Miller, me, Q. you agree So with Mr. for the to find that did two you recognized things: at least danger not have One, num- slippery; the stairs were and fall. steps prior ous condition of the to his two, ber boxes that created were stairs; you getting up hazard for premises liability involving cases right? one, plaintiff this licensees such as then, way A. didn’t think of it that he did not have actual must show that no, sir. a condition of the harm risk of an unreasonable And later: Williams, 940 State v. licensee. me, Q. Okay. you explain Can Mr. Dep’t State S.W.2d 584 Miller, it why is the box didn’t block Transp. Payne, Highways and Pub. your access to the handrail on the “ ‘[Knowl up? particular involved in a edge’ the risk going handrail A. didn’t use the implies the condi slipperi- up. We didn’t comment on the dangerous, but also recognized tion is halfway, ness of the stairs until we was gravity that the chance of harm and way up. three-fourths of the appreciated.” the threatened harm is Q. got is that what slippery; § cmt. a (2d) Restatement of ToRts you saying? are (1974). although he Miller testified that A. Yes. stairway, he noticed the boxes on the get But to the hand- couldn’t slippery stairway was not notice that the supposedly rails up the stairs. half-way at least until blocked; that it? Moreover, that the hand not notice That’s it. A. was by the until he rail was blocked midway point Is this the same about It is reason coming stairway. down the where fell down? infer, therefore, Miller did not able stairway was so, fact that the Probably comprehend the sir. “unreasonably” dangerous until the mo Our of this of error disposition point remaining points ment he fell—when he forced renders moot the of error to re points presented and cross lease the at briefs. handrail the moment the stairs became pathway that his Dissenting opinion by Justice obstructed a box. Miller testified that joined by RODRIGUEZ Retired Chief it was the combination of slipping, tripping Justice ROBERT J. SEERDEN and box, being unable to use the Justice CASTILLO. handrail that him caused to fall. We hold that this amounts to some evidence that Dissenting Opinion Justice Miller did not have of RODRIGUEZ. unreasonably dangerous condition of I respectfully dissent from the Court’s stairway prior to his accident. See opinion because the in concluding Gunnels, also Royal, Palais legally sup- there is sufficient evidence to (Tex.App. [1st — Houston port the makes an inference con- dism’d.) 1998, pet. Dist.] in (holding that trary to evidence.

ferences from the circumstantial evidence considering When point, no-evidence amounted to some plaintiff evidence that *5 the court must review the in evidence a had no actual knowledge of dangerous the light verdict, most making favorable to the condition). every in reasonable inference its favor. See Formosa Engrs., Plastics v. Presidio jury considered Miller’s actions on 41, the the stairs and found him thirty per- to be Texas Supreme Court has often that said a cent negligent. His award was reduced disregard court all “must that evidence accordingly conformity in compar- with the contrary to a in finding performing a negligence ative statute. If ambiguous the review, no-evidence say that is not to evidence of what he knew of the courts disregard undisputed must evidence while on the stairwell would bar his recov- logical allows of inference.” ery law, as a matter of comparative the Giles, Universe Ins. Co. v. 950 S.W.2d Life negligence statute would effectively be nul- 48, 73-74 Provident Am. Ins. lified and signal would a return to days Castaneda, 189, Co. v. 988 S.W.2d 206-07 any when negligence of the plaintiff de- (Tex.1998) (there (Gonzalez, dissenting) J. feated recovery. The trial court in erred are circumstances in which courts must granting defendants’ judgment motion for contrary consider evidence to the verdict nov. We reverse and judgment render in legal sufficiency review); a Dow see plaintiff. Francis, 237, Chem. v.Co. 46 S.W.3d ORDERED, It is DE- ADJUDGED and (Tex.2001) (court must first examine rec- CREED that BRIAN LYNN MILLER verdict, ord for evidence supporting ignor- $53,904.20 have and recover the sum of ing all contrary; evidence to the if there is defendant, STORES, from WAL MART evidence, no such the court then examines together INC. with pre-judgment interest the entire record to see if contrary at the rate of per 10% annum beginning on law). finding is established as a matter of January 16, 1999, 1995 and ending July A point may only no-evidence be sustained $24,219.95, the amount of for a total when the record discloses one of the fol- $48,124.15. judgment (1) of Both trial and lowing: complete a absence of evidence appellate against (2) costs are fact; assessed Wal- of a vital by the court is barred Stores, Mart Inc. rules of law or evidence from giving weight prove majority

to evidence offered to further contends there is (3) fact; vital the evidence some evidence that Miller did not have offered a vital fact is no more than a mere scintilla “he (4) did not notice that handrail evidence;

of the evidence establishes was blocked the boxes until he was conclusively opposite a vital fact. stairway.” According down Homes, See Juliette Fowler Inc. v. Welch majority, could reason- Assocs., (Tex. 666 n. 9 ably compre- “that inferred not 1990) Calvert, (citing Robert W. “No Evi hend the fact that the was ‘unrea- dence” and Evidence” Points “Insufficient sonably’ dangerous until the he moment Error, 38 Tex. L.Rev. 362-63 fell-when he was forced to release (I960)); Enterprises, M. Rivas handrail at the moment the stairs became Gaytan, 24 404 (Tex.App.— pathway was ob- denied). Corpus 2000, pet. Obvi Christi by a majority’s structed box.” The infer- situation, ously, in fourth impossi “it is ence, however, contrary undisput- conclusively opposite ble establish the ed evidence record vital considering fact without aware of the slickness of stairs and Castaneda, contrary to the verdict.” along presence of the boxes the stairs be- (Gonzalez, dissenting). S.W.2d at 206 J. attempting descend them. fore case, present not get Miller testified could to the disregarding contrary the evidence handrail it blocked. This was makes unsustainable inference midway probably point about con- evidence to the testify that he was trary. *6 not to re- having aware of boxes get lease the handrail to around the majority, As noted Miller testi- descending began when placed fied he noticed that boxes were on majority The also notes that when asked stairway as he ascended the stairs. recognized if he stairs “slip- He noticed stairs also seemed for getting created a hazard boxes pery majority ac- slick.” stairs, answered, didn’t Miller “[w]e knowledges Miller noticed the stairs were no, then, think of it that sir.” slippery, it he did maintains however, testimony follow- omits half-way up not this until notice in which ing question and answer he did is some evidence Miller testified follows: danger- have my Q. Okay. I would like an answer to however, It undisputed, ous condition. question please, Despite Mr. Miller. had already observed both the professional fact that are a trained and the presence slickness responsibility, number whose along he be- when us, your personal own safe- told Thus, gan to the evi- descend the stairs. any to re- ty, you not take action that, dence is uncontradieted at time move the boxes or to ask that occurred, injury aware you? anything, be cleaned or par- stairs were slick and that No, A. sir. Thus, tially obstructed with boxes. chance, you? took a didn’t You conclusively evidence establishes sir, Yes, job. A. one little do had actual chance, you? condition. You took didn’t Yes, sir. majority’s inference that Miller did not appreciate the chance of harm and the

gravity contrary of harm is to Miller’s testimony. that,

direct I do not believe

order to find the existence of some evi- review,

dence in a no evidence a court of

appeals should make an inference that ig-

nores the existence of

directly Giles, contrary.

S.W.2d at 73-74.

I would hold Miller failed to present any

evidence he did not wit, dangerous condition, a slick

stairway with boxes stacked on it. Be-

cause Miller failed to an element of

his cause of action as set forth in the

charge, I would hold the trial court did not

eiT in granting judgment notwithstanding

the verdict.

Retired Chief Justice ROBERT J.

SEERDEN and Justice ERRLINDA join

CASTILLO in this dissenting opinion.

In the Matter of A.N.

No. 2-00-397-CV.

Court of

Fort Worth.

Aug.